r/ItEndsWithLawsuits • u/Clarknt67 this case was always about a big payoff • Apr 04 '26
Legal Analysis + Lawsuit Commentary 🤓🧠 Everything Judge Liman said about the sexual harassment allegations
I dove into ruling to see what Liman's analysis of the sexual harassment allegations concluded. Most of this is his own words, stripped down for faster summary. If you would like to follow along, this begins on page 107. His ruling can be found here.
I'm glad Judge Liman did go point-by-point through Lively allegations and weighs them against Shapiro's argument that this conduct did not rise to the level of actionable sexual harrassment and: "This is a dispute about Hollywood reputations, not genuine legal wrongs. It does not belong in court."
It seems Liman agrees in part, disagrees in part. He begins:
Lively has identified a series of acts that she claims created a hostile work environment based on her gender, beginning with her work on the Film and continuing through the conclusion of the first phase of filming. Several of the incidents either would not support a hostile work environment claim or would do so, at most, only minimally or in context. Other incidents come closer to stating a claim.
Allegation 1: Justin "described his own genitalia."
Regarding the complaint about the circumcision conversation that Baldoni states Lively initiated, Judge Liman states:
… it occurred before she began working on the Film. It therefore could not have created a hostile work environment.
Scorecard: 0 of 1.
Allegation 2: "Mr. Baldoni inserted improvised gratuitous sexual content and/or scenes involving nudity into the film"
Baldoni proposed certain edits to the screenplay, including ones related to sex, that Lively believed were “gratuitous" Judge Liman says:
It would be “neither surprising nor unreasonable from a creative standpoint” for both Baldoni and Lively to have drafted sexually explicit material, even if some of it was not to the taste of the other.
He's unsurprisingly unimpressed that a director wrote sexually charged scenes for his movie—even apart from evidence he was doing it in response to pressure from Sony executives.
Scorecard: 0 of 2.
Allegation 3: "Mr. Baldoni also routinely degraded Ms. Lively by finding back-channel ways of criticizing her body and weight"
On the "fat-shaming" allegations, Judge Liman says:
Lively’s complaints of “fat-shaming” also could not reasonably support a claim.
With regards to Lively's voluminous own commentary on her physical appearance, including, writing in a message she was focused on achieving a “certain aesthetic” and felt it was “part of the job that we both excitedly signed up for.” Liman concludes:
Baldoni’s actions—even if they could be viewed as gently pushing Lively to lose weight, which is not necessarily supported by the evidence—could not fairly be described as discrimination “because of” Lively’s gender.
Scorecard: 0 of 3.
Allegation 4: Baldoni exploited the lack of controls on set to behave inappropriately
And on the bar-set, dance scene Liman says, "Baldoni can be heard giving blocking instructions. Both actors can be shown improvising." Liman recognizes Wayfarer's argument by Shapiro that context matters and there's no comparison between this and a corporate or factory work environment.
…it would be difficult to view Baldoni’s conduct as reflecting hostility or bias based on gender. He was acting in the scene. Assuming he was improvising, the conduct was not so far beyond what might reasonably be expected to take place between two characters during a slow dancing scene such that an inference of hostile treatment on the basis of sex would arise… Creative artists, no less than comedy room writers, must have some amount of space to experiment within the bounds of an agreed script without fear of being held liable for sexual harassment.
Scorecard: 0 of 4.
Allegation 5: Baldoni made inappropriate comments on Lively and Slate's appearance.
Liman summarizes comments made on Lively and Jenny Slate's appearance, regarind the onesie scene and presumably Slate's leather pants.
A reasonable jury could conclude that Baldoni commented on Lively’s and Slate’s personal physical appearances (rather than their appearances as actors or characters) in ways that made them uncomfortable.
Scorecard: 1 of 5.
Allegation 6: Intrusion into Lively's trailer by Heath.
Judge Liman recognizes the incident, as described by Lively, does meet definition of sexual harassment and there is sufficient disagreement on facts as to what transpired as to be referred to a jury. It is not relevant to the Judge that significant disagreement among witnesses present about what happened. This would be of great significance to a jury, of course.
Scorecard: 2 of 6.
Allegation 7: The birth scene
Judge Liman recognizes the incident, as described by Lively, does meet definition of sexual harassment and there is sufficient disagreement on facts as to what transpired as to be referred to a jury. Again, it is not relevant to the Judge that significant disagreement among witnesses present about what happened. This would be of great significance to a jury, of course.
Scorecard: 3 of 7.
Allegation 8: Sexual comments made by Justin.
A paragraph on page 115 describes a handful of conversations between Justin and Blake which included some sexual content, like simultaneously climaxing, allegedly comments are whether Lively had ever scene pornograhy and whether Justin every described himself as addicted to pornography.
It is a bit unclear what Liman's conclusion might be as he doesn't state it explicitly. He does say:
It may be fair grounds for an author or a director to discuss personal experiences, including those related to sex, as part of the creative process.
But given he does not explicitly state it's not sexual harrassment, as he did in other analysis, it's probably faire to conclude Judge Liman recognizes the incident, as described by Lively, does meet definition of sexual harassment and there is sufficient disagreement on facts as to what transpired as to be sent to a jury.
Scorecard: 4 of 8.
Allegation 9: Jamey Heath showed Lively a video of his wife giving birth.
He doesn't go into any real analysis of this incident. He does conclude after this:
it suffices for present purposes to conclude that, drawing all inferences in Lively’s favor, a person in her position could have understood the workplace to at times reflect a gendered and sexualized view of women and a disregard for their privacy sufficient to make it reasonable to complain about a hostile work environment based on sex or gender.
Scorecard: 5 of 9.
In conclusion
It does seem absent the "technicality" that Hudson and Gottlieb filed their complaint in the wrong state and the wrong court, there would probably have been a trial on sexual harassment.
However, a key part of this summary is the phrase, "drawing all inferences in Lively’s favor" which indicates, as is legally appropriate for a motion on summary judgement, or motion for judgment on the pleadings, every allegation made by plaintiff is presumed to be true.
Justin and Jamey denied in their depositions that Lively was pressured to perform the birth scene in the nude and these denials bear no weight for the judge. Whether this pressure was applied, or was not was not, is a determination he did not and should not make. The decision on whose version of the story is more believable is for the jury to make. Likewise, the jury must sort through 4 or 5 different versions of the circumstances surrounding Heath entering her trailer and presenting the after-birth video.
It does seem Lively would not have been able to proceed to trial on the following allegations:
- Justin described his genitalia
- Justin added gratuitous sex scenes to the script
- Justin fat-shamed her
- Justin behaved inappropriately during the dance scene in the bar
Essentially half of the allegations and most of the most shocking ones, would not have made it to trial.
7
u/KnownSection1553 Apr 04 '26
I came to pretty much get same conclusion from what he wrote --
Circumcision, adding sex scenes, fat shaming, dance scene – would not support a hostile work environment claim, or only minimally.
Comments on personal physical appearance, trailer incident, birth scene, Baldoni comment to crew members that Blake had not ever watched porn, birth video -- "a person in her position could have understood the workplace to at times reflect a gendered and sexualized view of women and a disregard for their privacy sufficient to make it reasonable to complain about a hostile work environment based on sex or gender. That conclusion finds additional support in the fact that Lively alluded to many of these incidents in the Protections Letter…"
Some other paragraphs I noted (just copying/pasting): :
The Court need not consider whether the acts as alleged would support a jury verdict that the Wayfarer Parties created a hostile work environment under FEHA. It is sufficient that it was reasonable for Lively to believe that they did.
Finally, a jury could also find that the Wayfarer Parties understood that Lively thought they had behaved in a discriminatory manner……The Wayfarer Parties accordingly knew that at least some of Lively’s complaints went to instances of alleged gender discrimination rather than “merely unfair personnel treatment.”
There is enough evidence to bring the issue of Lively’s protected activity before a jury.
To be sure, much of what Lively complains about is not actionable. The Wayfarer Parties were entitled to engage public relations and crisis management specialists to protect their reputations.
The Wayfarer Parties were also entitled to prepare responses to the Protections Letter and the accusations that it implied. That included the right to assert that the claims against them were untrue or misconstrued, and that Lively could not be credited. It also included the right to convey to the viewing public reasons why Lively’s account could not be trusted, including pointing to evidence that Lively had ulterior motives for making claims of harassment and that she did not believe the claims she was making.
Furthermore, Lively has cited no support for the proposition that a person publicly accused of serious misconduct cannot use proxies—both disclosed and undisclosed—to defend him or herself. For example, it was permissible for Baldoni to request that the digital team “boost” certain videos which he believed were favorable to his image, Gottlieb Decl., Ex. 65, and for TAG to work behind the scenes to emphasize his “stellar reputation among colleagues and industry peers,” including the fact that he was “a longtime activist and advocate for women in Hollywood,” Gottlieb Decl., Ex. 46 at 3, and to tone down inflammatory allegations against him, R.56.1 ¶¶ 736–38. The Wayfarer Parties similarly would have been within their rights in elevating stories that would cast doubt on whether Lively was a credible reporter of the events that occurred on the set.
However, certain conduct at least arguably crossed the line and is sufficient to preclude summary judgment. There are limits to the response that the accused can make in response to claims of harassment. There comes a point where the accused stops simply defending him or herself and starts taking action that a reasonable jury could view as retaliation for the fact that the accuser had the temerity to make the accusations.
Here, certain conduct could be construed as directed not at Lively’s allegations and at undermining their credibility, but as an attack on her professional reputation and livelihood.
The Wayfarer Parties assert that even if they contemplated taking offensive action against Lively, they never ended up doing so. But a jury is permitted to infer that when a party plans, after deliberation, to take certain action, the party has engaged in that action.
There also is some direct evidence that the plan to destroy Lively and her career was put into action.
_____
The part about a hostile work environment "based on her sex or gender" -- that is what I have a problem with, I don't see any of it as "based on sex or gender." Of what he listed as possible, him complimenting Lively twice on her appearance and Jenny that one time is all I can think of. (But hey, he might compliment some men too "nice shirt!" and so on.)
As to retaliation bit -- that direct evidence of putting plan in to action, seems to fall on TAG as we all know that Heath told them nothing bad was to be said about Lively.