Lively v. Baldoni 21 - The Contract Was neither Implied, nor in Fact. And It Wasn't a Contract.

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:01 Clip: All rise. Court is now in session. Court is reconvened. I may be seated. Maintain order. The federal rise to face the jury and harken to its verdicts.

0:00:25 Thomas: Gavel heads, gavel in. It's the, it is the final, I didn't say the episode last time. I think this is episode 21, right?

0:00:33 Lydia: Oh, wow. Yeah, I think so.

0:00:34 Thomas: Because we were at 19 in the 21st. Yeah. Okay. I'm counting with my fingers right now. I'll count with a gavel. We were at 1920. That's how I count. I have a gavel just for counting.

0:00:43 Lydia: Oh, my God. The episodes that are going to come up in the future, people are going to have to wait a long time.

0:00:46 Thomas: Yeah, can't wait. This is episode. Yeah?

0:00:51 Lydia: And then write in how many, how many gavels you think it is.

0:00:55 Thomas: This is the the final episode of Wayfarer et al v. New York Times. There's still so much more in this controversy to cover, obviously, but this was a doozy. This took years off our lives.

0:01:03 Lydia: I think this is training for the next one. Like, honestly, because I think we got to get ready for that one, too.

0:01:09 Thomas: Yeah, yeah. Yeah, and I think I've learned a lot. I think we've learned that we're gonna be able to do it better and faster, I think. This takes some doing, this is hard. But we're learning, we're getting better, and it's also, it's just really fun. I really like doing this.

0:01:26 Lydia: Hi.

0:01:26 Thomas: So glad to have folks coming along. I'm Thomas, that's Lydia Smith. How you doing?

0:01:30 Lydia: Good. Gaveling in my own little corner. Just gaveling it up. We should get you one when you burned it.

0:01:34 Thomas: I want to own a gavel like a nice one maybe someday yeah maybe when we finish this whole like case and some robes and I also know uh okay so today

0:01:47 Lydia: And the wigs because we're going to be in Britain.

0:01:49 Thomas: No that's not I'm not going with you on that one so you can get one and you'll be just the crazy person that's in my courtroom and I'll be like why are you wearing that guilty no So we are on part, I don't know, 11 -y trillion. I guess it would be part 11 on this, I think. But we're going to finish off with our lawyer, Ann Linder, on the final three causes of action, starting with that false light invasion of privacy one. And then we'll be done. We'll be free of this particular complaint. Can't wait. Yeah, I think we can just get into it, right? I mean, yeah,

0:01:51 Lydia: All right. Fine. That's fine. Yeah, why don't we do it?

0:02:22 Thomas: I'm excited. So, all right. Please support the show, patreon.com/gavelpod. That's where you can get goodies. You can get early episodes and you don't have to hear ads and you support the show you make it happen it's the best thank you so much to our gavel heads over there on patreon.com/gavelpod and after this break we'll get ann back well she never left we're gonna go back with we'll push play yeah exactly that was what occurred to me I was like do we need to do a seance and I realized no all right and so I am pretty sure I botched this second cause of action false light invasion of privacy I regret that it's taken this long to get a lawyer to actually say correct things about this I did my best but it's confusing it seems like his overlaps it seems like it's

0:02:34 Lydia: We love you. You. We don't have to do another seance. She's already here. Oh,

0:02:55 Ad: [Ad break 1 — ad music]

0:03:10 Anne: They do. I think you, yeah, you were right there. These basically overlap quite a bit. The difference is, at least one of the differences that I'm seeing is where we talked about how literally just saying something to one person could fall under a libel or slander defamation claim. False light claim has to be widely disseminated to the public, not just a single person. Yeah.

0:03:26 Thomas: Similar oh gotcha okay do we still have like the actual malice stuff what are the

0:03:39 Anne: So this one, it's a little more loosey goosey actually. So, this is probably why they were like, okay, we're definitely going to put both of these in here. The publication must place plaintiff in a false light that would be highly offensive to a reasonable person, right? So again, this has more of the one that goes to sort of like, maybe there weren't specific words, but there was a vibe, right. This is sort of to get at the people who are like, I'm just asking asking questions.

0:03:52 Thomas: Elements okay

0:04:06 Anne: You know, when did he stop beating his wife? Like, so there is a real use for this. And then the other ones are pretty much the same. False late doesn't require the statement to be literally false, but it can be a portrayal that's technically truthful, but creates a misleading or false impression. Okay. So here, let's see how they do on that. I bet they're going to do better.

0:04:02 Thomas: Okay right sure sure fair enough yeah okay yeah it does sound like if they had a case it would be more on this than than the first

0:04:31 Lydia: It's more appropriate. Yeah. Yeah.

0:04:33 Anne: Yeah. So you can see where this is, they're actually doing a placeholder here. So they say, to the extent that the trier of facts finds that these statements are not defamatory, plaintiffs are informed and believe and based on alleged that defendants, blah, blah intended them to depict plaintiffs in a false, fictionalized and sensationalized light. So yeah, this is basically like, okay, okay. Okay. So I know that wasn't our strongest try, but can you downgrade us to a false light?

0:04:50 Thomas: Thing yeah okay so it's sort of like it'S hard to think of like an amazing example, but off the top of my head, it's like, well, we've never seen Thomas and the Zodiac Killer in the same room. And it's, like, okay, technically true, yeah, but, like clearly you're trying to create a false light kind of thing. So, it is like that, where it is, like we do not need to see a literal quoted statement that is, false, but you would want to see something that is like, this is creating a false depiction in this way.

0:05:27 Anne: Right, right. So it's, it's lighter in terms of the, the like, what did you say? And was it actually false requirements? However, that is counterbalanced to some degree by the fact that in sort of the defamation context, as long as you can say this harmed my reputation, even though it didn't like rise to the standard of being just like very obviously offensive to everyone. Like if, okay, maybe even in this case, right? Like Justin's portraying his himself as a champion of women and blah, blah, blah. And then to be like, yeah, but no, secretly, he's like a real shithead to women and sexually harasses them. And basically, all these things that are counter to the image he's trying to portray. That's not necessarily like highly offensive in like the broader social context, right? That's kind of like, oh, that guy's just sucks. But it's super bad for his specific reputation, right. There's parts of the a manosphere where they'd be like, come on over. Right. So that's the difference with defamation. As long as you can be like this harmed my this was harmful to my reputation. That's supportive of your claim in false light claims. The portrayal has to be that sort of broader standard of no, it just has to Be highly offensive to any reasonable person.

0:06:18 Thomas: Yeah, as they have, yeah. So something super like, oh, this guy's a pedophile kind of thing has to be like, everybody pretty much universally agrees that sucks.

0:06:54 Anne: Yes, exactly. Exactly. So let's see how they do on that. Do they address that? All they say, they say the article therefore portrayed plaintiffs in a false light. The false light created by the article is highly offensive to reasonable people in plaintiff's position. So basically, they tried to apply the defamation standard to the false light claim, right?

0:07:17 Thomas: Oh, wow.

0:07:18 Anne: Because it's not as highly offensive to reasonable people. It's highly offensive to reasonable. It was especially offensive to me, a champion of women.

0:07:25 Thomas: Right. Interesting. Yeah. And as far as what the false light is, like it's still doing the falsely portrays negative public sentiment toward lively as a result of a premeditated smearing and blah, blah, bla, blah. We didn't even talk about this. I don't even know that they did that. Like, I actually don't know. When you look at the article, I don't know how much the New York Times even said this smear campaign is why Blake Lively had this reputational damage.

0:07:27 Lydia: Interesting.

0:07:53 Thomas: I don't even really think they did. I mean, I remember I'm looking through it now. I think they talked about Blake's case for that. I think They talked about like, well, Blake found an expert that said, you know, your metrics, you know used to look really good and now they don't look as good But that's not the same as endorsing that. Here, I actually, I think this is pretty much the extent of it. A brand marketing consultant, this is from the New York Times article, Terakeet produced a report in August for Miss Lively that concluded she had likely been the object of a targeted multi-channel online attack similar to one against Miss Heard, and that it was damaging her reputation. The report did not identify who was behind the attack, but by analyzing, quote, the entirety of Google's search index for Miss lively's name, had found that 35 % of the results also included a reference to Mr. Baldoni. This was highly unusual given the length of her career, the company said, and suggested that the media environment was being manipulated. A separate report by Miss Lively's hair care company, Blake Brown, concluded that the social media onslaught also had a negative effect on that business. Her product line, which blah, blah, bla, blah estimates it lost as much as 78 % in sales. That's it. So that sounds like what the New York Times did was they reported on some other people's opinions on stuff. And they they said, here's the evidence she has. Is that false? Like, is that, I don't, yeah.

0:09:10 Anne: Right. Again, this is what newspapers do all of the time, is just to say, she says it's this. We talked to some experts. They said this is the data, right? No further conclusions were given, just sort of like, this ist what we know at this point. They're not a court of law.

0:09:23 Thomas: Yeah, actual malice standard would mean, well, we went to a guy with a sign that said, definitely a fake expert will tell you what you want to hear. And we got his opinion. And as an expert, he said this, like, that would be like more actual malace standard, right?

0:09:42 Anne: Yeah, yeah.

0:09:42 Thomas: I mean, but like you went to an ex, you know, you, you quoted her experts. It's yeah, it's just nothing. So that doesn't work.

0:09:37 Lydia: Right,

0:09:48 Anne: So that doesn't work great. And then again, the the standard here is that higher one of knowing that it was false or with reckless disregard for the truth. So we get a reiteration of the Yeah, that's for sure. Because if they had read all the things they said they'd read, they wouldn't have come to those conclusions. It does.

0:10:09 Thomas: So again that's not so I'm sorry I should have made sure to ask does this require that same actual mouse standard okay so yeah so they're still using the wrong one you're saying

0:10:18 Anne: I mean, they're basically they just say we allege that they you know, knowing that the portrayal was false with a reckless disregard. This is evident from their possessions of private communications that directly refute and contradict this portrayal. So basically, like, with the stuff that we think that you read, we disagree with your conclusion. Therefore, you have malice. Right?

0:10:38 Thomas: So again it's just yeah so I guess it is hard for you to answer that question that I asked because it's like I guess they're using kind of the actual mouse standards but not really because they're saying the thing that caused or is evidence of actual mouse is just not even close close to that. So yeah, I see why that's a mixed answer. I don't really know how to answer that either. They're just not doing the right thing, I guess. Yeah.

0:10:58 Anne: Yeah, I don't know. Yeah, it's just like, sometimes, yeah, you're just like,"I don't know. I have to hit this point. I've got nothing. I'm gonna just do my best."

0:11:07 Thomas: It's sort of like if one of the elements is a false statement of fact, they were like, well, step one, a false sentiment of fact.

0:11:16 Anne: There was a false statement.

0:11:16 Thomas: And they just like said that it was like step two, actual malice. And it's like, no, you can't just say you can just say the elements. You have to actually say what they were, like how in this case.

0:11:25 Anne: It very much reminds me of that. Yeah, the clip from from the office where you know, they're like, Michael, it's not a hate crime. He's like, well, I hated it.

0:11:36 Thomas: And there's not anything better than that. I'm just looking through purely defense, like, and there's, there's all kinds of irrelevant stuff. Like lest we think that finally, when we've gotten to the causes of action, which, you know, maybe you'll have to amend your estimate. And because even within the causes action for this thing, that's supposed to be about the New York Times, they're putting in all this stuff. That's just completely irrelevant. Like it just is is totally irrelevant. Like, for example, as a result of these deliberate choices, which seem transparently intended to elevate Lively and restore her reputation rather than accurately portray the events described therein, like, that's nothing. Is the New York Times not allowed to just write an article that, like, is good for someone? Like, they could if they wanted, right? You could just write another one. That's like, hey, let's elevate Blake Lively. That's not defamating. It's just another irrelevant part of this, right.

0:12:24 Anne: No, absolutely. I mean, I don't know why they're stuck on this idea. Not just that, like, oh, they did an unbalanced reporting. And that was a bad, but the conviction that somehow there was this secret scheme and like is lively paying them. So it smacks very much of like accusations or confessions, questions right like no you guys are the ones that seemed like you were planting a bunch of stories and trying yeah yeah I don't

0:12:45 Lydia: Yeah. Whoever smelt it, dealt it. Yeah, it

0:12:52 Thomas: It's a very famous legal principle. Yeah. So is there anything else to the elements of that one we need to talk about? Yeah.

0:13:00 Anne: Think so they just say actual malice you didn't give us a chance to respond uh are crying about that again

0:13:09 Thomas: 141 plaintiffs are informed and believe and based there on allege that the conduct of defendants and each of them was malicious as that term is defined in California civil code section, blah, blah. Like it was. Yeah, that's a great word. It was malice. I agree. Three malice.

0:13:18 Anne: Yeah just like we're saying it again there you go yeah so what they're doing at the end of each of these right is they try and hit all of these elements and then say we have damages in this amount, blah, blah. And then these last two ones at the end of each count are a request for punitive and exemplary damages, right? So again, that's why it's malicious down here. The malicious for the false light is up at 138.

0:13:44 Thomas: Thank you. That is a very good lawyerly point that I definitely would have missed. Okay. So that's an additional thing they're trying to do.

0:13:54 Anne: So for each of these, both of these that we've looked at so far, they have asked for punative damages on each claim.

0:14:02 Thomas: Okay, they're not even getting to one malice, but they're Trying to say two malices. Is that?

0:14:09 Anne: Correct. Correct plus punitives for egregious and outrageous conduct.

0:14:13 Thomas: Oh, boy, that's silly. Okay? That's not good. Yeah. Wow. That's why you got to talk to lawyers, folks. There's so much stuff that's easy for normies to miss double malice? Nope. Okay! So we're done on that second cause And how would you grade it? Another F.

0:14:28 Anne: So far, I yeah, no curve.

0:14:33 Thomas: Yeah. No, there is no curve.

0:14:37 Anne: Yeah, it's not going good. It's not gone well for these guys so far.

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0:14:41 Thomas: Okay. And this is where things get so bad that even as not a lawyer, I'm just going to confidently state these first two were where they did the best. The third and fourth, I feel like, look, you could tell me if I'm wrong. These seem so stupid to me. These seemed like an absolute joke. Tell us about promissory fraud, the third cause of action.

0:15:00 Anne: All right, you can't see me but I'm like doing a little dance in my chair right now because I'm just like so excited to talk about this. You teed this up right? In one of the prior episodes, you teed this up. And we're like, just try and think about what they could possibly be talking about here. I'm playing along with this game.

0:15:18 Anne: So I have actually not done a ton of reading ahead. Let's walk through the elements and then see what they what spaghetti they throw at this wall. All right, so a clear promise, a specific unambiguous promise must be made by the defendant.

0:15:19 Thomas: So what's the answer? Okay. Okay. And what kind of promise are we talking? Because think of normal people. I mean, we're not talking about like, hey, promise that we're going to the movies tomorrow. Or like, does it have to be any kind of kind of promised like a businessy one or a legally one or a yeah.

0:15:47 Lydia: To be a pinky swear level. Level.

0:15:51 Anne: Well, it has to be something that there was like, you know, some sort of reliance on that cause damage. We'll get down to those, right?

0:15:57 Thomas: Okay, well, it sounds like they could be a lot of different things, though, in fairness, not just like, I promise to deliver you the goods on Thursday. Like there could be other stuff that, so as long as it's going to be something you're going to rely upon and it's gonna cause you damage. Okay.

0:16:01 Anne: Yeah, it could potentially be a lot of things.

0:16:12 Anne: Right. And even if it was, I promise to deliver the goods on Thursday, and then you didn't do that. And there's damage because of now the car doesn't get built and you're, you know, on the hook or whatever. That could be a thing. But this is one of those old timey ones, right, like from before we had a ton of statutes where it's just like common law, promissory fraud. Those are where this developed out of. Okay, where do we have a promise from the New York Times?

0:16:36 Thomas: So yeah, drum roll please. The promise is

0:16:39 Anne: The promise is implied that we won't publish until you get back to us.

0:16:50 Lydia: No. Until noon. Specifically the time. Yeah.

0:16:53 Anne: Until, oh, until noon. Sure, sure, sure. Okay.

0:16:56 Lydia: Yeah,

0:16:56 Thomas: Paragraph 145, the Times offered plaintiffs, which is interesting that they say offered, because is that the language you would use or would you say they promised? I don't know, Anyway, they offered plaintiffs until noon Eastern the following day to respond to the allegations. Okay. First off, they didn't really. They sent us the language and the language was respond to us by this time. And you did. They didn't promise that we will not publish before then. That wasn't a promise they made, but okay. We'll keep going with them.

0:17:28 Anne: So basically, they don't ever say that that was a promise. They just say they offered, and then they published and they caused a feeding frenzy and,

0:17:35 Thomas: Oh, that's part of promissory fraud. You can't cause a feeding frenzy. That's yeah. No feeding frenzies.

0:17:39 Anne: You know, it's well known. And that the outreach was just to pay lip service to journalistic ethics and never intended or wanted for plaintiffs to respond. Leaving aside the fact that the plaintiffs did respond. Okay. All right.

0:17:54 Thomas: Did respond and they did include it this is so bad okay what so we were still on the promise element what else do we have in the elements

0:18:02 Anne: We're still on the promise element. Let's just even, totally counterfactual, Well, let's pretend that the reporter had said,

0:18:12 Thomas: I solemnly swear I am up to no good

0:18:12 Anne: I promise, I solemnly swear that we won't publish until you have a full and complete opportunity to review and get back to us with a considered response. Let's just even say that that happened. Okay, next, they have to say there was an intent not to perform, that at the time the promise was made, the reporter like sent, you know, made the call, sent the email. Mail. Yeah, and was just got off and was like, I just totally lied to those suckers. Right? Do they say that here? The closest they come is the thing that I already just said was that basically like we think that this was just lip service and that you didn't even intend for us to respond. In other words, you'd never intended to fulfill the promise. Okay, did that not?

0:18:34 Thomas: Was crossing their fingers yeah yeah can you just say that though I mean I know it's a complaint so you get to kind of just say like you know on information and belief type thing but I don't know that seems pretty weak to me

0:19:00 Anne: Yeah, that's it does seem pretty weak to me too. Okay. But let's even say we grant that. Now we move on to reliance. The the plaintiff reasonably relied on the promise taking action or inaction based on the belief that the promise would be fulfilled. That is not addressed here at all.

0:19:21 Thomas: There's nothing I can't nothing absolutely nothing

0:19:23 Anne: Because they can't. Because they did respond.

0:19:29 Lydia: Well, what do you mean? And it says, but plaintiffs did rely on their false promise. In fact, due to their detriment.

0:19:35 Thomas: Yeah oh which fit no well that's not quite the right it says plaintiffs are informed and believe and based their own alleged they can use that every time I guess that's the whatever legally stuff that defendants and each of them intended for plaintiffs intended for point of to rely on their false promise which plaintiffs did in fact do to their detriment

0:19:58 Anne: Yes, completely skipping over the part where they responded. Responded.

0:20:03 Thomas: Yeah that just then that even says they intend so is intent another thing like the defendant they would need to intend you to rely on it or because that okay

0:20:13 Anne: So the, yeah, the next element is that the reliance was foreseeable to the defendant.

0:20:18 Thomas: Ah okay okay okay that makes

0:20:20 Anne: So they're trying to, they're really kind of, kind of getting a twofer in there.

0:20:22 Thomas: Sense that's just not even and fucking close. Like that is just so bad. We did rely on it to our debt. That's once again, a hate crime, as you say, and the Michael Scott theory of law. Did you rely on it? Yes. To my detriment. How? I don't care. He was detrimental is how I don't, there's no, there's nothing, there'S nothing here.

0:20:38 Lydia: Yeah there's no information

0:20:42 Anne: Yeah, very much. There's no information there. We still have more elements to go, in fact,

0:20:50 Thomas: We've already fallen off the cliff and we're still They're like, yeah, but there's a further jump you needed to make.

0:20:50 Anne: On this. There're two more floors. We have to go two more floor down. Down. We are, we are in fact.

0:20:57 Lydia: There oh we're like out of words too in there in this cause of action

0:21:03 Thomas: It's like a whole Ninja Warrior course that you're looking at like this long thing. And they've just biffed it into the water on the first obstacle. And they're like. Well, but we haven't even told you about the one later on. That's like really cool.

0:21:14 Anne: Put, put me back up. Put me back up. I totally, I got it. I got the next hand bar. I love Ninja Warrior. Okay.

0:21:21 Thomas: I know me too. My goal is to get our kids to do it because they'd be really good at it.

0:21:23 Lydia: Oh it's so good remy's really into it I think yeah

0:21:25 Anne: There is kids Ninja Warrior.

0:21:26 Thomas: Oh, my God. Remy's insane. Saying yeah it's so good I love

0:21:30 Lydia: Yeah I know it's the best

0:21:31 Anne: And I've seen people who, okay. I've seeing people who like built the like course, like a training course in their backyard. Oh my God, Ah, dude, I know. Listen.

0:21:31 Thomas: It anyway topic for another show I know I if I had the time if I had the tie man

0:21:40 Lydia: We have too much Baldoni Lively to get through. We don't have the time to build the course.

0:21:42 Thomas: I know yeah I'm not allowed to raise my kids I have to get I have read these fucking complaints so what's our further hoops that we're not even I guess for fun you could tell us about them even though we were already dead but

0:21:54 Ad: [Ad break 3 — ad music]

0:22:00 Anne: Yeah, we're most of the way down the cliff. We're caught on a branch. Here's where we're going down from here. So they allege injury and damage, right? They're just like nothing. Not even like before. Yeah. Not Even like before where they're like in an amount of at least $250 million and blah, blah, and we'll figure it out later. They just say on this one they just say uh we've been harmed in an amount to be proven later and just something yeah

0:22:09 Thomas: I hated it oh yeah ah okay stay tuned Watch this space.

0:22:31 Anne: Exactly we're just planting a flag here for injury because that's part of

0:22:33 Thomas: Wait, I can't put a number on it, you know, like.

0:22:37 Anne: It can't really say okay and then causation is the last thing there has to be a causal link between the false promise and the injury suffered by plaintiff so they haven't even attempted to address causation

0:22:51 Thomas: This is where they can get really metaphysical. Well, your honor, how can you prove causation between two imaginary things is the key. Does a square triangle cause an even odd number? Maybe. Maybe not.

0:23:10 Anne: I Love it. I was like he's gonna go in for some math imaginary numbers and I have nothing, I have nothing. Yeah yeah

0:23:15 Thomas: Yeah. Yeah. Yeah. It's like the causation between the two things we didn't establish. So, okay. Done.

0:23:22 Thomas: Right. I mean, what? Yeah. They're just dead in the water. It'S not even close. This is so stupid.

0:23:25 Anne: So that's ridiculous again I genuinely I want to figure out who the lawyers are working on this for the times and just send them all of this I think they would really enjoy listening to it as they're preparing their response so now we move on to the fourth cause cause of action. Breach of implied, in fact, contract.

0:23:47 Thomas: Yeah. As I said earlier, we saved the best for last. I'm sure. I'M sure this was a great one. This is like the best cause of action. Okay. When I did my very amateurish version of it, please tell me if I fucked it up. This one seemed like, oh, okay, we could see this applying in some other situation it sounded like our our layperson understanding of it please correct us if we're wrong was like you string someone along by implying like oh yeah yeah we totally have an agreement here definitely it can't be in writing it's got to be an implied thing right and you string someone alone by making them think like oh Yeah, we're totally I will deliver those goods on Friday and we got a great business going and whatever something like that. And then it turns out you're just fucking with them to their detriment. Like actually you had already gone with another vendor or you'd already, I don't know, something like that. It seemed like it, I could at least see it in real life terms.

0:24:36 Anne: Yeah, Lydia, I kind of liked your, yeah, the wedding venue thing.

0:24:38 Lydia: My wedding venue example.

0:24:38 Thomas: Oh, the wedding venue. Yeah. New sitcom coming to Fox Sunday nights.

0:24:44 Anne: I can't believe there, maybe there has been, there should be like a wedding wars, like a, like we're having our weddings in a competing fashion. This is great.

0:24:52 Lydia: It's called Four Weddings. And they vote on like best dress and best food and yeah

0:25:01 Anne: Okay. This was a total, total side tangent, but oh,

0:25:01 Lydia: Yeah it happens Yeah, it is

0:25:03 Thomas: I don'T know if you're talking about a real show.

0:25:05 Thomas: Oh it is a real show. Okay. That does sound good actually.

0:25:06 Lydia: Yeah yeah I used to no I used to watch

0:25:07 Anne: That's amazing. Okay, okay. This this is great. This is so good. I was literally last night trying to explain to Heath about how there can be tacky wedding flowers and like nice bouquets and like medium bouquettes. And he was just like, this is insane. I don't understand. Flowers are flowers. You just hold some flowers. And I was like, no.

0:25:27 Thomas: I kind of, I'm not all the way there. Yeah Yeah. But I can see it.

0:25:31 Anne: He was like all of this indicates the madness that all of your brains have been overtaken

0:25:38 Thomas: Yeah. I did have to do that a little bit with Blake Lively's fashion choices or wardrobe choices where I'm like, look, if you tell me this is stupid, I'll believe you. It seems kind of dumb to me, but I would never be confident enough to say that this looks weird. I don't know.

0:25:50 Anne: It's good it's just validating to me to know that there's a whole community of people who are apparently watching this for wedding show who are like in my zone they understand

0:26:03 Lydia: Yep yeah and they could win a honeymoon if they won if they had the best wedding

0:26:03 Thomas: There you go.

0:26:05 Anne: Yeah we have strong opinions about these

0:26:06 Thomas: That's even better. Oh, that's Lydia. This is such a good idea for for a show you should do this yeah

0:26:11 Anne: Things but yeah so this actually seems fairly similar to the structure we talked about before where they're like trying their hand at one type of very specific claim vis -a -vis defamation, right? And then they're kind of like, okay, but if you don't buy that, we're going to also put in this claim for something that's a little bit downgraded. Yeah, yeah. So, right, we had promissory fraud on this about the whole, the noon deadline thing. And then, they're like, okay, but if we don't think we met that standard, how about breach of implied impact contract?

0:26:32 Thomas: Defamation

0:26:49 Anne: Like let's try that one out because it's the same argument only yeah this time it's just the standards are basically like you led me to believe something and then you didn't do it and I relied on it you know it's it's much more squishy but that's the the existence of this kind of claim is exactly why we have this is a little bit of legal nerdery like the statute of frauds, right? Where we say no, no, certain types of contracts have to be reduced to writing because what we don't want is a system where people are just running around coming into court being like, no, he promised to sell me his

0:26:43 Thomas: Jr god

0:26:49 Lydia: Yeah, mm -hmm. Mm -hmm, yeah.

0:27:29 Thomas: Yep

0:27:29 Anne: House for $1. That's like untenable. So certain types of contracts.

0:27:31 Thomas: I failed many of our question on this very topic I'll have you know and yeah and it's surprising though like some I almost remember some of it can't be longer than a year that's one of them if it's going to be longer Than a year it's got to be in writing there's there's other ones what are they there's like uh land maybe I feel like land can't Be in there's land after being right I don't know but it's crazy Easy how much stuff can be not in writing, I guess, is always my impression of it.

0:27:54 Anne: And I guess that's good in the sense that like, we don'T want to close people who are illiterate or like, you know, maybe like this this is not their first language or something. You don't want to close them out from like access to the legal system for justice, but it is surprising sometimes.

0:28:08 Thomas: I think it's interesting in this one, they actually spell it out a little more in a way that I feel like they should have in the previous one, because I feel it's overlap. But in this on, they say, through their express written words, defendants offered plaintiffs until noon the next morning to respond to the allegations. It's hard to get through this without laughing. Provide additional relevant information and correct inaccuracies. Plaintiffs accepted defendants offer, which created an implied, in fact, contract between the parties whereby the Times would refrain from publication for a brief period in exchange for a substantive response to the allegations. Additional relevant information and confirmation of the authenticity, accuracy and completeness of the robot lied upon communication. Plaintiff's performed in accordance with that mutual understanding. This is what God so funny. Yeah.

0:28:58 Lydia: Would love, I would like if this claim actually gets tested at all, like in real life. I would would love for the Wayfarer parties to present the statements and documents that they were about to send the New York Times, but they didn't because the New YorK Times jumped this deadline that they thought was an actual deadline. And yeah, I can tell you, I think we're all in agreement here, like that there is not that information. Because again, as I've said so many times, if there were, you can still just submit it to the NewYork Times and they can make the updates to the article after to the fact. Post -feeding frenzy, but still.

0:29:16 Thomas: Jump the imaginary gun. Yeah, I think they talk about like and we we showed them all the stuff and they didn't believe it, essentially.

0:29:43 Lydia: Weird.

0:29:43 Thomas: And it's like, well, but the place where they said we accepted it, like and relied on is so funny to me. What do you mean you accepted their offer?

0:29:50 Anne: Thank you, sir. Right. Pushing an email back across the table. That's the thing, right? That's what I'm picturing actually is the deposition on this and sort of, you know, going, okay, so you accepted this offer and you relied on this understanding that they weren't going to publish until noon. Is that correct? Yes. Okay. Where did you express that expectation back to the New York Times? Here's the email that you wrote back. Please read it into the record.

0:30:20 Anne: Where in that email did you say, I will be following up with additional and relevant information and expect that this article will not go live per your prior statement? You know, like, where in that mail did you write that? Where in the email did you say that?

0:30:33 Lydia: Yeah, it very easily could be like when they sent over the statement at, you know, two in the morning, 2 .16, I think it was, they could have said an additional email will follow with, you Know, our claims about, you know, these statements being false, et cetera, et Cetera, or these additional documents we'd like you to take a look at.

0:30:51 Lydia: Like they could've very easily included two sentences in that email when when they responded, that more was coming.

0:30:57 Anne: This is why as lawyers, right, we put this kind of stuff in, you know, where stuff's ramping up towards or in litigation, we put this stuff at the end of our emails all the time, just to confirm our mutual understanding is this, right? You would think that like experienced crisis management people, if they were actually relying on this, would say the same thing, right, they would say, we will get back to you by noon tomorrow with additional information. And we expect it to be included. Well, you know something, something, but that's not what they said they basically were like this is all bullshit and we hate it yeah

0:31:34 Thomas: Yeah? I actually wonder why they even responded when they did. Why didn't they wait longer? Kind of weird. Weird they could have been assholes and been like we're thinking hold on we'll get back to you no

0:31:44 Lydia: It's because Brian Friedman probably called TMZ and was getting the lead out to them.

0:31:50 Thomas: But why would that mean they had to respond to the times when they did because they responded to the times in the middle of the night wasn't it was like uh one oh okay yeah something like that was my memory yeah what 216

0:31:56 Lydia: Yeah, it was. 2 -16. Yes.

0:32:00 Anne: It gave me a sense of like panic and I'm I'm not sure where that came from but it does seem like there was just like a bunch of frenzied texting and then just being like I don't know just tell them tell them it fucking sucks

0:32:12 Thomas: Yeah because they sent that one email right with a statement well okay it's also an indictment that we we don't even have in this complaint like a very clear idea of that how that went like you would think we would right I mean they say they responded a certain time but But yeah, if there were any of the of this language you're talking about, which you would you would expect, like we should see it. Right.

0:32:32 Anne: We should see it they've they've certainly granted so much real estate to like excerpting other communications why don't we see these emails

0:32:38 Thomas: Like, yeah. Yeah. These are the facts we just most recently went through because it's right before we get to the cause of action. We are seeking your response to the claims of retaliation. And again, oh, yeah, I just read this. It's in bold. We need to hear back from you tomorrow by noon. There's not even in their own fucking complaint. There's nothing that says we'll hold off. Don't worry. We will not publish this until noon. It just says we need to hear from you by noon.

0:33:07 Lydia: By noon.

0:33:09 Thomas: This is not even close. And at 2 .16 AM, they did it. Like they did reply to that.

0:33:15 Anne: Yeah because like Like, if you just sent back a, like, we reject these claims in their entirety.

0:33:19 Thomas: If they had put on like a tweet at the bottom, it said one of X. Oh my God.

0:33:23 Anne: Yeah, exactly. Like, you know, back when my dad used to work at the Justice Department, and this is how old when he started, people would send telegrams, right? And you would get these things, and then they would send it. Yeah. Well, I'm 10 years older than you. And my dad started at the justice department.

0:33:36 Thomas: Are you a hundred? Yeah. And your dad is 400 years older.

0:33:43 Anne: He started in 1973. 73.

0:33:43 Thomas: That's not that long ago okay so they were just using telegrams very very very much more recently than I thought yeah that's crazy

0:33:51 Lydia: It was a government job, Thomas. Yeah, it was a government job. They took a long time to catch up with the tech.

0:33:57 Anne: Listen,

0:33:56 Thomas: When would you have guessed if someone told you when and not not a loaded question was like when you think they switched from telegram to I don't know what the fucking next technology was after that I'd be like 1940 yeah

0:34:11 Anne: I'm pretty sure the FAA is still using MS -DOS or whatever.

0:34:14 Thomas: Yeah, no. That's fair point fair point

0:34:14 Anne: So anyway, so they would send these things that we've adopted ever since in our family, where they would just send us telegram and they would say, fuck you, strong letter to follow, right?

0:34:28 Thomas: I love that that's really good that was so that would be something but I have to imagine and take us through the elements because I feel like my instinct is even if we had that here even if we had a fuck you strong letter to follow I still feel like this can't be right this can'T be a breach of implied in fact contract there's got to be something else missing here because it just seems silly to me but am I wrong what do you need for this one

0:34:50 Anne: I really think that this is grasping at straws. Now, like I said, if you had sent just a thing that where you wanted to argue, this is clearly a placeholder. And ideally, you'd even said, I'm counting on you not to publish and I'm going to get back to you with more. There's tons of inaccuracies here. I can't go through them all right now. I will get back to you by noon. I'm counting on you to await my response. Something like that. Okay, you've definitely got more there.

0:35:17 Anne: You still have an uphill battle, right? Because it's not like they offered to wait. And then you're like, I accept. They just said, we need to hear this is our deadline. And then you're trying to make it into like, we have a contract in agreement.

0:35:22 Thomas: Yeah yeah well Well, not only that, I guess you could really get lawyer-y on them and be like, we just said we need to hear from you. Like we just – this is not connected to the article. We just really wanted to hear From You. Like we're just like, ah, it's – yeah, it is like I tell Lydia. It's like I need to hear from you by noon tomorrow or my heart will break. Yeah.

0:35:40 Anne: So again, yeah, again, this is this.

0:35:34 Lydia: Yeah it's been a while since we've heard your voice to have justin send us one of those sweet sweet voice memos yeah yeah

0:35:50 Thomas: Oh, God. No, we can't get to that yet. Yeah. No, but like I mean it is kind of a lawyer-y thing, but there is nowhere where they said they're going to hold off on publishing. They did just say we need to hear from you

0:36:01 Anne: Correct. They're still trying to, you know, sort of spin something up out of very little to work with. But then we don't even have that in this case, right? They sent a fulsome response that is just basically a bunch of jargon that it didn't say anything was specifically inaccurate, right? Because the Times was like, please notify us of any inaccuracies. And they're just like, we reject all of this. And this is egregious.

0:36:08 Thomas: Yeah not even that the freaking thing is rigged is what they said

0:36:29 Anne: Yeah, yeah, exactly. And the Times is like, great sound seems like we got our response. Let's go very reasonably. This.

0:36:36 Thomas: Yeah yep they saved the worst for last is what you're saying this one is so silly

0:36:42 Anne: This one is so silly. It's so grasping at straws. It is so grasping at straws that again, they're just like harm in an amount to be proven at trial. We're not even asking for punitive damages.

0:36:55 Thomas: Yeah this one they couldn't even go for the malice of punitive damagesy thingies at the end they're like even they knew this was not gonna do

0:37:03 Anne: Yeah, both of these, these contract fraud claims, no request for punitive damages that possibly could be because you're just not allowed to ask for punitives under a contract claim. But these are just gossamer thin. I mean, there's nothing here.

0:37:14 Thomas: It okay gotcha yeah but 158 as a direct approximate result of defendants foregoing breach plaintiffs were deprived of the benefits of the the bargain in that they lost the opportunity to meaningfully assess and respond to a false misleading extremely inflammatory portrayal of their actions and character well no I mean not really again they could have still sent something in for one they could've sent something in at noon and been like hey we had this ready and I'm sure the times would've put it in they should I hope they at least tried to preserve like this claim you know as a lawyer wouldn't you think they would do that like if they were gonna try to claim this I hope at 12 noon, they sent an email saying, oh, and another thing.

0:37:56 Thomas: Oh, wait a minute. Yeah. Otherwise they got nothing. But even so, what are they deprived of? Because you actually don't, you don't have a right to their platform, right? I mean, it's like, they never said like, we will give you control of our newspaper. You still could respond on your own, right. And no part of this makes sense.

0:38:12 Anne: Yeah. The sliver that I think they're trying to highlight here is that like the first impressions of like this bombshell story hits, and then people are like, Oh, this seems pretty bad. And Justin's team didn't say anything. And then people don't go back and read anything that's updated or whatever. Okay, so like, that's, that'S where the like, sort of the expert arguments would be around like, okay, this much damage, even if there was a correction later or something, but like, how far does that penetrate the public consciousness that all gets extremely, you know sort of nitpicky and technical but I think that seems to be what they think they're saying is that like if we had had the opportunity to respond more fully this would have been much more balanced yeah

0:38:58 Thomas: But I think you're doing a lot of work for them because I don't I honestly, I don'T think they said that at all. But but I do hear that is a good point. Yeah.

0:39:05 Anne: But like you said I mean I I don't see where they've been able to point to anything specific other than well we read the same stuff and we don't agree so like there's no guarantee that if they had brought a whole bunch of stuff and been like but what about this but what about this that the times would have been like oh hold on the times could have just been like baldoni's team says this which they did

0:39:26 Thomas: And that's what I was saying is like they didn't promise full unrestricted use of their platform. They didn't promised anything like that. So like even if they had waited until 12 and even if Baldoni had sent over some amazing thing, they weren't under any obligation to even use it. Really? I mean, like they don't promise we will definitely change everything based on what you say, you know?

0:39:32 Lydia: Right.

0:39:47 Thomas: So it's like I don't think that's even a promise. Like even that part fails, I think.

0:39:47 Anne: No yeah all they were really required to do is to give them a chance to respond which they didn't and this is not like really legally required this is just again sort of like the way things are done and then to say we reached out to them this is what they said which I think that they did

0:40:09 Thomas: They did. So this is silly. This one is such a joke.

0:40:18 Ad: [Ad break 4 — ad music]

0:40:18 Thomas: All right. Well, overall, we're done. We're done with this fucking complaint. And any other lawyerly points to make? Any other observations? What do you think about this whole thing?

0:40:28 Anne: Oh man I should have thought of something like a pithy sum-up. Emojis can't be criminal. I don't know. Find you a lawyer who knows the difference. Make sure that all your claims have proper foundations. I know.

0:40:47 Thomas: Yeah you know I actually you bring up a good point I do want to at least address what they would think their best argument probably is that emoji they would probably say and people might if they agree with baldoni might be thinking but look the new york times published that text and they did I guess by the way they also published it with a disclaimer saying they've been edited for like length or something so I feel like that would also kind of cover it but But is there anything there in the fact, like, let's say we grant that that emoji does change the meaning of that exchange. And you heard us talk about that. And I think there is a good case to be made there that that might have changed the meaning of that exchange and that really she was saying, I'm not responsible for this. This is sarcasm. That's a joke. Is there anything There?

0:41:24 Anne: I agree that it's probably better than 50 % that is, you know, what the emoji was doing there that alone, like Like, if it was nothing else, right? Everything else fails, but they are correct that the Times omitted this thing unintentionally and they should have done a better job of knowing somehow that there was an emoji or whatever and that it changed the meaning of the text. That's not enough to support a defamation claim or a false light claim. Right.

0:42:04 Thomas: Yeah. Especially with actual malice standard. Like just no way. Right.

0:42:10 Anne: And I will say this, that I don't know if, like, listeners have heard, I know I've told you guys when we first started diving into this that like, I didn't come to this with a particular perspective, right?

0:42:21 Thomas: Yeah.

0:42:21 Anne: I had sort of looked at this and been like, whatever. It's a celebrity slap fight. I don't care. And I read some of the, you know, the Patreon comments or whatever on the prior episodes. And, you know, somebody was like, Oh, I think you guys are carrying water for Blake Lively. And you should just be honest about that. I definitely am not a water carrier for either side. But in going through what we've gone through, I am just absolutely unconvinced by anything I've seen from the Baldoni side that there's any there there.

0:42:52 Thomas: Especially when you look at the details of that. Like if we're saying the emoji is probably their best thing they have, really. I like I. Well, I won't put words in your mouth. Let me know what you think. That seems like their best thing. If I go to that part of The New York Times article, for one, there is a place right there where it says messages have been added for length right above that. And then it says and it doesn't put this text in like any picture form. It just like actually quotes it like in text form and says on August 16th, Ms. Nathan shared the Daily Mail article headlined, Is Blake Lively set to be canceled? With references to hard to watch videos and a tone deaf promotional Q &A. Quote, Wow, you really outdid yourself with this piece. Ms. Abel responded, That's why you hired me, right? Ms. Ms. Nathan replied, I'm the best. And then it ends. And they don't say anything about that. They don't characterize it. They don'T, I mean, I guess above they say the team was reveling in damage to Ms. Lively's image, but actually that, that isn't false. Like even if this was sarcasm, that's still what they're doing. What could you even point to as the false statement? I mean it's just lack of emoji. I don't, I don'T know.

0:43:54 Anne: Yeah, it's you know, the old classic claim of like, my statement was taken out of context. Right?

0:44:01 Thomas: Yeah. Hmm.

0:44:01 Anne: So they're basically like the emoji provided critical context for the meaning or you know of that statement. To some some extent, this is why we have like a hearsay rule, right? Like, you can't provide a statement on its face as a proof of itself, because the emoji can change the meaning and that sort of thing. But like, that's, again, that is not in and of itself a defamation claim. That's like an oversight. But in the context of the overall article, it would just be one thing where like, okay, so you took it to mean this one thing with the emoji, maybe readers would take it to mean the other thing. So at best, if they'd had the emoji, the New York Times would have been like with a winky or an upside down smiley face or whatever it was, which may have indicated that this was a joke. Okay, does that change the overall thrust of the article? No.

0:44:52 Lydia: I've got to think that the New York Times is feeling pretty confident in their position because, you know, I imagine if there was a there there, their legal department would be like, let's add, you know, let's update the article with a statement there, specifically about the emoji. And if they're not making that update,

0:45:05 Thomas: Yeah, I've think about that too. Yeah they haven't. Yeah.

0:45:11 Lydia: I think I think they feel pretty dang Staying comfortable. Yeah.

0:45:14 Anne: Yeah, I think that that's a great insight

0:45:14 Thomas: Which is interesting. I mean, they could have, but yeah, I think about that all the time. Like they could update it, but it really doesn't need to. Cause again, they didn't even say like, check out this exchange, which proves that they like, they don't, that's not how they're presenting it. And not only that to say nothing of the fact that I think it's entirely likely. In fact, I would say it's virtually a hundred percent likely that in the format that the New York Times received this information, the emoji wasn't there.

0:45:42 Thomas: Like, I just don't think it was what? Like, it seems pretty clear, you know, and if that's the case, then we're not, we're not even anywhere near actual malice, right? Like there's no way.

0:45:48 Anne: So far. Right.

0:45:49 Thomas: Yeah. It's like, we're not even, anywhere near the normal standard of what there's a reason you would suspect there should be an emoji there or anything like you got it from a subpoena. You got it from the software that we talked about that like, you Know, grabs this stuff out of phones and it seems like it didn't include it. There's no way the New York Times should have known that.

0:46:07 Anne: And they were entitled to rely on the accuracy of documentation extracted and used in a legal procedure, quasi legal proceeding at a minimum, right? Yeah.

0:46:18 Thomas: Yeah. So that's their best shot. As I said, something for them to complain about. It's valid. I think that's a valid complaint they can have about the article for sure, but nowhere near defamation. It's just a joke in my opinion, and feel free to put it in your own terms, but still

0:46:30 Anne: No, no. Agree. Like I said, I haven't, I haven't seen anything that makes me think that he's got a leg to stand on here. So, but there's lots happening. Yeah.

0:46:40 Thomas: More to get to.

0:46:41 Anne: So I'm interested to see how it, uh, how it plays out and you can, uh, summon me back when you want to talk more.

0:46:48 Thomas: All right. Thanks so much. It was always fun having you on.

0:46:52 Anne: It's always a great time. I just totally lied to those suckers. This is all bullshit and we hate it. I don't know. Just tell him it fucking sucks. Fuck you. Strong letter to follow.