Reply to Blake Lively- Jason Baldoni and NYT

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]In fact the group pleading problem is such a giant issue for Freedman that he has asked the court, if it allows him to amend the complaint to fix this problem (which it probably will), to rule on all the motions to dismiss first so that he only has to rewrite it one time lol.  Sad.[/quote]

Snark aside, I actually don't understand how this is going to work. I guess it means Liman can dismiss some claims with prejudice (if he agrees with any of the MTD arguments not premised on the group pleading issue) and then when Freedman refiles he won't include those claims? So like say Freedman agrees to dismiss all extortion claims against all defendants, the defamation claim agains the NYT, and all claims against Sloane, with prejudice. And then he dismisses the remaining claims without prejudice (so the defamation claims against Lively and Reynolds, the tortious interference claim against Reynolds, and the CA false light claim against the NYT). For the record, I'm not saying this is what I think Liman will do, just trying to give a mix of dismissed with prejudice and dismissed without.

So then Freedman can replead, assuming the court allows it (which I think they usually do). But he can only replead the claims dismissed without prejudice, right? So they separate out all those claims and make it clear which are being alleged by which plaintiffs against which defendants (and this will vary a lot, right, because for instance Sarowitz has no tortious interference claim, the alleged defamation by Lively in the CRD and NYT article doesn't involve Reynolds (who was not quoted in either), and so on. So the complaint is going to look way different from either of the complaints that have been filed so far and will likely have to articulate different facts to make these allegations clear. Right?

Well then with new pleadings and new facts, will the defendants be able to file a new round of MTDs? Because it's basically a new case at that point -- the claims are going to look so different. It seems unfair to force the defendants to depend on this round of MTDs for dismissal when you have this huge, glaring group pleading issue that has to be fixed before the complaint makes clear what the allegations are against each defendant. But then Liman is not going to want to have to rule on MTDs again for the corrected pleadings, right? That would be annoying.

I am a lawyer but not a litigator and have no real experience with something like this. I'm sure some of what I'm asking here sounds dumb or obvious to actual litigators and sorry for that. But I'm just struggling to wrap my head around how this works because the group pleading issue seems like a big enough problem that fixing it will essentially be a do-over for the Wayfarer parties and in that case do the defendants get a do-over too?[/quote]

I think the process of amending the complaint is going to be a little painful for Baldoni’s team. Yes, the judge may dismiss some claims with prejudice and others without prejudice (or just may dismiss many without prejudice).

If for example the judge dismisses the NYT claims with prejudice, they can’t include those in the amended complaint. (That’s not per their “agreement” - that’s a court ruling they must follow ha.). At the same time, the court will likely grant Baldoni leave to amend claims dismissed without prejudice (which, in truth, could be all the claims).

If the amended claims/allegations supporting them are different enough from the original complaint, it’s possible new motions to dismiss could be filed, but I believe if they are similar enough and just cure the deficiency the judge notes in his orders, they won’t be. Baldoni will need to file a motion to enter the new amended complaint and Lively (or whoever) could oppose that, but they might prefer to file another motion to dismiss if possible because then they get to file two briefs (the motion and reply) rather than just one (the opposition).

I think the amended complaint is going to need to incorporate material from the statement of facts attachment, too, since that may be struck.  This new complaint could be a whole different animal so it’s a little hard to predict how it will be treated — while amendments are pretty common, this sheer amount of editing and complete revamping that might be needed here is out of the ordinary. [/quote]

Multiple amended complaints are common when the plaintiff is a person or a suit is brought as a class  action, most as common when plaintiff tiff is a corporation.  I have had many cases as defense counsel where plaintiffs filed three or more complaints.[/quote]

+1 have been gone for a day so just catching up and it’s shocking how easily people focus on small things and make them a big deal. Comments like “the group pleading is a huge problem for freedman” and “if the judge lets him amend his complaint” and “why on earth the timeline”. Some of the statements are just so over dramatized. This is a case that could drag on for years. There will be many amendments, motions and hearings. People are acting as if BF needed to show his entire hand in one round. It’s a long process. BF did exactly what he needed to do, which was file this quickly and get the public on his clients side. He’s now being mostly professional and letting the Lively parties sink themselves with some pretty outrageous behavior (SNL, Ari, Ryan’s hugely unprofessional MTD). People keep saying BF wants to settle when actually Lively risks the most at trial. If the public is any reflection of a potential jury, they have a lot to worry about.[/quote]

Going down memory lane and checking out the reasoned legal analysis from the Baldoni supporters back in March about the many, many times Freedman would be allowed to amend his complaint and how the timeline was nbd. Nope. [/quote]

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