Reply to Blake Lively- Jason Baldoni and NYT

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]Some more info on the motion for sanctions (I had time to skim it):

- You have to give 21 days notice for a Rule 11 sanctions motion, and they did. All the plaintiffs/attorneys were notified via letter on April 23rd of the potential Rule 11 violation. So Freedman et al have known about this for weeks.

- According to the motion, they didn't reply to these letters, called safe harbor letters. They also didn't take the opportunity to amend their complaint in response to the safe harbor letters. So they likely knew this motion was dropping today (exactly 21 days later).

- Hudson uses the motion to get a bunch of Freedman's statements to the press on the record, which is smart. Especially that Madison Square Garden comment, which the court probably won't like since it specifically references doing a deposition for a paying crowd (this is what the judge I clerked for would have called "unseemly").

- Hudson also repeatedly references Freedman's letter last week that was stricken and the fact that the judge's order noted that future violations would incur sanctions. That Freedman letter sure is looking like a gift to Lively's lawyers right now, unless Freedman is playing some 3-dimensional chess I don't understand. It primed Liman to be more amenable to this motion.

It's a solid motion with strong legal support. I don't know how Liman will view it. Prior to last week, I would say that he'd probably deem it premature, that he'd want to rule on the MTDs first. Now I'm not so sure -- the order to strike last week was very aggressively written, indicating real disgust with Freedman's tactics there. That, combined with the MSG statement and totally ignoring the deadline to request amendment even after Liman denied the request for extension is making me think this has a good shot.

Then the question will be what he awards. [b]Just an FYI for the uninitiated, but rewards of attorneys fees are often extremely contested and can drag on for long after a court case concludes, because the lawyers will argue about whether the fees are appropriate. I work in an area where we wind up having to look at these conflicts extensively and they can be quite involved.[/quote][/b]

Dp. To clarify for those who don’t know, the legal fees here would almost certainly be limited to those stemming *directly* from the letter that was stricken.

So a tiny drop in the bucket of the fees incurred in this ridiculous litigation. 
It’s almost like this PP is trying to make this seem like a huge deal for Baldoni. When it’s not. [/quote]

PP here and no, the fees wouldn't be related to the stricken letter at all, as the sanctions request is not for the letter.

They are asking for sanctions related to group pleading issue which, they say, is resulting in these plaintiffs having frivolous claims against Lively. They are explicitly asking for fees related to the motion for sanctions, which I agree would not be much.

However, I suspect they will also argue that by failing to either amend their complaint in a timely way, or respond to the safe harbor letters sent in April, these plaintiffs have forced Lively to incur additional expenses. These may be related specifically to discovery, and may be why they also filed some discovery-related motions as well. They are also arguing that awarding fees for a Rule 11 is not meant to simply compensate the filer, but to serve as a deterrent for filing frivolous claims. So they will argue that in order to properly deter this kind of thing (I think they will argue that the group pleading was essentially intentional in order to harass and prolong litigation), the fees awarded can't just be nominal. They are also going out of their way to cite Freedman's statements to press that may be particularly offensive to the court, because they want to make it appear that Wayfarer/Freedman are taking great liberties with court time and goodwill in order to encourage a more painful punishment in order to rein them back in.

I'm not saying she'll get any of this. Just recounting what is argued in the motion and speculating a bit based on the arguments and case law they are bringing in here. It is their intention to make this painful for Wayfarer here, not to just score a little procedural victory.[/quote]

They also filed a number of stays for discovery, based in part on group pleading, that were denied. [/quote]

That's true, though the framing was not exactly just on the group pleading. They wanted to stay discovery like NYT because of the pending MTDs, and Liman said no. However, correct me if I'm wrong, but his reasoning wasn't that the group pleading isn't a problem (the opposite, he's been vocal about the group pleading and basically told Freedman to file an amended complaint and then Freedman didn't, which is wild), but more that since discovery has to happen for Lively's complaint anyway and the issues are overlapping it doesn't make sense to stay discovery between these parties, as we know for sure that there will still be claims between them one way or another even after MTDs. Whereas for NYT, if their MTD is granted, that's it for them, plus they have some heightened concerns around disclosing journalistic methods.

However, that doesn't meant that if Wayfarer filed discovery requests that go *right* to the group pleading issue, that Liman would force Lively to produce. For instance, if Wayfarer has discovery requests that are clearly fishing expeditions for extortion claims they have not actually articulated yet (because they've rolled Abel/Nathan/Sarowitz into the alleged extortion for Baldoni/Heath), I could see Liman both refusing to compel production and potentially viewing that as related to potential sanctions, since Lively will have incurred fees for everything related to such a request.

I'm speculating though. We don't know exactly what has been requested in discovery for the most part. But that's one way that it could come into play on this motion.[/quote]

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