Lively v. Baldoni 27 - More with More with MJ Morley on Jen Abel's Countercomplaint

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: Hey, it's Gavel Gavel. How's it going? Gavel, gavel. I'm Thomas. That's Lydia. How are you doing?

0:00:29 Lydia: It's like a lot right there. I don'know. It was overwhelming. I didn't

0:00:31 Thomas: I'm just getting through it. Just going through it as fast as possible. I think if you do it fast, no one notices.

0:00:36 Lydia: Even get to react to your

0:00:39 Thomas: Yeah, maybe I didn't need to hear it.

0:00:39 Lydia: Attempts at calling people in. It was, yeah, I need a process.

0:00:44 Thomas: I said, how are you? How are we doing? Lydia Smith, co-host to Gavel Gavel.

0:00:46 Lydia: I'm not going to be able to do it. I don't know how to answer that question. I honestly am flabbergasted right now and I don't know where I am.

0:00:53 Thomas: Okay, that can be a way of being. That can be a manner of being yeah well I'm excited to talk to mj more with more of the more than mj morley always

0:00:56 Lydia: Yes, that's how I'm doing. I've lost my marbles because of you. Oh god yeah

0:01:09 Thomas: Excited for more with mj marley we're gonna finish off jen abel's counter complaint against jones and jones works importantly we'll get to we'll uh we'll talk about that a little more and so we're going to finish that off

0:01:18 Lydia: And see if they've conspired yeah yeah

0:01:21 Thomas: With the lawyer so If you like this content if you want more of it if you wanted earlier and if you wanna feel better about yourself go to patreon.com/gavelpod that's where you can support us and get the no ads and get good stuff and the early stuff oh

0:01:33 Lydia: Hey you could be a patron like mj I found out she's a patron I didn'tt know that oh well I didn' t know

0:01:38 Thomas: Yeah I knew It I guess noticed that at some point yeah well I don't tell you anything sorry it's on me you

0:01:43 Lydia: That yeah that's true so if you want to be cool like m .j head on over patreon .com slash gobblepod that's fair that's

0:01:50 Thomas: Know what the truth is I always assume You know something already so I see it I'm like lydia would already have seen that or know it somehow.

0:01:57 Lydia: Just because I'm like a stocky kind of personality

0:01:59 Thomas: I wasn't going to say it, but yeah.

0:02:00 Lydia: Personality I poke around I get curious yeah

0:02:05 Thomas: Yeah. If it's anything related to people or social anything, I'm figure I'm the last to know. So I don't, you know.

0:02:11 Lydia: Yeah that's fair I think I think that's

0:02:12 Thomas: All right. Well, be the first to know at patreon .com slash gallopod. And after this break, we're back with MJ Morley.

0:02:15 Lydia: Fair yeah

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0:02:26 Thomas: Now we get to ones that I feel like we can have maybe more of a loose discussion about because it seems like it's not specific California labor law, but invasion of privacy, intrusion upon seclusion. I love this one.

0:02:37 MJ: This is so fun for me. I'm sorry. This one is really fun.

0:02:38 Lydia: Tell us tell

0:02:42 Thomas: Good. Please take us through it. Ooh.

0:02:43 MJ: Well, torts is a really fun class in law school. And this is one that was on our final exam. It is not, it is not a common law. New York state does not recognize common law privacy tort claims. So including these next two claims, which are intrusion upon seclusion and false light, and they were both on our final exam, so we had to explain that this is not actually a tort in New York consistently. I do not know why. Well, I kind of know why, but I think it's very interesting that she's brought these claims. And I think it's a stretch. If you look through it, I mean, even in California, I think the standard is really hard to meet. And I don't think that they do it right. So the elements really are for six, it's intentional intrusion into a private place conversation or matter that would be highly offensive to a reasonable person.

0:03:30 MJ: And that highly offensive standard is really highly offensive so that they had a reasonable expectation of privacy in and that they suffered harm as a result she seems to be arguing here that because jones and jones work access copied and arguably disseminated the contents of her

0:03:49 Thomas: I love how she said personal phone. We made a big deal about this because this seemed crazy.

0:03:51 MJ: Phone. It is crazy.

0:03:53 Thomas: Even though she acknowledged in her own complaint that it wasn't her personal phone, yeah,

0:03:56 Lydia: Yeah just her phone

0:03:58 MJ: This is such a sticking point for me because it wasn't her. It just was not her phone. The world Is still talking about this and her phone but I find it really really interesting that yeah right here publicizing the contents of her personal phone.

0:03:59 Lydia: Number

0:04:11 Thomas: Also didn't happen. Yeah.

0:04:11 MJ: I've never seen the full contents of her personal iPhone. Right. I haven't seen her personal photos. I have not seen any of that. It was not publicized.

0:04:17 Lydia: And and jones works yeah jones works wouldn't have been responsible for that the only reason anyone saw anything from her her phone well but it's because of the lively

0:04:18 Thomas: Well, yeah it could Well, maybe. So if she's alleging that Jones showed her text to the co -workers, and I said this, and let me know what you think. I said, look, if there's any evidence at all that Steph Jones showed co -worker's anybody her personal photos or some stuff, you know, really private stuff, I'd be 100 % on Abel's side.

0:04:44 Thomas: Like if she did, if there's any evidence that in addition to all this other stuff, Jones was like, and ha ha, look at this, you know, and, and embarrassing her in that way, even though it's a work phone, I would hope that the law would protect her somewhat there. What do you think about that?

0:04:44 MJ: I would hope that it would. But at the same time, I would say that I don't think she had a reasonable expectation of privacy in that phone. And that's one of those elements. Right? And it's, this is like, I mean, we see this all the time when we're like, why are you doing, why did you do that on your work phone? Or why people don't listen ever.

0:05:16 MJ: So I don't know what she had on that phone, but she probably really didn't have a reasonable expectation of privacy.

0:05:11 Lydia: Lawsuit yeah yeah

0:05:23 Thomas: She does allege that like, oh, she, and she says it kind of funny. She says, oh because of, of Jones having my phone number, she had access to my iCloud or something. Thing. And so I guess I, just for the sake of fairness, if it were true that Steph Jones could get into her like iCloud thing, that wasn't necessarily just the work phone and shared something there. And, and even if it isn't this tort, like it might be something different. It might, because to your point, like the expectation of privacy, I could see this being maybe another tort if it was something like that. Like she found nudes that were not even saved on the phone. They were in the iCloud and she showed them to some, some, something embarrassing, you know, That I would be fully on Abel's side, but we haven't seen any evidence of anything like that. And the only things that have been shared, for one, I don't even think they're trying to argue that it's about the subpoena. I don'T even think in this complaint she is, because she tries to argue that it'S about Leslie Sloan, like having told,

0:06:15 Thomas: They point, yeah, they Point to like the Leslie Sloane calling Melissa Nathan thing as proof that she saw her texts, but those texts unequivocally would be part of the Stephanie Jones, of Jones works property. Like it'S on a work phone. It's about work. I don't know. It just seems like this is this is a no go. But if there was evidence of anything like really slimy, I would be on Abel's side here. I just don't see it.

0:06:12 Lydia: Melissa nathan yeah

0:06:37 MJ: Yeah, I think that's why they said personal photos, financial information and other like tried to make it more personal. We've seen nothing to suggest that it was personal information. And I don'T know if in this specific complaint, she alleged that she still had access to her iPhone that might have come later.

0:06:53 Thomas: I think she did. I remember reading it. It was like it didn't say that she I think it was pretty clear. It didn't Say that she she got into anything, but it said like she had the ability to get into the, you know, my iCloud or whatever. I Just don't think she has any proof at all that any of this happened the way she's saying.

0:06:54 MJ: Her did she okay the iCloud? Yeah, yeah. I mean I think it sounds really scandalous right to be like well I was on a different phone and my boss was still accessing my iCloud account but I think that's a

0:07:18 Thomas: I really wanted to ask you about this part. First off, intrusion upon seclusion. I do love the name, but that sounds like it was probably intended to be like eavesdropping on a private thing or like, you know, spying on. Yeah, it sounds kind of like that. I don't mind if it gets applied to gross cell phone stuff. You know, I don'T mind if someone's gross on stealing someone's private stuff and sharing it. That seems great, but it does read more like it's maybe originally meant to be that kind of scenario, like evesdropping or something or is that is that wrong yeah yeah

0:07:29 Lydia: Or someone's changing clothes yeah

0:07:33 MJ: Stretch yeah like much more egregious I guess would be the word right like if you thought you were having a completely private conversation and it was highly inappropriate and someone you completely thought yeah if you go through those elements it's like you two are alone in your home and someone is secretly there listening to everything that you're saying and then maybe shares that information or you walk through that, you're in a private place, it's highly offensive that someone was there and you didn't know and you had a reasonable expectation of privacy. That last part too, the plaintiff suffered harm as a result is important, right? Because the harm that she may have suffered was what, I mean, the lawsuit. I don't know what the harm here is.

0:08:29 Lydia: Yeah I don't remember which one that

0:08:31 Thomas: What was that one hun where I pointed that out where she said she suffered harm there was one where it literally felt like they were just writing well one of the elements is harm so just say there was harm it didn't seem like there was any and you can't just do that right don't you have to like actually kind of at least sort of say what it

0:08:35 Lydia: Was say what the harm

0:08:44 MJ: Well, especially here, like I don' t know what harm she's alleging from this sixth cause of action, just that she suffered. I mean, she just said she's suffered damages and an amount to be proven at trial, but I'm not sure what it was.

0:08:55 Thomas: Is yeah I had a question at the end of this one I don't think she did it before this I think it's the end of this sixth cause of action. She tries to make it out to be a conspiracy between Stephanie Jones and Jones works. It's like upon information belief, Jones and Johns works were aware that the other plan to commit the tort of intrusion upon seclusion against Abel and agreed with one another and intended that the wrongful acts pleaded herein be committed.

0:09:17 Thomas: It just seems that seems crazy because she's trying to kind of have it both ways. Like Jones counts as herself as part of this, but the chief of staff guy or whatever counts as Jones works and so therefore it's like a conspiracy between two different entities it just doesn't that seems crazy

0:09:32 MJ: I think that she's probably doing that to try to basically say that. So it's against both of them. She's trying to say that they're both liable for the entire harm, but that is crazy. And it's very interesting that the language there is a little bit careful, right? Because it's upon information and belief. We don't have proof of this, but we have a good reason to believe this, which I think that's funny to put there and then allege the conspiracy of the two.

0:09:49 Thomas: And then it says jones and jones works engaged in the above alleged conduct with oppression so that doesn't even say on information belief just that says it accordingly ables entitled to a word of punitive and exemplary damages and an amount to be shown trial

0:10:09 MJ: Yeah. I think, I mean, those are big words she's using. Sorry, not she, I have to be careful there. They are using, I think they say malice too, don't they?

0:10:11 Thomas: Okay oppression

0:10:15 Lydia: Was uh yes jones and jones works

0:10:19 MJ: No, they do not. Oh yeah. Oppression, fraud, and malice. Yeah, so punitive and exemplary damages. Fraud, yeah. Oppression, fraud and malice.

0:10:19 Thomas: Fraud and malice fraud wait where's the fraud like again this was about this was no no no I'm yeah but

0:10:27 MJ: 151. Yeah I don't know. I don - yeah.

0:10:29 Thomas: Like like like you said, those are some really big words, but even if I went with her on this or them or whatever, like if Joan showed private stuff, like what's the fraud part of it? Yeah. It's just words.

0:10:37 Lydia: Who knows if she's actually trying to like dig into it but like yeah it's probably just words and it sounds good but the only thing I could think of is like like that she was tricked into porting her phone number to a Jonesworks iPhone and that was the fraud or something. So they would be able to retain her. I don't know. Silly.

0:10:55 MJ: Yeah it. I mean, that might be it. Yeah. But I think putting fraud there is really crazy because what did she, yeah, what did she do?

0:11:01 Thomas: Yeah. So seventh cause invasion of privacy, false light. This one at least made sense. It'S one of the one I think I predicted.

0:11:07 Lydia: Hmm. Yeah, you did.

0:11:08 MJ: Why did you predict it? I want to know.

0:11:09 Thomas: I predicted that she would try to do it. I'm not saying it's like valid, but like I predicted it. It was like, I don't know. I don' know. It wasn't like, as we read through the, through the complaints, like, oh, she's alleging that there was embarrassing embarrassing stuff in the phone that she was told or something. So maybe my ability to think as not a good lawyer allowed me to predict what this complaint would say.

0:11:26 Thomas: But this cause of action doesn't seem great to me. Is this pled correctly? What do you need for invasion of privacy? False light. Do we want to say the elements of that one?

0:11:35 MJ: My favorite thing. Yes, I think you need a public disclosure of information that places that plaintiff in a false light. Again, we're back to the false light would be highly offensive to a reasonable person and the defendant knew or acted with reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed this is another one that doesn't it doesn't exist in new york and I think what they're trying to say when I look at the counter claim I think it's in 153 they publicly disclosed information or material regarding her moral character and personal and professional life that's all they allege there right so they're just kind of repeating the elements there and that might be one of those claims that they just don't have enough there to say that it happened

0:11:56 Thomas: What? Oh, yeah. Yeah.

0:12:24 Lydia: Also, I just want to chime in to say like, and this false light thing, I think, I Think Abel's not being honest with herself. I think Like they're her text messages. Yeah.

0:12:32 Thomas: It looks pretty accurate it to me.

0:12:35 Lydia: I think if like if they're if you're coming off as a bad person and an unreliable and a two faced person through these text messages, it could also just be because that's who you are. And that's OK. Like, just own it. Just own it, your

0:12:48 MJ: Yeah that would be the argument against it right is that what was false or misleading about any of the things that we know we yeah we know from her own words we know form those text messages so was it false or was it your

0:12:55 Lydia: Words. Yeah.

0:12:56 Thomas: And what about the public part? Yeah, agreed. What about the public part, because if they're trying to say, well, because of the chain of events whereby the subpoena, although they don't tell us, like it would be helpful if they actually told us. I get that you can say, you know, Abel hereby incorporates each and every allegation, blah, blah. So you can just assume that it was written up above, but it feels like they should be more specific because I don't even know what public disclosure they're they're even talking about.

0:13:24 Lydia: Don't even think they were more specific up above. Like, I think that they're just saying that and hoping people don't look back.

0:13:29 Thomas: Yeah, but the judge has to in order to evaluate what this is, and I don't know what this would be. Let's say just hypothetically, and again, just to go with them, let's say there was no Van Zandt subpoena, and they did just share this stuff with Blake Lively, and then Blake Lively shared it with the New York Times, and the New York Times revealed some of it. I still don't see how that would be Stephanie Jones sharing it publicly. Maybe that would be a different cause of action, but unless I'm wrong, what's the definition of public Public disclosure. Is it just sharing it with like at least one person?

0:13:58 MJ: I think it has to be more than that it has to cause her if you tell me something that a mutual friend does is that really going to cause a lot of reputational and emotional harm right that because that is the the last requirement, harm, and it has to be false or misleading and highly offensive. I don't think that happened here. So even if, yeah, in your example, if Jonesworks had given the text to Blake Lively without a subpoena and they ended up in the New York Times, I still don't see how that's false light because what is false about your words? It's not anything that really anyone else said about her. It's what she said in those text messages.

0:14:37 Thomas: Yeah. I suppose I would make it again. I fully agree. But in an effort to kind of steel man the thing, I suppose if it were true that they look through a hundred thousand messages and found the five like worst ones and like just shared those and made it seem like that's who she is all the time. I could see that being something, but that would be on Blake Lively or the New York Times, right? Right.

0:14:57 Thomas: It wouldn't be on like if in your example, if you tell me like, hey, Lydia and so on and so on. And then I write a newspaper article about it. Isn't that on me? Like I the one who publicly shared it? Not you?

0:14:57 Lydia: And

0:14:57 MJ: Yeah, I mean, you are the yes.

0:15:09 Thomas: I would think.

0:15:09 MJ: But again, it has to be it still has to Be a false light.

0:15:13 Lydia: Then these two, the sixth and seventh cause of action, you know, you mentioned are not in New York. So Jen Abel would need to would need to be able to move forward with the California law and forum assertions that

0:15:22 Thomas: I think it's fair. She might be able to.

0:15:26 Lydia: She's making. And then and then if that applies, then these would apply. But if she loses on that, then these are dead in the yeah yeah dead in arrival yeah

0:15:31 Thomas: Then they're gone. Yeah yeah. Interesting.

0:15:33 MJ: And I think they're still really difficult to plead in California that it's like it's the standard is very high, right to bring these types of claims.

0:15:39 Thomas: Yeah oh here's another one I predicted maybe because I'm a bad lawyer. You tell me. Eighth cause of action. I .I .E .D. Intentional Affliction emotional distress. I feel like that just, you know, that's a little bit like the free square in the middle. We said like, it's, it tends to just be added on. Let's see what this is specifically alleging. Intended to cause able emotional distress or active with reckless. Okay. What are the elements of this? Cause this again, just seems like she's just saying general elements.

0:15:45 Lydia: You always add

0:16:07 MJ: So this was the actual answer to that law school exam. This was the only cause of action that they could bring since, you know, false light didn't exist. It was I intentional infliction of emotional distress. So I actually have these memorized, which is crazy, but extreme and outrageous conduct by the defendant. And that is a very hard standard to meet. So that's one. Two would be intent to cause or reckless disregard. And reckless disregard is still very high of the probability of causing emotional distress, severe emotional distress suffered by the plaintiff, and then direct causation. And then causation is often an issue you when someone tries to bring an intentional infliction claim. And again, this standard, it's really hard to meet.

0:16:51 Thomas: Yeah. Do you have any examples off the top of your head of like what might be successful just in a hypothetical on this kind of thing?

0:16:58 MJ: I think the ones that we, no, I don't, I honestly don't. I don'T. In law school, I DON'T remember what it was. It was like a very clearly someone was trying to make the other person absolutely miserable and doing crazy things to them.

0:17:02 Thomas: That's okay yeah no you know like stalking maybe or you know stuff like that

0:17:15 MJ: Yeah. Um, the language in the court is actually kind of crazy to bring it like so extreme, so ridiculous.

0:17:22 Lydia: Just a question do you think like alec baldwin I know he's pursuing like the malicious prosecution regarding the rust trial do you Think he would have like a an okay standing maybe on on the iied claim if he were to add it I don't know if he has I don' t I'm not sure I mean like like it was it It was bad.

0:17:38 Thomas: Or against a prosecutor geez

0:17:42 MJ: I honestly Honestly, don't think so. I haven't looked at it enough, but I found a case, but it even has all these red flags on it saying, so people probably later on found that it wasn't okay. But this language is actually really good. So I mean, this is an example from the 90s of an individual who had an underlying psychological condition, which his employer knew he was receiving treatment for it. And the employer subjected him to eight hours of threatening interrogation by multiple security officers during which he was repeatedly shown a gun not allowed to call a lawyer denied lunch I'm reading this right from it it did so ultimately was intimidated into taking the security offers to his house to conduct a search and take a lie detector test his cause of action for intentional infliction of emotional distress even that was not fully allowed but they said that the acts complained of were outrageous conduct so so extreme and outrageous conduct. And this is the phrase that we learned in law school was outrageous conduct, which cannot be tolerated in a civilized community.

0:18:09 Thomas: My god what okay I hope this counted like come on holy crap yeah

0:18:47 Lydia: Yeah, Abel doesn't have that here.

0:18:48 Thomas: Yeah we're nowhere near that

0:18:49 MJ: Yeah. When we learned about that, I remember people being like, well, what does that mean? And the teacher who was a brilliant woman was like, it's so high. It's like so outrageous. Like think of the worst thing you've ever seen. It'S so much worse.

0:19:02 Thomas: The hell what's the point of it maybe maybe maybe I'm disagreeing with that

0:19:05 Lydia: We should change the law.

0:19:08 Thomas: Just as a philosophy. Yeah.

0:19:10 MJ: And THIS type of a claim is the type that allows the other side to really see your, you have to prove emotional distress, right? That last element that requires that causal connection and then severe emotional distress. You have to approve that it came from the actions of the defendant.

0:19:25 Thomas: Yeah you know so this was one of the causes of action I think we put in ours right and I remember them saying although that's so funny

0:19:32 Lydia: It was. You didn't even want to go there.

0:19:38 Thomas: Yeah well it's so fun because I kept saying hey at first they mentioned do you have any therapy bills or blah blah blah and I was like no I'm I'm too I'm so fucking traumatized I don't have time for that I can't even do like for real yeah but what would it have been a few hundred dollars, you know, like, and so I was talking to my lawyers. I was like, I guess just let's not bother. But my lawyers were of the opinion that, well, no, you can still get garden variety, emotional distress. And sometimes the jury would award some sort of punitive for that or something like that, where there's still a reason we kept it in.

0:19:49 Lydia: Yeah, I did. I did, yeah,

0:20:11 Thomas: And I don't remember the discussion being, there's absolutely no chance because the standard is someone has to like berate you for eight hours in a room. That's intense, but I don' t know if that's a California thing or what oh okay

0:20:20 MJ: So it really might not be, that might be very specific to New York, but even, you know, the legal tool that we use for everything, when I put in intentional infliction of emotional distress it is just like, doesn't meet the standard, doesn' t meet the standard, doesn't meet the standard over and over.

0:20:33 Thomas: Yeah yeah and it's also hard right because if cases settle out then you never see them in your legal tool

0:20:41 MJ: Well, what typically happens is the IIED, this is a claim that you'll see in summary judgment for sure, right? If it exists for anyone, one side is going to try to say that they just didn't meet this standard and this shouldn't proceed. And I think that, I mean, that makes sense. So it's definitely hard to bring. This type of a claim is very hard. I wouldn't want to bring it even if I felt like someone had,

0:21:02 Thomas: Right and to your point it does involve like possible medical records and whatever if you really want to go there right I mean it's like you have to let people into that kind of thing possibly right

0:21:13 MJ: Yeah, you do, right. You have to prove causation. You Have to actually prove the severe emotional distress, which I think it's very invasive. The one time that we had someone even alleged that she suffered distress from something that her former employer had done, we removed that claim because she didn't want to be questioned about that in a deposition and she didn't wanna produce certain documents.

0:21:34 MJ: And I think, no, it's, I mean, you guys know it's terrible. It's hard to even watch it.

0:21:31 Thomas: Yeah yeah it's not great yeah

0:21:40 MJ: So it'd be really hard to actually deal with and have to talk about for yourself.

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0:21:49 Thomas: Okay but what about the ninth cause of action, negligent infliction of emotional distress.

0:21:54 Thomas: I have to imagine the infliction part and all that would probably overlap with those, but just it's like an intent thing. But this was the one that I flagged earlier. She does say to her credit, I guess she says 176, Abel suffered severe extreme emotional distress and mental anguish as a result of Jones and Jonesworks negligent conduct. The negligence of Jones & Jonesworks was at least a substantial factor in causing Abel severe or extreme emotional stress and mental language. And then for good good measure, 178, as a direct approximate result of the above -described conduct, Abel was harmed. Is that good lawyering?

0:22:28 MJ: No, I mean, I would say a lot more about, well, I don't know what I would say in a complaint. I think I've said this line to you before, depending on who helps you write a complaint, some lawyers do say plead thin and win. So this is pleading thin, right? To say she suffered harm. You need to plead a little bit more than thin when you're in federal court. And I think you have to deal with a potential dismissal for certain things. I don'T know here what she's She's alleging, yeah, I don't have enough really to look at it.

0:22:54 Thomas: Yeah. So, just seems like the same amount of nothing as the last one, probably.

0:23:00 MJ: Well, negligent infliction of emotional distress is something that I'm sure it's the same in California. You need to have a duty, right? And she does say there, I think 174, they breached their duty of care, which is interesting. But she also says that they intended to cause emotional distress in 171. So negligent inflection, it wouldn't be intentional.

0:23:12 Thomas: Interesting, yeah. Oh, yeah, what? Yeah, 171 has, etc., etc., intended to cause Abel emotional distress, or acted with reckless disregard. That's the wrong... Is that left over from the previous one? Want, that shouldn't, because if it's negligent, it wouldn't be that, right?

0:23:37 MJ: No, it would not be that. That negligent would be, you know, that they owed her a duty of care. It was reasonable, foreseeable that she would suffer harm. They breached the duty, still that she suffered emotional distress, right? The same type of emotional distress and their negligence instead of causation. They have to show that it was a substantial factor. Here, I mean, I don't see, yeah,

0:23:57 Thomas: They just say it. They just saying all the elements. I swear you've got to do more than that. Look, I'm no lawyer.

0:23:59 MJ: Yeah, you do have to do more than that, right. No, you, you Do.

0:24:04 Thomas: And what's the duty of care too? Like I forgot, like for negligence, you have to have a duty of care. And they just say as an employee under their supervision, Abel was owed a duty of care by Jones and Jones works, which I guess, but like there's different flavors of duty of care, right. Like, is this something, what does that duty of care?

0:24:19 MJ: I think that's the a problem, right? They don't say which duty was owed to her or how they didn't do that.

0:24:26 Thomas: The one that's an element for this cause. That's the one.

0:24:31 Lydia: They're going to wait to see the judge start to talk and then talk at the same time and be like, yeah, exactly.

0:24:36 Thomas: That, yes, that one.

0:24:37 MJ: Well, that, I mean, that's duty of care is like the foundation of negligence. I have a duty to avoid causing harm to someone else through my act.

0:24:45 Thomas: It's what we had embroidered in my childhood home. Duty of care is the foundation of negligence. That's what it's what we always said. It was on my family crest.

0:24:51 MJ: Well, it, it's always there, right. It's every, every negligence claim, there has to be a duty of carrot in there first. So like, like, what do we owe each other if I was negligent to you? And the reality is I don't owe a duty to anyone. And that messes with your head in law school too, because if

0:25:09 Thomas: That seems kind of antisocial of you. Yeah, yeah.

0:25:12 MJ: I'm on the street, right? Sorry, I just mean like the general public, we don't technically owe a beauty to anyone to help them or do anything for them, which is crazy. So there has to be like a relationship between people.

0:25:24 Thomas: Yeah. If you're a doctor, Someone's under your care, right? It's that kind of thing.

0:25:28 MJ: Yes. Yeah. Some are automatic, like as a driver, right. You do owe a doody to not hit a pedestrian. You can be negligent in a vehicle. I think strangers, we just owe each other a duty not to cause, I don't know what is unreasonable harm, but here, yeah, there would be, right? Like a special relationship can create kind of a heightened duty. But here, I think the only duty I'd really say an employer has is to provide like a reasonably safe workplace.

0:25:42 Thomas: Is it an employer one? What's an employer? What would that employer? Hmm. Right.

0:25:57 MJ: We don't have allegations here. I mean, we have allegations that it wasn't the most fun workplace, place, but I don't know what, yeah, they say she would suffer harm if they engaged in the above described conduct. Well, what harm did she suffer and because of what conduct? That's what I would like to know. Yeah.

0:26:04 Thomas: Yeah. Harm. She was harmed.

0:26:12 Lydia: Specifically what conduct. Yeah yeah she was harmed.

0:26:17 Thomas: Well, the 10th seems like it's going to be a lot of fun as well. Promissory fraud. This one I did not see coming. I don't even know. This was hard to predict. But if you look at it, it's that. And this was where I could. Okay. Never mind. We need to go through this a little more closely because I'm remembering now. I pretty much burst out laughing when it was revealed in this paragraph that Abel requested that Jonesworks port her personal cell phone number to the Jonesworks cellular plan to cover the costs. I had just assumed, I had done Jen Abel the favor of assuming that Steph Jones insisted or was controlling and was like, yeah, well, or maybe nobody thought about it and was like, we'll just put your number on our Verizon plan. But Abel request it that she put the number on the work Verizon plan? Are you kidding me? Right.

0:27:00 Lydia: And even went to learning an entirely new system for her phone because she had to go to iphone from android yep

0:27:06 Thomas: This is such an own goal. Like, what are you talking about?

0:27:07 MJ: Yeah, no, I, yeah. I, I find this crazy.

0:27:13 Thomas: Crazy. Just get a reimbursement check or something, you know, like, are you kidding me? Why would you put your number to the, okay. Very weird.

0:27:17 Lydia: Negotiate a cell stipend in your in your

0:27:22 MJ: It's yeah. Most employees, you know, I don'T know anyone that's ever said, can you please port my personal cell phone number over, right ask for a stipend or get a second phone if you can't get one right like keep that if you've had that number your whole life what are you doing

0:27:28 Lydia: Contract it's crazy also like wouldn't you be so uncomfortable if your boss can see like the times of day that you're making personal phone calls and stuff and like the amount of texting that you are doing with like particular numbers like that just feels so invasive to me I would never want my boss to to have access to

0:27:38 Thomas: Bizarre. Yes. I don't understand it.

0:27:53 MJ: No and it even in working in a bigger law firm I had to sign I had to have all the software on my phone we had to I had a stip end for it but when I left they wiped my phone and not for apparently that was an accident but I was mad about that right like left on good terms still friends with all of them but I Was mad because I'm like all of of my you know my kids school them everything is in there but to actively say put put my phone on your plan and then be upset like it wasn't like jones work or stephanie jones said you have to port your cell phone number you have to be on this I

0:28:05 Lydia: That yep yeah yeah

0:28:21 Thomas: Weird. Yeah. I just assumed she did. I just assume she did, I did. I did able a favor and that was so funny to me. So but the promise is that, OK, where is it? Let's see. Jones. Hold on. Jones and Jones works. Both of them promised Abel that notwithstanding her use of a Jones works issued cell phone, Abel would retain possession of the actual phone number, which upon her departure would ensure her continued and exclusive access to the private and personal information contained on her phone. But now they're saying, okay, after Abel announced her intention to resign, they reiterated the plan, etc, etc. On the date of Abel's surprise termination in advance of her return of the device, Jonesworks and its agents reiterated the same promise. Abel reasonably relied on the promise made by Jones and Jonesworks that they would not take control of Abels phone number, access copy, or it's blah, blah, blah blah blah and it says that jones and jones works did not perform in accordance with their promise and oh we get it again ready what was the harm as a direct and proximate result of the above described conduct abel was harmed abel's result we got more though abel reliance on jones and jone's works promise was a substantial factor in causing her the very unspecific harm

0:29:38 Lydia: And that upon information and belief jones and jones were aware that the other planned

0:29:44 Thomas: They've

0:29:44 Lydia: To commit the tort of promissory fraud so sneaky yeah

0:29:46 Thomas: Been plotting to steal this phone number for by the way for what like a matter of weeks We don't even have a firm date. She says that she took her months to get access to her accounts again, but she never says like when the number came back to her. So any harm would just have to be from that period of time, right? So I joked like, unless she was going to get a call from Publisher's Clearinghouse that she had just won a large check, what is even going to be the damages and harm that she's alleging from this?

0:30:15 MJ: No idea I can't even the yeah the promissory fraud I don't know and yeah I I don'T see it

0:30:18 Thomas: It's just bad. Yeah.

0:30:23 Lydia: It's just inconvenient that she didn't have her

0:30:25 MJ: But it sounds really good to allege promissory fraud right anything with fraud and it is sounds aggressive but I mean she has to say that she had that jones works never had any intention ever basically to

0:30:38 Thomas: Ever. Yeah. That's right. I forgot. We covered that with the New York Times one, which is also stupid. I think this one's stupider, actually. I would sooner go for the New Year's Times theory of promissory fraud, the Wayfarer one, than this, because this is nothing.

0:30:42 Lydia: Number right

0:30:43 MJ: Yeah right that 185 just makes me laugh because they never intended to perform the promise when they made and reiterated it repeatedly and instead intending to dupe abel yeah you're right to give them her her personal information, private data that was on a work phone that we admitted earlier.

0:31:08 Thomas: Yeah. And again, she says on the phone, because I think it would be, again, a better case if she said like on the iCloud, on the whatever, but like the phone is the work phone. What are you doing? This is so bad. This cause of action actively made the complaint even worse. Like if you took this out, the complaint would get notably better.

0:31:13 Lydia: It's not your device oh

0:31:26 MJ: I really do think so. And I have talked to friends in California about those first three, the employment issues. And it was like, that's what we agreed. That was the strongest part of her counterclaims. And then it just gets, let's throw everything.

0:31:38 Thomas: Yeah. Well, hold on. We've got one more. We got one last. 11th cause of action, false imprisonment. It's very bad.

0:31:41 Lydia: I know the craziest one my favorite it's my favorite oh my gosh

0:31:51 Thomas: How do you find this one? Do you think it's going to work?

0:31:53 Lydia: Yeah yeah

0:31:55 MJ: Well, the elements, intentional restraint of another's freedom of movement without consent, without legal justification, no privilege to restrain them, and the plaintiff suffered harm as a result. I, again, this I think is included to sound scary. When we read this, I think that there are contemporaneous texts that were in complaints talking about this meeting, which which makes it even kind of more ridiculous. And looking at this, we're just listing the elements here, right? They deprived Abel of freedom of movement by use of physical barrier force, threat of force, menace, and or unreasonable duress.

0:32:34 MJ: How did they stop her from leaving the room?

0:32:34 Thomas: These lawyers expect the judge, Judge Lyman, to be the dumbest employer ever, looking at a resume that's like, wow, they hit all these key words. Holy shit. That's one of the elements. Oh, no way. What are the odds? This is great. The elements are exactly depriving freedom of movement.

0:32:47 Lydia: Check mark check mark

0:32:58 Thomas: And that's what they said in their complaint. It's like someone needs to tell these lawyers that isn't how it works.

0:33:02 MJ: I mean, to look at what she said there and then what she kind of said earlier in the complaint, there's no way that she was falsely imprisoned there. I can't see this. I just, I don't see this at all. I don'T think she's even alleged in there, you know, that she couldn't leave. I DON'T think SHE alleged that she TRIED to leave. This is not, false imprisonment is false imprisonment, right?

0:33:26 Thomas: Yeah.

0:33:26 MJ: It's, I mean, you see it, this is, this IS not that.

0:33:29 Lydia: In like a conference room doing an off -boarding Desperating.

0:33:31 MJ: Yeah, being, yeah, right. And maybe that felt intimidating or like, I'm sure off-boarding isn't, I meant, yeah, it's not fun even when it's, you're agreeing to it, right, and you, you're happy to go.

0:33:37 Lydia: Embarrassing. Yeah.

0:33:43 MJ: It's It's not, it's still not fun, but to say that you were falsely imprisoned, I think is the stretch.

0:33:43 Thomas: All right. Well, that concludes this very terrible counter complaint. Although, you know, the employment ones, we'll see. Those seem like they could be something, but boy, that really got worse and worse as it went on. 11 causes of action could have been, this could have been an email. This could have, this could have been four, maybe, maybe.

0:34:05 MJ: Yeah. I think it would have been stronger at four.

0:34:08 Thomas: Overall thoughts, anything else?

0:34:10 MJ: It'll be interesting to see what happens.

0:34:14 Thomas: Was there anything that you, if you were an Ables, if you were Ables lawyers, was there anything, any different thing that, that you would have done that they didn't do? Would you have gone a different route on these causes of Action? What would you, I mean, I feel like the answer is just settled, but. Wow.

0:34:30 MJ: Yeah. Well, I honestly, Thomas cannot answer that question because I feel like I still am trying not to criticize other, I mean, they must've had a strategy for why they did what they did here, but I think her first few counterclaims are the strongest. And yeah, this is not something you want to litigate. This is something you wants to settle with victim and letters and maybe arbitration or a mediation depending on that employment contract why you're in court fighting over this I don't know

0:34:52 Thomas: All right. Yeah. Well, okay. I mean, I feel like that was pretty much what we thought. Glad to, yeah, yeah. I'm glad to feel validated in that way.

0:35:02 Lydia: I don't think we got anything majorly wrong. Yeah.

0:35:09 MJ: No I um my boys know your voices because I'm listening to you guys for the facts because I don't have time to go through everything all the time so

0:35:15 Thomas: Aw, that's so nice. Well, until next time, thanks so much for coming on. Oh yeah, throw out where people can find you.

0:35:23 Lydia: Plug away. Yeah threads.

0:35:24 MJ: Yeah nope um more yeah more with mj most mostly on threads

0:35:24 Thomas: I'm so bad at the social media. I always forget which thing it is. Oh yeah. That's it. Awesome. You got a sub stack though, didn't you? I thought you wrote up.

0:35:33 MJ: Oh I do I do write things when when I have time, but it's free. There's no, I don't have, uh, I'm not consistent at all. I mean, you can go there once,

0:35:38 Thomas: Oh, okay, so don't go there, everyone. Nice.

0:35:42 Lydia: Very

0:35:42 MJ: Once, every two weeks, you'll get a deeper dive into something.

0:35:46 Thomas: All right. Well, thanks so much and hope to have you back for maybe the Wayfarer counter complaint, maybe the motions to dismiss. Lots on the agenda. So hope to talk to you again soon.

0:35:57 MJ: Awesome. Thanks, Thomas. Thanks Lydia.

0:36:06 Ad: [Ad break 3 — ad music]

0:36:06 Thomas: And next episode, we are going to dig into the Wayfarers counter complaint. Really excited for that. It's going to be, I think, a bit copy and paste, but some unique stuff there as well. Don't worry. That's just going to Be One Part for us on that. But if we're lucky we can get MJ back to talk about the counterclaims and the law on that.

0:36:24 Lydia: Fingers crossed.

0:36:25 Thomas: Yeah. And then after that, it'll be our interview with Stephanie Jones's lawyers. They've got a bit of an announcement. I can't wait to cover it. All right. Well, we'll see you then.

0:36:33 Lydia: See ya.

0:36:54 MJ: I don't want to ruin it for you guys. Can I ruin it for you right now? I don't know. Okay. I won't ruin it. I'm going to ruin it for it. Oh, I

0:36:57 Thomas: No, don't ruin it for us. We're still doing the other ones. We'll bring you back to ruin things for us. Sixth cause of action.

0:37:05 MJ: I mean those are big words. She's using if Jones works had given the text to Blake Lively without a subpoena oh if jones works had

0:37:11 Thomas: Oh, losing your sound again. And Then I'll cut it together. I Can Make You Sound Like a Genius. Just look it up and be like, yes, off the top of my head, I know this case. The year was 1785. No, I don't.

0:37:18 MJ: Given thank you this is the