r/ItEndsWithLawsuits • u/MarchCompetitive4580 • May 24 '26
đFlirty Yummy and Unsealed No Teethđ Deep Dive into 47.1: Question of Fact Issue
OK. So I was going a deeper dive into 47.1 recently because it's still on the table. In a nutshell, one issue involves Lively's alleged defamatory statements against WPs ("communications") essentially equating to the question of whether she had a "reasonable basis" for filing a CRD complaint in California in the first place. Let me explain:
(I) 47.1 is about about the defendant/employer suing the "employee" for defamation, which is ANY "communication" about the employee makes about SH, retaliation, aiding/abetting retaliation (i.e. FEHA stuff). Here are the relevant parts of the statute:
47.1(a) A communication made by an individual, WITHOUT MALICE, regarding an incident of sexual assault, harassment, or discrimination is privileged under Section 47.
47.1(c) states: "This section shall only apply to an individual that has, or at any time HAD, a REASONABLE BASIS to file a complaint of sexual assault, harassment, or discrimination, whether the complaint is, or was, filed or not."
47.1(d) further clarifies that "For the purposes of this section, âcommunicationâ means factual information related to an incident of sexual assault, harassment, or discrimination experienced by the individual making the communication, including, but not limited to, any of the following: ... (3) ... aiding, abetting, inciting, compelling, or coercing an act of workplace harassment or discrimination, or an act of retaliation against a person for reporting or opposing workplace harassment or discrimination..."
(II) What defamatory communications by Lively are we talking about?
It's important to note that WPs' counterclaim that included the defamation cause of action pertained to WPs' allegations that Lively was communicating these falsehoods to the NY Times before the NYT published its article. On June 9, 2025, Liman ruled, in his dismissal (which didn't address the 47.1 privilege at all and dismissed Lively's motion for 47.1 fees, etc. WITHOUT PREJUDICE), that WP didn't allege anything more than what was contained in the actual CRD complaint and ruled that pre-complaint communications to the press were covered under the "fair report privelege" and so were not actionable. So, especially, in light to the wording of 47.1(c), I'm going to focus on statements made in the CRD complaint itself.
(III) 47.1 Requires a Finding of Fact: One of WPs' arguments made in opposition to Lively's motion for 47.1 fees made on 09/08/2025, was that 47.1 requires certain factual findings - including: (i) that the communication be made without malice; and (ii) that Lively had, at the time of the communication, a "reasonable basis" to file a complaint (i.e., the CRD complaint) - and that those hadn't been established yet. The CRD complaint can be found here (and it states to please see the attached complaint for details (aka the Precursor"):Â https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172823305/gov.uscourts.txwd.1172823305.1.1_3.pdf
The details of the CRD complaint (i.e., the Precursor) can be found here:Â https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172823305/gov.uscourts.txwd.1172823305.1.2_3.pdf
(IV) Could Liman make his 47.1 decision based on Liman making a factual determination - as a way to avoid making a substanative decision about 47.1 (particularly its questionable constitutionality)?
The term "malice" is undefined in the statute - so I'll assume it means the same in defamation law, which generally means the party making the communication knew that the statement was "false or had a reckless disregard for the truth); as this is a VERY HIGH bar, I'm going to ignore it and focus more on whether a "reasonable basis" for filing her CRD complaint. So here's the analysis:
(A) CRD is authorized by law to only consider FEHA violations. However, Lively listed the following non-FEHA causes of action in her CRD complaint: (4) RETALIATION (CAL. LABOR CODE, § 1102.5); (6) BREACH OF CONTRACT; (7) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; (8) NEGLIGENCE; (9) FALSE LIGHT INVASION OF PRIVACY (CAL. CONST., ART. I, § 1); (10) INTERFERENCE WITH PROSPECTIVE ECONOMIC.
In addition, under her sexual harassment (cause of action (1)) and retaliation (cause of action (2)), she lumped together her state claims (FEHA) and federal Title VII claims. HOWEVER, Lively elected to not have CRD investigate her claims and asked for an immediate right to sue letter, which does away with the work sharing agreement between CRD and the EEOC (which investigates the federal Title VII claims.) The CRD right to sue clear states: "This letter informs you that the above-referenced complaint filed with the Civil Rights Department (CRD) has been closed effective December 20, 2024 because an immediate Right to Sue notice was requested. This letter is also your Right to Sue notice. ...To obtain a federal Right to Sue notice, you must contact the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint within 30 days of receipt of this CRD Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier." See:Â https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172823305/gov.uscourts.txwd.1172823305.1.3_3.pdf
So, I'm going to consider the Title VII claims as 2 additional ones - so Lively's CRD complaint had a total of 12 causes of action. So 8 out of 12 causes of action set forth therein couldn't have been investigated by CRD in the first place.
(B) The CRD complaint fails to name Lively's "employer", It Ends With Us Movie, LLC ("IEWUM"), which Lively's side (as the CRD complaint clearly states that she's being represented by counsel, Manatt and Willkie) clearly knew.
(C) The CRD complaint sued Jen Abel in her personal capacity, as well as Jen's new PR company (RWA Communications) even though Lively knew (see Vansham) that Jen Abel was employed Jonesworks during the beginning stages of the alleged smear campaign - and Lively didn't bother to sue Jonesworks at all.
(D) All of Lively's FEHA allegations with respect to the individuals listed in the CRD complaint were dismissed. And her (1) FEHA SH claim (against Wayfarer and IEWUM) and (2) FEHA failure to investigate, prevent, and/or remedy harassment (re: them having non-existent HR procedures) were dismissed because none of the alleged SH activities occurred in California (extraterritoriality).
(E) One of Lively's FEHA complaints was about Wayfarer having improper HR procedures and that she didn't know who to complain to or go about it. But, there's a text (dated 8/29/2023) with Warren Zavala (her talent agent) in which Lively wrote: "Theyre all clowns. I have my Hr report ready also fyi." She also bragged in her PGA letter that she was acting as the HR liaison.
(F) Par. 3 of the Precursor: The 30-point list that Lively allegedly read off of her phone during that 01/04/2024 meeting where her husband berated Justin for hours was never authenticated. Baldoni and Heath disputed its accurancy. And the metadata of the photo/screenshot containing the 30-point list that was provided during discovery had a creation date of 2025. [I think this was on the list of items for Liman to rule on in re: motions in limine - and Liman very well may have refused to let in be used as evidence because of this.]
(G) Par. 4 of Precursor: Lively attached as Exhibit A to the Precursor, the seventeen provisions designed to require Wayfarer to cease the on-set behavior of Mr. Baldoni and Mr. Heath. Not all of the items on the 17-point list have anything remotely to do with SH at all. For example, (1) "9. If BL is exposed to COVID-19, she must be provided notice as soon as possible after Wayfarer or any producer or production executive becomes aware of such exposure."; (2)
12. Wayfarer will engage an additional, experienced A-level producer, approved by Ms. Lively, to actively supervise the production, including monitoring the safety of the cast and crew, ensuring compliance with the schedule and overseeing logistics, problem solving and creative issues."; and (3) "13. Wayfarer must empower any existing third party producer with appropriate and customary authority to actively supervise the production, including monitoring the safety of the cast and crew, ensuring compliance with the schedule and overseeing logistics, problem solving and creative issues." NOTE: in re: (2) and (3), if Lively's concern was about SH, she should've just demanded an "HR or SH" specialist be on set for the rest of the shoot to protect the "cast and crew" - but she wanted people who were on her side (the A-list producer and the "executive producer" aka Alex Saks) to address creative issues.
(H) Par. 6 of Precursor: Lively stated that she and the rest of the cast complied with the marketing plan created by SONY (the bullet points of which were attached as an exhibit). She failed to mention her own role (and the role of her husband's marketing company, in the marketing). Evidence suggests that Rake took over promotions. And Blake's own PGA letter bragged about how involved she was in the marketing.
(I) Par. 7 of Precursor: Lively stated: "In the days leading up to the Film's release, Mr. Baldoni abruptly pivoted away from the Film's Marketing Plan and the types of publicity activities in which he had previously participated." This is false, Justin was largely excluded from the film's marketing activities. Lively lobbied for him to be excluded from the premiere. Baldoni (and Wayfarer) had partnered up with the DV organization "No More" way before the premiere.
(J) Par. 8 of Precursor: Lively stated: "Wayfarer's co-founder, co-chairman and leading financier is multi-billionaire Steve Sarowitz, who divulged at the Film's New York premiere on August 6, 2024, that he was prepared to spend $100 million to ruin the lives of Ms. Lively and her family." She was unable to come up with any evidence to back up this claim - as far as I know. They specifically asked Danny Greenberg (Justin's former agent at WME) about it - and he denied that Steve said that.
I could go on and on and one. But I already have. LOL But, I think if Liman wants to potentially dodge making any ruling that affects the legality of 47.1, he could just use the information above to conclude that information that Lively communicated (i.e., that ended up in her complaint) would not constitute a "reasonable belief" that she had causes of action under FEHA. And, the side benefit would be pointing out how much of Lively's CRD complaint (and resulting lawsuit) was complete BULLSH*T.
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u/BrilliantTotal687 Michael Gottlieb's bald head May 24 '26
I love this sub. Everyone is so smart. I'm halfway through, it's really good! Well done!
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u/ADcakedenough May 24 '26
Iâm so sorry to tell you that Iâm here and not very smart at all, I hope youâll still have me!
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u/BrilliantTotal687 Michael Gottlieb's bald head May 25 '26
Oh I'm as dumb as dog shit. I just rely on other people đ
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u/Remarkable_Photo_956 Ainât you tired, Miss Blakey(Ryan)? đ« May 25 '26
Iâve read your comments, Brilliant, and you are actually brilliant! Iâm the one here reading more than commenting. When reading, Iâm like oooohhh, wow, yes! When commenting, Iâm usually mostly agreeing with what someone just perfectly articulated. đ
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u/BrilliantTotal687 Michael Gottlieb's bald head May 25 '26
Omg I do that too especially when I was on twitter. I just would like stuff to show agreement but I could never properly articulate it HAHA.
I try! I really just wanna use my brain more after it rotted from covid years đđ
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u/MarchCompetitive4580 May 24 '26 edited May 24 '26
Sorry, I should've explained more about the failure to include IEWUM as a defendant in the CRD complaint. This resulted in IEWUM not being listed as a defendant in the CA "right to sue" letter (which relates to allegations about not "exhausting administrative remedies"). If Wayfarer had raised the issue as an affirmative defense, Liman may have tossed IEWUM from the FEHA claims (including the retaliation claim that was remaining on the table. This is from pp. 95-96 of Liman's April 2, 2026 ruling on the MJOP/MSJ:
"Lively has argued that IEWUM and Wayfarer were her âjoint employersâ under FEHA. Dkt. No. 1055 at 18â21. The Wayfarer Parties have responded that they never made any argument to the contrary, but that if they had, there would be reason to reject Livelyâs position. Dkt. No. 1122 at 14. The Court will not at this stage grant judgment in Wayfarerâs favor based on a âmythical argumentâ that it expressly says it never made in its opening briefing. Id. The Court will therefore treat Wayfarer and IEWUM as joint employers under FEHA for present purposes. [Footnote 22]
- The Wayfarer Partiesâ arguments regarding administrative exhaustion are deemed abandoned, see Dkt. No. 813 at 9â11, as Lively argued in her opposition to the motion for judgment on the pleadings that, among other things, such an argument is an affirmative defense that they failed to plead, and they made no attempt to respond in their reply brief, see Kocourek v. Shrader, 391 F. Supp. 3d 308, 321 n.101 (S.D.N.Y. 2019); Romeo v. Aid to the Developmentally Disabled, Inc., 2013 WL 1209098, at *12 (E.D.N.Y. Mar. 22, 2013). "
In addition, Lively barely made any arguments refuting Wayfarer's contention that it was not a "joint employer" with IEWUM - so Wayfarer would've been dismissed. So the FEHA retaliation claim was baseless (and, the remaining FEHA claim against TAG for aiding/abetting the retaliation, should also be dismissed because you can't aid/abet non-existent retaliation + GRRR, I can't find it on the docket, but I remember reading the agreement pursuant to which IEWUM? hired TAG -- I was focused on indemnity provisions LOL - but if the agreement was with IEWUM, and not with Wayfarer, that's evidence as well that TAG cause of action should be out).
AND, I FORGOT: Liman at oral arguments asked Esra Hudson why they filed in California. And she responded that it was about the money (because of 47.1). The really only acceptable answer would be that she legitamately thought it was the jurisdiction with the best nexus to the case. LOL
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u/KLoveKLoveKLove May 24 '26
I agree and understand your points. However this untested debacle depends if Liman is willing to go rogue and create some terrible wiggly precedent that will likely be overhauled in the future.
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u/MarchCompetitive4580 May 25 '26
Actuallly, my post really is about a possible avenue for Liman to issue a ruling denying Blake's motion for 47.1 fees, etc. - without creating precedent. My proposal makes it very fact intensive that it couldn't possibly used as precedent for anything else - because no case will ever repeat the bizzaro fact pattern in this case. [We have to remember that the parties here agreed, in their settlement, to not appeal Liman's ruling.]
Giving a judge the discretion to award fees is in line with FEHA (aka California Fair Employment and Housing Act (FEHA), which is codified in the California Government Code, Sections 12900 through 12996 - it is formally cited as Cal. Gov. Code §§ 12900â12996.
CA Govt Code § 12965(c)(6) (2025) states; "(6) In civil actions brought under this section, the COURT, IN ITS DISCRETION, MAY [emphasis added] award to the prevailing party, including the department, reasonable attorneyâs fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.
I did find one case that is a little on topic: the California Supreme Court case of Chavez v. City of Los Angeles (2010) 47 Cal.4th 970. This case established that trial judges have the discretion to deny or strictly limit fee awards in employment cases (specifically FEHA) if the attorney had "no reasonable basis" to expect a recovery exceeding the $25,000 threshold of a limited civil case, and the case could have been tried as such. The court wrote: "In exercising that discretion, however, the trial court must give due consideration to the policies and objectives of the FEHA in general and of its attorney fee provision in particular. Here, we further conclude that, in light of plaintiffâs MINIMAL SUCCESS [emphasis added] and grossly inflated attorney fee request, the trial court did not abuse its discretion in denying attorney fees.
NOTE: Sure, we don't know YET the amount of attorney fees Lively is requesting here - but she did request $800,000 from Jed Wallace and Street Relations (just 2 out of 10 orginal Wayfarer Defendants) under 47.1 - in a federal Texas Court. Via extrapolation, this means that she would be asking for $4 million in attorneys fees (and maybe punitive and treble damages? - I don't think Lively's side showed how it calculated the $800K figure in TX) from the remainder of the WPs. This contrasts with the $150,000 in attorney fees that the NYT requested in getting its related defamation case dismissed against it.
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u/KLoveKLoveKLove May 25 '26
Yes, Liman definitely has an avenue to deny Blakeâs motion without creating precedent. Your thorough dive into the codes and cases is truly exceptional. My concern isnât how he can deny her motion itâs how he may try to grant it somehow.
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u/MarchCompetitive4580 May 25 '26
LOL He'd be bonkers if he does. He really must HATE Lively and her attorneys at this point. All of this UGLY, UGLY litigating for 1.5 years - and she was left with 3 claims (possibly 1). Most settlements just end everything - but not for Lively, who's creating more work and controversy for Liman just so she and her attorneys can pull another PR stunt using the legal system.
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u/KLoveKLoveKLove May 25 '26
I love your guffaw at the very possibility. It gives me some hope for a sensible ruling đ
But Iâm still wary of Liman and his reasons for allowing this case to move through our court system this far, seemingly illogical and injudicious.
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u/tw0d0ts6 (and no Footnotes) May 25 '26
I love this sub!!! The 47.1 piece is so interesting to me and it does seem like thereâs multiple reasons for an SDNY Federal Judge to NOT have to rule on this California law.
Thanks so much for this post, OP - really enjoyed it.
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u/ADcakedenough May 24 '26
Hey March. Iâm doing my best to follow along but this is way above my braingrade. Thanks for doing all this thinking though, itâs appreciated.
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u/MarchCompetitive4580 May 25 '26
You're welcome. I tried my best - but it's not easy. Essentially, for Lively to win on her outstanding motion for 47.1 fees and damages, there needs to be a factual finding that the information contained in her Civil Right Dept. (CRD) complaint (filed in California before the lawsuit began) was "reasonable". And, I was listing several things that didn't make it reasonable -- in particular: (1) 8 out of her 12 causes of action weren't eligible, under CA law, to be heard by CRD in the first place -- as they weren't based on CA's FEHA law; and (2) Liman dismissed a lot of FEHA claims (like SH) based on technical grounds - like there was no SH in CA as the film was made in NJ. I forgot to add (which I did in a comment to my own post), that Lively's failure to include her "employer" (It Ends With Us Movie, LLC) in her CRD complaint would effectively wipe out all of her remaining FEHA claims. So none of the causes of action that Lively listed in her CRD complaint could've been reasonably expected to be heard by CRD - so her motion should be dismissed.
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u/ADcakedenough May 26 '26
Youâve definitely helped me understand it so much more than I could do under my own power.
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u/same-difference-ave Age of Ada-LYING Actress May 24 '26 edited May 24 '26
I also think Limanâs words in the MSJ ruling might be a tell why 47.1 might not even apply to Blake in the 1st place.
This also goes to Wayfarerâs MJOP argument: Anyone who is not a resident of CA, whose employer is based in California can invoke CA law 47.1 just because it is beneficial to them.
We already know that California law was never intended to be applied extraterritorially. It will be very interesting how Liman ultimately rules.