Reply to Lively/Baldoni Lawsuit Part 2

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.[/quote]

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.[/quote]

Yes, and I don't think Gottlieb suggested a way around it.  But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD.  It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.[/quote]

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.[/quote]

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road.  That same argument would get rid of her 47.1 motion in Texas federal court as well.    That's how I would do it.  Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court.  An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.[/quote]

Adding this is why Liman volunteered that a 47.1 fee/damages claim really should be brought as a counterclaim.[/quote]

But how could that be applied here? There is zero precedent that would have indicated Lively needed to bring it as a counterclaim to Wayfarer's lawsuit against her. They raised it immediately after the MTD was granted. And if they had brought it as a counterclaim in the Wayfarer v. Lively lawsuit, Liman would have been in the exact same situation he is in now, needing to determine how to apply 47.1 without a trial, since that case had no basis in fact and therefore was never going to trial. It would change nothing.[/quote]

That’s not quite right. A counterclaim would be a lawsuit against Baldoni for malicious prosecution, which btw is what some felt he should’ve filed against her (though I’m sure he waived that in settlement). That would be a new case with deposition and trial. [/quote]

In the 47.1 action, Lively is the defendant not WF.[/quote]

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