Lively v. Baldoni 33 - A Smorgasbord of Torts

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 in everyone, gavel in. How are you doing? It's Gavel Gavel. I'm Thomas. That's Lydia.

0:00:30 Lydia: Hi.

0:00:31 Thomas: I don't know why, but I'm more excited than I even anticipated at what we're going to talk about in this episode.

0:00:37 Lydia: I can sense it in your voice, too. You're buzzing. Yeah.

0:00:39 Thomas: Yeah, I'm just like, I've just like pumped, you know, it's like we've, we've invested so much, you know, we're, we were, we we've gone through from top to bottom us or whatever. We've gone through this docket and now we get to today. We're going to be talking about Stephanie Jones's motion to dismiss against Jen Abel's counterclaims. And we were, I think both of us were like, ah, this is going to be weird because motion dismissed, they're usually highly technical legal arguments.

0:01:03 Lydia: Pages of cases that they're relying on for that argument.

0:01:05 Thomas: Yeah. And like, we're not, yeah, that's going to be something that we'll talk to a lawyer about and it's going to be weird. But this one turns out there's actually a ton of narrative in here and it, it's fun. It's like getting the debunk to the debulk to the debug. It's a, it's gonna be interesting. I'm really excited to hear how Stephanie Jones's lawyers fight back against that counter complaint. Now I've said a number of times like, oh, when you read the complaint, usually you're very convinced by it. And to varying extents that happens, but I was just not particularly impressed with Jen Abel's counter complaint and I don't think, yeah, yeah. Fair. That's something that I think is interesting and we'll see. We talked about all this with MJ as well. It seemed like MJ wasn't particularly impressed either. Short of that long shot, you know, we've discovered a technicality in the bylaws, get the whole thing like contract thrown thrown out. Therefore, like short of that, which I just think is not likely, I don't see how her complaint even really dealt with. Well, again, there's also that thing where we don't know all her answers to all of these allegations, but I feel

0:01:36 Lydia: Yeah. With the exception of the California law and forum. Yeah right. Look

0:02:06 Thomas: Like she's trying to put in the information in there that she can. And she didn't give us a whole lot that was very good. It was a lot of like general. Yeah. A lot of general like trash talking in ways that either were irrelevant or sometimes kind of made her look worse.

0:02:12 Lydia: Over there. Like that's what it felt like. Yeah mm

0:02:20 Thomas: Like I remember I mentioned, you know, again if you knew that Stephanie Jones sucks so much, that makes it worse to me. Like, why didn't you, if people warned her about going over there and if she was actually just a disaster, it's like, it is a better moral case if you were like, she duped me into working for a company when it turns out she is horrible. So, it was just confusing. You know, it wasn't really, it didn't really feel like it made a great case. So, I am excited to get Stephanie Jones' motion to dismiss on that and that is what we are going to be looking at today. Any preliminary thoughts to add?

0:02:47 Lydia: I am excited for how you phrased it, right? The debunk of the debunk. I wonder what it It must have felt like and look like in the room when the counterclaims were filed and Stephanie Jones and her counselor sitting down. You know, they're probably over the phone, but they're having a conversation as they're going through this. And I just I would have loved to be a fly on that wall.

0:03:09 Thomas: Boy, I have a lot of experience with that exact thing of emailing my lawyers like, you wouldn't fucking believe this is such bullshit. This is complete bullshit.

0:03:16 Lydia: Yeah. I would Have Loved to be in the Room.

0:03:19 Thomas: Yeah. And I had that feeling, you know, I forget if I've mentioned it, but one of the filings, one or two, I ran by a friend in our legal thing against Andrew Torrez. And for the sake of the story, let's suffice to say his bullshit was both better and worse than this. Like it was just lies, but he was better at making it not not really clear that it's lies to someone who didn't know the facts like there's there's two ways you can do it there's one where it's like no this is just lies because within the it's very thing it's kind of self -contradictory and you can kind of tell like that reeks of bullshit or if you're willing to just lie and you're going to just write things with no expectation that you're ever going to face consequences for them because you're never going to trial which is what Andrew did then you could just say whatever and

0:04:06 Lydia: Construct an entirely new reality. Yeah. Yeah.

0:04:07 Thomas: Yeah and to a bystander they don't know they're They're like, oh, wow, was that, is that true? Like if true, then that's a good point, but not true. Like, and so there's, there's kind of, he was better at that, I think. But for me, I was like, no, I know I have, not only do I know this all bullshit, I have like all the documents and proof about it. So it's just bullshit. And it was really shocking personally to see someone write stuff that was just contrary to documented truth. I was actually blown away by it. Can't wait to go into it more.

0:04:24 Lydia: The receipts. I think it's like beyond shocking. And it was like disturbing.

0:04:37 Thomas: Yeah, it was. I mean, eventually I was Like, oh this is just a, someone who has no connection to the truth. And so I had that experience of when I, one of them, I ran by a friend for some reason, and he was like, oh boy, you're in trouble. You better settle. You got to get out of this. This is, and I was like oh yeah, it does have that effect. Like if you're good at lying and you're a good lawyer, you can write something that will make someone, like both complaints, specifically the thing we always talk about where it's like yeah, either side's complaints should usually be convincing. It should usually Be like, ooh, that gives me pause. And it was funny because it was was like, I didn't even send it thinking like, give me your overall take. It was like a specific thing I was trying to point out. And this person was like you, this is this is bad. You're in trouble. You know, and I was like no, I just was showing you one thing.

0:05:18 Lydia: Like the rest of it's nonsense. Yeah.

0:05:18 Thomas: And I didn' t really because I yeah, it's like I knew that it was all bullshit because I was the one who had the messages and the emails and stuff or whatever. But like, you know, this person didn't I didn''t even think like, oh, yeah, to that person, it's going to seem like this is bad. But yeah, so I have had that exact experience of something I knew to be bullshit being still nonetheless convincing. But all that is to say, I didn't even really find this that convincing. Like there's certainly parts of like even Baldoni stuff that I found more convincing than what's going on here, apart from maybe the California non -compete ban. So we'll see how it deals with that, but we're going to go through it. We're goingto go through all of it. We'regoing to find out what Stephanie Jones's lawyers make of this. So after this break, which you can avoid at patreon .com slash gavel pod, we'll get to it.

0:06:09 Ad: [Ad break 1 — ad music]

0:06:10 Thomas: Okay. We get to skip a bunch of citation-y stuff and start on page nine. That's fun. Yeah.

0:06:15 Lydia: Yeah. And we get a preliminary statement.

0:06:19 Thomas: And this is roughly going to be divided into two parts. One part is the part we're going to dig our teeth into, sink our teeth into, which is narrative -y staff, which I think we can all just with the knowledge base we have, we can evaluate this. Then it'll get into the technical law stuff and we'll just switch modes there and represent stuff, but we're not experts. We're not going to tell you what legal argument is like better or worse there. We'll just kind of keep you caught up on what the the claims are so that we can discuss them with a lawyer later. But for this, I think we can go through this in quite a bit of detail because it really is only, I don't know, six pages or something of narrative, but it seems really interesting. I'm excited to go through it.

0:06:50 Lydia: Yeah and it starts off with a cropped piece of one of the messages from Stephanie Jones to Jennifer Abel when Jennifer Abel announced her resignation and it says no one senior behaves like this it's reactionary dramatic and immature sad and this I feel like is a really um yeah

0:07:10 Thomas: Yeah. You didn't like this language. You kind of thought it was sort of almost Trumpian in places.

0:07:14 Lydia: I don't like it and I don's like it here either I'll be honest I find it

0:07:20 Thomas: It's interesting. I don'T know what it's doing.

0:07:20 Lydia: Like I find it just rude I donno

0:07:24 Thomas: It'S like in the beginning of a show sometimes where they show like a quote or something or a movie where they share like a random quote to set the tone.

0:07:31 Lydia: Yeah but what do you think about the usage of this image in this way as kind of like that title card for this.

0:07:38 Thomas: Yeah, it is weird. I think they're trying to set the tone of this is all a bunch of dramatic nonsense. And yeah, I agree with you. I don't really like the choice of leading with that. It's kind of weird. No, no, no.

0:07:47 Lydia: Yeah. Like for me, I don't feel like it puts me on Stephanie Jones's side at all.

0:07:50 Thomas: Probably doesn't add. Yeah, I don'T think it really adds to. Yeah.

0:07:53 Lydia: You could have done the quote within the narrative and that would have been fine with me. But like putting it ahead of what you're going to say, I just it rubs me the wrong way. Yeah, okay.

0:08:02 Thomas: Now I'm with you, it doesn't really, doesn't do much.

0:08:05 Lydia: Well, let's dig into the narrative. Yeah?

0:08:07 Thomas: And what's interesting here is we're starting with a heading called preliminary statement, which I'd like to ask MJ or somebody like, is that normal? Normal. I don't recall seeing a preliminary statement in a motion to dismiss. But at a certain point, it feels like, hey, we all realize we're all playing PR somewhat either way. Like once one person is kind of doing the PR either way, it's like, yeah, I think so. And it's I don't think they're pretending that this is sticking to the letter of the legal argument. Like they're putting something called a preliminary statement, which we'll ask, but I feel like is not the norm. So we'll see what this is.

0:08:27 Lydia: Then everyone has to lean in. Interesting. In her soap opera script masquerading as counterclaims, Jennifer Abel follows a reactionary, dramatic, and immature, but sadly familiar, playbook of filing legally faulty and baseless claims as a vehicle for her self-serving public narrative. Oof.

0:08:55 Thomas: I agree so far. Yeah. It's like, that's a lot of adjectives and stuff, but it kind of feels justified at this point to me. Yeah.

0:09:01 Lydia: Major burn, yeah. Abel's counterclaims are nothing but a master class in dissembling and diversion. A quote, nothing is my fault retort that seeks to avoid accountability for her unethical and and unlawful actions revealed in JonesWorks' complaint. Abel has no response for her duplicitous campaign to ruin Jones' reputation and steal JonesWork's clients. And then we get one of the text messages from Melissa Nathan to Jennifer Abel, where it says, I know, and once you are gone, we will be on accounts together and make really good money and be happy.

0:09:33 Thomas: Honestly, that could have been the top one. Maybe just leave with that. There's a little bit of a, you know, I don't know. A lot of rhetorical flourish. We might skip through a little bit of that, you know, hyperbolic fantasy. Sure. Sure. Yeah.

0:09:43 Lydia: Try as she might, Abel cannot distract from the reality that these text messages do not in fact reveal Abel's own private and personal information, but instead reveal a vicious campaign to bury and destroy Blake Lively on behalf of Justin Baldoni and Wayfair Studios and, quote, go to war with Jones.

0:10:01 Thomas: And so, you know, we mentioned there was the part that you have to do, which is the answers where you admit that text exists or not. And we kind of didn't really go through any of that because there wasn't really much special for us to say about it. But in the hands of Stephanie Jones's lawyers, I think this makes sense. I think these lawyers are taking the time to emphasize, and this is a broader point that I think is worth making, which is a lot of times what we see with people trying to lie their way out of something is to just point to like, ah, fake news. This was very much a fake news thing. The answer about the text, and you see it in the pro-Baldoni spaces where it's like, doctored text, that's all, it's just doctored. That's the equivalent of saying fake news.

0:10:15 Lydia: Stephanie Jones's lawyers went through them. Yeah.

0:10:42 Thomas: I can't believe I didn't make that connection earlier, but it's just, ah, fake news, fake news, doctored text. Well, it's like, well, what's doctored and in what way? And even if you could point to one missing emoji, that absolutely does not take away from the fact that other stuff is completely accurate. And that's something that I think a lot of people refuse to contend with because they don't want to, because they want to continue thinking one side is right. But when you are forced to admit, because this is how the legal process works, that yes, defendant admits that the text is real, you know, in a bunch of places, then you can't really do that anymore. This begins a sequence here of a lot of like, she admits that these texts are real, which means they're fucking real, like we already knew, and they go out of their way to make that point. So there's a lot of these.

0:10:50 Lydia: Yeah, everything else. Yeah mm hmm. Yeah yeah. Why don't we get into this paragraph? Speaking of this admission piece, notwithstanding Abel's hand waving and false denials of wrongdoing, what is most revealing is what Abel now admits. Despite trying to distance herself from the Business Insider takedown piece against Jones, Abel now admits that she repeatedly spoke with Business Insider reporter Katie Warren between July 30, 2024 and August 12, 2024. Admits that she went out of her way to ensure the article omitted the positive statement Baldoni and Wayfair had previously written in support of Jones. Admits that she exchanged messages with Nathan the day before the article was published including boasting with nathan about the harmful effects it would have and we get another text message here this is from Melissa to jen where melissa says stephanie are you aware there's a kill story dropping this week on you and if you hadn't have blown us up we would not have been in such a bad place and even admits that business insider writer warren thanked her for helping with hit piece once it was published and then this is from Katie Warren to Jen Abel story is up thanks again for your help yeah

0:12:29 Thomas: And all that, again, you might think, oh, admits that means she must have said something in her thing. No, this is all from those answers where you're forced to say, and this is the beauty of this process. If you just read it through, it just says answering allegations in paragraph 77, defendant admits these communications. But when you're Stephanie Jones' lawyers and you go through, this is a point where once things are sworn like this, and once you have lawyers having to put their name to it, I'm sure they would love to just say fake news to all these texts, but they can't. They have to actually say these are the texts because otherwise you're just lying.

0:13:00 Thomas: You're just lying in an important legal way. And so what they do is they have to just do that. And then in their narrative, they just avoid it. They just pretend none of that happened. But these lawyers are saying, hey, you admit it right here when you said answering the allegations of paragraph 78 of the complaint, defendant admits the allegation that she spoke with Warren between July 30th and August 12th. Defendant denies all the remaining allegations in the paragraph. So yeah, she's admitting those texts are real because yes, obviously they're real.

0:13:27 Thomas: There's not doctored texts. There's not a bunch, you know, like that was that is always just shouting fake news and hoping people don't look too close.

0:13:34 Lydia: The next paragraph that we get here is another admission and this is more about the employment agreement she also admits that she entered into the 2021 employment agreement and worked under its terms including reaping all the benefits it provided her for more than three years having accepted an executive position of partner with jones works and the compensation and benefits that went along with it abel cannot now avoid the obligations she agreed to in exchange, which included the reasonable and ordinary obligations to not steal or disclose Jonesworks confidential information and not poach Jonesworks employees and clients. Lacking any conceivable defense to her brazen violations of these obligations and of her duties of loyalty to Jonesworks, Abel now seeks to argue that those obligations do not bind her, but they do. Having agreed to and obtained the benefits of her contract with her New York employer under New York law, and after flagrantly breaching it, Abel cannot renege on that agreement because she now sees strategic advantages in doing so. To the contrary, the Second Circuit and New York Law routinely enforce the bargains that employees like Abel here willingly struck. Indeed, a mere two weeks ago, this court expressly rejected a similar effort to use California statutes to override a New York contract, the very same tactic Abel attempts here. Interesting. This is Judge Lyman.

0:14:51 Thomas: That's yeah, that is interesting. Oh, wow. That's always good when you can cite the judge that you have. Wow.

0:14:59 Lydia: Literally two weeks before this motion to dismiss was filed. So, too, should this court reject Abel's tactics? Wow. Yeah.

0:15:01 Thomas: Wow. So, too, should this court. So, too, should the same court do that again? End. It's kind of funny. Okay.

0:15:09 Lydia: So, you did it once before, sir. Yeah. Yeah. Wow. That's interesting.

0:15:18 Thomas: So we could not help but go down the rabbit hole of this case that's being cited. And yes, I know we're not lawyers and we will get the lawyer's opinions on this, but this is too fascinating. Like this is really, this reminds me of like really complicated magic, the gathering rules where you're like, well, there's a layer here of effect that goes in place before this. So let us give you the broadly speaking, like layers of things that are happening here. So just to remind everyone, get us all on the same page.

0:15:44 Thomas: The employment employment contract that Steph Jones had Jen Abel sign. That contract has a New York choice of law provision. Now, we talked about from the counterclaims that California is like, if an employee lives here, works here, that you don't get to do that. And I said, I still hold to this that, yeah, it seems fair to me. It seems valid, at least logically speaking. Right.

0:16:07 Lydia: As a resident of the state, you should get the benefits of that state. Yeah.

0:16:09 Thomas: And that was not a legal opinion of mine. That was just a, that seems reasonable to me and I'm going going to side on, yeah, fairness siding on the side of the employee. Now, not just talking about fairness, though, talking about how the law works. It seems as though this citation, which was to Judge Lyman himself recently, as you said, two weeks before this was filed, which, boy, that must have been a heartbreaker. Wait, two week before this motion to dismiss or two weeks before?

0:16:13 Lydia: Fair is fair. Yep. Yep. Yep. Two weeks before the motion to dismiss was filed, one week, one week after her counterclaims.

0:16:36 Thomas: Oh, brutal. So one week after those counterclaims, Jen, and this is significant. So one week after Jen Abel's counterclaims that we did the previous episodes, this decision comes out in this very judge, Judge Lyman, in a case that is pretty identical. Right. I mean, like, yeah,

0:16:53 Lydia: Yep. A lot of similarities. California. I think the only difference is an independent contractor versus an employee, which might be an interesting distinction. But beyond that, yeah, it's a California versus New York and that individual wanting California law and forum to apply.

0:17:01 Thomas: This is right. Yeah. Right, and boy, that's got to be a heartbreaker for Abel side. Now, and I again want to say morally fairness wise, I'm not sure that's the right answer. And it kind of kind of said, but like legally speaking, oof. But I will say there is another layer of fairness that I do think this contract was entered into at least before the non -compete stuff was struck down in California. And it was done so with totally valid New York law and Stephanie Jones, that that firm was based in New York, that location. So it's like it's not like I don't think she did a bad thing in writing a contract that was completely reasonable under those circumstances. And for all we know, as they say in this motion to dismiss, Abel was under the like if you're under the impression that that's the obligation you have, that's the legal obligation you have and you violate that. I also don't see it as like super fair that you would just be like, oh, whoops, it discovered that I it was actually OK that I violated my contractual obligations that I thought I had.

0:18:05 Lydia: A get -out -of -jail -free card kind of thing yeah

0:18:07 Thomas: Yeah, it's like it's sort of a like, OK, fair is fair. Like those two fairness impulses in my mind maybe offset a little if she thought she was under these obligations and just knowingly broke them anyway. It's like, OK, you shouldn't really get out. It would be one thing if she had a good faith argument the whole time that she shouldn't have been under some of these restrictions. And if she was like, look, I just don't think this should have applied. It was harmful to my career to not be able to. But like that's I don't Think we have a good thing here. Here. Like, I really don't think, I think it would be a different case if it was like a good faith thing like that versus what we have here, which is, ha ha ha, we're going to steal the clients and leave, you know? So, so having said all that in Stevens v. SBAT, like you said, only real difference was independent contractor, but I don't actually think that makes much difference because I, and for a good reason, which has, I don' t know, I mean, I, I'm not sure if I'm California wants to also protect them. So it's like this law would equally apply. I don'T think think it turns on that at all. But let's suffice to say that's brutal.

0:18:38 Lydia: Agreed yeah some really damning texts yeah mm

0:19:09 Thomas: If you're Jen Abel's side, oh my God, to have that decision come out a week after. And here's the thing. So we've got that first layer, which is the contract says choice of law provision, New York, right? We'll just keep it simple. Just again, for all of us to understand as lay people here, California law says, no, no can't do that. Jen Able is a California resident and we don't like that, but we're in federal court in the Southern district of New York. Now here's The thing I I was under the impression, until we just did a bit of reading in this case here, a bit of research, I thought that that still didn't necessarily mean, and it doesn't necessarily mean that you're applying New York law. That can also mean you're implying California law, and they're going to have an argument about that. However, here's where the funny Magic the Gathering stack timing comes in, because in order to decide whether or not that choice of forum provision itself is valid, you have have to first decide which state's law you're applying.

0:20:03 Thomas: And that's the rub because what we see in, and again, this is just based on us reading this, it's pretty readable, this Judge Lyman decision that came out two weeks before this was filed, one week after the thing was, the previous thing, the counter complaint was filed. The reasoning that Judge Lymon is using, and this is a developing area of law. It seems like there's a bit of a fight about this and this is still new and there's going to be cases going different ways. But in the second circuit, it seems as though this is how things currently are. In order to first evaluate that choice of law clause in itself, you have to decide as a threshold matter, which state's law you're going to apply. And I guess the way they're doing that, Judge Lyman says, is, well, they're in New York federal court, right away, that's going to be a little bit of, going to get a littlebit of a nod toward New York. Like that's where you are. Like it's, it's doesn't mean you're definitely applying New York law, but like to start, it'S like, well we're in new york here in federal court and the action is in New York that we're in. And apparently there's a test from a case called Mosley that the Second

0:20:15 Lydia: Yeah counterclaims yeah yeah yeah

0:21:04 Thomas: Circuit applies. And this is what Judge Lyman applies. A New York choice of law clause will be enforced if, quote, the chosen state, New York, has sufficient contacts with the transaction and the clause is not the product of fraud or violative of New York public policy. And so the employer is based in Newark, Jones Works, right? How about this? I'll just read you the case, not to apply I'll just read what the facts are of the Stevens v. Esbat case, and you can tell us, listeners, but the employer in that case was based in New York. Esbet had in -person meetings and worked at least partially in Newark. Now, we know that maybe doesn't apply to the same extent to Abel, but we know it applies somewhat. Like, she had meetings there. She somewhat, right?

0:21:42 Lydia: She just said infrequently but yeah but she was there yeah

0:21:46 Thomas: And therefore, those were sufficient contacts. Tax. And there wasn't any fraud. There wasn't any like the employer wasn't, you know, trying to pull one over on this employee. It was just looked at as not a fraudulent contract. Therefore, the court says, all right, we apply New York law. And then because they're applying New York law, then that choice of law provision is valid. And so that is interesting. Wow. That feels like honestly, that feels like a bombshell to me.

0:22:11 Lydia: I I was I would not have expected like a DOA sort of situation on this. But but apparently, yeah, it's something that Judge Lyman says in his opinion on that case, that it's something that's been discussed for like 15 years. Like this is something that I guess is coming up pretty frequently, which makes sense. I mean, New York is like such a hub of company headquarters and stuff. Yeah.

0:22:32 Thomas: Well and all states are going to want to defend their way of doing things to some extent. And So more things I want to ask the lawyer is like, I still have this pang of unfairness a little bit, because if not for these facts, I can imagine other facts that might be better. Where is the problem that like, did somehow Abel need to get this action in California federal court? And then she would have been fine. Does she have any recourse? Like, let's say she loses here. Can she somehow sue in California? Well, I think you can't do that under the same facts though. I think You're usually precluded from, otherwise you would just sue in every state for every case, you know, like, so like maybe in, in some sort of appeal or something. So it's still, there's a part of me that feels like, boy, that's kind of a tough break for Abel. But wow, in terms of letter of the law, Judge Lyman's own court, black and white. It's not just Judge LyMAN either. This is how the second circuit has decided we're doing this.

0:23:22 Thomas: And it's consistent with that. So like, that'S devastating. Wow, I'm like blown away. That's a devastating case to Abel's case. The one part where we were thinking, okay, maybe Abel has a good point here, this California choice of law stuff, other stuff. As far as Judge Lyman's court's concerned, that might be just done. That might be just, wow. Okay.

0:23:44 Lydia: Yeah, it doesn't look like that's going to happen. Yeah. Well, yeah.

0:23:49 Thomas: You can read the case. It's actually pretty readable. It''s pretty accessible. And Judge Lymon says in his own words, this is how we do things here. And that case is nearly identical in terms. So that is so bad. Okay, well, that's dead.

0:24:01 Lydia: All right. Let's see if anything else is dead. The smorgasbord of torts that Abel alleges also fail on their face. Not only does New York not even recognize the privacy -based torts Abel tries to allege, but no court has supported the theory that Able advances, that she somehow had a legally recognized reasonable expectation of privacy against her employer in communications made on a company -owned phone. Simply put, Abel had no right to privately use her company phone to undermine and hide things from her employer, conduct a secret business for her own benefit against her employer's interests, and seek to harm her employer'S public reputation and private business interests.

0:24:24 Thomas: Yeah. Yeah, no way. Anyway. Yeah. Like, obviously that's, that couldn't be more obvious.

0:24:45 Lydia: And JonesWorks did nothing wrong in retrieving that phone when it fired Abel and reviewing and producing its contents in response to legal process, which revealed, in Abel's own words, in black and white, in text after text, the clear evidence about rageous misconduct that Abel now stands accused of. For this same reason, Abelís false light claims similarly cannot stick. Abel may wish that the world did not know about her unethical and unlawful acts, but the light that Abl has been cast in is unavoidably true. Wow. We did talk about that, yeah. Yeah. Hmm.

0:25:17 Thomas: Well, he talked about that with MJ. Um, I, and I still, again, in fairness, I always want to be fair. If you could show or prove that that was like very cherry pick selection of texts. And then there was a bunch of other stuff that was, you know, like, I guess you could maybe try to prove that. That's not a false light. That'S actually a true light, but I think we're so so far from that anyway. So another question I would have for a lawyer is assuming everything I just said about that other case is right. And the choice of law thing, does that not still leave room for winning on a California choice of Law provision through other means or something? Or is it just that like, no, actually probably not because yeah, it's like once you evaluate, no. Yeah.

0:25:59 Thomas: As I say, I was trying to find some way, like once You evaluate that that New York choice of law provision is valid because you're first applying New York law to determine that.

0:26:06 Lydia: Then any California -based torts that you're trying to claim are out.

0:26:09 Thomas: Yeah, that's New York choice of law. That's what, that is what it is. I was trying to think like, is there any, like, can it go cause by cause or anything? But no, it's like, that's a contract. You signed a New York Choice of Law provision. If that provision stands, it stands.

0:26:11 Lydia: Yeah, man.

0:26:23 Thomas: There's no ifs, ands, or buts. It's not like, it doesn't half stand. Like, wow, I didn't even, I don't even think I necessarily fully understood how devastating that is.

0:26:31 Lydia: If I were Steve Sarowitz and like this motion to dismiss comes out, all I would feel are like dollar signs. Like, okay, I guess they have to redo an entire counter complaint.

0:26:42 Thomas: Well, that'S the least of their worries. They're just going to lose the fucking case. Wow.

0:26:45 Lydia: Yeah yeah I know but I just think about like what you're going to pay the lawyers in the meantime too. Like geez.

0:26:48 Thomas: I don't, yeah. I don't know who's cutting these checks. I Don't, I don'T. Yeah. Like we already said it with MJ that this shit should, should have settled right away, but what are we doing here now? Okay. Maybe we're falling into the thing where the complaint we're reading is really convincing. I had that case though. It's like having a case that is like Schmen Schmabel versus Mephine loans just came came out with the exact same facts like one week prior and went exactly the wrong way for Abel. Like that's, I mean, boy, they talk about distinguishing cases and if there's precedent that's bad for you, you can find a way to kind of distinguish it. You can say, well, it doesn't apply here because it's slightly different for this reason. It is pretty identical.

0:27:03 Lydia: Could be. Yeah. Yeah, yeah.

0:27:31 Thomas: Like you can't really get away from one that is, they might try, we don't know, but oof, wow. This is delivering far more than I even could have dreamed. But we have some very interesting further narrative to get through here. So false light.

0:27:31 Lydia: Maybe they'll try. Maybe. I mean, we don't know. We don't know.

0:27:44 Thomas: Yeah, it just seems dead. All right. Keep going.

0:27:41 Lydia: Yeah The remainder of Abel's claims are equally infirm.

0:27:49 Thomas: Love it.

0:27:49 Lydia: Abel does not actually identify any specific acts that allegedly distressed her and could plausibly meet the extraordinarily high bar required to sustain a claim for infliction of emotional distress.

0:28:02 Lydia: Yeah to MJ's point exactly. Her promissory fraud claim, too, relies on impermissibly amorphous allegations of quote, harm, to your point. Yeah. And also requires time travel. Yeah, exactly. Exactly. Listen up, Professor Heather Varanini.

0:28:10 Thomas: We called that out. Yeah. Give me a couple bar points for that one. I get a few lawyer points. Yeah.

0:28:20 Lydia: And Also Requires Time Travel, asserting that when Abel transferred her phone number to Jones Works in 2020, she relied on alleged promises promises made in 2024. Abel's false imprisonment claim also collapses under its own weight and for good reason. A meeting with an employment lawyer in an office conference room to be terminated for stealing confidential documents could not be false imprisonement. Yeah. Oh, yeah. And they're also lawyers. Yeah, yeah, when

0:28:44 Thomas: I mean, I feel like we identified all that stuff. And yet this made the case even more clear. I mean in fairness, we're trying to be fair. And these lawyers are obviously not trying to. They're just trying to make their case. Yeah. But yeah, I mean, I think that they identified that time travel thing, I think, is not just snark. Actually, when I think about it, I think the three of us may be unsaid, but I think we sort of went with the premise that like she was relying on the idea that she'd get it back even back when like because I think right.

0:29:14 Lydia: She ported her number over originally.

0:29:15 Thomas: I think, yeah, trying to explain all my thoughts that my thoughts happen too fast to explain them all. But I think it's reasonable just as a person for you and I to be like, well, well, yeah, I wouldn't have ported my phone in 2020 if I thought you were never going to give it back. However, when you're talking about promissory fraud, you have to point to the promises. And all of the evidence that she pointed to was in 2024. I don't think we quite made that connection that like you can say like, yeah, that's what I understood it to be. But if you have zero textual evidence of like, these were the promises made to me, only the ones in 2024, I feel like that's going to be a tough sell. So yeah, that's a great point they make there. I still can't believe it. I still cannot believe that we took so long of going through her thing

0:29:38 Lydia: Yeah yeah Yeah, that's a good point. Mm hmm. Yeah. Yeah, especially because she was the one who initiated porting over her phone number. Yeah? Yeah.

0:30:05 Thomas: Before we got to the part in her own counter complaint where she said, yeah, and when I requested to port my phone. Unbelievable. That is so funny. OK, this is wow. This is great. I love this.

0:30:12 Lydia: Oh, also, yeah, and just closing this out in the preliminary statement, having been finally called to account for her actions and having no viable defense. Defense abel has turned to defense by smokescreen none of her counterclaims have legal merit and the court should dismiss them and her corresponding affirmative defenses in their entirety yeah and

0:30:35 Thomas: Wow. And now we get to factual background. So we can probably skip through some of this.

0:30:40 Lydia: Yeah initially I was like oh we could probably skip through all of it and then I was skimming through and I was Like oh there's some good stuff in here that I don't think we got elsewhere

0:30:45 Thomas: Yeah, we'll get some tidbits. We'll get them. It's a little little nuggets. This we have the chunk system is the nugget system. System. This is a minor thing, but I actually really fully agree with the spirit in which this is written. Because if you remember, I called this out too when Abel was like, well, she was so happy in her former job. She was doing great. But then Jones poached her.

0:31:10 Thomas: Really setting up this like, are you not an agent in your own life? Like, do you not, you don't have any say in it? And I, Yeah.

0:31:15 Lydia: Yeah poached her it's a recruiter sent her a message on linkedin and you could just delete it.

0:31:18 Thomas: Headhunter. Yeah. And it contained a mind control code that, but like, I love, I actually, I fully support this bit of snark. If you even, I don't even, it might be dismissive to call it that, in 2020, seeking to advance her own career, she moved from RNCPMK where she was just one of 53 ,000 employees to New York based Jones works, where she Was entrusted with a leadership position in the firm's LA office a hundred percent oh and then it says upon joining the company and accepting a company purchased and owned phone Abel elected to transfer her phone number to that phone I mean come on like this is just

0:32:10 Ad: [Ad break 2 — ad music]

0:32:11 Lydia: We get to the 2021 employment agreement, and they give us a little bit more language from that agreement. They say that it expressly, quote, superseded all prior understandings, agreements, or representations by or among JonesWorks and Able, including the offer letter and nondisclosure agreement she signed when first joining the company. Although Although still legally an employee, she was referred to as a partner and compensated as such. Abel's base salary increased from $160 ,000 to $180 ,000 per year, and she received additional annual cash bonuses and phantom equity in the form of a further bonus based on the distributions JonesWorks made to its members and a share of any proceeds if the company was sold. That is, Abel received the benefits of a partner without the burden of buying equity or taking on partnership risk. Mm.

0:32:59 Thomas: Yeah okay on one hand I'm sort of like yeah you could also write that another way which is yes she received the benefits but without the I'm not not going to say this is like dishonest but this is spin because you could also say yeah but if she's fired or leaves that's that's it she doesn't get to take like if you're given actually 20 of a company you could be fired from whatever job you're working at it but you have your 20 you know like that's so yeah you know I'm not gonna say this like a lie but it's like it's a bit of a spin however taking all that into account point very much made that she is making good money She is getting cash bonuses and like all kinds of incentives here. I'm kind of surprised they didn't just tell us what those were. Like, honestly, given that they told us her salary, like I run a fucking spreadsheet, a payroll report that has all those bonuses. So maybe those aren't very significant. I'm going to go ahead and say that's a sign to me that perhaps those were like minor. But I don't know. Either way, base salary of 180. She's doing pretty well.

0:33:20 Lydia: She doesn't keep ownership. Yeah. Right, right. Oh, yeah. Enumerate all of it. Like, give me a little table. Yeah, yeah, see exhibit A. Yeah right yeah

0:34:04 Thomas: And so it's just pointing out here that she agreed to the New York choice of law provision here.

0:34:09 Lydia: Right and that she wouldn't steal or divulge the company's trade secrets not compete with JonesWorks while working for the company or for six months after leaving and not try to poach Jones works clients or employees able expressly agree agreed that these covenants were reasonable, including their time limits and geographic scope.

0:34:25 Thomas: And I got to say this sentence here, like, yes, this feels like not strictly legal writing, but I actually I think it's I think it's valid here because, like I'm just going to read the sentence. Abel's counterclaims are laden with histrionic complaints about all aspects of her employment at Jones Works. Not only is this irrelevant, it's unsupported by reality. That's what I said, like it like totally valid. Solid Jones lawyers. It's just neither here nor there doing a bunch of little complaints about your time there in the office.

0:34:46 Lydia: Just trying to make Stephanie Jones look bad.

0:34:53 Thomas: It just, yeah. And look, maybe again, morally speaking, if Jones really was awful and abusive, like maybe you have some moral case, but like in that counter complaint, it was just like, this is stupid. Like it doesn't. And also she used to microwave fish in the company. It is like, yeah, okay. But you know, that doesn't, you are just trying to embarrass her and say like, she sucked, therefore it's okay, I stole.

0:35:16 Thomas: You know, it's just like, I don't think that works. So I support this bit of smirk here. Might as well keep going. Read that next sentence. It's good.

0:35:23 Lydia: Yeah, yeah. Abel worked at the company for more than four years, never voicing any of the concerns that she now pleads in the new version of revisionist history that populates her counterclaims. Yeah I do

0:35:34 Thomas: And I would say that it is, I'm just going to say, take it for what it's worth. My opinion is it's highly likely that the lawyers made sure there's no documented time that she ever voiced any of these concerns in that time. This far late in the process now, Now, this is, by the way, I forget if we said this was filed April 10th, so we're creeping closer to the current.

0:35:54 Lydia: Want to be fair because Abel did call out that there was not a dedicated H .R. office at Jones Works and that a lot of times people had to rely on like senior executives to complain. And she said that kind of created like gossiping and a toxic workplace. And I think that's fair because like that's what we've called out on the Lively v. Baldoni stuff. Right. Like when there's not an H .r. office that you can lean on and your only option is to talk to the person that's also abusing you. Know like it makes it complicated so yes yes partner

0:35:59 Thomas: Okay, fair enough. Yeah, yeah, fair Enough. Yeah, yep.

0:36:25 Thomas: Sure. Not relevant here to the actual legal claims, but yes, I totally agree. And the only other thing I would say is I hear that, but there's a feeling I have that I'm not saying I know for sure, but I think is a real possibility that Abel was every bit as bad as Jones and participated in this bad workplace. Place called she's not a literal partner but is a high up making tons of money and with financial you know phantom incentive yeah exactly like I think there could be a real like this could be a instance here of someone who is every bit part of a bad work environment turning around and being like yeah look at how bad it was over there to this person one rung ahead of me and it's like okay maybe like I'm just saying there's a parts of this have read like that to me and her never having actually voiced any of these concerns at the time is consistent with that, but I hear you that caveat that if she ever has any

0:36:50 Lydia: In title but not in like risk yeah yeah it could be yeah

0:37:21 Thomas: Evidence in text or whatever that she wanted to bring stuff up but couldn't, then I would be all ears for that, 100%.

0:37:27 Lydia: Yeah and I I don't know that she does or anything like that I just you know I just want to be fair I just wanna be fair

0:37:29 Thomas: Yeah, I don't think she does. I think she has been messy this whole time and just is, yeah, whatever. Let's read this paragraph about her departure because we have had questions about how this went down in Stephanie Jones's mind. Now, granted, this is going to be her biased account, but I want to, I do want to hear it. And all we have are two different biased accounts and we can kind of see what we think.

0:37:51 Lydia: In July 2024 Abel informed Jones of her intent to leave Jones Works at first the planned departure was amicable as Jones Works arranged for Abel's transition, and Abel made logistical arrangements for her departure, including, for the first time, asking that her phone number be released from the company's account. But in mid-August 2024, Jones Works learned, after inquiring into suspicious file transfers on its computer systems, that Abel had been downloading dozens of proprietary documents from the Company's systems to her personal laptop, which she had no reason or authorization to access, let alone surreptitiously misappropriate. Jones Works swiftly responded, and on August 21st, 2024, with counsel, terminated Abel. To terminate Abel, Jones Works took the common and reasonable step of requesting that Abel meet with its counsel and chief of staff, ask to review the personal laptop that she had been using for company business, which she agreed to in writing. Freaking Jen, get it together, ma'am. Oh my God.

0:38:49 Thomas: Yep. Yep. I would hope that she'll never do this again. Never use your personal whatever for a company, whatever, just separate things.

0:38:53 Lydia: Yeah. Yeah. Oh, my God. Yeah. And asked her to sign termination forms. They do. They always have a burner. Yeah, yeah. I mean, like when I worked for the state and stuff, it was like, hey, heads up. If you ever do anything on your personal phone, your personal home becomes discoverable. If we end up in a lawsuit and it implicates your unit, you're going to have to turn over your phone. And that is scary uh and asked her to sign termination forms which she did including falsely signing a statement that she had not retained any Jones Works documents despite plain

0:39:01 Thomas: Drug dealers get it. They always have a set. They don't want to mix workplace. Place. And, and that's because of this, because they're like, I don't want to have to turn to my boss. Yeah, boy. Yep. Yep, yeah, we, yeah we covered that.

0:39:35 Lydia: Forensic evidence proving that she had been emailing documents to herself weeks before her termination

0:39:40 Thomas: Okay, pausing here, because the next stuff is great too. I just find this so much more plausible. I really do. So this is a messy situation, and Abel's side would like to say everything was great, respectful, until Jones freaked out for no reason, because she was leaving or something. And Jones would like like to say, everything was respectful and great until I discovered that she was fucking stealing from me. And normally I'd say like, well, maybe kind of like both of them were a little messy in that lead up.

0:39:55 Lydia: Or something

0:40:08 Thomas: But the thing that rings the most true is they discovered somebody working IT there saw file transfers that didn't make sense.

0:40:07 Lydia: In the middle yeah yep

0:40:16 Thomas: And to me, that makes so much more sense as a catalyst for some contentious activity here for a rough breakup. That makes more sense. That actually actually reads as true. It's consistent with the evidence. It makes everything make sense. And so I guess I won't say that that necessarily means Jones was absolutely, totally, perfectly professional until then. And that's, that's the question I have for you is you do remember anything? Do we have any texts that are like messier before, like in July, before Jones discovered this evidence?

0:40:44 Lydia: I don't know that we do, actually.

0:40:50 Thomas: Well, when was the date of the, of the sad, you know, that thing, like

0:40:54 Lydia: That was after she announced, I mean, like, yeah,

0:40:57 Thomas: According to the text evidence from Jen Abel's counterclaim, that like, you know, grow up sad, you just quit on a Zoom with your employee, Jen, with your employee? What?

0:41:09 Lydia: People like on her team, maybe.

0:41:12 Thomas: Then blessed, then so bad quality, then blasted our entire senior team, your resignation, growup. And that happened July 10th. And so to that point of were things actually all hunky dory and professional? I mean, I don't know. So it still kind of depends on how we read those texts. And I think that I'm like 70 -30 on Jones's side of that now with again the caveats that if Jones was like an abusive employer to Abel you know then sure I mean there is a reason that there's this animus I don't think Abel's animus came out of purely some greed thing that she wants to steal clients and leave I think there's some animus there and maybe Jones has her part to play in that but in terms of like trying to evaluate with two very flawed people in this interaction I'm at least 65-35 in terms of the messiness of this departure. And I don't see anything from Jones, and I expect that we would have seen it in the counterclaim because she posted a bunch of screenshots of stuff. I don't see anything beyond this set of texts from Jones which is contentious and not happy but you know like again if there's if there was threats if there was like how dare you fucking be you know, like if there was any of that stuff, I'm sure I'm SURE we would have seen if

0:42:27 Lydia: Yeah. Definitely.

0:42:28 Thomas: This is as bad as Jones got over this, you you know, it's not, not great. Like I think she's hurt. I think she's heard as an employer and you know maybe not the most professional way to react all in all. I guess the point of all of this is I think Jones's story just makes more sense. I think she was probably hurt and maybe a little miffed and unprofessional at able how she was leaving. But once she discovered the the stealing the company files thing like then she's in hundred percent in the right in my mind. Like what are you doing? You are accessing files.

0:42:56 Thomas: You're not supposed to be transferring files. What's going on? And all the the evidence after that was like, yeah, she was stealing shit.

0:43:05 Lydia: I know. It's crazy.

0:43:06 Thomas: And then it gets better because I love this. So keep reading on these, the dissociating thing and all that.

0:43:12 Lydia: Abel's allegations that employment paperwork made her dissociate and that a security guard was blocking the exit are as incoherent as they are fantastical. No one told her she could not leave because she did not ask. No one ever prevented her from leaving because she didn't try. And no one engaged in anything but professional conduct, and Abel does not allege otherwise. Indeed, Abel admits that the security guard was not even present in the room during her termination meeting. Abel admits that she walked into a conference room where no security guard was present, had a brief meeting with office personnel and counsel, signed paperwork, returned her company phone, and left.

0:43:50 Thomas: Okay. I just have, I had to go through this because I latched onto that. Abel admits the security guard was not even present in the room. I was like oh, that's interesting. Good point. And then I read, so I went to the referenced paragraphs here, the cited paragraphs. Apart from Jones' chief of staff, Abel had never seen any of them before after being, and again, this is Jay, a counter complaint, after being ushered into the conference room and Abel noticed that the security guard was posted just outside its doors, positioned between the conferenceroom and the office entrance, blocking the exit.

0:44:23 Thomas: And I'm realizing now rereading that in that light, it reads more like she was James Bond on casing her escape and was like, I'll have to karate chop the security guard that's stationed outside the door. Like, you're right. Like when you look at it that way, it's like, oh yeah, there was a security guard in the building.

0:44:44 Lydia: And ensuring that she has privacy in that meeting, like that's what is happening just

0:44:47 Thomas: Yeah. Like, and you're going, if you are doing a contentious firing of someone, yes, have a fucking security guard. And I think Abel took advantage of that to try to suggest, and I think it even worked on me somewhat that like, well, you've got security right there, strong arming her. And it's, I didn't, I, I love that they pointed that out. Like he wasn't even in the room. He just existed.

0:45:11 Thomas: And this idea of like, I'm going to have to go, I're going to front roll through that. I'm gonna have to, yeah, exactly. The security guard was posted just outside its doors.

0:45:09 Lydia: Stood there yeah outside yeah mission impossible out of here yeah

0:45:22 Thomas: It's just funny. It's so funny. Posted just outside his doors, which how would you read that? I would read that as like, okay, the security guard is probably like, Hey, I am here if you need me, like I'll be essentially standing at the wall by the door. Is that kind of how you would visualize it? Yeah. But she says positioned between the conference room and the office entrance, blocking the exit.

0:45:44 Thomas: Anywhere outside of the conference room is technically going to be between the conference room and the office entrance. Like it just, is she really trying to say that the security guard was like standing directly in the walking path of the door, like with his arms out, like Like you're not getting through. I just think this is so funny because it points out like, yeah, I think there was a lot of hyperbole and misdirection going on here.

0:46:05 Lydia: Very dramatic yeah

0:46:14 Ad: [Ad break 3 — ad music]

0:46:14 Lydia: Continuing its inquiry into the proprietary documents that abel had stolen jones works reviewed the phone and found messages revealing abel spearheading a campaign to retaliate against lively for her allegations of sexual harassment against Baldoni, an instigation of a campaign of destruction and defamation against Jones herself. Abel alleges that JonesWorks' review and ultimate revelation of the text messages was unlawful and invaded her privacy, including that Lively's publicist allegedly saw texts from Abel's phone and that her personal information was disclosed. Yet this is contradicted by Abel s admission that the texts were contained on a company -owned phone that she voluntarily relinquished on her termination as required and by the fact that the text messages that have been publicly revealed through these legal filings were produced pursuant to a lawfully executed subpoena furthermore abel specifically identifies no personal information of her own that she alleges was revealed in violation of her privacy rights instead she complains that text messages revealed her misconduct in participating in an unlawful retaliation campaign behind the back of her employer. And that's it. That's the end of our factual background.

0:47:21 Thomas: So there's a little bit in here that's blending some things. When you read Abel alleges that Jones Works review and ultimate revelation of the text messages was unlawful and invaded her privacy, including that Lively's publicist allegedly saw text from Abel's phone and that her personal information was disclosed. Yet this is contradicted by Abel's admission that the texts were contained on a company -owned phone that she voluntarily relinquished on her termination as required. Now, when we went through this with MJ, I do think that there was maybe a bit of a case, but on the wayfarer end, when it came to what was revealed to Sloan. I do think it's at least potentially interesting to make the argument that, hey, if you tipped off Sloan that there was something in these text messages, yes, they were Jonesworks property. No arguing that.

0:48:09 Thomas: But in the same way that if you had a memo that was on the Wayfair account that was like, boy, this Baldoni fucking sucks and he's done all this stuff. And like you shared that with a reporter, that would be violating the confidentiality agreement of your contract to Wayfaire. In the same way, I do see possibly an argument that whatever this was could have been a breach of the Wayfarer contract. However, there's fucking nothing when it comes to Abel. Abel was just an employee.

0:48:35 Lydia: And we're in the motion to dismiss for Abel. So, yeah.

0:48:38 Thomas: Yeah. So I thought it was interesting just to point that out. Like it was a bit of a distinction there. I think that that's relevant to the Wayfairer counterclaims and we'll see how we will go through that as well, how they deal with that. But when it comes to Abel, like that's nothing. That's absolutely nothing. I think there's not a violation of Abel's anything that if anything could be a violation of Wayfarer's confidentiality clause of their agreement, but nothing when it comes to Abel.

0:49:01 Lydia: Definitely.

0:49:01 Thomas: So I just want to point that out. And yeah, that's it for that narrative. Wow. What a, what a ride. That was fun. All right. Well, there's still some more on this docket. I hope it's every bit as fun as this one was. This is maybe my favorite entry to this docket yet. Like, wow, that was great.

0:49:13 Lydia: Shock and awe. Like, really.

0:49:17 Thomas: Yeah. More to come. We love you until next time. Thanks so much for listening.

0:49:44 Lydia: Caval, she blows. I don't know.

0:49:47 Thomas: Schmen Schmabel versus Mephineed Loans