Lively v. Baldoni 29 - Wayfarer's Countercomplaint with MJ Morley

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.

0:00:26 Thomas: Good gavels to you. Wow, I think that one's sticking. Good gavels to you. Mm-hmm. Well, I mean, there was a lot of work involved. You can't see me right now, but I was laboring mentally pretty hard. But sure, yeah, it just fell out. Just easy. Totally easy.

0:00:29 Lydia: Yeah, I mean, you opened your mouth and it just fell out. I feel like that's a sign. Yep, simple.

0:00:43 Thomas: My creative process. Anyone can do it. This is Gavel Gavel. I'm Thomas. That over there is Lydia Smith. How are you doing?

0:00:51 Lydia: Hello, I am very excited for this one because I love MJ and I'm really eager to hear what she has to say about the Wayfarer counter complaint.

0:01:02 Thomas: You didn't wish me good gavels, but okay, fine. Fine.

0:01:05 Lydia: Not today.

0:01:07 Thomas: You loved that intro so much. And then now it's, it's over. It's over Mercurial.

0:01:10 Lydia: Yeah, well, maybe tomorrow. I still like it fine.

0:01:14 Thomas: That's why they call you Mercuriel, even though it's so hard to pronounce Mercurio. Yes. I think I was saying Miracuriel like John Muir. I don't know why I was doing that. Okay. Mercuril. There we go.

0:01:18 Lydia: I don't know why either. I still like it. I just, I don't know. I'm not in like a, like a gavel back sort of mood, I guess.

0:01:28 Thomas: Fine. I wish you good gavel. I wish you a good gavel. You know what? I'll wish you good gavel with no expectation of a good gavel on return. How about that?

0:01:34 Lydia: Thank you. That's love.

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0:01:45 Lydia: We'll see. Other me. I' ll be a creeper and a stalker and I' l see him. I' L see him somehow. Sure can.

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0:02:12 Lydia: I will and a good gavel to all you gavelly patrons.

0:02:17 Thomas: Jeez, thank you. I thought you, I mean, you'd have to be like a religious objector if you're like, sorry, I can't, I don't celebrate gavels day. In which case, how did you end up here? Yeah, it's too satanic.

0:02:23 Lydia: Yeah. Yeah. All gavels day.

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0:02:38 Thomas: So MJ, there's another counter complaint that we would love your take on. It is the Wayfarer counter complaint and a lot of it is copy pasted. They were copying off each other's work or they're the same lawyers, I guess.

0:02:47 Lydia: Well they had the same deadline so

0:02:52 Thomas: So there's their own work, same deadline.

0:02:54 Lydia: Yeah it was be efficient I think is what they were going for

0:02:56 Thomas: They're like, hey, if we each write half of a complaint and put them together, but it does have a little bit of difference. We've already gone through, we won't rehash all the factual stuff, but they really are banking on trying to get out of the contract because Stephanie Jones made a few suggestions that they didn't like, which does not seem like it should work. But instead of rehashing all those facts, well, we'll rehash some of them in the cause of action. There's only two causes of action, so we should be able to get through this a bit quicker. The first one, breach of contract. That makes sense.

0:03:23 MJ: Just, you know, not as fun, right? Kind of boring to have a plain breach of contract agreement. And lawyers go through law school learning, you know, how not to plagiarize and then become lawyers. And all we do is use templates and language from other complaints and other motions. So yeah, I guess it makes sense they did it here.

0:03:36 Lydia: Or give

0:03:41 Thomas: Here's what I said about this one. It really seems like they are trying to get out of this contract in maybe two ways. It's hard to say because they're not super good at writing. Okay. Paragraph 61, under the terms of the agreement, in exchange for a monthly fee, Jonesworks agreed to provide strategic communication and public relations services, quote, in a professional manner and And in accordance with the goals mutually established by Wayfair and Jones, as alleged here and above, Jones works and Jones failed to render services in a professional manner and in accordance With Wayfairs goals and thereby breached the agreement. So that's the first prong. And I find this to be incredibly weak because the only thing they can ever point to is, hey, well, they try to say she was talking to the press. They don't have any proof of that. They try to stay with her talking to The Daily Mail. And then they try to say, and the language gets pretty silly, she was a mess. She was a drama, lightning rod for drama. We couldn't even afford to have her around anymore. But if you peel back all the bullshit words and look at what the actual conduct they're alleging is, it's because she suggested a couple times, hey, I could call this person over here and like try to tell them, you know, make this article go away. Should I do that? No. She just made suggestions. That's all they have. That's literally all they point to.

0:04:55 Lydia: Context or our side of the

0:04:58 Thomas: That can't be a way to get out of a contract, could it? Could you just like get really mad at somebody and sabotage the contract by just saying, hey, that suggestion you gave me was so out of line and inconsistent with my goals that like I don't have to pay you anymore.

0:05:11 MJ: No, right. No. We can't do that. Yeah. It's very interesting the way they lay it it out. And then the way they kind of go through how that actual under first cause of action, how they breached the contract, it seems like a stretch. They're trying to say she didn't do it in a professional manner. And I just don't think that's a good argument at all. So I like the way that you laid that out.

0:05:12 Lydia: Story and

0:05:33 Thomas: Let me get your comment on this, because one thing I said was I was thinking, you know, I went to business school and I have like a tiny amount of experience in this. And it feels like if you could get out of a contract this way, it would be pretty easy to get out any contract. And I made the comparison. This is almost Trumpian in that it's like, well, I'm going to find a minor complaint and not pay you. And then, yeah, you could try to sue your way into getting money, but that costs a zillion dollars. So good luck. And then pretty much you win that way. It's not like they prevail legally, really, though. Though. So on one hand, I feel like you could make an extremely pedantic argument that like, well, if the contract says in a professional manner and you can point to where she wasn't professional or something, but I just don't think that's how the real world works. And then I was thinking, I just also don't Think we'd ever in a normal situation, take away everything else. If this was just a run of the mill breach of contract with the same kind of facts, except just not the whole Blake Lively thing, not the old blow up. Would we even be this far? Like Like you're just going to kind of yell at each other a little and then be like, all right, I'll pay it, you know, for two months or something instead of the remaining six or something like that. Right. I mean, isn't that how mostly this would go?

0:05:52 Lydia: Call it breach of contract yeah

0:06:40 MJ: Yes, that's completely how it will go. I do not know how these parties are fighting over this contracting court. This should not be something that ever got to this point, especially for the amount of money that was left on the contract. Right. They've definitely paid more than that to fight over this.

0:06:55 Thomas: A hundred percent. Yeah. Yeah.

0:06:56 MJ: I'd be interested to see what happened behind the scenes kind of before we got to this point.

0:07:01 Thomas: And so I guess my question is like, I was going to ask you in your experience, is this the kind of argument that would fly? But it's like, how often does this kind of thing even go in front of a jury? Like, would you ever get that far to where, or a judge, I guess, like sometimes they just rule on that kind of things. Like, do you have any experience with this that actually went that far? How would you evaluate these arguments?

0:07:20 MJ: I can honestly say I think every big contract argument we've had has settled. It's almost like you need to call someone's bluff if they're not going to pay you under the contract. And sometimes that unfortunately means you have to file a lawsuit and get someone to come to the table and negotiate with you. But this one, yeah, I think that their argument is such a stretch to say that Jonesworks wasn't performing under the contract at the same time that it was an employee of Jonesworks that they were choosing to work with over Stephanie Jones.

0:07:49 Thomas: That's another really great point, isn't it? Yeah. Yeah.

0:07:53 Lydia: Yeah incredible nine

0:07:55 MJ: Yeah, even if Stephanie Jones wasn't providing services in the way they liked, they were actively working with Jen Abel and somebody else at Jonesworks. That was on that file that, you know, we see copied around. So that is JonesWorks, right?

0:08:10 Thomas: If I were to give their side of the argument, I would say, okay, they fired her August 21st and they officially tried to get out of that contract August 30th. So you could say like, well, there's nine days where, I mean, okay. Yeah. To try to make their argument.

0:08:20 Lydia: Days Yeah. Yeah.

0:08:24 Thomas: And I don't even think they make this really. I could imagine if I were in a contract with somebody to just do a hypothetical and maybe try to, you know, not poison them all too much here. If I was in a contact with a company and I was working with someone at that company that I just love, they were great. And then they fired that person. And then I'm like, well, I really don't like working with whoever else is in this company. I could see being like, shoot, I tried this for nine days. I don'T like this. Like, I don't want to, you know, and it might not rise to the legal justification for breach of contract, but at least understand how that could kind of suck if that situation happened, you know, hypothetically. But is that going to be enough to legally breach a contract to say, I liked the person you had, and now I don'T like this person?

0:09:07 MJ: No, it's not, right. And if we look at that contract, they do not allege that and they do Not have anything in that contract that says that, You know, they get to pick who is working on their file.

0:09:19 Lydia: And there's also details about like if they are unhappy with something that is going on or if they suspect a breach, they're supposed to notice the breach and give them a chance to cure it over the course of 10 days. And then, you know, if they aren't able to cure it, then they would go into arbitration. And none of that happened.

0:09:39 MJ: And that really matters, right, like, if you are contemplating breaching an agreement or deciding to stop working with someone, like you should look at That first, right What are our obligations, negotiations if we want to breach this contract because if they had done that if they had provided notice of breach even if Jones works had tried to fix that at least Wayfair just Maldoni they would have a better argument right to be like we provided notice you did not cure and we terminated immediately

0:10:08 Thomas: In fact, we have the opposite. If you look at page 40, as I'm sure you have, that document seems really good for Steph Jones. It's on the day she fired Jen Abel, and she's like, one of our SVPs whom you have cited has been one of your day-to-day senior executives on your account, said he just spoke with you and nothing was urgent.

0:10:25 Thomas: And like, further down, made many attempts to contact you through email and phone, but I have not received any responses. We have an exclusive contract with you through May 2025. Oh, it finally would have ended a month ago. Go, you contracted a crisis PR firm to handle all crisis related matters. If you would now like us to help with that, we absolutely can and will. Yeah.

0:10:45 MJ: I mean she made it very clear there she probably knew what was happening right but that email is not written by a lawyer. She's writing that email

0:10:51 Thomas: It feels a little lawyered up though. It feels like she was kind of speaking to lawyers at that point.

0:10:57 Lydia: I wouldn't be surprised if she cc'd legal on there to keep them in the loop.

0:11:02 MJ: A nice bcc event too there is some change in the text a little bit. It looks like maybe it's different font at the bottom and that could be someone helping her write that part yeah

0:11:14 Thomas: That's funny. Totally relate to that.

0:11:16 Lydia: Oh yeah. I was just gonna say you know I mean if Jamie signed on behalf of wayfarer for this agreement we already know with the 17 point list he can't stick to the things that he signed and agree to not do or do.

0:11:28 Thomas: Well, I don't think he would have because no, the contract goes back a long ways right it goes back to 2020 or something

0:11:34 Lydia: Well, so they just re-signed. So yeah, 2024. So he would have been in that position unless Tara Hanks was signing as president. But I think he would probably have signed as CEO.

0:11:36 Thomas: Oh they had just re-signed okay gotcha gotcha okay yeah this is I mean it just seems so

0:11:46 MJ: It really does here for breach of contract right we have the valid contract no one's fighting over that wayfarer has to be performing under the contract to allege a breach and as far as I know they stopped paying after a certain point so that's interesting and then they allege professional services breach. Like what I still that's where I get really stuck because you're saying Stephanie Jones wasn't performing, but you were relying on her to employees up till that date.

0:12:00 Thomas: Weak

0:12:12 MJ: I just don't see it. Basically, they allege that she ignored client instructions about media contact, but her two employees at that point were actively working with them saying she contacted someone in the press against their directions. We have no idea if that's remotely true. And then saying she was absent during critical periods, like her team was working on your behalf and the woman was on vacation because that it seems like both sides acknowledge that she was just on vacation.

0:12:38 Thomas: Yeah they tried to do a thing where they're like she was always absent but then she tried to help too much at the end it's just like it seems so

0:12:47 MJ: It does seem really silly. The way that that part was written just seemed like trying to attack the woman for everything they could.

0:12:53 Thomas: Desperate yeah they're so it gets really hysterical it just feels like they're trying to make something out of nothing here I just don't see it at all like they've got nothing and again. Again, I'd be happy to go with them if they gave us any sort of plausible facts that would match this, but they just don't. There's just nothing there.

0:13:11 Thomas: But let's talk about the second prong of their argument, which is this confidential information. So they give us some of the contract and I'll just read the bold part here. Jonesworks shall not use such information for any purpose beyond the performance of Jonesworks services hereunder. And then they bold another part. So long as such third party did not obtain the confidential information as a result of Jonesworks breach or failure to uphold its obligations hereunder. I'm not sure why they bolted that, but anyway. Now this part is, as alleged here and above, Jonesworks and Jones egregiously breached the foregoing confidentiality provision by voluntarily and maliciously disclosing confidential information to third parties, including without limitation, Leslie Sloan for the express purpose of harming the interests of Wayfair and Baldoni. The confidential Confidential information was not disclosed by Jonesworks and Jones pursuant to a subpoena or otherwise required by a court of competent jurisdiction. So I think they recognize that argument would be a dud. So they're saying, no, it's not that. It's when Jones told Sloan, hey, something's going on, allegedly. And then Sloan called Melissa and said, you're going to get sued. So is there anything to this?

0:14:18 MJ: I guess we have to see how they're like defining their confidential information, right? Because first, we don't know what happened in that conversation. And they don't really allege too much about what happened In that conversation, other than she said, you're going to be sued, but they didn't call Wayfair and say you're you're going to be sued. They called the former employee.

0:14:35 Thomas: Melissa Nathan.

0:14:39 MJ: Yeah, sorry.

0:14:39 Thomas: So she was still contracting with them. Yeah.

0:14:40 MJ: So at that point, though, it's like, is that Wayfair information or is it Jennifer Abel? Is it their own employees information that they're looking at? And is it confidential information?

0:14:43 Thomas: Yeah. Right. That's what we were saying. Yeah. Yeah.

0:14:51 Lydia: It also says in the lawsuit text regarding Lively and Lively is not part of Wayfarer. So what are the what's the confidential information related to wayfarer in that if it's just them talking about blake lively unless it's like on behalf of wayfarers I guess is maybe their their point there

0:15:08 Thomas: Yeah, let me let me ask you this way. If I'm trying to construct their best argument, you could say, yes, it's just Jen Abel or Melissa Nathan, but that's them working with and for Wayfarer. And if it's their battle plans, you know, if it'S their strategy and if Stephanie Jones called Sloan and said, hey, here'S part of this plan, which looks very bad. Like if she had specifically done that and say, here's part of their plan that looks terrible. That might qualify, I suppose. Do you think like, would that qualify as confidential information about the client?

0:15:44 MJ: Yeah, potentially. I think that they could make that argument. So I'm looking at what they've put in the complaint. Wayfaire very intentionally does not provide the full paragraph of what confidential information is in the complaint. And some of that is in the contract that they attach that makes it clear for the avoidance of doubt confidential information shall not include information which is or later becomes publicly available through no wrongful act of company.

0:15:56 Thomas: Wait, is or later becomes?

0:16:12 MJ: Yes, and then specifically says later company is not liable for any third party's disclosure of clients confidential information. So long as such third party did not obtain the confidential information as a result of company's breach or failure. I think there's some wiggle room in there. It also says unless required by law or a court of competent jurisdiction. So there's some wiggle room in there to say what's confidential and what's not for sure.

0:16:41 Thomas: Interesting. So I guess my question is lawyer question. What do you need in terms of pleading this properly or whatever? Because if they're just going to sit, because they don't give us anything. They don't like, I would think when we were talking about defamation, and I don't know if this works the same way we were talking about defamation, it was like, well, you got to kind of tell them like what statement it was that was false. Like that's pretty basic. And they couldn't do that. But in this, I don't know, maybe because it's a different legal action, maybe they don't need to, but is it enough to just say, you know what it was? It was the confidential information that you shared with Leslie Sloan that led her to call Nathan and say, You're going to be sued. Just the fact that she was able to do that means it must have been confidential information, whatever, or in order to properly like plead this or whatever, would you need to actually be more specific than that?

0:17:31 MJ: I think you'd need to be a little bit more specific about what like you wouldn't have to say exactly what it was, but you should be more detailed than it was confidential. You know what I mean?

0:17:42 Thomas: Yeah, yeah.

0:17:42 MJ: Like, what is it there? And even here, they say, you know, wayfarers suffer damages. What were the damages, right? What specific information was shared? How do they know it was shared other than that one phone call saying she's seen text messages? What was the scope of that disclosure? Like who else did Sloan say it to? And then what damages did you have? Because again, we just have they suffered damages in an amount to be proven at trial. But did you have reputational harm? Were there monetary losses there? They could have pled that better.

0:18:13 Thomas: The best we get is paragraph 49, and it's what we've been talking about. That day, Sloan contacted Nathan, disclosing that she had seen her text messages about Lively, which could only have come from Abel's phone, and gloating that she should expect to be sued. Well, first off, I'm not sure why that which could Only Have Come From Abel'S Phone matters. You know what? I get the sense, and I forget, Han, if you said this, but I get the sense that, like, I think they subconsciously are thinking of Abel as part of Wayfair. Because, like... Yeah, you mean, could only have come from my employee's phone that I own? Why would that be anything? That doesn't make any sense.

0:18:49 Thomas: But, again, to give the best argument, let's see. Text messages about Lively. So if it's Abel's text messages about Lively, and let's say it's in regard to the smear campaign, or if they're going to say like the not smear campaign, some, something related to the PR work. Is that enough? Is that, is that confidential information under the contract?

0:19:10 MJ: I think that's the argument you would make against it, is that they don't actually tie the alleged breach to what the contract defines as confidential information. They just kind of post half of the, not even half, they cut things out of this to define confidential information, which I don't really think that is the best move. If you are going to allege a breach of contract, weave that in the whole way. This is the part of the contract that was breached because of X.

0:19:38 MJ: I think that that's a better strategy there. Right. It also there's a big kind of gap in that allegation. The paragraph that you just had me read in 49 on information and belief. Jones also shared information with other third parties. That's a gap. And then she had apparently already gone through the phone. They could have only come from Abel's phone. See the kind of bracket there. That's like a complete speculation. They could have only come from Abel's phone.

0:20:04 Thomas: Well, and again, why would that matter? I really think they're thinking of Abel as part of Wayfair. Otherwise, why even add that? That doesn't even do anything because presumably Jones has plenty of confidential information about Wayfaire. Like they've been in the business relationship for a long time. Like, what does that even add? Like it could have come from her personal email. It could come from Jones's memory. Like it doesn't matter that it only could have come from Abel's phone. I really think they subconsciously are thinking of Abel as part of Wayfair, her own employees, which was on her Verizon plan.

0:20:32 MJ: Well, they really make it seem like Jones had no right to be looking at her former employee's phone, right?

0:20:41 Thomas: Silly. Yeah.

0:20:40 MJ: This is not unauthorized access, right, like she should have been able to have that information. I kind of get the argument, I would be very mad if my former PR company, right if they released those text messages, but candidly, I'd say Blake Lively's publicist, and Justin Baldoni's publicists have way worse information than what was in those text messages.

0:21:02 MJ: There's no way that Jonesworks doesn't know things about Justin Baldoni that they could put out in the public if they wanted to after working with him for that long. I refuse to believe that about anyone in the celebrity world. And they didn't do that. The text messages, yeah, that happened. But at the same time, that former employee was causing a lot of problems, right? We jumped down to 57 where they say they learned the full extent of Jones's betrayal. I mean, at this point, we're not working together for months, obviously, like that can't be part of this breach of contract. Yeah, no,

0:21:36 Thomas: I was just going to make the same point that they also do a lot of fudging on getting from the disclosure to the alleged harm, because I think they are trying to get everyone to just think, well, this disclosure to Leslie Sloan, something, something something, the whole New York Times thing, you know, but it's like, that doesn't work because if Jones had disclosed something to Leslie Slone, but then the way the information ever gets out and causes actual harm to his reputation, which I think he could say it certainly did, the New York times article anyway, is through a lawful subpoena and is through the New York Times and all that, like there's no way, I mean, I guess if you try to make some but for argument like, well, if Jones hadn't contacted Sloan, then they never would have subpoenaed her and then they never would've filed this lawsuit. And so therefore ultimately it's all down to Jones doing like that first part of the chain of causation. But would that work legally? I just don't feel like that would work tying the harm to that.

0:22:33 MJ: I don't think that works at all. And I think we can see behind the scenes a little bit at this point, too, like we know that I think it's around this period where Blake and Brian are asking them to put out a statement like saying sorry for what happened on set. Right. This was progressing legally. Did these texts make the complaint much stronger and, you know, all of Blake's allegations more explosive? Explosive, yes but was there already a legal fight brewing in the background yes there was right you can see that this probably exploded it but it doesn't really help their legal argument these texts would have come out and if they didn't it meant someone deleted evidence no

0:22:58 Lydia: Hours

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0:23:16 Thomas: I could imagine a world in which if no one had ever told anyone on Blake's side that there's this stuff that maybe they wouldn't have come out. Like Like maybe she wouldn't have thought it was worth suing, like if she didn't think there was enough there, you know, like I could imagine that. I don't know if that's more likely, but I guess I want to ask a technicality question. And on one hand, this seems like the kind of awful technicality that you would be mad if a lawyer tried to argue. On the other hand, based on the contract, I don' t know, if what Jones did was call Leslie Sloan and say, sure hope no one subpoenas me because there's some bad stuff and never said what it was and never actually revealed confidential information, would that violate the contract as you read it? Or is that just too much fancy, like rules lawyering, kind of like strict textualist stuff and the spirit of the contract would mean you shouldn't do that? Really? Wow.

0:24:15 MJ: I don't think that fits the definition of confidential information right like any lawyer could argue their way around that I think and I think the other part of it is we've got that august 21st email and in this I don't see the email they sent to

0:24:23 Thomas: Oh, and the text that's being referenced in the Stephanie Jones email we read earlier. Yeah.

0:24:29 Lydia: After jen abel was let

0:24:30 MJ: Her yeah something's

0:24:32 Thomas: Yeah, received your text a little over an hour ago.

0:24:35 MJ: Going on that's the other part if they breached their contract I donno it's you could argue this both ways that it was confidential information right you totally could but may disclose or provide company with confidential proprietary and or sensitive information about clients customers or relate other related parties and that's how they define confidential information

0:24:56 Thomas: I think if if I'm trying to be the most fair, if I were in the position where let's say somehow someone I had a contract with did a sly like technicality type thing where they're like, well, I hinted to somebody that you should subpoena me to get all this stuff. I would feel like that does feel like not the spirit of the contract. You know, like I would, I would feeling like that's not fair dealing or something. The other component of it is I also have to imagine, I have to imagine that contracts in this line of work would also say, Hey, even if I am no longer a client of yours doesn't mean you can just like say all my stuff.

0:25:29 Thomas: Like, doesn't mean you could just like, if I move on to another PR agency, you don't get to just spill all my dirt. Like that can't be right. So, I mean, I get that. Like if they were in breach, then maybe that's slightly different, but I feel like that would be hard to give license to Stephanie Jones to share whatever she wanted just because maybe they didn't pay a bill or something.

0:25:29 Lydia: Go right or

0:25:48 MJ: Right and she definitely hasn't right that's the that's the other thing is like those messages coming out is one thing they're in active litigation and we're not seeing more stories about Justin Baldoni coming out we're not seeing anything come out that's from his PR company like speaking poorly of him right yeah

0:26:03 Lydia: Even from like an insider or a source like we're not even seeing stuff like that really

0:26:08 Thomas: So I guess I want to ask you overall on this first cause of action. I don't think we find the first first prong, particularly effective. The second one about the confidential information, I guess I want to ask your view as to what might survive a motion to dismiss or not, because it feels like there's just not enough specificity because it also could, I could see Jones arguing, hey, the stuff I told Leslie Sloan about was Melissa Nathan helping Jen Abel steal clients from me. And that's why Leslie Sloane said, you're going to be sued. Like that's a perfectly reasonable explanation. Nation. However, when we're talking about this kind of legal process and motions to dismiss, where's the burden going to be?

0:26:40 MJ: I

0:26:47 Thomas: Is it going to Be like, I guess if Wayfarer's side here is able to say no on information belief, it wasn't that it was something, it was confidential information about us. Is that going to BE enough to get them through a motion to dismiss on this claim? Do you think?

0:26:47 Lydia: Right

0:27:01 MJ: Honestly think that it it might I'm overthinking this right now but yeah I think the confidential information is a stronger argument than the professional you know failed to be professional I think it probably is I like I hear your argument and I've said that for a while. We don't actually know what she said about those texts, but we do know that eventually Blake Lively subpoenaed Jonesworks. So something was said probably that gave them an indication that they should subpoen to them. From a motion to dismiss standpoint, we're fighting over breach of contract. The contract is there. But I think, yeah, you probably survive a motion to dismiss, except again, they didn't do what they were supposed to do if there was a breach. Right.

0:27:35 Thomas: That makes sense to me. That's true. Yeah, and the damages just seems wrong. So like if they're able to, like, let's say the judge says, okay, yeah, I see plausibly there could have have been confidential information shared there if they haven't properly alleged like what the damage even is is that a problem for motion dismiss or is that something you can kind of patch up later

0:27:57 MJ: So I guess I mean, I don't know if I've seen a breach of contract claim dismissed because they didn't properly plead damages, but it needs to be a lot more like this does feel really almost. Yeah, I Don't Know What I Don'T Know What They Are. Yeah.

0:28:13 Thomas: Well no yeah I have to imagine your typical garden variety breach is going to be pretty like more obvious it's more like hey you didn't deliver the goods and I lost this money or whatever you

0:28:21 MJ: Yeah, you didn't. Exactly. You didn't provide services or, you know, we did provide services and you didn'T pay us. It's a lot easier to spell out those damages. They're kind of arguing here that the damages are.

0:28:25 Thomas: Know yeah yeah yeah through a rube goldberg device eventually we hated it that you did you know it's like there's nothing tangible in the damages that I

0:28:40 Lydia: Yeah yeah I mean I'm just saying lots of unclean hands honestly like with this sort of situation like yeah alleging breach and stuff and it's like okay but coming from the people who also breached it's yeah

0:28:46 Thomas: See hmm oh yeah unclean hands yeah interesting how does the unclean hands thing work that is a thing

0:28:54 MJ: Yeah, it's all interesting. Unclean hands. Yeah. I've never actually it's in a lot of contractual disputes as your defense, but I don't think I've ever done anything with it after you know putting it in as an affirmative defense but I mean it basically says you can't you know recover or get relief if you have acted poorly in the same contract right like I can't if they're saying jones breached her duty by basically helping our enemies well what did you do before that so

0:29:20 Thomas: -hmm interesting yeah yeah yeah at what point do you bring that up

0:29:30 MJ: It probably is if we go scroll up I'm

0:29:33 Lydia: It's in there yeah and their affirmative defenses

0:29:35 Thomas: Oh it is oh oh okay yeah yeah but I also think I would imagine I would we would see it in steph jones as well like if she responds to this yeah I would think yeah okay interesting

0:29:35 MJ: Yeah I'm sure it is

0:29:43 Lydia: Like oh yeah unclean hand's on

0:29:45 MJ: Yeah yeah if she responds to this with an answer then yeah it'll definitely be in there as an affirmative defense but yeah I think this is not it's not as exciting as the other ones and I also think probably it could get through

0:29:59 Thomas: Could get through yeah well let's talk about the second cause of action which doesn't make a whole lot of sense to me breach of implied covenant of good faith and fair dealing. This is really short. Maybe I'll just read it real quick. Wayfarer and Jones works are parties to the agreement, which is just the contract stuff. Wayfarers has substantially performed under the agreement or was excused from doing so because of Jones works and Jones's actions. As alleged here and above Jones works, and Jones engaged in conduct that prevented Wayfar from receiving the benefits contemplated under the agreement, including by maliciously feeding its confidential information to third parties to hostile third parties

0:30:19 Lydia: You interesting hostile third third parties. Yeah.

0:30:30 Thomas: For the specific purpose of harming Wayfar and Baldoni. In doing so, Jones works and Jones did not act fairly or in good faith as a direct approximate result of the foregoing breaches. Wayfarer suffered damages and amount to be proven at trial. Is this, uh, does this make sense? Is this something properly done here?

0:30:47 MJ: It's kind of normal to tack that on to a a contract claim but it's also you're not supposed to plead kind of the way they've pled it

0:30:50 Thomas: It's like exactly the same as the first one.

0:30:58 MJ: As yeah which is kind of what you're supposed to do right it's like so to have this you have to have a valid contract you know conduct that undermines the other person's right to receive the contract benefits and bad faith so they're saying you know she acted in bad faith by I think what did they say deliberately sabotaged maliciously feeding yeah that language is but everything that they've said there is kind of the same thing they say in the contract so you'd argue that it's just exactly they're not alleging any additional facts there so they'll say that it should be dismissed

0:31:24 Thomas: Seems duplicative. Yeah. Do you usually bring this up when it's like, okay, we can't point to a specific breach by the letter of the law, but the thing you did was just kind of shitty and made it. So it was unfair. You know, is it, is that how you use this normally?

0:31:43 MJ: So where I've seen it come in is when when there's something with the contract that you feel like isn't sorry way to say it the way that we have pled it is if the contract breach is going to fail so if there's a reason that you think the contract breech isn't strong or if there is an issue or something with a contract then you're going to kind of tack that on I would say that if someone's going to argue against that they are definitely going to say that they're not going to bring both claims with the same set of effects. So you kind of want to argue that they've done more, if that makes sense. It's implied in every contract that you have a duty to act in good faith.

0:31:59 Lydia: Pick

0:32:23 MJ: We recently, no,

0:32:23 Thomas: You know what this reminds me of? Oh, sorry. Good.

0:32:26 MJ: I bet it's one of the ones that we did from the Jonesworks complaint, right? Yeah.

0:32:29 Thomas: I was just going to say this reminds me of like, if I were Jones and I thought there was a serious risk of that California law getting rid of that whole employment contract, I feel like I'd be like, oh, okay. But in the alternative, I don't, I don'T think that should happen, but in the alternative, that seems like a pretty fucked up breach of implied covenant of good faith and fair dealing. It feels like that would be an appropriate usage for this. Maybe. Is that kind of what you're saying?

0:32:51 MJ: So I think she actually pled something similar to that. Not like duty of good faith or breach of implied covenant, but something something related uh when we went over that her complaint the first time and it's like this you kind of like tack it on when you bring those complaints good faith basically says you can't undermine the contracts like main purpose right and if the main purpose here was to provide those services and she breached that contract she frustrated the purpose then even maybe if she didn't if she didn't reach a specific contractual duty but she did like break the spirit of the the contract, they might be able to rely on this.

0:33:29 Thomas: All right. Well, so this feels like word for word duplicative, though. I don't know if that that feels wrong. So I guess closing that we already got through it. Yeah, we already got through It only two causes of action. How do you feel about this one? I think I take your point. I think parts of that first cause of action, it does actually seem plausible to me that that could survive a motion is missed, depending. But yeah, any other closing thoughts on these?

0:33:36 Lydia: Your lane.

0:33:51 MJ: I think strategically, if you are sued for a breach of contract, you're going to do the same in response if you have any argument under the contract. That's just typical lawyering. Ithink they would probably survive a motion to dismiss, but it'll be interesting to watch this. And I still am confused as to why we are in court over contract that really doesn't have a huge value right like to they they've already spent this money uh arguing this

0:34:20 Lydia: It's ego.

0:34:21 Thomas: Easily.

0:34:21 Lydia: It's just ego.

0:34:22 Thomas: Well, I think it's other stuff too. I feel like it's because of the whole case, like kind of, yeah, it doesn't make, it Doesn't make sense. We, we've said this from a while ago that like, they should not be together on this. Like this, this should just split off. It feels like, and like settle. Well this is Wayfair. Maybe, maybe Wayfaire is still going to be in it because they're in the other thing and it's like kindof part and parcel. I don't know yeah it feels like just settle this one and focus on the other one do

0:34:46 MJ: Yeah it's it's really interesting like it this one really there was definitely a reason why they brought the complaint and I get you know Stephanie Jones yeah Stephanie Jones yeah and so I understand why they would bring the counterclaims I guess against them but the value of the Wayfair contract could not have I mean we could do the math it was $20 ,000 a month yeah for Stephanie Jones wanting to go after Jennifer Abel I understand and then uh yeah I guess the bigger the bigger issue for her is is figuring out who who did all of the anonymous kind of smearing and websites and so yeah I see why she brought the complaint yeah yeah

0:34:54 Thomas: You mean jones or yeah oh yeah there's no way yeah for her I guess there's more yeah yeah but you know wayfarer and able save money by just copying each other's complaints so maybe that's how they're justifying the cost you know

0:35:30 MJ: I mean that's fair discovery I feel like is everyone everyone is it's so expensive and people are probably feeling that part right now right even the storage costs for like collecting documents minutes. It's all crazy. And probably everyone is just feeling it a little bit.

0:35:33 Thomas: Oh god it's so expensive

0:35:48 MJ: Oh, I guess we'll see.

0:35:47 Thomas: Yeah we will see what

0:35:49 MJ: We'll see what happens with this complaint.

0:35:58 Ad: [Ad break 3 — ad music]

0:35:58 Thomas: Happens well that was tremendous end is fun. Thanks so much to MJ as always. And next episode, the very next episode.

0:36:07 Lydia: We've made it.

0:36:08 Thomas: We are speaking to Stephanie Jones's lawyers. And I think that makes us a part of this case officially. You can subpoena us.

0:36:13 Lydia: Yeah it's fine. We'll be there.

0:36:17 Thomas: I don't know if I should keep that joke in because like there's not there's nothing. But yeah, but we're not like constantly doing messaging for one side, you know, like insider messaging for one side.

0:36:21 Lydia: Well I'm supposedly Perez Hilton got subpoenaed today so that's true. Well what if they subpoena and they're like this is how it should have gone for content creators and then we're like we're the control group and we just hand over all of our emails and then they're like see no one ever talked to these people yeah

0:36:38 Thomas: I don't think that's how they do it, but okay. Actually, they should subpoena us because they would just add, we're third parties, they'd be like, turn over any emails with Blake Lively. And we'd be done, fucking way ahead of you. So I already did that before you even said anything. Yeah, so okay. So then, yeah, I'll keep the joke. No, that all is nonsense, but I'll give the joke that you can subpoena us. Baldoni, do it. Wouldn't be the first time. Well, it might be. I can't remember.

0:36:53 Lydia: Yeah blank yeah exactly then we'll be like oh my god I don't know what to do we're in the control room and it helps demonstrate yeah okay whatever it would not be an undue burden.

0:37:13 Lydia: It would be the first time. For Baldoni to...

0:37:15 Thomas: No, just for anybody. I don't know. I'm not sure. I mean, I don't know. I can't remember if we officially got a subpoena last time. I don't know.

0:37:17 Lydia: Oh, I don't think... No, I don't know.

0:37:20 Thomas: No, I don't think we did. Discovery requests? Do those count? No. Okay. No. We got document subpoenas. I think so. Because that's the first thing you do. Or did he never do that to us? Document? Yeah. I know. Anyway. Well. We'll figure that out. Once you subpoena us, we'll do the research and figure out whether it's our first one. How about that? Deal. Deal. So next episode, assuming they still want to come on the show, hopefully they haven't listened to any of this. Stephanie Jones, Stephanie Jones's lawyers excited to speak to them. They've got some interesting news, interesting stuff to talk about. So super excited. You can hear first on the Patreon, I'm sure. So go there and support the show. Thank you so much for listening. We'll see you then.

0:38:21 Thomas: Yeah. Through a Rube Goldberg device, eventually we hated it.