Blake V Justin: Slow dancing, circumcision and famous pals

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0:06Shaun Kent:He's widely recognised as one of the greatest footballers in history. He's won the prestigious Ballon d 'Or award five times. He's the all-time leading goal scorer in professional football. And according to the Bloomberg Billionaires Index, he's the first active footballer in history to achieve billionaire status. Guess who we're talking about yet? That's right, Good Bad Billionaire is exploring the life and fortune of football icon Cristiano Ronaldo. That's Good Bad Billionaire from the BBC World Service. Listen now wherever you get your BBC podcasts.

0:42Shaun Kent:Hello and welcome back to Fame Under Fire from BBC Sounds with me, Anushka Matandadauti. Today we are back with the Blake Lively vs Justin Baldoni case. we are looking at this one in depth and if all goes ahead to a jury trial i'm going back to new york to cover this one for you every day just like we did with diddy so please subscribe and tell your friends about us tell your family about us send us your questions and tell us what other trials you want because we are listening but if you have no idea what i'm talking about first they were co-stars in the movie it ends with us now they are locked in a bitter and very expensive legal feud with Blake Lively accusing Justin Baldoni and others involved in the film like Jamie Heath who's the CEO of Wayfarer Studios that's the production company that made the movie she's accused him of sexual harassment and coordinating a smear campaign against her these are claims that all of the defendants deny now a couple of weeks ago we told you about the latest response from the defendants it was a motion for a summary judgment essentially saying judge just make the decision there is no need for this to go to a jury you can decide if this meets the bar for sexual harassment, retaliation, defamation, etc.

1:51Shaun Kent:And you should find in favour of the defendants and throw this case out. Now Blake Lively's side have responded to that. We also rather helpfully now have access to bits of Justin Baldoni's deposition so we can hear some of what he said when he was questioned under oath. And just like last time, we are going to focus on those accusations of harassment and retaliation. Joining me now is our resident trial attorney, Dr. Sean Kent. Hey, Anushka, how are you doing? See, I threw the doctor in there because people don't know that. You threw the doctor in. The doctor is in. Dr. Kent is in the house. Sean, I missed you.

2:24Shaun Kent:Sean was on a holiday in Las Vegas playing the slot machines. That is a true statement. With your parents, which I think is so cute. Oh, wait. Y 'all say mom. With my mom and dad. Yeah, because that's the way you're supposed to say it. Also, what am I wearing? You're wearing a Brooklyn United States sweatshirt. Wait, no, that's a jumper. It's a jumper. Yeah, yeah. That's a jumper. You're wearing a jumper today. I got it. It's not a sweatshirt. It's a jumper. I text Sean that he was wearing a jumper and he was like, what the hell is that? What is a jumper? We've got to get down to business with this because these guys file all the time.

2:58Shaun Kent:This is the Justin Baldoni, Blake Lively case. Now, in Lively's filing, she alleges that Baldoni pressured her to perform unscripted nudity, made personal sexual remarks and improvised physical intimacy without her consent. These are all claims that he denies. But that is in her response. Those are allegations we've heard before. She's been making those accusations consistently. One example she cited in her original complaint is a slow dance scene for a montage in the movie. Now, it says, quote, Mr. Baldoni chose to spontaneously improvise the scene while the cameras were rolling. During the filming, Mr.

3:32Shaun Kent:Baldoni repeatedly leaned in towards Miss Lively, attempting to kiss her, kissing her forehead, rubbing his face and mouth against her neck, putting his thumb to her mouth and flicking her lower lip, caressing her and telling her how good she smells. They say that none of this took place while Mr Baldoni was, quote, in character as Ryle, because both the intimacy and dialogue departed from what had been agreed to in the script. In January, Baldoni's attorneys released the footage of that scene and they released it because they say it disproves the allegation. Their statement read, both actors are clearly behaving well within the scope of the scene and with mutual respect and professionalism.

4:10Shaun Kent:Now, in Lively's response, her team alleges the video proves her point, saying behind the scenes footage captures Lively's visible discomfort, including her leaning and pulling away from Baldoni and repeatedly suggesting that their characters should just talk. Sean, this is a bit of a unique situation, right? Same piece of evidence. Both sides feel that it speaks to their argument. Baldoni saying it shows professionalism and safe working practices on set. Blake Lively saying it proves that she was uncomfortable and she didn't want to be in that situation. When both sides claim the same footage backs their version, how is the judge, let alone a jury, supposed to decide which one is right?

4:50Well, you just got the first part of what I was exactly thinking. How is a judge supposed to decide? Because remember, all the judge is trying to decide is as a matter of law, should this go to the jury? Is there a genuine question of fact that a jury needs to decide? Based upon what you've just said, there really is. Both people are looking at the exact same piece of evidence and they both can look at it differently. So someone might say, well, won't everybody always say that? No. Give you an example of a car accident. If in a car accident there is a video and one side says the light is green and the other side says the light is red and all of a sudden we have a video of a green light.

5:27Well, that doesn't need to go to the jury because we know what the facts show. A green light. In this situation, what they're saying is this evidence is subject to interpretation by two different people. If it is subject to interpretation by two different people, then one person, a judge, should not make the decision and it should go forth to a jury. So that's why I think Blake is going to have a stronger argument that this should go forth to a jury and should win the summary judgment motion filed by Justin would be my gut reaction.

5:58Shaun Kent:And just remind me, what is the bar for jurors? It's not beyond a reasonable doubt in civil cases, is it? Exactly. So the bar for juries is much lower in a civil standard than it is in a criminal standard and a civil standard. It is beyond a preponderance of the evidence. And so when you want to make that more simply stated is, is it more likely than not that this happened? He is saying she's loving it. And she's like, no, no, I am not. And so that's going to be what's put in front of the jury. is she's going to be able to say, he may have thought that I enjoyed it. I, however, did not. And so if they can prove that, that more likely than not, that Blake's beliefs were reasonable, then they've got a real chance.

6:43And if you go back to the Diddy case, it's like we always go back to the Diddy case, but we all know about these jurors. Jurors bring their subjective beliefs to that jury room with them. And let's say you have seven women and three or four of them have been in that uncomfortable situation where I don't want to say anything. My boss has made me uncomfortable, but I don't want to lose my job. He's hugging everybody and hugging me and I'm not comfortable with that. Those jurors bring their subjective beliefs into the room with them.

7:10Shaun Kent:Let's look at some of the other allegations, because what we now helpfully have is access to some bits of Justin Baldoni's deposition. Now, there are huge chunks missing. The page numbers jump from like one to page 34 and then jump again. There are also huge chunks redacted, blacked out, literally blacked out in Blake's response to the motion for summary judgment. Sean, why are there bits redacted in both of these, taken away from the deposition, taken away from Blake's response? And why do you not love that? I personally hate it. Like I said, when we take a deposition, what we tell everybody is once you file a lawsuit, you've heard me say this a million times.

7:50If you choose to file a lawsuit, everything comes in with you. There is nothing to be hidden. And we tell people that you sure you want to file this lawsuit? Because if you do, they can ask anything, your personal life, your sex history, everything can come in. And so when we are blacking those things out from a deposition that we are releasing to the public, you better have a good reason. And there could be attorney client privileged information. That's usually the biggest one. Some type of privileged information that John Q. public should not be allowed to know. There could be impermissible questions asked during the deposition that some judge has ruled that those are subject to questions that can't be asked.

8:29And there could just be embarrassing details that she doesn't want John Q public to know. That's my problem is number three is I don't care if it's embarrassing. You shouldn't bring the lawsuit to begin with.

8:39Shaun Kent:Now, for us as journalists, that's annoying because you're trying to give a fair and impartial representation of what's being said. So Lively's latest response also claims Baldoni directed personal sexual comments at her. While the exact language is redacted, blacked out, the filing argues that agreeing to act in a romantic drama does not indicate her consent to discuss personal sexual fantasies, her sex life or pornography. In his deposition, Baldoni addressed one claim about discussing his own love life. He said the conversation that he has with Blake arose after a creative meeting with the intimacy coordinator.

9:12Shaun Kent:He says the idea was that Lily, that's the character that Blake played, had climaxed and Ryle did not. We were exploring what might feel authentic and appealing to the female gaze. When I shared that with Miss Lively, she said, oh God, that would mortify me if that happened. I responded by saying, some of the most beautiful moments have been when that's happened with me and my wife. And that was it. Sean, in that example, don't we have an exchange of information about sexual situations? Because he's saying, you know, it's beautiful when that happens with me and my wife. And she's saying, God, that would mortify me if that happened.

9:42Shaun Kent:Or she's sharing a piece of information there. Even with our Diddy situation, we always talk about power dynamics. We always talk about the fact there's a dynamic in power. And so I'm engaging in these consensual conversation, but they're not consensual because of the power dynamic. And she might make those conversations that I was very uncomfortable, but I was trying to stay as professional as possible, but I did not enjoy this at all. We're going to get into some conversations about power dynamics later on because it does come up a few times. The next comment is around this circumcision. I know a lot of people have been talking about this on social media.

10:15Shaun Kent:Lively's filing says Baldoni volunteered that he was circumcised when they first met without her prompting. Baldoni disputes that, saying the topic came up in a broader conversation about her unborn son and whether the baby would be circumcised. He says, quote, there were people all around. This is during his deposition. Assistants, nannies, even Mr. Reynolds, Ryan Reynolds, was in and out. It wasn't a private conversation. So there we have essentially bringing in broader context. My question is when a jury are considering if a comment is inappropriate, if it meets the bar for harassment, are they told to consider just the comment itself or when, where and who else was present when it was made?

10:54And that's also a great question, because if you think about it, when we talk about our two different types of sexual harassment, remember, when we talk about pervasive pattern, that there is that pattern of sexual harassment. If you go to work and your boss says the same sexual jokes around 30 different people, if there are sexual pictures in the office, if there's emails that are going around, if there's inappropriate means that are going around. individually they may not seem like a big deal but what blake will argue is the pervasiveness of this environment overborne the ability for me to feel safe in a hostile work environment that it will go directly towards what she is saying now if it's just one it's not enough and that's why we have to have that one that is so extreme so egregious to make it one she's saying there's more than one there's so many that this was a hostily charged work environment but with

11:47Shaun Kent:With that specific topic of circumcision, and he's saying it arose from a conversation about her unborn son, a lot of people online are arguing, you know, it's not directly sexual. She's talking about something which is a medical procedure. Some people get it for religious reasons. Some people get it because they think it's cleaner. And he's saying, yeah, I've got this. That doesn't meet the bar for sexual harassment because it's not inherently sexual. It's just a conversation about a bit of your biology that you've had altered. The argument from her is going to be by itself. I can see why somebody would say that.

12:19But if I'm in an environment where we're talking about male penises, male body, if he's talking about my body, if he's in my face, if he's pulling me tight, if he's saying these things over and over and over again, one innocuous, innocent comment may seem that way to you if we take it in a vacuum. However, because of the way that this atmosphere was, that was not an innocuous comment. It added to the pervasiveness of the hostile work environment. That's going to be her argument. I'm not saying it's a strong one. That's going to be her argument that, yes, John Q. Public sees it by itself, but it wasn't by itself.

12:53It was not in a vacuum and it wasn't the only thing that was said or done.

12:56Shaun Kent:Now, in the deposition, Baldoni was also asked about reports that some crew members felt uncomfortable with daily hugging. This was something Lively had mentioned as an example of gender based conduct. He said he stopped the practice but did not escalate the issue to HR despite policy requiring supervisors to report concerns. Now, both Jenny Slate, she's another actress who actually played his sister in the film, and Blake Lively, raised concerns about Baldoni's comments and the set culture. Baldoni acknowledged sending messages through producer Alex Sachs to apologise and assure adjustments. He testified these concerns were genuine and not fabricated to seize control of the film.

13:32Shaun Kent:So he didn't escalate the complaint, but he did, he says, take steps to address it. He's accepting those concerns were genuine. Does this help his case at all? Because his team can say, you know, he's not flat out denying everything. When he thought concerns were genuine, he addressed it and took steps to remedy it. See, that's funny. On my side of view, I think it hurts his claim. I think it shows that he acknowledges that there are stuff that was wrong there and that she is not being frivolous in her thoughts. He did not take these to HR the way that he was supposed to. I think it helps her with her pervasive pattern claim because it's not that he is not saying that these acknowledgment and problems on the sets were not accurate.

14:11He's in a way to me, if I'm on the side defending her, I would get in front of the jury and I'd say, look, things were happening there. He was not looking at them from a lens of a woman. He was picking and choosing the things that he thought were problems and didn't take them forward to H.R. I think this hurts his claim in front of a jury personally.

14:32Shaun Kent:And then we come on to retaliation, which is a huge part of this. To understand the retaliation, you really need the background. During a break in filming when we had strikes, Lively called a meeting at her apartment where she presented a list of demands that would need to be met in order for filming to resume. These included things like an intimacy coordinator must be present at all times when Blake Lively is on set in scenes with Justin Baldoni. It also includes the proviso there shall be no retaliation of any kind against Miss Lively for raising concerns about the conduct described any change in attitude, sarcasm, marginalization or other negative behavior, either on set or otherwise, including during publicity and promotional work, important that bit, as a result of these requests is retaliatory and unacceptable and will be met with immediate action.

15:15Shaun Kent:Lively argues that the retaliation began almost immediately and continued through a coordinated PR campaign. So in her response, they've said, quote, Quote, defendants repeat their mantra that the instantaneous avalanche of online attacks against Lively and other women associated with the film was somehow, quote, organic backlash to Lively, hoping to conceal the fact that their untraceable social manipulation campaign was designed to appear organic. Now, Baldoni's team have told the BBC they hired a crisis manager. They don't deny that they did that because they believe Lively's demands could derail the film.

15:48Shaun Kent:In the motion for summary judgment, they say that Baldoni and Wayfarer were reasonably attempting to protect themselves in a response to an onslaught of vicious negative publicity launched by Lively and her famous husband. That's Ryan Reynolds. Now, Sean, it's not illegal to hire a PR crisis team. Whole industries have been built off controlling your narrative, having your say, freedom of speech. I mean, it's very American if you think about it. Extremely. There's nothing wrong with it. You know, we have been hired as crisis management. We have sent other people to have people as crisis managers.

16:21There's nothing wrong with it. If he would have come to us, we would encourage him to do the same.

16:47Shaun Kent:podcasts. So we're talking about retaliation here. Her team was saying that Baldoni and the defendants are saying this was organic, that they were secretly manipulating what was going on behind the scenes. But ultimately, this was going to happen anyway. My question to you is, if Baldoni and the defendants and his PR crisis management team start releasing some stories and they say, Blake is trying to derail the team. Blake's not a nice person. Blake causes problems on set and a bunch of people everyday people not in the music industry not in the film industry nothing to do with it joe q public as you would say start seeing they see some of those reports and they go hmm i'm gonna look into this or oh i i think i saw an interview where she came across quite mean they start finding and digging out old clips old reports of stuff that she's done in the past, completely unrelated to the movie, it ends with us.

17:43Isn't that technically organic?

17:46Shaun Kent:Like, Baldoni and the defendants might have planted the seed, but it was the internet that watered the garden and fed it the fertilizer. Wow, that was dramatic. Oof, look at that language. Look at that word, Smith. You're rubbing off on me. You're exactly right. I believe that is her weakest claim. By far, the retaliation claim. One, it's going to be almost impossible to prove unless you actually have a whistleblower to get on the stand and say, this was our actual intent. Two, you are worried about her reputation that was already pretty toxic because of all of this started. And three, what does the public already think of her?

18:21Like, did this really ruin her reputation? And if you do a cursory Google search, you'll see that it does not. So I think this is her worst claim and it's not even close.

18:32Shaun Kent:I mean, I think I've said this to you before but i studied her and ryan reynolds wedding at university because they got married at boone hall which was a plantation and that caused a huge boone hall plantation down in south carolina mount pleasant i mean it's like it ain't just a plantation it's one of the plant it's huge it's a plantation let's make that clear i mean that was that was in my degree at university way before this film came out so that yeah i mean you could definitely make the argument there were negative stories about her and her partner long before this but people did go and dig out clips you know whether they were instructed to or whether they did that organically is for a jury or potentially a judge to decide but let's take a listen to one of those that did the rounds first of all congrats on your little bump congrats on your little bump so is blake lively being interviewed in 2016 eight years before the film it ends with us was released and you hear the interviewer first saying congratulations on your little bump because she's pregnant and And Blake Lively says it back, but the interviewer wasn't pregnant.

19:36That is the most Sean Kent thing that I have ever heard just now. That is something that I would do, and I'm stupid, so I would hope she's a tad bit smarter than me.

19:44Shaun Kent:In her defence, people have said that Lively had faced intense media speculation about her body and potential pregnancy in the weeks leading up to that interview, with articles questioning whether she was pregnant or not at various events. And they said that potentially the reporter's comments on her, quote, little bump felt intrusive. It could have been an honest mistake. She might have genuinely thought the interviewer was pregnant. But lots of people, a lot of people, let's be clear, interpreted it as passive aggressive. And we're asking, you know, why did she have to say that and make the interviewer feel uncomfortable?

20:15Shaun Kent:Even though that clip of that interview is eight years old, this clip was uploaded and went viral at the time of the release of It Ends With Us. Could they show this at trial? Yes. Zaldoni's team and say, look at this clip. Look at this. Absolutely. We didn't record this. We didn't script her to say that. Don't forget, she'll have to take the stand and she'll have to testify. And once she ends up testifying, she'll be subject to cross-examination. And once she is cross-examined, she can be asked anything and she can open the door to stuff like that, especially when she gets into the retaliation, because she's going to have to prove her damages.

20:51And so when she gets in front of that jury, she's going to have to say, this damage It's my reputation. And the second she says anything like that, all of those clips are fair game. And a good lawyer on the other side are going to bring up the Boone Hall plantation clips. They're going and let's assume there's an African-American on the jury. They're going to bring up the baby bump clip. Let's assume that there's somebody pregnant on the jury or who has been insulted by their weight or somebody who has been bullied. All of those clips come in there. And that's why I say that's the weakest of her claims, because juries are people, too.

21:25We tell everybody when we get in front of a jury trial, it doesn't matter how strong your claim is. If a jury hates you, you lose. If they like you, they'll try to find a way to help you win.