Lively v. Baldoni 34 - A Hopelessly Attenuated Daisy Chain of Purported Causation

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: Gavel in, everyone. Gavel in. I'm Thomas. That's Lydia. How are you doing? I almost thought you were launching into song. I was like, how to melody? It's a gavel -y day. It's a ga - a gaverly diddly do to you too. Oh, no. We'll have to fight it out in court.

0:00:30 Lydia: It's a gavel -y day. It's gavel, gavel. It might be my intro. If you ever give me the reins for the intro, watch out, everybody. In court. That'll be the next season of gavel gavel yeah.

0:00:54 Thomas: Battle it out. This is chunk two of the patented chunk system. Excited for another another uh end of month chunkitude lots going on okay this is super cool so we're doing this episode is we're gonna do just one more on the jones v abel docket to finish that little side quest out it's not the entire docket but I feel like it's it's enough for now we don't yeah the rest of the stuff would be pretty repetitive anyway and it's like we need to get back to get the one ring into mount doom or whatever it's just been too it's been too long So one more, but this one is excellent. There's some, I've decided that I think Jones's lawyers might be my favorite writers out of all of them. Like there are some gems. I had a tough choice to make in between two great lines for the title of this episode. I don't even know which one I chose because they were both so good. So we'll see. The listeners know. You don't know. You have no idea. Listeners know so much more than you right now. I bet you feel dumb. They're smarter than everybody that is where you can get more gavel pod and support the show and all that so today's episode is the

0:01:18 Lydia: Yeah, we'll get back there. We'll get it back there. The meat. Yeah. Yeah, man. No, I don't know. Yeah I mean if I were on Patreon maybe I would be in the know also. Patreon .com slash gavelpod. They are. They are smarter than everybody.

0:02:14 Thomas: Stephanie jones motion to dismiss wayfarers counter complaint against her there's a lot of fun stuff here great writing just a happy little jaunt a nice little like finishing lap here on this docket and then folks after this after this episode we are taking Taking on the behemoth, the fucking final boss, I guess, the Baldoni amended complaint that is in some total, what, 400 fucking pages?

0:02:29 Lydia: Just under 400 I think is what we calculated.

0:02:47 Thomas: We've been dreading it. We've put it off. But it's where all the supposed claims, all the supposedly evidence that counters everything Blake ever said, that's it's all there. So we got to get some master document. We got to go through it.

0:02:57 Lydia: We have to leave our hobbit holes and start that journey. No second breakfast for us for a while.

0:03:04 Thomas: No, I missed my tea in my. Ah, boy, just a heaping helping of that. So one last really fun one on the Jones V. Abel docket today, and then we're digging into it. Next episodes will be taking on that main text of this whole thing, I would say. That's like the central text of this entire thing, because it does so much, did so much for people who think it disproves Blake Lively, and it's 400 pages. We're going to see how we do it, how we get through it. But one thing's for sure, whatever the end product is will not be all 400 pages, so that's good for you guys.

0:03:38 Lydia: Enjoy, folks.

0:03:39 Thomas: We have to do all of it. All right. Well, I mean, these are some exciting chunks as far as chunks go.

0:03:44 Lydia: Yeah they're pretty good chunks I'd say.

0:03:46 Thomas: So without further ado, let's get to the motion to dismiss against Wayfarers counterclaims here. Then we'll be on our merry way. Avoid the break. Support the show. Patreon .com slash Gavelpod. Thanks so much to our patrons who do. You're the best.

0:03:59 Lydia: You are the best.

0:04:07 Ad: [Ad break 1 — ad music]

0:04:08 Thomas: So now we turn to the motion to dismiss Wayfarer's counterclaims. And just to remind people, we went through all this, of course. We went through Wayfarers counterclaimed and this one was we thought was pretty duplicative of the other one. Yeah. Boo. Terrible podcasting, if I may say so. I left a negative review, a very scathing review of us. Yeah I really did feel like an afterthought they're like oh crap but if I remember right and I do because I'm checking right

0:04:21 Lydia: Boring yeah exactly very low on the entertainment value I mean like yeah you get false imprisonment and these like wild claims and then it was like meh yeah

0:04:44 Thomas: Now I mean their their whole thing it was so bullshit but wayfarers counterclaims there's only two of them their causes of action are breach of contract and let's try to get where do they what do they specifically say as alleged here and above three words in one which I always love jones works and jones failed to render services quote in a professional manner and in accordance with Wayfarer's goals and thereby breach the agreement. Okay. It also said JonesWorks egregiously breached the confidentiality provision by disclosing confidential information to third parties, including without limitation, Leslie Jones, Leslie Sloan for the Saturday Night Live person, right? Okay. That name exists at least. Yeah. Give me a break.

0:05:01 Lydia: Leslie sloan yeah Yeah. It does. If she's getting involved in this lawsuit, we have, we have bigger problems.

0:05:37 Thomas: Yeah this just in holy we're breaking this I don't think anyone else has talked about the leslie jones connection leslie sloan for the express purpose of harming you yeah so um that's pretty much it and then the breach of implied covenant of good faith and fair dealing it's kind of just duplicative I don' t know it's just like

0:05:53 Lydia: Yeah. Second cause of action there.

0:05:54 Thomas: We went over that with mj I don'T it seems like it's largely kind of the same thing but just slightly different so it wasn't much there wasn't much there and if you remember the whole I think what they really rested all their you know eggs on the basket in which they were placed was this idea that jones had like contacted they went so over the top on jones having contacted the reporter and said like hey should I let him when jones was like hey shall I let them know it's kind of nothing and

0:06:24 Lydia: And Jamie Heath was like, how dare you?

0:06:26 Thomas: Then jamie heath went insane yeah don't you dare don't YOU DARE

0:06:30 Lydia: This will be a breach of our contract.

0:06:32 Thomas: Got all authoritarian you are not allowed to check whether or not I'm lying right now, like that whole thing. They went really heavy on that and it seemed like nothing. There was like nothing there. So let's see if Stephanie Jones's lawyers agree that there was nothing.

0:06:48 Lydia: All right. So we're kicking this off with a preliminary statement again. However, as we talked about in the Jen Abel motion to dismiss, or the motion to dismiss Jen Abel, I guess, there was a text message kind of kicking off the motion to dismiss in that case. Not so here. And so this is going to be maybe lower on the entertainment value too. I don't know. We're going to find out together. Wayfarer's counterclaims are devoid of any footing in the law or reality and serve only as a transparent vehicle to vent Wayfarers' anger over the exposure of its co -founder Justin Baldoni's well publicized sexual harassment of co -star Blake Lively. And Wayfaros own direct involvement in the retaliatory, vindictive smear campaign that followed. Irate not at Baldoni's wrongdoing, but that it was widely covered in the press, Wayfair now seeks to punish those who brought the truth to light, baldly and improperly pinning the blame on Jones Works and its founder, Stephanie Jones, under the false pretext of alleged leaks. But far from a victim, Wayfarer was a principal actor in a covert, calculated scheme to not only sabotage lively in the press, but also Jonesworks from within, colluding with a rogue employee and ultimately jumping ship without justification and refusing to pay Jonesworks in violation of plain contractual commitments. Wayfarer's counterclaims seek to deflect the spotlight from its starring role alongside former Jonesworks employee Jennifer Abel in a coordinated effort to further its severe damage to Jonesworks business, defame Jones and induce the breach reach of multiple contracts.

0:08:17 Lydia: Strong opening.

0:08:17 Thomas: That's pretty. Yeah. You know, a lot of a lot of writing going on there and that's fine. All right. So I think now they go into the confidential information, which, again, the entire thing just rested on. Well, Sloan, I don't I forget, texted or called and said, oh, you're in trouble. There's going to be trouble to somebody remember it was just that somebody's gonna get sued like that was their whole thing which again I'm not no law talking guy but that just doesn't seem like a whole lot like it just doesn't really seem like you could base an entire breach of contract suit on that like that doesn't make any sense to me

0:08:36 Lydia: You're gonna get sued. So why don't we talk about in this following paragraph, how Stephanie Jones's lawyers are dissecting this claim about the confidential information. So about halfway through the paragraph, they say, this fails on numerous fronts. First, there was no leak. Confidential information as defined in the agreement excludes, quote, information which is or later becomes publicly available through Isn't that kind of obfuscating the concern? Because if Stephanie Jones gave Leslie Sloan a heads up, that would have been outside of the subpoena.

0:09:29 Thomas: I think they're just covering their bases because to be honest it was hard to even understand what the counterclaim was like what confidential information so I think think they're kind of covering all the bases because I don't I don' think Wayfair I have the Wayfaire counter complaint like they weren't really alleging anything with specificity so I think they' re just kind of trying to cover it all like for many reasons so it' s like catch all like if there' s anything you' re talking about it was later made public anyway through this or

0:09:55 Lydia: Right. Right. Okay. It continues, News, Wayfair willfully avoids this reality to advance its publicity -seeking leak narrative, but it cannot change the subpoena. Second, Wayfarer admits in its counterclaims that the information produced was, quote, Abel's private communications, not Wayfarers' confidential information. This alone is self -defeating of its breach of contract claim. Third, Wayfare's false allegations are hopelessly vague as WayfarER fails to allege what any purported, quote quote, confidential information actually was. This is for good reason. Under no construction could information exposing a vindictive sexual harassment and retaliation conspiracy, primarily orchestrated by Abel and Melissa Nathan, working to, quote, bury and, quote. Destroy lively constitute wayfarer information subject to protection about

0:10:03 Thomas: Something yep now I remember I made this point but I do think in full fairness I think that there' There's a bit of a wrinkle here in that I do think it's entirely possible that even though this is Abel's work phone, which belongs to Jonesworks, there could definitely be confidential information about Wayfair that, yeah, like just in the same way that any of your, like if you're the PR company, somewhere rattling around your company in emails and files and whatever documents is going to be private information about your client that you're not allowed to release. At least. That's just going to be how it is because that's the job you do.

0:11:01 Lydia: Clients. Yeah. Right. Right. Hmm.

0:11:17 Thomas: You've collected information to do the job. And so I don't think it like is entirely defeating to be like, hey, you admit it's Abel's private communications. Yeah, those private communications could contain confidential information about Wayfarer, I think. I don' t know why they couldn't. Maybe I'm wrong in that if they're classified in that way, then somehow it wouldn't be. But I don''t know. I feel like Like there could be room for that still. But I think here's the key part. Third, and this feels like finally, most importantly, Wayfair's false allegations are hopelessly vague as Wayfaire fails to allege what any purported confidential information actually bold was. This is for good reason. Under no construction could information, you already said that, as you already read, like what was the information?

0:12:01 Lydia: Yeah. I read this. Mm hmm.

0:12:05 Thomas: That's the main point. And I think they're kind of covering all their bases here. I also think, is it definitely true that any information, quote, exposing a vindictive sexual harassment and retaliation conspiracy primarily orchestrated by Illini? Is it true that no information involved in that could be confidential? I don't know.

0:12:22 Lydia: Well, yeah like later in the paragraph they invoke you know the speak out act and say that that prohibits the enforcement of pre -dispute non -disclosure clauses in matters involving sexual harassment and retaliation and so then the confidential confidentiality clause of the wayfarer agreement would be unenforceable in those matters

0:12:39 Thomas: Does that apply to like when the party that was sexually harassed is not the party you're talking about? You know, because I would be, to me, that would be interesting. Like, I don'T know.

0:12:47 Lydia: Yeah I don't know I'm not sure it feels like like a few steps

0:12:53 Thomas: Yeah. Like, again, this is sort of like defense. I'm not trying to defend nefarious people here, but would it then be true that you couldn't have any... If you were a politician or celebrity ex who's shitty, I still think you're allowed to hire PR people and be like, Hey, this information might come out about me. How do we prepare for this? And for them to... It would be weird to be like... Well, no, you can't even have confidentiality with a PR firm about anything like that because of the Speak Out Act. I feel like that might not be true.

0:12:59 Lydia: Removed yeah right yeah it feels like a stretch

0:13:25 Thomas: Yeah, I think they're kind of linking things together. I think the Speak Out Act would involve anything with the person they allegedly sexually harassed. I think that's not like the PR company that they were

0:13:36 Lydia: Yeah yeah that's my understanding of the intention right it's protecting people who entered into contracts, who then experience harassment, and then their hands are tied and they can't speak about their harassment.

0:13:36 Thomas: Doing business with. Right.

0:13:48 Lydia: And so, yeah, why would that involve your public relations firm? Yeah.

0:13:51 Thomas: So, yeah, I Think if we go down to this next paragraph, we can talk about how weak the claim about the breach of contract is about the work.

0:13:58 Lydia: Wayfair also alleges that Jones, quote, failed to render services in a professional manner and in accordance with Wayfaire's goals, despite the counterclaims themselves making it clear that Jones worked tirelessly on Baldoni and Wayfairy's behalf to pursue a positive agenda in seeking to counteract negative press about Baldoni, press that stemmed from Baldoni's own wrongdoing, which Wayfair even admits was unbeknownst to Jones at the time. Wayfaire's breach of contract claim also fails because it unilaterally and wrongfully purported to terminate the very agreement it now accuses Jones and Jonesworks of breaching. In August 2024, months before the agreement's end date, Wayfairy purporting to cut ties with Jonesworks without providing the requisite notice or or opportunity to cure, and then ceased paying its monthly fees to Jonesworks in blatant violation of its contractual obligations. Its counterclaim hinges on the legally untenable theory that its own non -performance was excused, despite offering no factual allegations establishing a material breach by Jones or Jonesworks that could remotely justify such termination or non -performance. In short, Wayfair has failed to plausibly plead a breach of contract claim to withstand a Rule 12b -6 motion to dismiss duplicative yeah

0:15:09 Thomas: And then it just talks about the implied covenant of good faith one being duplicative. And you know it seems so to me but we're not the lawyers I think mj already talked about that a little and then we're into factual background don't think we're going to read this like jones works as a public relations company this again no we don't we can skip through that so I think we should go down to paragraph starting on august 8th because this gives a little bit of the story I mean it's mostly stuff we know but it's actually slightly new version uh with more information of this whole reporter thing that we've talked about the crux of their allegations against jones

0:15:43 Lydia: All right on august 8th 2024 a reporter from the daily mail informed abel and jones that she was quote working on a story surrounding the recent rumors that there was a feud between it ends with us co -stars blake lively and justin baldoni based on quote people on social media talking about how they didn't pose together at the premiere or do any press together upon receiving the message which was after the story was published jones offered Jones offered to call the reporter, whom she knew, to let her know that, quote, this is a nothing burger and to, quote get this fixed, since the reporter quote has been nice and fixed things for us in the past. Jones thereafter informed Wayfarer CEO Jamie Heath and Baldoni via email that she, quote left word for the reporter having returned a missed call believed to be, but not in fact, the reporter's. Jones never called or connected with a Daily Mail reporter.

0:16:32 Thomas: I said said that. Never even talked to the reporter. I said that I said that it doesn't even look like like for all we knew. I definitely said that it was just like, oh, hey, I could, you know, left word. That was the that was the wording. Yeah, left word for and they seized on that. Like, oh you're contacting people without our permission. No, that just means hey, you got a call from you. Maybe let's talk. That's all that and especially because having returned a missed call believed to be but not in fact the reporter so that I you know, I imagine if she's returning a call if Jones is returning a a call that she doesn't even know who it is. I have to imagine left word for just means, hey, got a call from this number. Give me a call back. Yeah. Like, I don't know what that even could be. Unless Jones, somebody who works in PR is prone to just spouting a bunch of like important confidential stuff to any number that, yeah, there's no way. So left word four just means hey, give me a Callback. Got your call. Weak sauce.

0:16:59 Lydia: Yeah. Call me back. On a voicemail yeah no yep yep

0:17:28 Thomas: Then Jones talks about like, oh, she was was focused more on positive stuff, which I mean, actually kind of seems to be borne out by what we know so far, but who knows? I don't, you know, I don'T trust any, any PR people, but it does seem like she, you Know, we have the quotes about how she was trying to put out more positive information there about Baldoni rather than going on the attack.

0:17:47 Lydia: Then there's a bit of an insinuation I don't know that we have that we necessarily have like strong evidence for this we kind of have like an idea that this is probably what happened but it says uh while abel and nathan whom baldoni had hired to manage his crisis public relations falsely informed sony the studio distributing it ends with us and leslie sloan lively's publicist that jones had leaked information and was quote communicating negatively This was objectively false. As Jones confirmed at the time to Wayfair's president, Tara Hanks, she never leaked any information about Baldoni or Wayfaire to the Daily Mail or any other outlet.

0:18:23 Lydia: And we do have those text messages, I believe.

0:18:24 Thomas: I have to imagine that was, well, I have imagined that's referring to the quote, someone named Stephanie Jones or whatever that that part. Hey, just got word from someone at Sony that quote, someone named Stephanie Jones is bad mouth and pee or something, whatever. That's so obviously bullshit. I also let my favorite part of that whole thing was when Jones was like, Hey, uh, who I know. Cause that I know these people at Sony, this person specifically wouldn't have said that this person wouldn't have said I'm going to talk to them. Then Heath going like, don't you don't, you know, that whole thing we're talking about a million times. And then I love that Jones was just like, uh no, no, you don't control who I get to talk to. That's just not how that works. She was like, I'm going to talk to who I want to talk to there. Yeah. Yeah. Appreciated that at the very least.

0:19:07 Lydia: Someone's bad mouthing me and I'm going to set the record straight. Yep. Yeah

0:19:12 Thomas: She says she even sent Tara Hanks her phone records. I don't know how much that matters, but it's kind of interesting. It would be interesting to know more about that interaction because that seems like a weird thing to do or to have to do. Like, I don'T know if that means Hanks needed to be more convinced or Jones needed, you know? Yeah, right.

0:19:14 Lydia: We talked about this. Yeah I don't know. Yeah, it probably feels to me because, like, the messages that she's getting from Jamie Heath are so crazy that it probably made her feel like she was going crazy. And she was like, here, I'll just prove it to you. Like, here are my phone logs. Like, just look at everything because I'm not lying. I could understand that.

0:19:48 Thomas: It's also, I mean, it's also just like that it's not like that's forensic or anything I'm sure there'd be a million ways to get around that so it just feels pointless but it's interesting

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0:20:04 Thomas: Then it gets to on august 21st 2024 abel was terminated from jones works oh

0:20:09 Lydia: Mm -hmm. Oh, we're coming up on her anniversary.

0:20:13 Thomas: Let's get her something and then you know it talks about wayfarers just like our contract's over it's like no it's Not really how that works yeah just getting out of it it's Like if you have a contract with somebody that lasts another several months. And you're like, I don't like your tone. I'm out of this contract. Right. Yeah.

0:20:20 Lydia: Yeah. Yeah. As of the end of August, 10 days later.

0:20:32 Lydia: Yeah. Well, and so and they're saying, too, like they did not provide a legitimate reason for terminating. They didn't cite to any provision of the agreement that was breached.

0:20:41 Thomas: Well, yeah, you don't give them an opportunity to cure. It's very classic stuff. You can't just be like, again, I know, I'm not going to do this. I don'm not doing this. I don' t like the tone of your voice. I' m out. No more contract. You know, you have to give them notice and do all these things.

0:20:51 Lydia: Yeah, dang.

0:20:52 Thomas: So it seems pretty weak. And then we're to the legally stuff. Yeah, pretty quick. There wasn't much here, to be honest.

0:20:55 Lydia: Cut and dry.

0:20:58 Thomas: I just want to read this because it's funny. And this is quoting case law. But I first thing is just Wayfair fails to plausibly allege any breach by plaintiffs, which seems pretty straightforward. It goes through the legal standard there and it says, it quotes a case. He also, Lamereau v. Tresco Bank, quote, merely attaching a contract does not allege a breach of its terms.

0:21:20 Thomas: The complaint must identify the contractual obligation that was breached and allege how. Yeah.

0:21:25 Lydia: It feels very much like making the judge do your work for you. Here, see? Look at it.

0:21:31 Thomas: Yeah. Got to do more than that. And I think it goes into what, I think we called this at the time when we went through this. Why don't you read that paragraph there, Wayfarer fails on both both fronts.

0:21:41 Lydia: Wayfarer fails on both fronts. Wayfarers counterclaims assert, in conclusory fashion, that Jonesworks breached the agreement by sharing WayfarER confidential information and failing to follow unspecified instructions. Both breach theories rest on pure conjecture and speculation with allegations that are too vague and specious to state a claim. For one, Wayfarер does not identify a single piece of concrete confidential information Jones or Jonesworks allegedly allegedly improperly disclosed, or how any such disclosure constituted a breach of any contractual language. And allegations concerning Jones and JonesWorks' purported misuse of Wayfair's confidential information in Wayfairs' sprawling counterclaims are sparse.

0:22:21 Thomas: Think we totally nailed this. In some, Wayfair alleges that, quote, Jones had apparently gone through Abel's phone and shared confidential information relating to Wayfaire and Baldoni with Sloan and other third parties. I totally called all this. Wayfairy never even says what it is. This is nothing. We got nothing here. They even, uh, it's funny. They found case law for this from 2017 dismissing claim asserting breach of a confidentiality agreement where where plaintiff did, quote, not identify what confidential information was allegedly misused. Yeah, that seems important. Quote, to the extent Wayfarer attempts to suggest that Jones disclosed Abel's text messages to Sloan, this averment is baseless and wholly unsupported by the counterclaims. First, Wayfarers fails to allege what these text messages actually contained, or how, if at all, they involve confidential information relating to WayfarER. Second, I love this. Again, I think I said all this. This suggestion is premised on multiple layers of speculation, none of which even purport to involve Jones or Wayfarer directly. Allegedly, according to the counterclaims, Wayfarers co -defendant Nathan said that Sloan said that Slowen had seen the counter, and it says parenthetical, the counter claims conveniently employ passive voice here,

0:23:37 Thomas: Abel's unspecified text messages. From this vague chain of second, third, and fourth hand statements, Wayfair leaps to the unfounded conclusion that Jones must have leaked confidential information about Wayfair to Sloan. This is pure speculation and not a plausible basis for a legal claim. That's, I think we called that.

0:23:57 Thomas: Yeah, we could go on, but I think I mean, that's that. I mean it's like they don't specify what it is. The confidentiality agreement is not really as strong as they're making it out to be according to Jones.

0:23:55 Lydia: That's pretty strong. Yeah, right, right. Right.

0:24:07 Thomas: Again, this is all according to Jones, we're just going based on this complaint, but it's also things we identified ourselves just reading through that counter complaint. I like this. And again, we're not endorsing because we're not lawyers. I have no idea legally how sound all this is, but I just, I like a lot of this. I want to read it. Wayfarer's fallback allegation of breach. Do you want to read that one?

0:24:26 Lydia: Wayfarer's fallback allegation of breach that Jones and Jones works somehow breached the agreement by failing to, quote, follow instructions fares no better and does not salvage its claim. The counterclaim offers no detail about what, quote instructions were purportedly given, who gave them, when or in what context, how Jones or Jones works did not, quote follow them and how this constituted a breach of the agreement. Indeed, Wayfair does not point to a single provision in the agreement that required Jonesworks to obey its, quote, instructions at all because no such obligation exists. Instead, the agreement requires that Jonesworks provide services to Wayfairy, quote in a professional manner and in accordance with the goals mutually established by Wayfaire and Jonesworks.

0:25:10 Thomas: Yeah. There's nothing in the contract that says you must. Simon says, Wayfarers says, jump. You say how high? I don't know. Yeah. It was so childish. Yeah, well, and it's not an employee relationship, you know, or an indentured servitude. It's just like, yeah, we'll doing pr stuff they don't get to dictate every single word you say yeah

0:25:18 Lydia: It's a partnership, right? Yeah, right. And why would they? Because they're hiring PR because they aren't PR experts, right, and so So, like, can you imagine if that was in the contract that your PR person, like you wrote copy for your PR person? That'd be insane. Right.

0:25:55 Thomas: It's just the nature of also like how contract relationships work like it's specifically not like an employee you know where you get to dictate much of what they do so yeah that's very weak can't believe we have to say all this essentially so I mean yeah there's more fun language but I think that pretty much nails it and then we get to wayfarer fails to plausibly allege any harm it suffered from this, which I kind of think also seems to be true, like specifically relating to the breach or the, cause you'd have to have suffered some sort of harm, I think.

0:26:13 Lydia: And then how also would you untangle that from the stuff that's going on in the lively lawsuit?

0:26:19 Thomas: Well, maybe, but I, again, if we're talking about the contract, I don't even know. Well let's just read what they say. They say, and we'll assume that Jones is representing New York law correctly here for the sake of argument. Under New York Law, a plaintiff must plead not only a cognizable contractual breach, but also that it suffered actual proximate and non -conclusory damages We should read this footnote because it kind of further drives home that point we just said. That she did not speak with any media outlet and provides phone records to prove as much. That's silly. It's all silly. So yeah, what are the damages here? I like this because they're trying to piece it together themselves. At best, the counterclaims hint at, but do not actually allege, the following hopelessly attenuated daisy chain of purported causation. You want to read that?

0:27:27 Lydia: Yeah. Yeah. Yeah. One, negative media coverage about Wayfair or its principles appeared in the press. 2. That press was based on unspecified information now claimed to be, quote, confidential. 3. That information was disclosed by Jones and or JonesWorks. And 4. The disclosure thereby causing some level of unspecific harm.

0:27:48 Thomas: But Wayfarer does not actually Allege this, let alone with the requisite particularity. Seems right to me.

0:27:54 Lydia: Yeah, the pleading does not identify a single article, statement, or news item containing allegedly harmful information. It does not quote, summarize, or even describe the substance of the supposed press coverage, nor does it allege how the content was false, damaging, or traceable to Jones or Jones works.

0:28:11 Thomas: You got to be specific with these things. Yeah.

0:28:13 Lydia: Yeah. And Wayfair does not allege any actual consequence, financial, reputational, or otherwise, suffered by Wayfaire as a result.

0:28:20 Thomas: Yeah, specifically as a result of this confidential information. Because again, I think they were doing a bit of a, I don't know, hand -wavy misdirection. I think They want everyone to think about the subpoena and, you know, all that stuff. But that's not actually what they allege. Like they, because they, I Think they know they have nothing there. So that wasn't really in the counter complaint. They're trying to just vaguely say like, yeah, you Know, all this mess we're in, it's because of this.

0:28:45 Thomas: Like, no, you got to point to like what information, what reporter, what, you Know, what anything. Just give us some specific anything.

0:28:52 Lydia: Or, I mean, you could even say on information and belief, you know, blah, blah. Like, if you don't know for sure the reporter, they didn't do anything like that.

0:28:57 Thomas: Yeah, they didn't do that at all.

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0:29:06 Thomas: So regarding the speak out stuff that we talked about, they do make the argument that this would apply to them. And I'm, you know, for the record, I was just speculating. Maybe they could be right. But there's a part here where they say the act is designed not only to protect direct victims, but to ensure that witnesses, employees and third parties are not contractually gagged from participating in investigations, complying with subpoenas or exposing retaliatory conduct that seeks to chill lawful speech about abuse. And again, I don't know. They quote the law here. Non -disclosure and non -disparagement provisions in agreements can perpetuate illegal conduct by silencing those who are survivors of illegal sexual harassment and assault or illegal retaliation or have knowledge of such conduct.

0:29:48 Lydia: But would would jones have known that what was happening was protected that blake was protected from a campaign like that

0:29:55 Thomas: But yeah, I just don't go for this argument because I don's see where Jones is revealing the fact that there was sexual harassment. Really? Right?

0:30:04 Lydia: Yeah well because all that she all that jen abel would well I guess she may have seen like oh blake isn't happy and and some of those text messages I guess might allude to that a bit

0:30:14 Thomas: Like maybe. I feel like it's, I guess if you want to say it's not about the harassment. Okay. In that sentence, it says, or illegal retaliation. So I guess, yeah,

0:30:24 Lydia: And and that's what I think it is but but then also that's I don't know that I'm convinced that jones would have been like this campaign that they're trying to do right now is illegal because blake is a protected person because it's due to like I just don't see her making those

0:30:38 Thomas: I think this strikes me as a belt and suspenders and a belt in another suspenders argument that they probably don't need, but also I think it's goes along with a little bit of the PR effort and the things they're trying to say about it.

0:30:43 Lydia: Connections

0:30:52 Thomas: You know, I, I Think this is probably smart to put in this, but I don't know how legally sound this is. We'll see if it's worth talking to a lawyer about it, But I feel like it's worth putting in here for multiple reasons, for PR reasons and just like kind of covering all bases. But yeah, I don't know. I don'T find this super convincing because the nature of what, well, okay, I'll put it this way. I feel Like This Is Fair Game for Stephanie Jones to say because Wayfair did not fucking specify what the confidential stuff was. And so if the whole point is they didn't even say what the alleged breach was, they didn'T say like what the Confidential Information, they haven'T specified. So here's covering all our bases about what it might be.

0:30:52 Lydia: Right yeah right right

0:31:31 Thomas: And if any of it is knowledge of a illegal retaliation, then it would be covered by this speak out act. So I think it's valid to say, I think when I'm trying to apply it to like the facts, I guess, admittedly, it's hard to do because we don't, they didn't allege them well, like there's no, so I think this is fine to say. I don't know if it's going to matter, but fair play to put this in the motion to dismiss here. And then they get, they get more to the specific stuff here. According to the counterclaim Sloan contacted Nathan and said that she had seen Nathan's text messages and she should expect to get sued. And that actually, honestly, that makes a good point. Maybe I'm coming around to this a little bit because it says, that is, Nathan would be sued and now has been sued for administering the campaign of retaliation against Lively for reporting sexual harassment by Baldoni. Disclosure of information revealing the basis for such claims is precisely what the the act is designed to protect and what it in fact protects here. So I think that's a creative argument, which is to say like, hey, if your whole allegation is it's about Sloan having the information to say, hey I just saw your text, Melissa Nathan, you're going to be sued. And so they're saying if the confidential stuff you're talking about is stuff that Nathan would get sued for, that means it has to be illegal retaliation stuff.

0:32:47 Thomas: Now as I say that though, I also think think that's not exactly right because it could also be about the breach of contract and Melissa when you're talking about Melissa Nathan getting sued I think it's about her getting sued for tortious interference or whatever by helping Abel steal the client and you know screw over Jones works yeah or if that's even real like we don't really know about it but I'm just the point is I think these are good lawyers to be honest because I do think this is a bit of a it's a bit of reach but it's really good I think It's like a really complex argument that I don't know know if I'm

0:33:05 Lydia: And we don't really know unless we get testimony from sloan right like what she was indicating there because yeah yeah

0:33:25 Thomas: Communicating properly, but I both see what they're saying here. And I also think it's a bit misleading because Nathan could just be getting sued for breach of contract stuff and for tortious interference stuff. But they're seeing, Hey, if you're getting sued, that means it has to be for retaliation stuff, which means it has be covered by this act, which I think is a creative argument. Like I think it's, I just, I don't know. It strikes me as like really intricate, good lawyer stuff. I don' think it'll end up mattering personally. I think we get more about out like that wasn't, you didn't allege a breach that nothing is specific.

0:33:53 Lydia: Yeah. Wayfair did not plead a material breach. Yada, yada, yada. Right.

0:33:56 Thomas: Oh, this is funny. I like this. I like this again. This is, I just want to emphasize I'm reading this cause I enjoy it. I'm not trying to analyze the law here much other than give some casual opinions about it. But I also think this is just good arguing. I think it's interesting to read for that reason, but it's not like, you know, I'm taking this as gospel that it's good argument, but I think this makes a very interesting logical point here that I appreciate as someone who likes logic, which is second as As discussed, Supra, I never know what that means, but whatever, Suprasection 1A, the counterclaims do not, because they cannot, plead a material breach of the agreement on JonesWorks' part that would excuse Wayfair from performing. Indeed, I love this, this is great, Wayfairy alleges the opposite, that, quote, they did not yet know just how far Jones had taken things. So their point here is like, wait a minute, if you didn't know, then how could that justify you getting out of the contract?

0:34:44 Lydia: Yeah.

0:34:50 Thomas: You can't be like wow yeah we didn't even know how bad it had been well why did you say I love that too because it's really exposing kind of bad writing that also undermined their own argument so yeah wayfarer cannot have it both ways alleging the ignorance of jones's purported conduct which under no construction could be alleged to constitute a breach defeats any claim by wayfarers that they are aware of any let alone had sufficiently pleaded any breach substantial substantial enough to justify immediate termination.

0:34:50 Lydia: Then there wasn't a breach. Yeah. Right? Yeah.

0:35:22 Thomas: Wayfarer cannot retroactively manufacture a material breach based on speculation or events allegedly discovered later. Oh, that's great. Good times. A good logical point there seems valid to me. And in the end, Wayfarers breached by just not paying. Seems right to me, they just like stopped paying, didn't do any of that right, so we don't have to read through all that. And then I don't think we should get into the counterclaim for breach of implied covenant because I don' t think either of us really understand.

0:35:49 Thomas: MJ already explained it, I think, but I'll take it as a given that that kind of goes hand in hand. And if it doesn't, we'll find out later. So I don't think it's worth us trying to analyze that is my point.

0:35:59 Lydia: I just will say that they include some case law here out of the Second Circuit. The Second Circuit is unequivocal. New York law does not recognize a separate cause of action for breach of the implied covenant of good faith and fair dealing when a breach of contract claim based upon the same facts is also pled yeah

0:36:14 Thomas: I mean, that makes sense to me. So, I'm glad you said that, but yeah. We'll go ahead and say that makes sens to us, but again, we're not lawyers. So we'll find out if that's right or none of this will be relevant. I don' t know. We' ll see. We will see what happens. And that basically covers the motion to dismiss against the Wayfair account. There's some good stuff in there. I think Jones's lawyers seem to be very good lawyers. And I think they probably took pleasure in pointing out the bad lawyering on the other side, you know, and I think they really got them in a couple of places. They really did contradict themselves in ways that seemed very apparent there. So good stuff. That was fun.

0:36:49 Thomas: And that's it. We're calling it on this Jones V. Abel docket for now. Not forever, but for now, yeah, it was fun, it also gave us some key info for the

0:36:53 Lydia: Definitely wow for now yeah yeah it's just goodbye for now to see you later

0:37:04 Thomas: Other docket you know it's like very much so so with that said we're gonna go

0:37:09 Lydia: I think so too yeah do we have

0:37:10 Thomas: To the other the other docket and yeah next episode we'll start next 14 episodes we will be taking on we're going to actually mix it up with some not side quests like as in this but with some stuff don't worry because I think we'll all die

0:37:18 Lydia: To honestly honestly you guys if it's Just

0:37:28 Thomas: If straight through that complaint um will die. I don't know about you guys, but, and if we die, it never, we can't

0:37:29 Lydia: Straight yeah then we'll never finish yeah Yeah.

0:37:34 Thomas: Ever put the episode out. Yeah. But hey, that's what we've got to look forward to. Thanks so much to patrons for making that happen. Join the ranks, everyone. Support the show. But most of all, thanks for listening. Share it with somebody, all that stuff. And next episode, we'll be taking on Wayfarer v. Lively, the amended complaint and Exhibit A.

0:37:52 Lydia: Exhibit A. The famed Exhibet A.

0:37:55 Thomas: Oh boy. Just kill me. Okay. See you then.

0:38:18 Thomas: I don't like your tone. I'm out of this contract.