Blake Lively- Jason Baldoni and NYT - False Light claims

[Anonymous]

Anonymous wrote:The group pleading issue has nothing to do with the strength of the allegations, it’s just a specificity issue because there are multiple plaintiffs. Basically, Freedman will replead showing which allegations go with which plaintiffs.

So why was he so sloppy in the first place …

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Can anyone speak to how kindly the judge is likely to look up on Wayfarer having to replead to address the group pleading issue when they've already filed an amended complaint?

It just seems like a really obvious defect in the original complaint that they could have resolved with the first amended complaint. Wondering if judge's ever say "nope, you had your shot."

Another legal question: would the judge tell them to replead to address the group pleading issue BEFORE looking at the other arguments in the MTD? This seems a little unfair because the MTD was drafted based on the amended complaint. If they file a second amended complaint, won't NYT have to then file a new MTD, since there may be substantive changes to the complaint that could impact their other arguments. Plus they will be able to amend with the NYT's other arguments in mind.

It just seems to me like Wayfarer wasted the court's time by filing not one but two defective pleadings with an obvious technical issue that will get it dismissed, and this is forcing the NYT to spend a lot more money and time just to get to the substantive issues. Does the court ever call out behavior like that in a plaintiff?

You fail to grasp that the remedy for group pleading is the oppprtinity to replead. It isn’t a big deal.

Why didn't they address this issue with the first amended complaint though? That's the part I don't understand. Seems like everyone agrees it's a problem.

Anyway, my question was whether the judge will be irritated. If it's just a technical issue and it's standard to let them fix it, ok, but since this will now push back the MTD and the judge has previously been annoyed with parties for trying to extend deadlines, I'm wondering if the judge will be annoyed by this.

Also wondering if this will affect discovery in the NYT case -- NYT wants to delay that until after the MTD, right? But Wayfarer is objecting? But now Wayfarer is going to amend their complaint again... seems like the judge might be irritated by this, but I have no idea.

Well, it’s just a request for more specific pleading so it shouldn’t take long. Freedman has two options at this point, not admit his mistake, and go through the briefing cycle, and then replead after the judge told him to. Or say, that’s a fair point, and replead now. Which do you think a judge would prefer?

I feel like it could take longer than normal because the complaint is so long. It's 224 pages long and they group all the parties together at the beginning and then treat them as the same the entire way through. Amending the complaint to fix the group pleading issue means clearly distinguishing which defendants are included in each specific claim. NYT also cites precedent that specifically attacks a complaint for length and tangents making it hard to understand the exact allegations. If that's a problem with the Wayfarer complaint, it appears they will have to rewrite the whole thing.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:New letter from Wayfarer attorney's regarding NYT's motion to stay discovery pending the MTD: https://storage.courtlistener.com/recap/gov.uscourts.nysd.634304/gov.uscourts.nysd.634304.117.0.pdf

Couple of interesting-ish things
-Even if NYT's case is dismissed, they still intend to serve them subpoenas for discovery in the Wayfarer/Lively case.
-Their argument on the merits is similar to some PPs in this thread: that NYT did not just report on the complaint, but made its own conclusions, without full context, and they cite one case where where a "reasonable jury could find that news article suggested more serious conduct than actually suggested in official
proceeding."
-They noted "the Wayfarer Parties do not presently intend to move to dismiss Ms.
Lively’s claims."

Only the third bullet surprised me... why wouldn't they be doing so?

Could be that they are arguing that their own claims involve issues for the trier of fact that can't be dealt with in a motion to dismiss, and arguing that other claims could be dismissed at this stage could get in the way of that. And also as PP says, the Lively complaint is strong enough to survive such a motion.

I also found it interesting that Freedman is basically immediately conceding the group pleading point and noting that they will amend their complaint immediately (basically ignoring/evading NYTs argument that the complaint should be dismissed with prejudice on that basis alone). In other words, had Freedman not so amended, the complaint likely would have been dismissed on these grounds (likely without prejudice).

This is how one builds credibility with the Court. Now the judge doesn’t have to waste time on that argument.

lol no. You don’t build credibility by filing a crap complaint then amending it.

The judge would have allowed them to replead anyway. This just moves up the timeline and saves the judge time. Now he just has to consider the actual dispositive arguments made by The NY Times.

probably but my point was it’s not “building credibility” to file a crap complaint then amend it when you see the MTD and you realize you are out of your depth legally

I agree with this. Filing the inflammatory complaint quickly to influence public opinion was more important to them than doing it right. And yet, they filed the long ridiculous timeline as well instead of dealing with the group pleading problem.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:New letter from Wayfarer attorney's regarding NYT's motion to stay discovery pending the MTD: https://storage.courtlistener.com/recap/gov.uscourts.nysd.634304/gov.uscourts.nysd.634304.117.0.pdf

Couple of interesting-ish things
-Even if NYT's case is dismissed, they still intend to serve them subpoenas for discovery in the Wayfarer/Lively case.
-Their argument on the merits is similar to some PPs in this thread: that NYT did not just report on the complaint, but made its own conclusions, without full context, and they cite one case where where a "reasonable jury could find that news article suggested more serious conduct than actually suggested in official
proceeding."
-They noted "the Wayfarer Parties do not presently intend to move to dismiss Ms.
Lively’s claims."

Only the third bullet surprised me... why wouldn't they be doing so?

Could be that they are arguing that their own claims involve issues for the trier of fact that can't be dealt with in a motion to dismiss, and arguing that other claims could be dismissed at this stage could get in the way of that. And also as PP says, the Lively complaint is strong enough to survive such a motion.

I also found it interesting that Freedman is basically immediately conceding the group pleading point and noting that they will amend their complaint immediately (basically ignoring/evading NYTs argument that the complaint should be dismissed with prejudice on that basis alone). In other words, had Freedman not so amended, the complaint likely would have been dismissed on these grounds (likely without prejudice).

This is how one builds credibility with the Court. Now the judge doesn’t have to waste time on that argument.

lol no. You don’t build credibility by filing a crap complaint then amending it.

The judge would have allowed them to replead anyway. This just moves up the timeline and saves the judge time. Now he just has to consider the actual dispositive arguments made by The NY Times.

probably but my point was it’s not “building credibility” to file a crap complaint then amend it when you see the MTD and you realize you are out of your depth legally

That ‘s because you fail to realize that the group pleading argument doesn’t really have anything to do with substance of the claims. Clearly that’s a disappointment for you.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Can anyone speak to how kindly the judge is likely to look up on Wayfarer having to replead to address the group pleading issue when they've already filed an amended complaint?

It just seems like a really obvious defect in the original complaint that they could have resolved with the first amended complaint. Wondering if judge's ever say "nope, you had your shot."

Another legal question: would the judge tell them to replead to address the group pleading issue BEFORE looking at the other arguments in the MTD? This seems a little unfair because the MTD was drafted based on the amended complaint. If they file a second amended complaint, won't NYT have to then file a new MTD, since there may be substantive changes to the complaint that could impact their other arguments. Plus they will be able to amend with the NYT's other arguments in mind.

It just seems to me like Wayfarer wasted the court's time by filing not one but two defective pleadings with an obvious technical issue that will get it dismissed, and this is forcing the NYT to spend a lot more money and time just to get to the substantive issues. Does the court ever call out behavior like that in a plaintiff?

You fail to grasp that the remedy for group pleading is the oppprtinity to replead. It isn’t a big deal.

Why didn't they address this issue with the first amended complaint though? That's the part I don't understand. Seems like everyone agrees it's a problem.

Anyway, my question was whether the judge will be irritated. If it's just a technical issue and it's standard to let them fix it, ok, but since this will now push back the MTD and the judge has previously been annoyed with parties for trying to extend deadlines, I'm wondering if the judge will be annoyed by this.

Also wondering if this will affect discovery in the NYT case -- NYT wants to delay that until after the MTD, right? But Wayfarer is objecting? But now Wayfarer is going to amend their complaint again... seems like the judge might be irritated by this, but I have no idea.

Well, it’s just a request for more specific pleading so it shouldn’t take long. Freedman has two options at this point, not admit his mistake, and go through the briefing cycle, and then replead after the judge told him to. Or say, that’s a fair point, and replead now. Which do you think a judge would prefer?

I feel like it could take longer than normal because the complaint is so long. It's 224 pages long and they group all the parties together at the beginning and then treat them as the same the entire way through. Amending the complaint to fix the group pleading issue means clearly distinguishing which defendants are included in each specific claim. NYT also cites precedent that specifically attacks a complaint for length and tangents making it hard to understand the exact allegations. If that's a problem with the Wayfarer complaint, it appears they will have to rewrite the whole thing.

+1. i don’t think I’ve ever even heard of a 200+ page complaint.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:New letter from Wayfarer attorney's regarding NYT's motion to stay discovery pending the MTD: https://storage.courtlistener.com/recap/gov.uscourts.nysd.634304/gov.uscourts.nysd.634304.117.0.pdf

Couple of interesting-ish things
-Even if NYT's case is dismissed, they still intend to serve them subpoenas for discovery in the Wayfarer/Lively case.
-Their argument on the merits is similar to some PPs in this thread: that NYT did not just report on the complaint, but made its own conclusions, without full context, and they cite one case where where a "reasonable jury could find that news article suggested more serious conduct than actually suggested in official
proceeding."
-They noted "the Wayfarer Parties do not presently intend to move to dismiss Ms.
Lively’s claims."

Only the third bullet surprised me... why wouldn't they be doing so?

Could be that they are arguing that their own claims involve issues for the trier of fact that can't be dealt with in a motion to dismiss, and arguing that other claims could be dismissed at this stage could get in the way of that. And also as PP says, the Lively complaint is strong enough to survive such a motion.

I also found it interesting that Freedman is basically immediately conceding the group pleading point and noting that they will amend their complaint immediately (basically ignoring/evading NYTs argument that the complaint should be dismissed with prejudice on that basis alone). In other words, had Freedman not so amended, the complaint likely would have been dismissed on these grounds (likely without prejudice).

This is how one builds credibility with the Court. Now the judge doesn’t have to waste time on that argument.

lol no. You don’t build credibility by filing a crap complaint then amending it.

The judge would have allowed them to replead anyway. This just moves up the timeline and saves the judge time. Now he just has to consider the actual dispositive arguments made by The NY Times.

probably but my point was it’s not “building credibility” to file a crap complaint then amend it when you see the MTD and you realize you are out of your depth legally

Worse, they already amended it once, didn't address the obvious defect, and now will want leave to amend it again. And at the same time, they are asking the court to deny the NYT's request to stay discovery until after the MTD has been resolved. So they are protracting the MTD deliberations due to their own sloppy pleading but also arguing they can't possibly be expected to wait until after the MTD proceedings are complete to start discovery against the NYT. It's so messy.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:New letter from Wayfarer attorney's regarding NYT's motion to stay discovery pending the MTD: https://storage.courtlistener.com/recap/gov.uscourts.nysd.634304/gov.uscourts.nysd.634304.117.0.pdf

Couple of interesting-ish things
-Even if NYT's case is dismissed, they still intend to serve them subpoenas for discovery in the Wayfarer/Lively case.
-Their argument on the merits is similar to some PPs in this thread: that NYT did not just report on the complaint, but made its own conclusions, without full context, and they cite one case where where a "reasonable jury could find that news article suggested more serious conduct than actually suggested in official
proceeding."
-They noted "the Wayfarer Parties do not presently intend to move to dismiss Ms.
Lively’s claims."

Only the third bullet surprised me... why wouldn't they be doing so?

Could be that they are arguing that their own claims involve issues for the trier of fact that can't be dealt with in a motion to dismiss, and arguing that other claims could be dismissed at this stage could get in the way of that. And also as PP says, the Lively complaint is strong enough to survive such a motion.

I also found it interesting that Freedman is basically immediately conceding the group pleading point and noting that they will amend their complaint immediately (basically ignoring/evading NYTs argument that the complaint should be dismissed with prejudice on that basis alone). In other words, had Freedman not so amended, the complaint likely would have been dismissed on these grounds (likely without prejudice).

This is how one builds credibility with the Court. Now the judge doesn’t have to waste time on that argument.

lol no. You don’t build credibility by filing a crap complaint then amending it.

The judge would have allowed them to replead anyway. This just moves up the timeline and saves the judge time. Now he just has to consider the actual dispositive arguments made by The NY Times.

probably but my point was it’s not “building credibility” to file a crap complaint then amend it when you see the MTD and you realize you are out of your depth legally

That ‘s because you fail to realize that the group pleading argument doesn’t really have anything to do with substance of the claims. Clearly that’s a disappointment for you.

No one thinks it has anything to do with substance. Everyone understands it's a technical, procedural problem. But in motions practice, technical and procedural errors that pile up can bury you.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:[twitter]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

But if you can argue the NYT article is defamation, then this is too. And there are literally hundred of articles like this online about this case.

Not just this case, but every case and every news article. Every time you read "the Associated Press is reporting," "per accounts," "according to a source close to the situation," "the lawsuit states..." these are all examples of the reporters covering themselves, because they are reporting what was said, rather than the underlying facts. You will find thousands of such examples every day if you look for them.

This is so much more than just this case. These are basic tenets of defamation law in the US. It should not be assumed that anyone who thinks NYT will win is a Blake Lively supporter. It has nothing to do with her, it's just the example currently being discussed.

Megan wasn’t careful in her video though. Go back and watch it. She says as fact something like “hundreds of text messages reveal what really happened, a calculated smear campaign”. She didn’t use caveats at all.

The problem is, the smear campaign rests on the fact that there was sexual harassment. When he came out with his side of the story, we see that the sexual harassment is a very gray area and going to be hard to prove. It seems like it was just inappropriate and uncomfortable behavior and then you start seeing her take over of the movie and how uncomfortable and stressed out he was the entire time and you see why he has hired a PR crisis campaign.

The man was not allowed in his own premiere, and his director a film by credit was stripped. His version of the film did not go out into the world. She completely took over the movie, of course he was going to hire help. He was afraid of what she would continue to do and rightly so.

That is the context the times left out that we are all getting now.

And this is what should’ve given the times pause. Sexual harassment is about power and Blake lively pretty much complete power on that film. Her version of things simply does not add up.

I can't tell if you are simply lying on purpose or just repeating lies other people have told you.

Baldoni attended the premiere. Here he is on the red carpet, posing for photos and giving interviews (he also watched the film in a theater full of friends, family, and Wayfarer personnel):
Arriving at the premiere: https://www.tiktok.com/@hollywoodreporter/video/7400456757102873898?lang=en
Walking the red carpet, posing for photos: https://www.gettyimages.com/search/2/image?events=776185420&family=editorial&phrase=Justin%20Baldoni%20it%20ends%20with%20us%20premiere&recommendconfig=recommendonly
One of several red carpet interviews: https://youtu.be/BDOLAlZ_1dc?si=-b0KbssCGfNQswVO

Baldoni is credited as the director of the movie. He received a "directed by" credit.

The "a film by" credit, also called a possessory credit, is pretty rare. It is *often* an extremely political decision, and many fights have been had over it. It is most common when the director is also the screenwriter, though not all directors who write their movies take it. The biggest criticism of the "a film by" credit is that it diminished the contributions of everyone else who worked on the movie, making it seem like the act of a single person when filmmaking is inherently collaborative. It is somewhat comical that Baldoni, a newbie director, would claim the credit on a movie he did not write, based on a novel he did not write, and where the distributing studio had decided to release someone else's edit. Of course he did not receive this credit! You can read more about the history, and politics, of the possessory credit here: https://www.vanityfair.com/hollywood/2015/03/vanity-credit-a-film-by

And going to your claim that the sexual harassment was "just inappropriate and uncomfortable behavior" and doesn't count -- what do you think sexual harassment is?

It’s really not up to you to explain how Justin felt about a film by being stripped from his name. Maybe it wouldn’t be a big deal to you, it was a big deal to him and it would be for most filmmakers.

I know you keep saying, and saying again, that Blake experience sexual harassment, but we are what we are telling you is that many of us don’t believe she did.

The point is that the film was not "stripped of his name." The movie said "Directed by Justin Baldoni." He was the director. His name is on the movie.

"A film by" credits are not super common and often controversial. It would be very unusual for a newish director to claim it on a movie like this, where he didn't write the script AND the script was based on a book by someone else AND the version released wasn't even edited by Baldoni. I've never heard of someone in a situation like that taking a possessory credit.

Justin might have still felt sad about that, I don't know. But then he felt sad about something that it was frankly weird for him to feel entitled to in the first place. The Cohen brothers don't even take a possessory credit on their movies, and they write all their films and have a distinctive and recognizable style and have been nominated for many Oscars. Baldoni thinks he's a bigger deal than the Cohen brothers. Please.

Since you seem to have some knowledge of this, what did you make of Blake claiming the PGA mark?

I think it's highly irregular and that it was especially ballsy of her to insist on them recommending her for it even though Wayfarer clearly didn't want to. However, I still don't have a good sense of how this movie was actually made. Like I still don't have a sense of how involved Lively was in the final edit, for instance, or exactly how much of the production she had a hand in. In a weird way, the argument that she stole the movie from Baldoni actually works in favor of her argument that she deserved the p.g.a. mark -- if she genuinely took over, then maybe she does deserve it? But it's super unusual. Usually that mark is reserved for someone who really shepherded the project through to completion. Here, the production was so contentious with all these power struggles, not just Baldoni and Lively but also Wayfarer and Sony, and it's really unclear to me. I still think it's crazy she got the p.g.a. mark but I'm also open to learning more about exactly who production decisions were made on the movie and how those power struggles unfolded and got resolved on a case by case basis.

I have read the texts/emails between Wayfarer producers and between Wayfarer and Sony but there's still a lot missing (most notably the communications between Lively and Sony, and between Lively and other professionals on the production, like editors, set designers, costumers, etc.) that would provide a much fuller picture of exactly who was doing what.

There is no evidence that Blake did most of the work that would get her a producer credit. Producers are not added on at the last minute typically. It was really telling that Heath and team wrote the letter to document that it was under duress. Blake did not do the work to earn a producer credit make no mistake about that.

A lot of the work of producers is a lot of true grunt and thankless work. Dealing with a lot of the operations, budgeting, not the fun stuff like picking out the clothes and writing a fun rooftop scene.

If Blake did any of that, some evidence would be nice. All that we have seen is that she rewrote the scene which we now know that Ryan did. And that she hired Deadpool editors to get the final cut oh and pretty safe to say, she picked out her wardrobe.

She wasn’t even on set when Isabel and young Atlas were filming their scenes, and that was a good third of the film.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:New letter from Wayfarer attorney's regarding NYT's motion to stay discovery pending the MTD: https://storage.courtlistener.com/recap/gov.uscourts.nysd.634304/gov.uscourts.nysd.634304.117.0.pdf

Couple of interesting-ish things
-Even if NYT's case is dismissed, they still intend to serve them subpoenas for discovery in the Wayfarer/Lively case.
-Their argument on the merits is similar to some PPs in this thread: that NYT did not just report on the complaint, but made its own conclusions, without full context, and they cite one case where where a "reasonable jury could find that news article suggested more serious conduct than actually suggested in official
proceeding."
-They noted "the Wayfarer Parties do not presently intend to move to dismiss Ms.
Lively’s claims."

Only the third bullet surprised me... why wouldn't they be doing so?

Could be that they are arguing that their own claims involve issues for the trier of fact that can't be dealt with in a motion to dismiss, and arguing that other claims could be dismissed at this stage could get in the way of that. And also as PP says, the Lively complaint is strong enough to survive such a motion.

I also found it interesting that Freedman is basically immediately conceding the group pleading point and noting that they will amend their complaint immediately (basically ignoring/evading NYTs argument that the complaint should be dismissed with prejudice on that basis alone). In other words, had Freedman not so amended, the complaint likely would have been dismissed on these grounds (likely without prejudice).

This is how one builds credibility with the Court. Now the judge doesn’t have to waste time on that argument.

lol no. You don’t build credibility by filing a crap complaint then amending it.

The judge would have allowed them to replead anyway. This just moves up the timeline and saves the judge time. Now he just has to consider the actual dispositive arguments made by The NY Times.

probably but my point was it’s not “building credibility” to file a crap complaint then amend it when you see the MTD and you realize you are out of your depth legally

Worse, they already amended it once, didn't address the obvious defect, and now will want leave to amend it again. And at the same time, they are asking the court to deny the NYT's request to stay discovery until after the MTD has been resolved. So they are protracting the MTD deliberations due to their own sloppy pleading but also arguing they can't possibly be expected to wait until after the MTD proceedings are complete to start discovery against the NYT. It's so messy.

It’s not messy at all. Discovery is already ongoing. You may be aware of that given that Blake’s subpoenas were just quashed for failure to meet the relevancy requirements. Had her lawyers just fixed them instead of ignoring their “obvious defects” once such defects were pointed out, they wouldn’t have been quashed. Sometimes a little humility goes a long way.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:New letter from Wayfarer attorney's regarding NYT's motion to stay discovery pending the MTD: https://storage.courtlistener.com/recap/gov.uscourts.nysd.634304/gov.uscourts.nysd.634304.117.0.pdf

Couple of interesting-ish things
-Even if NYT's case is dismissed, they still intend to serve them subpoenas for discovery in the Wayfarer/Lively case.
-Their argument on the merits is similar to some PPs in this thread: that NYT did not just report on the complaint, but made its own conclusions, without full context, and they cite one case where where a "reasonable jury could find that news article suggested more serious conduct than actually suggested in official
proceeding."
-They noted "the Wayfarer Parties do not presently intend to move to dismiss Ms.
Lively’s claims."

Only the third bullet surprised me... why wouldn't they be doing so?

Could be that they are arguing that their own claims involve issues for the trier of fact that can't be dealt with in a motion to dismiss, and arguing that other claims could be dismissed at this stage could get in the way of that. And also as PP says, the Lively complaint is strong enough to survive such a motion.

I also found it interesting that Freedman is basically immediately conceding the group pleading point and noting that they will amend their complaint immediately (basically ignoring/evading NYTs argument that the complaint should be dismissed with prejudice on that basis alone). In other words, had Freedman not so amended, the complaint likely would have been dismissed on these grounds (likely without prejudice).

This is how one builds credibility with the Court. Now the judge doesn’t have to waste time on that argument.

lol no. You don’t build credibility by filing a crap complaint then amending it.

The judge would have allowed them to replead anyway. This just moves up the timeline and saves the judge time. Now he just has to consider the actual dispositive arguments made by The NY Times.

probably but my point was it’s not “building credibility” to file a crap complaint then amend it when you see the MTD and you realize you are out of your depth legally

Worse, they already amended it once, didn't address the obvious defect, and now will want leave to amend it again. And at the same time, they are asking the court to deny the NYT's request to stay discovery until after the MTD has been resolved. So they are protracting the MTD deliberations due to their own sloppy pleading but also arguing they can't possibly be expected to wait until after the MTD proceedings are complete to start discovery against the NYT. It's so messy.

It’s not messy at all. Discovery is already ongoing. You may be aware of that given that Blake’s subpoenas were just quashed for failure to meet the relevancy requirements. Had her lawyers just fixed them instead of ignoring their “obvious defects” once such defects were pointed out, they wouldn’t have been quashed. Sometimes a little humility goes a long way.

That was also messy.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:New letter from Wayfarer attorney's regarding NYT's motion to stay discovery pending the MTD: https://storage.courtlistener.com/recap/gov.uscourts.nysd.634304/gov.uscourts.nysd.634304.117.0.pdf

Couple of interesting-ish things
-Even if NYT's case is dismissed, they still intend to serve them subpoenas for discovery in the Wayfarer/Lively case.
-Their argument on the merits is similar to some PPs in this thread: that NYT did not just report on the complaint, but made its own conclusions, without full context, and they cite one case where where a "reasonable jury could find that news article suggested more serious conduct than actually suggested in official
proceeding."
-They noted "the Wayfarer Parties do not presently intend to move to dismiss Ms.
Lively’s claims."

Only the third bullet surprised me... why wouldn't they be doing so?

Could be that they are arguing that their own claims involve issues for the trier of fact that can't be dealt with in a motion to dismiss, and arguing that other claims could be dismissed at this stage could get in the way of that. And also as PP says, the Lively complaint is strong enough to survive such a motion.

I also found it interesting that Freedman is basically immediately conceding the group pleading point and noting that they will amend their complaint immediately (basically ignoring/evading NYTs argument that the complaint should be dismissed with prejudice on that basis alone). In other words, had Freedman not so amended, the complaint likely would have been dismissed on these grounds (likely without prejudice).

This is how one builds credibility with the Court. Now the judge doesn’t have to waste time on that argument.

lol no. You don’t build credibility by filing a crap complaint then amending it.

The judge would have allowed them to replead anyway. This just moves up the timeline and saves the judge time. Now he just has to consider the actual dispositive arguments made by The NY Times.

probably but my point was it’s not “building credibility” to file a crap complaint then amend it when you see the MTD and you realize you are out of your depth legally

Worse, they already amended it once, didn't address the obvious defect, and now will want leave to amend it again. And at the same time, they are asking the court to deny the NYT's request to stay discovery until after the MTD has been resolved. So they are protracting the MTD deliberations due to their own sloppy pleading but also arguing they can't possibly be expected to wait until after the MTD proceedings are complete to start discovery against the NYT. It's so messy.

It’s not messy at all. Discovery is already ongoing. You may be aware of that given that Blake’s subpoenas were just quashed for failure to meet the relevancy requirements. Had her lawyers just fixed them instead of ignoring their “obvious defects” once such defects were pointed out, they wouldn’t have been quashed. Sometimes a little humility goes a long way.

It’s not messy at all! Freedman is a legal mastermind! He probably intentionally made the group pleading mistake so that the judge would not be intimidated by his superior legal skillz!

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:New letter from Wayfarer attorney's regarding NYT's motion to stay discovery pending the MTD: https://storage.courtlistener.com/recap/gov.uscourts.nysd.634304/gov.uscourts.nysd.634304.117.0.pdf

Couple of interesting-ish things
-Even if NYT's case is dismissed, they still intend to serve them subpoenas for discovery in the Wayfarer/Lively case.
-Their argument on the merits is similar to some PPs in this thread: that NYT did not just report on the complaint, but made its own conclusions, without full context, and they cite one case where where a "reasonable jury could find that news article suggested more serious conduct than actually suggested in official
proceeding."
-They noted "the Wayfarer Parties do not presently intend to move to dismiss Ms.
Lively’s claims."

Only the third bullet surprised me... why wouldn't they be doing so?

Could be that they are arguing that their own claims involve issues for the trier of fact that can't be dealt with in a motion to dismiss, and arguing that other claims could be dismissed at this stage could get in the way of that. And also as PP says, the Lively complaint is strong enough to survive such a motion.

I also found it interesting that Freedman is basically immediately conceding the group pleading point and noting that they will amend their complaint immediately (basically ignoring/evading NYTs argument that the complaint should be dismissed with prejudice on that basis alone). In other words, had Freedman not so amended, the complaint likely would have been dismissed on these grounds (likely without prejudice).

This is how one builds credibility with the Court. Now the judge doesn’t have to waste time on that argument.

lol no. You don’t build credibility by filing a crap complaint then amending it.

The judge would have allowed them to replead anyway. This just moves up the timeline and saves the judge time. Now he just has to consider the actual dispositive arguments made by The NY Times.

probably but my point was it’s not “building credibility” to file a crap complaint then amend it when you see the MTD and you realize you are out of your depth legally

Worse, they already amended it once, didn't address the obvious defect, and now will want leave to amend it again. And at the same time, they are asking the court to deny the NYT's request to stay discovery until after the MTD has been resolved. So they are protracting the MTD deliberations due to their own sloppy pleading but also arguing they can't possibly be expected to wait until after the MTD proceedings are complete to start discovery against the NYT. It's so messy.

It’s not messy at all. Discovery is already ongoing. You may be aware of that given that Blake’s subpoenas were just quashed for failure to meet the relevancy requirements. Had her lawyers just fixed them instead of ignoring their “obvious defects” once such defects were pointed out, they wouldn’t have been quashed. Sometimes a little humility goes a long way.

It’s not messy at all! Freedman is a legal mastermind! He probably intentionally made the group pleading mistake so that the judge would not be intimidated by his superior legal skillz!

What I said was it wasn’t messy for discovery to be going on while he amended the Complaint. But go off .. . This is likely the closest Blake will come to a development worth celebrating, even if it is completely meaningless.

[Anonymous]

Anonymous wrote:The group pleading issue has nothing to do with the strength of the allegations, it’s just a specificity issue because there are multiple plaintiffs. Basically, Freedman will replead showing which allegations go with which plaintiffs.

I feel like the issue here is that they didn't plead it that way for substantive reasons. The Wayfarer parties' narrative here is that altogether, the Lively parties cooked up a phony story of sexual harassment and retaliation via outright lies or out-of-context and exaggerated material, using the threat of exposing this story to extort him into giving way to Lively's claims on his movie. However, they don't necessarily plead sufficiently that each defendant, standing alone, met the elements of each claim. Sloane/Vision PR's argument is they have not pled any facts for extortion other than restating the elements for the cause of action. NYT's claims that they merely reported on an existing complaint, and if anyone created a story that defamed him, that was Lively and they're not liable for that. One would assume if Freedman had those factual allegations as to each defendant, he would have included them in the first place.

[Anonymous]

Anonymous wrote:

Anonymous wrote:The group pleading issue has nothing to do with the strength of the allegations, it’s just a specificity issue because there are multiple plaintiffs. Basically, Freedman will replead showing which allegations go with which plaintiffs.

I feel like the issue here is that they didn't plead it that way for substantive reasons. The Wayfarer parties' narrative here is that altogether, the Lively parties cooked up a phony story of sexual harassment and retaliation via outright lies or out-of-context and exaggerated material, using the threat of exposing this story to extort him into giving way to Lively's claims on his movie. However, they don't necessarily plead sufficiently that each defendant, standing alone, met the elements of each claim. Sloane/Vision PR's argument is they have not pled any facts for extortion other than restating the elements for the cause of action. NYT's claims that they merely reported on an existing complaint, and if anyone created a story that defamed him, that was Lively and they're not liable for that. One would assume if Freedman had those factual allegations as to each defendant, he would have included them in the first place.

Well, you will soon see if you are right.

[Anonymous]

Anonymous wrote:

Anonymous wrote:The group pleading issue has nothing to do with the strength of the allegations, it’s just a specificity issue because there are multiple plaintiffs. Basically, Freedman will replead showing which allegations go with which plaintiffs.

I feel like the issue here is that they didn't plead it that way for substantive reasons. The Wayfarer parties' narrative here is that altogether, the Lively parties cooked up a phony story of sexual harassment and retaliation via outright lies or out-of-context and exaggerated material, using the threat of exposing this story to extort him into giving way to Lively's claims on his movie. However, they don't necessarily plead sufficiently that each defendant, standing alone, met the elements of each claim. Sloane/Vision PR's argument is they have not pled any facts for extortion other than restating the elements for the cause of action. NYT's claims that they merely reported on an existing complaint, and if anyone created a story that defamed him, that was Lively and they're not liable for that. One would assume if Freedman had those factual allegations as to each defendant, he would have included them in the first place.

Agreed, which is why I said upthread that I don't think it will be a simple matter to address the group pleading issue. Most complaints are way, way shorter than this and allege way fewer facts. But this is a super long complaint alleging the vast, interconnected conspiracy of events over the course of like 18 months. I think the group pleading issue may actually dismantle this complaint entirely. That doesn't mean they might not be able to plead something valid, correctly, but I don't think it's a question of just editing the complaint or adding a separate section for the claims against the NYT. I think they are going to have to start over from scratch.

Which maybe they are fine with. Who knows, maybe they've already drafted a proper complaint and this was all a ploy to just get a bunch of arguments out into the media and now they'll file a normal complaint and play it straight. If so, hats off on the PR approach because holy cow that worked. But also I do wonder at what point Liman is going to call Freedman out on this stuff because there is a line between taking advantage of valid legal maneuvering to benefit your client in the media, and abusing the court system, and at some point these shenanigans are going to cross it (maybe they already have, I don't know, I've never seen someone litigate quite like this but I don't work in Hollywood).