Blake V Justin: Could the case be tossed out?

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1:10Shaun Kent:Hello and welcome back to Fame Under Fire from BBC Sounds with me, Anushka Matanda-Dowhti. And joining me, of course, although 40 minutes late because he had to get his nails done, is our resident trial attorney, Sean Kent. Show us those nails. I mean, you have to do what you have to do. You must suffer for fashion, Anushka. You must do what you have to do. Can I just say this man is defending in a, is it a quadruple murder trial? Yes, quadruple. Yeah. And he fit the podcast in when he was doing that, but he can't move his Russian nail appointment. No, no, I cannot. I respect that. And now I've introduced Sean.

1:42Shaun Kent:I should probably say this program may contain adult themes and the occasional swear word. We will warn you before anything comes up. So today, Sean, we are revisiting the multimillion dollar legal battle between Blake Lively and Justin Baldoni, former co-stars on the film. It ends with us. It hasn't ended yet, though. In case it's passed you by, anybody out there, the pair have been locked in a bitter feud since she sued him last December, accusing him of sexual harassment and waging a smear campaign against her that's claims he denies. Now, the latest big development is that Justin Baldoni and the rest of the defendants, which include Wayfarer Studios and others involved in the production of the movie, have filed a motion for summary judgment.

2:20Shaun Kent:Sean, definition? Usually in the United States, in our system, we want the jury to decide all issues. We want the 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 a side and just inside 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.

3:00Your 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.

3:16Shaun Kent:essentially that it 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 retaliation really interesting uh 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.

3:47Shaun Kent: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's 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.

4:20Shaun Kent: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 it's a great argument but i think that's an argument for the jury.

5:06I 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.

5:44Let'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 anyway? It's like, hey, we're 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. Okay.

6:04Shaun Kent:So that's one way they're trying to week in it i will say that in the u.s this is a pg-13 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 in 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.

6:38Shaun Kent: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 slash 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 centre. There was too much. The memo says the undisputed evidence, including video footage, shows both men and women being hugged.

7:10Shaun Kent:Doesn't deny the hugging, but both men and women were being hugged. Perhaps there was an over generosity of spirit among people on set. But she does not claim, let alone prove that the hugging was gender specific. What do you think about that? 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 a one person doesn't doesn't mean that one person has the right to be ostracized.

7:52They don't get the right to argue. I hugged everybody. So therefore, everybody's got to enjoy it.

7:57Shaun Kent:But is it being motivated by gender intrinsic to the charge of sexual harassment? No. It's not? 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. So, I mean, they've based a whole section of the memorandum that the sexual harassment, if there was any, is not motivated by gender and therefore doesn't stand up.

8:37Shaun Kent:Just a warning, this next section contains graphic sexual detail. They cite this case, case law, Brown versus 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.

9:10Shaun Kent:If gender isn't a central part, then why are they focusing on this? I have not read the case that you're talking about from the Second 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 And common sense also comes into play because if someone is harassed, they are harassed, period.

9:50Shaun Kent:They go for another element of picking away at the sexual harassment claim. They talk about there not being a pattern. We 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. 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.

10:34Shaun Kent:Now, for people who are just joining us today, can you briefly just tell them what the hell I'm talking about? 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 messages 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 could be one action that is so egregious that it's something that you won't forget.

11:14The example that we have used, Anushka, 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.

11:59Shaun Kent:What was his name? Clarence Thomas. Justice Thomas. He's a Supreme Court justice. Currently. Current Supreme Court justice. But at the time, he was not. And that Supreme Court Justice's 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 Blake 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 the 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 slight 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.

13:10Shaun Kent: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 Miss 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 Sarowitz who's also a defendant who flew in for one of his few set visits.

13:42Shaun Kent:It says Blake Lively was not provided with anything with which to cover herself between takes until after she made multiple requests. Miss Lively became Even more alarm when Mr Baldoni introduced his, quote, best friend to play the role of the OBGYN, which I was calling obgyne, which is not a thing, apparently. When ordinarily a small role of this nature would be filled by a local actor, she says, Miss Lively 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.

14:14Shaun Kent: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? 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.

14:43And that's why this might not be proper for summary 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. Host unforgettable backyard barbecues with savings from Whole Foods Market.

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16:15Shaun Kent:And we're going to 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. Exactly. We are engaged in legal analysis right now. This is exactly what they're going to be doing. Absolutely. That's really how it works? That is literally how it works. 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 4th, 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.

17:07Shaun Kent: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 Miss Lively. It also included the provision that there shall be no retaliation of any kind against Miss Lively for raising concerns about the conduct described in this letter or for these requirements.

17:42Shaun Kent: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 behaviour once filming resumes. But my question to you, and I imagine you're going to say, this is the question for a jury.

18:15Shaun Kent: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. 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. 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.

18:57Shaun Kent:We just appreciate that this is what you'd like. And they put that in writing rather than now saying it in a memorandum. I don't disagree with that. And what's the thing that we always talk about? I mean, it's 2025. We still have handwritten 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. And we put the person down and we record asking them the questions so that there isn't this confusion right now. So then we get into retaliation, which we just heard 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.

19:35Shaun Kent: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 reading that, 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.

20:08Shaun Kent:So haven't they contradicted themselves in the same? 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? No. 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. Well, they seem very limber. The memo also references other missteps. That was pretty good. That was actually very clever. The memo also references other missteps, but those are actually redacted in the document.

20:39Shaun Kent: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 riots. One of the riots. My senior producers in my air going, Reynolds, Reynolds.

21:15Shaun Kent: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 and apologised. Where is this Boone Hall at? Ain't it near you somewhere? It's right down the road. 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 on a pull address and I think they did another ceremony or something symbolic or. But all of this stuff is coming back to the top.

21:48Shaun Kent: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? Well, it falls under both of them, but it falls under that last element that we almost always talk about, the damages.

22:23Because 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 Lavin 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 where 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.

22:55Shaun Kent: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 Justin 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. 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?