An update on the BL case, based on two additional court filings made yesterday.
Lively filed a complaint in federal court, which shows how serious she is about pursuing this matter. Retaliating against whistle-blowers is prohibited under California state law and federal law. If Lively pursues the action in California, she could probably include the violations of federal law as well, but she can sue separately in federal court under the federal law. Suing in two separate courts puts greater burdens on the defendants, and she may benefit from slightly different rules in the different venues. It's an expensive strategy, but it does slightly increase the likelihood of a positive settlement or verdict.
Baldoni and his co-defendants also filed a case in New York against the NY Times for the publication of the story on the initial Lively complaint. Libel and the other torts in the complaint are not my area of law, but I suspect there's no real merit to the case itself - NYT has lawyers on staff, and they certainly would have run the article past them before publishing it. But the complaint is a very effective means of telling the other side of the story. So the real value of reading that complaint is to get the version of story that Baldoni et al. want to be available to the public.
The temptation, when faced with two contradictory stories about the same sets of events, is to decide which story seems more plausible as an account of the facts. I think this is dangerous in this case (and in most lawsuits where both parties are Hollywood people) because the stories are being told by people who are professionals at telling stories. The NYT story is PR for Lively, the lawsuit against the NYT is PR for Baldoni et al. But the case will be settled or decided not on the most plausible story, but based on whether there are facts that support the legal rights asserted in the cases.
The basic timeline of events still appears to be undisputed -
(1) During the initial period of filming in 2023, Baldoni and Heath lost control of the set, leading to antagonism between Lively and Baldoni and Heath. This on-going chaos was brought to an end by the writer's strike.
(2) In order to get Lively and others back to the set after the strike, Baldoni and Wayfarer agreed to conditions that essentially put Lively in control of the shoot, and allowed her to do the final edit of the movie and get a producer's credit.
(3) As the release date approached, both Baldoni and Lively engaged PR firms to monitor the public profile of the other and take action if it seemed useful. This was necessary because Lively, Hoover, and the rest of the cast refused to make appearances with Baldoni, and because Baldoni wanted to focus his interviews on discussions of domestic violence, while the rest of the cast was adhering to a PR focus on flowers and love.
(4) The internet decided that Baldoni's PR strategy was better than the flower PR strategy, but the movie was a success anyway. However, the PR conflict led to significant losses for Lively's other business interests.
Phases (1) and (3) are where the interesting, but contradictory, stories are being told. In phase (1), either Baldoni and Heath are using their roles to make life hell for the women on set, or Lively is creating chaos in order to steal their movie. In phase (3), either Baldoni is trying to publicly humiliate Lively, or Lively is trying to humiliate Baldoni. These are great stories, and the dramas taking place on a movie set or in the offices of unscrupulous PR people definitely have human stakes to attract readers.
The trouble for Baldoni et al. is that phases (2) and (4) are the ultimate source of the lawsuit. The contract rider put Baldoni on a short leash, and the consequences of the conflict over PR for the movie did do harm to Lively's businesses. The best advice anyone could have given Baldoni at the time the movie was opening was that he should paper over any differences between him and Lively. If his crisis management team had been doing their job, they should have known about the jeopardy that Baldoni was already in, and encouraged him to say positive things about Lively and her businesses, not crow about how great it was that she was getting negative attention on the internet.
One mystery that the Baldoni lawsuit did clear up is why the funder of Wayfarer, Steve Sarowitz, stated, on the night of the premiere, that he was willing to spend $100 million to attack Lively and Reynolds (as reported in Lively's lawsuits). The Wayfarer people were only allowed to have a premiere viewing for their people at the last minute, and when it was scheduled, Lively and Reynolds told them that they were not allowed to attend the celebrity-studded cast party afterwards. I think we can all understand the fury of a billionaire who spends $25 million on a movie, and then doesn't even get to hobnob with celebrities afterwards.
I apologize for repeating so many of my earlier remarks on this case in this comment. I thought it was useful to make clear how there had been a little change, to the positions of the parties, but not as much as the Baldoni complaint asserts. Nevertheless, I should state that I find the suit filed against the NYT by Baldoni et al. to be a very impressive piece of lawyering. The fact that their attorneys found a way to get out a coherent counter-story to the NYT piece, and over the holidays, is excellent client representation. My current prediction is that Baldoni et al. will still end up paying a significant settlement to Lively, and I don't see Baldoni's career as a director going far. But now that his side of the story is out, he may be able to find new representation, and continue his career as an actor.
thank you!! i really do love reading these. i did not go to law school (obviously) but i find something about the way legal thinking works very interesting to read
I'm glad to hear you enjoy them. Legal thinking is definitely an interesting thing. I went to law school relatively late in life, and it took me a while to learn how to break things down the way I was supposed to for my exams. After I got the hang of it, I realized that it's really the last bastion of Aristotle and medieval philosophy in modern intellectual life. They don't tell you this directly in law school, but after graduating, I understood Aristotle and medieval philosophy a lot better than I did before, and could see more of what those earlier philosophers were getting at. You start with the universals, and keep breaking them down according to the rules given you until you get to a species that matches up with the particular event you are analyzing. Not how modern scientific thinking works!
I thought the hats thing was a reference to the Girls episode where Hannah works in advertising and some guy pitches the Mod Hatter as a cultural type and his boss says that that's not a thing, just some guy he randomly saw on the street
A comment on Willis' phrase "in Appleton, air heavy with the rot of wood pulp." -- I grew up across the river from the pulp mill that gave the air that smell, and it's fair to say both that the phrase is evocative of the morning air back then, and, strictly speaking, incorrect. The smell came from the chemical reactions involved in breaking down wood into pulp, and managed to suggest something rotting while still smelling quite unique and utterly offensive. The smell of the air on my walk to school depended on which direction the wind was blowing, either from the pulp mill or the milk condensery further down the river (which smelled of sour milk). The condensery was a little bit better than the pulp mill.
Both the pulp mill and the milk condensery are gone now, and the river running through Appleton is cleaner, with bald eagles, cormorants, and pelicans frequenting it in the summer. A bust of Joe McCarthy, which was still prominently displayed in the Outagamie County Courthouse entry as late as 1981, has also been hidden away.
I have been lurking on the internet for literally decades waiting for the occasion to share my memories of the smell of the pulp mill. I was like the man waiting in front of the Door of the Law in the Kafka story, and today, of all days, and before my death, all of the obstacles disappeared and I strode into your comments section.
The Blake Lively comment resulted from the interplay of mental illness and a legal education. That kind of thing happens all the time. It's good to know it's welcome here.
The legally significant issue with this is that Freedman is promising a counter-suit, not an answer to Lively's complaint. A counter-suit in this situation is essentially just an admission that Lively's complaint screwed up Baldoni's life, and that he deserves damages if it can be shown to be meritless. To the wider public, it looks like it's creating a controversy, but legally it isn't, since the counter-suit only has merit if it can be shown that Lively's suit has no basis in fact.
Lively, unlike Baldoni, wasn't obliged by contract not to bad-mouth him in public, so it wouldn't have been a problem if she had planted negative stories about him in the media. Even if she did, it's not clear that Baldoni suffered any negative consequences from anything that Lively did or put in motion, so he wouldn't have any damages. This only changes with the filing of the complaint, and if the complaint has merit, Baldoni can't sue her for any negative consequences resulting from his own bad actions.
Freedman's hope is presumably that if he puts more messages into the media that Lively is a "mean girl", who did the same bad PR moves that Baldoni did, that at some point, Lively will get tired of taking hits to her reputation, and will settle with Baldoni in a way that keeps him from having to publicly admit that he can't run a movie set. This makes sense, since it has historically been easy to depict Lively as a "mean girl" and she plainly doesn't like taking hits to her reputation. Also, Freedman loves a settlement with undisclosed terms. It's a reasonable move given that it looks like Lively is holding all the cards.
The procedural posture for a "counter-suit" at this point isn't clear. Lively's complaint is not yet a court case, it's just a filing with the Cali Civil Rights Division, which creates a situation where the complainant either gets permission to file an actual court complaint alleging a violation of her rights, or the CDR opens its own investigation. Lively needs to do this because Baldoni and Heath were her employers.
Assuming that she plans to file her own lawsuit, and given that she has already carried out quite a bit of investigation of her own, getting permission to file a court complaint seems like pretty much a formality. In any case, Baldoni wouldn't have grounds to file a counter-complaint with the CDR, because his civil rights weren't violated.
I don't know the procedures of the CDR at all, but it wouldn't be surprising if it allowed the defending parties to provide an answer to the complaint, esp. if they had definitive evidence that the complainant's complaint was groundless. So it may be notable that Freedman is not saying anything about an answer - if Baldoni had proof that the contract rider and the PR text messages were not what they purported to be, Freedman would presumably be getting those to the CDR post-haste, in hopes of denying Lively the right to file a complaint at all. Then he could sue Lively, for bad-mouthing his client in the CDR complaint, and make the case all about her.
FWIW, if my original analysis of the case is correct, the biggest problem faced by Baldoni's PR is that they were agents for Baldoni in violating his contract not to retaliate. This analysis might also apply to Freedman's threat of a counter-suit. Filing a lawsuit against someone is well within the definition of retaliation, which Freedman knows. So there's nothing stopping Lively from joining Freedman as a defendant in a revised complaint, on the grounds that he is a willing participant in Baldoni's scheme of retaliation against Lively. There are plenty of reasons a court might throw that joinder motion out (judges and lawyers work together, after all), but the motion would be well within the argument of the original complaint.
The case is increasingly taking shape as a showdown between internet "cancellation" and the law. My default position is that Hollywood will generally come down on the side of the law, being entirely a creature of contracts. But there are enough instances where Hollywood has defaulted on its legal obligations due to public sentiment that I wouldn't rule out a settlement unfavorable to Lively. So it's still worthwhile seeing how the internet and other actors respond to Freedman's assertions about how mean Lively is.
When I read the All Horned Up paragraphs, I thought its structure was very like my old 12-page typed college research papers which were due at 9 am and that I began at 7 pm the night before. If I was the same dumb-ass college kid today I’m sure I’d use ChatGPT, which has the same weird unauthoritative discursive style.
This is really great!
An update on the BL case, based on two additional court filings made yesterday.
Lively filed a complaint in federal court, which shows how serious she is about pursuing this matter. Retaliating against whistle-blowers is prohibited under California state law and federal law. If Lively pursues the action in California, she could probably include the violations of federal law as well, but she can sue separately in federal court under the federal law. Suing in two separate courts puts greater burdens on the defendants, and she may benefit from slightly different rules in the different venues. It's an expensive strategy, but it does slightly increase the likelihood of a positive settlement or verdict.
Baldoni and his co-defendants also filed a case in New York against the NY Times for the publication of the story on the initial Lively complaint. Libel and the other torts in the complaint are not my area of law, but I suspect there's no real merit to the case itself - NYT has lawyers on staff, and they certainly would have run the article past them before publishing it. But the complaint is a very effective means of telling the other side of the story. So the real value of reading that complaint is to get the version of story that Baldoni et al. want to be available to the public.
The temptation, when faced with two contradictory stories about the same sets of events, is to decide which story seems more plausible as an account of the facts. I think this is dangerous in this case (and in most lawsuits where both parties are Hollywood people) because the stories are being told by people who are professionals at telling stories. The NYT story is PR for Lively, the lawsuit against the NYT is PR for Baldoni et al. But the case will be settled or decided not on the most plausible story, but based on whether there are facts that support the legal rights asserted in the cases.
The basic timeline of events still appears to be undisputed -
(1) During the initial period of filming in 2023, Baldoni and Heath lost control of the set, leading to antagonism between Lively and Baldoni and Heath. This on-going chaos was brought to an end by the writer's strike.
(2) In order to get Lively and others back to the set after the strike, Baldoni and Wayfarer agreed to conditions that essentially put Lively in control of the shoot, and allowed her to do the final edit of the movie and get a producer's credit.
(3) As the release date approached, both Baldoni and Lively engaged PR firms to monitor the public profile of the other and take action if it seemed useful. This was necessary because Lively, Hoover, and the rest of the cast refused to make appearances with Baldoni, and because Baldoni wanted to focus his interviews on discussions of domestic violence, while the rest of the cast was adhering to a PR focus on flowers and love.
(4) The internet decided that Baldoni's PR strategy was better than the flower PR strategy, but the movie was a success anyway. However, the PR conflict led to significant losses for Lively's other business interests.
Phases (1) and (3) are where the interesting, but contradictory, stories are being told. In phase (1), either Baldoni and Heath are using their roles to make life hell for the women on set, or Lively is creating chaos in order to steal their movie. In phase (3), either Baldoni is trying to publicly humiliate Lively, or Lively is trying to humiliate Baldoni. These are great stories, and the dramas taking place on a movie set or in the offices of unscrupulous PR people definitely have human stakes to attract readers.
The trouble for Baldoni et al. is that phases (2) and (4) are the ultimate source of the lawsuit. The contract rider put Baldoni on a short leash, and the consequences of the conflict over PR for the movie did do harm to Lively's businesses. The best advice anyone could have given Baldoni at the time the movie was opening was that he should paper over any differences between him and Lively. If his crisis management team had been doing their job, they should have known about the jeopardy that Baldoni was already in, and encouraged him to say positive things about Lively and her businesses, not crow about how great it was that she was getting negative attention on the internet.
One mystery that the Baldoni lawsuit did clear up is why the funder of Wayfarer, Steve Sarowitz, stated, on the night of the premiere, that he was willing to spend $100 million to attack Lively and Reynolds (as reported in Lively's lawsuits). The Wayfarer people were only allowed to have a premiere viewing for their people at the last minute, and when it was scheduled, Lively and Reynolds told them that they were not allowed to attend the celebrity-studded cast party afterwards. I think we can all understand the fury of a billionaire who spends $25 million on a movie, and then doesn't even get to hobnob with celebrities afterwards.
I apologize for repeating so many of my earlier remarks on this case in this comment. I thought it was useful to make clear how there had been a little change, to the positions of the parties, but not as much as the Baldoni complaint asserts. Nevertheless, I should state that I find the suit filed against the NYT by Baldoni et al. to be a very impressive piece of lawyering. The fact that their attorneys found a way to get out a coherent counter-story to the NYT piece, and over the holidays, is excellent client representation. My current prediction is that Baldoni et al. will still end up paying a significant settlement to Lively, and I don't see Baldoni's career as a director going far. But now that his side of the story is out, he may be able to find new representation, and continue his career as an actor.
thank you!! i really do love reading these. i did not go to law school (obviously) but i find something about the way legal thinking works very interesting to read
I'm glad to hear you enjoy them. Legal thinking is definitely an interesting thing. I went to law school relatively late in life, and it took me a while to learn how to break things down the way I was supposed to for my exams. After I got the hang of it, I realized that it's really the last bastion of Aristotle and medieval philosophy in modern intellectual life. They don't tell you this directly in law school, but after graduating, I understood Aristotle and medieval philosophy a lot better than I did before, and could see more of what those earlier philosophers were getting at. You start with the universals, and keep breaking them down according to the rules given you until you get to a species that matches up with the particular event you are analyzing. Not how modern scientific thinking works!
I see that the Mod Hatter still isn't a real thing in 2024
wait… i don't understand this comment…
I thought the hats thing was a reference to the Girls episode where Hannah works in advertising and some guy pitches the Mod Hatter as a cultural type and his boss says that that's not a thing, just some guy he randomly saw on the street
it was not… but it should have been
season 3, ep 6
this explains it, I only saw season one… my reaction at the time was like "this is great but makes me want to die too much to continue."
A comment on Willis' phrase "in Appleton, air heavy with the rot of wood pulp." -- I grew up across the river from the pulp mill that gave the air that smell, and it's fair to say both that the phrase is evocative of the morning air back then, and, strictly speaking, incorrect. The smell came from the chemical reactions involved in breaking down wood into pulp, and managed to suggest something rotting while still smelling quite unique and utterly offensive. The smell of the air on my walk to school depended on which direction the wind was blowing, either from the pulp mill or the milk condensery further down the river (which smelled of sour milk). The condensery was a little bit better than the pulp mill.
Both the pulp mill and the milk condensery are gone now, and the river running through Appleton is cleaner, with bald eagles, cormorants, and pelicans frequenting it in the summer. A bust of Joe McCarthy, which was still prominently displayed in the Outagamie County Courthouse entry as late as 1981, has also been hidden away.
you are on an amazing comment streak I have to say…
I have been lurking on the internet for literally decades waiting for the occasion to share my memories of the smell of the pulp mill. I was like the man waiting in front of the Door of the Law in the Kafka story, and today, of all days, and before my death, all of the obstacles disappeared and I strode into your comments section.
The Blake Lively comment resulted from the interplay of mental illness and a legal education. That kind of thing happens all the time. It's good to know it's welcome here.
re: BL, I am curious what Baldoni can possibly produce here https://deadline.com/2024/12/blake-lively-justin-baldoni-it-ends-with-us-legal-complaint-counter-suit-1236243155/ the talking points from the Daily Mail article do not seem likely to win hearts and minds to me…
The legally significant issue with this is that Freedman is promising a counter-suit, not an answer to Lively's complaint. A counter-suit in this situation is essentially just an admission that Lively's complaint screwed up Baldoni's life, and that he deserves damages if it can be shown to be meritless. To the wider public, it looks like it's creating a controversy, but legally it isn't, since the counter-suit only has merit if it can be shown that Lively's suit has no basis in fact.
Lively, unlike Baldoni, wasn't obliged by contract not to bad-mouth him in public, so it wouldn't have been a problem if she had planted negative stories about him in the media. Even if she did, it's not clear that Baldoni suffered any negative consequences from anything that Lively did or put in motion, so he wouldn't have any damages. This only changes with the filing of the complaint, and if the complaint has merit, Baldoni can't sue her for any negative consequences resulting from his own bad actions.
Freedman's hope is presumably that if he puts more messages into the media that Lively is a "mean girl", who did the same bad PR moves that Baldoni did, that at some point, Lively will get tired of taking hits to her reputation, and will settle with Baldoni in a way that keeps him from having to publicly admit that he can't run a movie set. This makes sense, since it has historically been easy to depict Lively as a "mean girl" and she plainly doesn't like taking hits to her reputation. Also, Freedman loves a settlement with undisclosed terms. It's a reasonable move given that it looks like Lively is holding all the cards.
The procedural posture for a "counter-suit" at this point isn't clear. Lively's complaint is not yet a court case, it's just a filing with the Cali Civil Rights Division, which creates a situation where the complainant either gets permission to file an actual court complaint alleging a violation of her rights, or the CDR opens its own investigation. Lively needs to do this because Baldoni and Heath were her employers.
Assuming that she plans to file her own lawsuit, and given that she has already carried out quite a bit of investigation of her own, getting permission to file a court complaint seems like pretty much a formality. In any case, Baldoni wouldn't have grounds to file a counter-complaint with the CDR, because his civil rights weren't violated.
I don't know the procedures of the CDR at all, but it wouldn't be surprising if it allowed the defending parties to provide an answer to the complaint, esp. if they had definitive evidence that the complainant's complaint was groundless. So it may be notable that Freedman is not saying anything about an answer - if Baldoni had proof that the contract rider and the PR text messages were not what they purported to be, Freedman would presumably be getting those to the CDR post-haste, in hopes of denying Lively the right to file a complaint at all. Then he could sue Lively, for bad-mouthing his client in the CDR complaint, and make the case all about her.
FWIW, if my original analysis of the case is correct, the biggest problem faced by Baldoni's PR is that they were agents for Baldoni in violating his contract not to retaliate. This analysis might also apply to Freedman's threat of a counter-suit. Filing a lawsuit against someone is well within the definition of retaliation, which Freedman knows. So there's nothing stopping Lively from joining Freedman as a defendant in a revised complaint, on the grounds that he is a willing participant in Baldoni's scheme of retaliation against Lively. There are plenty of reasons a court might throw that joinder motion out (judges and lawyers work together, after all), but the motion would be well within the argument of the original complaint.
The case is increasingly taking shape as a showdown between internet "cancellation" and the law. My default position is that Hollywood will generally come down on the side of the law, being entirely a creature of contracts. But there are enough instances where Hollywood has defaulted on its legal obligations due to public sentiment that I wouldn't rule out a settlement unfavorable to Lively. So it's still worthwhile seeing how the internet and other actors respond to Freedman's assertions about how mean Lively is.
thank you!
When I read the All Horned Up paragraphs, I thought its structure was very like my old 12-page typed college research papers which were due at 9 am and that I began at 7 pm the night before. If I was the same dumb-ass college kid today I’m sure I’d use ChatGPT, which has the same weird unauthoritative discursive style.
I can't believe I didn't think of ChatGPT lol. You're totally right. This is exactly how it writes.
unfortunately, i really want to read your fake cultural history of the unicorn.......... where does the rhinoceros fit in????
very good