Reply to Lively/Baldoni Lawsuit Part 2

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[quote=Anonymous][quote=Anonymous][quote=Anonymous]My take on today's hearing:

I think Wayfarer did a decent job with both their written motion and arguments today. I am not sure where Liman is going to land on the California law issue, really could go either way and I don't think he tipped his hand (I think it's likely he hasn't actually decided).

On the issue of whether Lively is an employee for purposes of her claims, I don't think Liman is going to go for. Wayfarer definitely has some strong arguments in their favor, including that PGA letter and the temporary nature of Lively's work. However ultimately this issue generally comes down to who controls the "how" and the "where" of employment. Yes, Lively was able to influence the production to move to New Jersey to accommodate her (which Liman made a point of acknowledging -- most employees don't have that kind of leverage). But in the day-to-day work of the movie, Lively had to adhere to a shooting schedule created by Wayfarer, report to hair and makeup at a certain time, film the scenes in the order determined by Wayfarer, etc. She couldn't show up to set on a Tuesday and say "you know what, I don't want to shoot this scene on the street with Brandon today, I want to shoot an interior scene with Jenny instead." Even with as much power as she had on the production, she was still ultimately an employee of IEWU during the filming of the movie. There's quite a bit of case law on this and I think based on the discussion today, Lively's going to stay alive on this one.

As for the rest of the SJ motion, Wayfarer gets stuck on the same problem they've had from the start -- because it's all subjective, and because the standard for determingin what is SH and what isn't SH is subjective, it's mostly an issue of fact for the jury. Liman could think Lively is totally wrong on all her SH claims and it doesn't matter if there's any chance a jury would disagree with him on that.

I do actually think he's going to dismiss the defamation claims, even though it's obvious he freaking hates Freedman. The claims are weak especially due the timing of what they are alleging. Plus because I think he's going to rule against Wayfarer on the independent contractor issue, he'll feel compelled to balance it with this ruling (I know in theory it shouldn't work like that but especially in a high profile case, I think judges can't help it -- maintaining the appearance of impartiality is important to them).

My two cents. Could wind up totally wrong! Might come revisit this post later after Liman rules to see how I did.[/quote]

Hair and makeup people also have to appear on set on a certain schedule but are often independent contractors.  I don’t think the existence of a schedule means much.[/quote]

It's central to the case law.

Remember this is not to decide if Lively is an independent contractor for purposes of tax law. It's just to see if she can be *treated* as an employee for purposes of sexual harassment law.[/quote]

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