A (2:24)

Usually in the United States, in our system, we. We want the jury to Decide all issues. We want to jury to decide conflicts between two people, Justin and the other cannot agree. So we want a jury to make the decision who's right or wrong. However, the jury decides issues based upon facts. Meaning you say you harassed me, I say it didn't happen. That is a fact question that goes to a jury when you're talking about summary judgment. That is aside and Justin side in this situation. Say there are no facts in dispute. There is a question about the law. The jury doesn't get to decide the law. Your honor the judge. You get to tell us what the law is in this situation. And we believe just based upon the law, this case should not go in front of the jury. So we want summary judgment. You make a decision, you throw this case out because we don't want the jury to hear it at all.

B (3:18)

Essentially, that makes a lot more sense now. You've said that when you read it because a lot of it is referencing other things that have happened at other times in other cases and arguing why it doesn't meet up to the bar for certain definitions of sexual harassment, retaliation. And those are two aspects we're going to really hone in on today. The motion argues against the whole of Lively's lawsuit, which includes defamation and breach of contract. But I found these two, the sexual harassment and the retaliation, really interesting, particularly when they're arguing that it doesn't meet the bar. Blake says she was sexually harassed on the set of It Ends With Us. The defendants are arguing her allegations don't meet the bar for sexual harassment. So one of the examples that's been used in Blake's complaint is that while she was on set, she said that Justin Baldoni made a comment to her when she was wearing a low cut top, that she was sexy and it made her feel ogled. That is one of the things that she alleges took place and was part of this environment, which she has said she was sexually harassed. In the memorandum summary that's supporting the motion for summary judgment says context matters when it comes to an environment where comments are being made. What is the context? Defendants define it as collaborating to make a sensual and provocative sexually charged film. So that's what they're saying in the memorandum. They also say Lively chose to take a lead role in a sexually charged film with adult themes, and she understood the role would include sexual content. Comments made on the set of a filming movie about adult themes may have a different material effect from similar comments made in a routine office setting. So essentially, because the film revolves around sexual topics at times, although it, you know, it's about other things. I mean, part of the film is about being in a domestic abuse relationship and dealing with that because that is the context in which they were filming. Those comments don't carry the same weight that they would do in another place of work. What do you think, Sean?

A (5:05)

It's a great argument, but I think that's an argument for the jury. I mean, it does make a lot of sense when you think about it as a human. And as I think what the judge will end up saying is if the judge specifically says you are right and this is the law, can you imagine the slippery slope argument that will come from this? Because they said because of the base type of place you are, you don't get to complain about sexual harassment. If you're in a certain type of job front, you just have your boss has a right to do certain things to you. I think that is the problem with their argument. And I think that's what the court is probably going to end up saying that this is up for a jury to decide. Let's say if you are on the set of a movie that's engaged in some dangerous, forceful sexual actions, does that mean when they say cut that you can do it anyways, like, hey, we were engaged in the movie. I can forcefully attack her now because she signed on for this movie. It is a slippery slope that I don't think a court is going to go for.

B (6:05)

Okay, so that's one way they're trying to weaken it. I will say that in the US this is a PG13 movie. So, you know, how sexually charged is it actually, you know, PG 13. That is not the only way they are trying to chip away at these claim of sexual harassment. So they've got one there that context matters. And the context of this film was such that they were talking about they were in a sexually charged environment. But then they say, the memorandum goes on to say that if things were going on and some of the stuff that they admit that did happen, it wasn't motivated by the fact that Blake is a woman. It wasn't motivated by gender. They say, quote, to sustain a sexual harassment claim, Lively must show the offending conduct was motivated by her gender, that she was treated in a certain way because she is a woman. In her complaint, she says she was subjected to harassment on the basis of her sex gender. Now, Baldoni responds to Lively's claim there was too much hugging on set. That's one of the things she said amidst other allegations. But she said this was A set where he was hugging people left, right and center. There was too much. The memo says the undisputed evidence, including video footage, shows both men and women being hugged. Doesn't deny the hugging, but both men and women were being hugged. Perhaps there was an overgenerosity of spirit among people on set, but she does not claim, let alone alone proved that the hugging was gender specific. What do you think about that?

A (7:25)

What is that emoji? This is what I think of that. The definition when you talk about these harassment cases is it says any unwanted sexual advance. So if it's unwanted to one person, if I come to my office and hug everybody and there's one person who doesn't want to be hugged, they have a right to file a complaint. Just because everybody at your office enjoys something and one person doesn't doesn't mean that one person has the right to be ostracized. They don't get the right to argue, hey, I hugged everybody. So therefore everybody's got to enjoy it.

B (8:00)

But is it being motivated by gender intrinsic to the charge of sexual harassment? No, it's not.

A (8:06)

No sexual harassment is any unwanted sexual advance. The law does not specify, generally, at least I have not seen it, where it just says that only a man can sexually harass a woman or only a woman can sexually harass a man. Any unwanted sexual advance. Because we don't want to create these situations where people can scream through loopholes and say, look, this isn't gender based. I was harassing them. But it wasn't gender based.

B (8:32)

So I mean they've based a whole section of the memorandum and that the sexual harassment, if there was any, is not motivated by gender and therefore doesn't stand up. Just a warning. This next section contains graphic sexual detail. They cite this case, case Brown vs. Henderson, where the court granted summary judgment and the Second Circuit affirmed. Even where the plaintiff has alleged she was the butt of jokes about an affair with a male employee, but her co employees also threatened to sodomize one another and someone posted a pornographic picture of a naked obese spread eagled woman masturbating, it was undisputed. The plaintiff was subject to verbal conduct of a sexual nature. But failure to adduce evidence that the conduct at issue was based on her sex is fatal to her claim. If gender isn't a central part, then why are they focusing on this?

A (9:16)

I have not read the case that you're talking about from the 2nd Circuit. I would be curious to see what the court's analysis was in it because what we can do as lawyers, if we can grab bits of any cases and put it in there without knowing the full analysis on the case, I don't know. But I would have trouble believing that a court would grant summary judgment based upon the fact this is my opinion based upon the fact that they have not specified that this was based upon gender. Sexual harassment is sexual harassment. And common sense also comes into play because if someone is harassed, they are harassed, period.

B (9:53)

They go for another element of picking away at the sexual harassment claim. They talk about there not being a pattern. We've spoke about this before on the podcast, a repeated pattern, pervasive pattern of sexual harassment. Lively stated concerns that even if accepted as true, all involve incidents of relatively low level or innocuous behavior that considered separately or altogether fall far short of actionable discrimination or sexual harassment. Now, we spoke about this before. You need to prove that it's a pervasive atmosphere. So someone is making these comments every day or different things over a period of time. But we always all roads lead back to the pube on the coke can in this situation. Now for people who are just joining us today, can you briefly just tell them what the hell I'm talking about?

A (10:43)

You did it exactly right and you did the analysis. When we talk about sexual harassment, we have different types of sexual harassment. Pervasive pattern is every day you go in, it's the same conduct. It's over, it's over, it's over again. The water cooler jokes, the naked pictures on the wall, the text message that you're getting that even one by itself seems small, but because there's so many of them, it's to the point that this is a hostile work environment. The second part is there can be one action that is so egregious that it's something that you won't forget. The example that we have used, Anoushka, that you remember is we had a former, a current Supreme Court justice, but at the time he was not a Supreme Court justice. He was dealing with a woman by the name of Anita Hill. There was an allegation that she came to work and he had put one of his pubic hairs on her coke can and sent her messages about it. And so as we know, it's the pubic hair on the coke can that is so egregious that that one action by itself, someone can say, I was sexually harassed at work. It might just be one, but that is one. So it's one or the other. And what they're saying, what you've just read to me, is there are small de minimis actions, little tiny ones that aren't that big of a deal, but nothing that rises to the level of the coke can pubic hair incident.

B (12:02)

What was his name?

A (12:03)

Clarence Thomas. Justice Thomas.

B (12:06)

He's a Supreme Court justice, currently, current.

A (12:08)

Supreme Court justice, but at the time he was not.

B (12:11)

And that Supreme Court justice is Clarence Thomas, who I will say vehemently denies the accusations. But that's an example we come back to often because it's a great way of showing, I think, the different ways you can arrive at a sexual harassment claim. Now, they've said that the things that she's referencing, the being called sexy, allegedly, the hugging, which they admit to, these are low level things. They also talk about a lot of the things being miscommunication or just an awkward thing that happened. But it's not that bad. If you read like Lively's second amended complaint and her first complaint, she talks about a situation where they're filming a birthing scene during the movie. Now this is exactly what it says. When the birth scene was filmed, the set was chaotic, crowded and utterly lacking in standard industry protections for filming nude scenes, such as choreographing the scene with an intimacy coordinator, having a sign nudity rider, or simply turning off the monitors. So the scene was not broadcast to all crew on set and on their personal phones and iPad. Mr. Heath, that's Jamie Heath, who is one of the defendants. Mr. Baldoni, that's Justin Baldoni, another one of the defendants also failed to close the set, allowing non essential crew to pass through, while Ms. Lively was partially nude from below the chest down to her legs, which were spread wide in stirrups and only having a small piece of fabric covering her genitalia. Contrary to the Wayfarer party's contention, the production did not maintain a closed set. Among the non essential persons present that day was wayfarer Co chairman Mr. Sauerwitz, who's also a defendant, who flew in for one of his few set visits. It says Blake Lively was not provided with anything with which to cover herself between takes until after she made multiple requests. Ms. Lively became even more alarmed when Mr. Baldoni introduced his, quote, best friend to play the role of the obgyn, which I was calling OB gyne, which is not a thing, apparently, when ordinarily a small role of this nature would be filled by a local actor. She says Ms. Lavie felt the selection of Mr. Baldoni's friend for this intimate role in which the actor's face and hands were in close proximity to her Nearly new genitalia for a birth scene was invasive and humiliating. We talk about one incident being bad enough. A lot of people have pointed to that online, commentators, people who've been following the case and say, that is extremely traumatic. If that has taken place in the way she alleges to, you know, have a small piece of cloth covering your genitalia with your legs in the air and it being broadcast on monitors around the set. Do you think that meets the bar, Sean, for one incident being so bad that you don't have to prove a pervasive pattern?

A (14:41)

That's a great question. I don't know. And that's why we have juries, because the jury is going to be the harbinger that make. And that's why this might not be proper for some reason, judgment. Because the jury's going, like you said, you've had listeners who have listened and said, oh, my God, that's egregious. And you probably have some men out there, like, what's the big deal? I'm not saying one's right or the other, but it is up to the jury to make the decision of if that single act is so abhorrent, so awful, that creates a sexually hostile work environment, just one by itself. And that's going to be the question. And that might be why this case is not proper for summary judgment. This is the story of the 1. As a maintenance supervisor at a manufacturing facility, he knows keeping the line up and running is a top priority. That's why he chooses Grainger. Because when a drive belt gets damaged, Grainger makes it easy to find the exact specs for the replacement product he needs. And next day delivery helps ensure he'll have everything in place and running like clockwork. Call 1-800-GRAINGER click granger.com or just stop by Granger for the ones who get it done.

C (15:47)

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B (16:19)

And we're gonna cover Blake Lively's response to the Memorandum. But I can imagine from what you've just said, it might be literally what we're doing right now.

A (16:29)

Exactly. We are engaged in legal analysis right now. This is exactly what they're going to be doing. Absolutely.

B (16:36)

That's really how it works.

A (16:37)

That is literally how it works.

B (16:39)

So the thing they move on chronologically to next is the part of the recording where production of the film paused in the summer of 2023 because of strikes. During this time, Blake Lively held a production meeting at her house. Now, the Memo says on January 4, 2024, Lively read a list of grievances from her phone that included, in addition to some already discussed in the memo, a demand that Baldoni not speak to her dead father, mention his religious beliefs, or have private multi hour meetings in lively's trailer with Mr. Baldoni crying. Fifteen days later, Wayfarer CEO Jamie Heath, who's another defendant on behalf of the film company, signs this, signs what she's asked for, and it's referred to the contract rider agreement. According to Lively's complaint, this rider included provisions such as an intimacy coordinator must be on set at all times. When she is on set, there is to be no spontaneous improvising of any scenes involving intimate, sexual, physical touching, simulated sex or nudity with respect to Ms. Lively. It also included the provision that there shall be no retaliation of any kind against Ms. Lively for raising concerns about the conduct described in this letter or for these requirements. Any changes in attitude, sarcasm, marginalization or other negative behavior, either on set or otherwise, including during publicity and promotional work as a result of these requests, is retaliatory and unacceptable and will be met with immediate action. Now, the point Baldoni's motion makes here is that Lively's objections were resolved before filming resumes. And the memo says that the car does not include any admission of improper conduct. It's a forward looking document concerning behavior once filming resumes. But my question to you, and I imagine you're going to say this is the question for a jury. I mean, if you sign something, do you think that really holds up, signing something like that without disputing any of the claims on it? Wouldn't that be seen by maybe, would you say, a reasonable member of the jury as well? You must be thinking, some of these things happen because you put pen to paper.

A (18:36)

That is why I love our jury system, because different people can make different decisions on what they're reading. Somebody could say it makes sense, somebody could say it doesn't. That's why it's not, to me, possibly proper for summary judgment.

B (18:48)

So if they really wanted that cemented, shouldn't they, at the bottom of the CRA that was signed, have said, we're only going to sign this, if we can include the addendum that signing this on paper doesn't mean that we're admitting any of the things you said in it. We just appreciate that this is what you'd like. And they put that in writing rather than now saying it in a memorandum.

A (19:06)

I don't disagree with that. And what's the thing that we always talk about? I mean, it's 2025. We still have handwriting contracts, and everybody on the planet's got a cell phone. Record it. Record what's going on. And we do a lot of that when we do our contract work initial, we put the person down and we record asking them the questions so that there isn't this confusion right now.

B (19:26)

So then we get into retaliation, which we just had mentioned there. So the idea that she faced negativity or she faced bullying because of what she had asked for in this contract or what she said was going on on set in August 2024, at the time the film was released, the memo says Lively experienced a massive outpouring of negative sentiment. But the undisputed evidence shows Lively's own missteps. Several outlets picked up, for example, on her decision to cross promote a serious film about domestic violence with, among other films, her husband's summer superhero blockbuster, as well as her own hair care and beverage products. Can I just pause? Just read. To cross promote a serious film about domestic violence. Well, this is the same memorandum that earlier was saying it was a sexually charged, sexy aesthetic film. So haven't they contradicted themselves in the same.

A (20:15)

Absolutely. Happens all the time. You just put different arguments for different positions. Sort of like the judge. Do you believe that? No. What about this? Nope. What about this? No, because you're trying to throw everything at them humanly possible. Do you believe this now? No. Well, what about this? You do it. It's legal gymnastics, if you will.

B (20:32)

Well, they seem very limber. The memo also references other missteps.

A (20:36)

That was pretty good. That's actually very clever.

B (20:39)

The memo also references other missteps, but those are actually redacted. In the document, it says that Lively doesn't dispute that these events actually occurred, these missteps. She merely insinuates that defendants had a role in bringing them to light. Now, it's not actually referenced in the legal document, but I remember at the time there were clips of her in interviews that she'd done in the past where she didn't come across in the best light. People were saying she came across really rude, really obnoxious. Some people were calling her a Bully. The fact that she got married on a plantation. When she got married to one of the Ryans, one of the riots. My senior producers in my head, going, reynolds, Reynolds. Yes, Ryan Reynolds. Sorry, sir. They got married at Boone Hall. I mean, I studied that in my degree that they got married at Boone hall, which was a massive plantation. I mean, they came out in a apologize.

A (21:30)

Where is this boon hall at?

B (21:32)

Ain't it near you somewhere?

A (21:34)

It's right.

B (21:35)

Is it right down the road? Yes, I've been there. There are slave huts on the property. I mean, you can't. Yeah, they said that they didn't know that it was. That's what the plantation had been used for. They came out and apologized, and I think they did another ceremony or something symbolic or. But all of this stuff is coming back to the top. This was all coming out around the time that all this started to kick off. My question there is we've got retaliation and we've got defamation. Those are two accusations that she's made against them. They didn't create these things. But if they had artificially bolstered them for those clips to go more viral, or one of the accusations is paying content creators and influencers to talk about negative press with Blake Lively, would that fall under retaliation and defamation or neither or one of them?

A (22:22)

Well, it follows under both of them, but it follows under that last element that we almost always talk about the damages. Because when you're trying to figure out what their real damages are, the question is, did Baldoni's team conflate and make her damages worse than they really are? Or were Blake Live and Ryan Reynolds damages already to this level because people didn't like them anyway? And so that's what an economist is going to have to do, is try to prove what their damages were. And were their damages conflated because of this retaliatory claim? And they still got to prove it. So first they got to prove that this actually happened, that they are the ones who pumped it up.

B (22:59)

I mean, of course, Blake Lively and her lawyers are saying that this was social manipulation. This was a coordinated attack on social media using a crisis PR team to orchestrate the taking down of this woman. My other question is, if you know that somebody who you're working with say, I was just a Maldoni, you were Blake Lively, and you were getting ripped apart online, and people were saying, you're a terrible person, you did this, you did that, you did this.

A (23:22)

And.

B (23:23)

And I choose to stay completely silent as your co star, not correct anything or set the Record straight or defend you? Could that silence be a form of retaliation?

A (23:34)

I don't know. But what I think about more when you said that out loud is going back to our summary judgment argument. That is one that I could see a court saying, I'm granting summary judgment. And let me explain to you why. I could see a court saying, baldoni did not create the defamatory conduct. He did not say all of the things. Even though you're bringing a claim based upon a retaliation, he didn't start this. And the fear make this clear is maybe the jury just hates Baldoni so much and the fear is letting some type of retaliation claim goes. You can have a jury hate him and throw a big number out there. That is not justifiable because he did not create the defamatory conduct. So sometimes I can see a judge saying, I'm throwing this out on summary judgment because you have not proved he created it and this retaliation claim ain't worth a damn. I can see that.

B (24:23)

And is that a possibility for some things to be thrown out and other things to stay?

A (24:27)

Absolutely. He can pick and choose. It happened to us, that case that we had, that I had over in Florence, that we got a pretty decent verdict on the judge, believe it or not, even though we won this very decent claim, certain parts of our claim were thrown out on summary judgment. So the judge picked and choose and threw some out. He's like, no, I don't think this goes in front of the jury because you cannot meet the law on this, Mr. Kent. But I'll let this part go for it so you can pick and choose what goes forward.

B (24:52)

So, I mean, it's going to be really interesting to see what she comes back with. Her and her lawyers come back with.

A (24:56)

I'll be very interested to see their response. And let me go with this one. Judges hate to grant summary judgment. Okay? Hate it. Our system is designed for a trial by jury. Our system is designed to have individuals make their decisions over you. We don't want one person. We don't want a judge or a court deciding people's freedoms, livelihoods, financial aspects. That's why it's so much easier for me to say, I don't think summary judgment is going to be granted. And if it is, that means the judge really is strong that he thought you had a bad claim. But we don't want to take away people's rights, so it'll be hard for them to get some rejection.

B (25:36)

And we approached the Wayfarer party's legal team for a response, but we haven't heard back yet. In the memo in support of the motion for summary judgment, their attorney says, quote, lively now seeks to create causes of action where none exist. They added, this is a dispute about Hollywood reputations, not genuine legal wrongs. It does not belong in court. We also approached Blake Lively's team. They said they would not be putting out a statement, but their response to the motion for summary judgment is due on the 3rd of December. You know, we will have it here for you in detail with Sean now back by popular demand is, could you pass the bar? Could you pass the bar? And I think, yeah, I think you guys are over exaggerating. It's really easy. I passed it last week.

A (26:17)

It's like, I passed it last week.

B (26:21)

Go on, what have you got for me?

A (26:23)

I'm gonna give you an easy one and maybe a hard one, but I'll give you the very, very easy one. So we say, okay. An employee working for a private company with 50 employees is subjected to daily severe and unwelcome religious slurs and derogatory jokes by her co workers. She has repeatedly complained to her direct supervisor, who has failed to take any action telling her to take a joke and toughen up. The employee eventually quits and sues the employer under Title 9 of the Civil Rights act of 1964 for a hostile work environment based upon religion. I'm trying to make. I'm giving it to you here. We might have talked about some of this once or twice. Which of the following is the most likely outcome of the employee's claim? A. The employee will lose because the harassment was by co workers, not a supervisor, and the employer is not liable for co worker conduct. B, the employee will lose because merely snubbing in quotation marks a colleague for telling jokes is not considered severe or pervasive enough to be unlawful harassment. C, the employee will win because the conduct was unwelcome, severe, and pervasive, and the employer's management was aware of the harassment and failed to take prompt and appropriate coercive action, corrective action, or D, the employee will win, but only if she can prove the employer had a specific intent to discriminate her when it failed to act on her complaints. What is your answer, Anoushka? Why do I see smoke coming out of all that hair?

B (28:17)

I really hope it's C. And why? Because it was unwanted, sustained, pervasive. They are an employee, so aren't they protect. They have protected rights. When they went to a person who was overseeing them, they failed to act on it. Which led to the continuation of the activity until they took a lawsuit out.

A (28:41)

Ladies and gentlemen, Anushka is 2 for 2 in her analysis and passing the bar. That is correct. Look at this. Look. Look at the smug little smile.

B (28:49)

Don't chat to me, man. I did a history degree. Don't chat to me. You guys running around telling everyone the bar is. No, it's not. Sean, thank you so much.

A (29:01)

Thank you for having me. I appreciate you. I apologize for running late, but the nails are fabulous.

B (29:04)

They are fabulous, darling. So is the watch. That was our resident trial attorney, Sean Kent, joining us from South Carolina. And that's it for this episode of Fame Under Fire from BBC Sounds. With me, Anoushka Mutandadawati. Send me story ideas and questions on social media. It's Anoushka MD on Instagram and TikTok. And make sure you subscribe and turn on your push notifications on BBC Sounds so you never miss a thing. I'm looking for justice for my friend Mona who died in Dubai. No one knows what really went on. I'm Renaco Selena, and I'm searching for answers behind the death of a young woman in Dubai. She told me she'd got a friend who paid for everything to work in Dubai. From the BBC World Service. This is World of Secrets. Death in Dubai. Listen now. Search for World of Secrets wherever you get your BBC podcasts. With stays under $250 a night, VRVO makes it easy to celebrate sweater weather. Book a cabin with leaf views or a home with a fire pit for nights with friends with stays under $250 a night, find a home for your exact needs.

C (30:15)

Book now@vrbo.com this is the story of the One. As head of maintenance at a concert hall, he knows the show must always go on. That's why he works behind the scenes, ensuring every light is working, the H Vac is humming, and his facility shines with Grainger's supplies and solutions for every challenge he faces. Plus 24. 7 customer support. His venue never misses a beat. Call quickgranger.com or just stop by Granger for the ones who get it done.