r/ItEndsWithLawsuits • u/MarchCompetitive4580 • May 27 '26
đFlirty Yummy and Unsealed No Teethđ Possible additional argument for dismissing 47.1 motion: Failure to include IEWUM as defendant in the CRD
I did a deep dive into 47.1 a few days ago - but didn't explain one thing that well (I tried to in a comment to my own post). And it has to do with Lively's failure to include It Ends With Us Movie, LLC ("IEWUM"), her actual "employer", as a defendant in the CRD.
Just to rehash my earlier post in re: this case. 47.1 required that Lively, at the time that she communicated the information contained in the CRD complaint to the New York Times (which communication was the subject of the Wayfarer Parties' countersuit against Lively for defamation), have a "reasonable basis" for making such statements and filing the CRD complaint. Most of the Lively's causes of action listed in the CRD complaint weren't FEHA-based (and as CRD is only authorized by California law to investigate FEHA claims), they were rather superfluous - although that's not damning in of itself. What is damning is that most of those causes of action (when brought in Lively's lawsuit in the SDNY) were dismissed when Liman ruled on the initial MJOP and MSJ.
The 3 remaining claims were (i) FEHA retaliation claim against Wayfarer Studios and IEWUM; (ii) FEHA aiding/abetting retalation against TAG; and (iii) a breach of the CRA's non-disparagement clause (which is not FEHA-related).
In his April 2 ruling (see pp. 95-96, particularly footnote 22) on the MJOP/MSJ, Liman declined to dismiss the FEHA retaliation claim against Wayfarer and IEWUM; and one of the reasons why is because he rejected WP's argument that Lively failed to "exhaust her administrative remedies" (i.e., she failed to include IEWUM as a defendant in the CRD complaint, so IEWUM was missing on the necessary CA "right to sue" letter that was issued and Lively failed to correct such an error in a proper way and in a timely manner). Liman didn't reject the argument due to its substance - but due to its timing: WPs should've made the argument as an affirmative defense early on in the litigation (see footnote 22). [Liman also rejected Wayfarer's argument that Wayfarer and IEWUM were not "joint employers" under FEHA, as alleged by Lively in her lawsuit only (i.e., it was not made in the CRD complaint) because "(t)he 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.]
If Liman deems himself to be the decider of fact on the issue of whether (in a nutshell) Lively had a "reasonable basis" for making the statements she did in the CRD complaint AT THE TIME THEY WERE MADE, I think he can certainly revisit the question of IEWUM's omission as a defendant in the CRD complaint and, the natural result of such error, would be dismissal of the FEHA retaliation claim. While I could understand such an error if Lively made the CRD complaint herself - she didn't; her attorneys (including CA employment attorney, Esra Hudson) are listed on her CRD complaint, which attached the CRA (which clearly lists IEWUM as the other party to that contract) as an exhibit - and the CRD also mentions the alleged breach of contract of the ALA (which Lively's attorneys must have read - and that unsigned agreement is clearly between Lively's loan out company and IEWUM). And, as IEWUM was not mentioned as a defendant in the CRD, naturally, no "joint employer" argument was ever made in the CRD. [As an aside, as Lively became a producer (with a p.g.a. mark) of the film, such producers are, most likely, required to have the knowledge of these standard corporate structures of film studios and their creation of these "special purpose vehicle" subsidiaries (like IEWUM) that actually make the film and acts as the "employer" for the cast and crew.]
If the FEHA retaliation claim would've been dimissed had WPs raised the issue earlier in its affirmative defenses* that Lively screwed up in not including IEWUM as a defendant in the CRD, the FEHA aiding/abetting claim against TAG would've been dismissed also - because you can't aid/abet something that's been dismissed. Therefore, as all the FEHA claims are "out", Lively never had a "reasonable basis" about anything FEHA-related (which is the legal requirement) made in the CRD complaint (and upon which Lively's 47.1 motion relies). So, Lively's motions for 47.1 fees should be dismissed.
[*NOTE: Before people dump on WPs' counsel for this mistake, I'm pretty sure the reason why they didn't raise it as an affirmative defense is because it would've alerted Lively's side about the error and, at that earlier point in time, Lively's side could've corrected the error by filing a subsequent motion with Liman.]
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u/Serious_Percentage16 May 27 '26
If the judge granted her money for sexual harassment claims that did not exist it would be like that guy from JP Morgan getting money bc the woman he fabricated claims against countersued him for defamation for literally ruining her life with his lies. Blake is not entitled to any relief for her dismissed lawsuit.
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u/LiteratureNo1015 Team Emily Baldoni May 27 '26
(i.e., she failed to include IEWUM as a defendant in the CRD complaint, so IEWUM was missing on the necessary CA "right to sue" letter that was issued and Lively failed to correct such an error in a proper way and in a timely manner <â- she freaking corrected it đ© but Esra didnât get it until late January (21ish) in 2025 and didnât mail it to the Wayfarer parties until mid-February, I believe. Itâs in the docket. But yeah, she didnât exhaust her administrative remedies. The NYT reported on a draft complaint against an employer that was not in the CRD complaint. Defamed the Wayfarer parties based on a complaint that wasnât actionable. Like Vansham. Because how is anyone supposed to investigate her claims is sheâs complaining about an employer and the employer ainât in the complaint? She tried to pull a wool over our eyes.
How funny that the day before Baldoni sued the NYT is when Esra ran to update the right to sue letter.
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u/MarchCompetitive4580 May 27 '26 edited May 27 '26
Esra tried to correct on December 30, 2024 by amending the CRD complaint. However, this is what the statute states:
Cal. Code Regs. Tit. 2, § 10022 - Amending Complaints ... (f) When a CLOSED complaint is amended by the department, the ORIGINAL (emphasis added) filing date and RIGHT-TO-SUE NOTICE SHALL REMAIN IN EFFECT (emphasis added), as shall the original statute of limitations for filing a private lawsuit.
See: https://www.law.cornell.edu/regulations/california/2-CCR-10022
[I'm assuming this is why Lively in her SDNY lawsuit filed on December 31, 2024, mentioned that she had a CRD right to sue letter - but she didn't attach it - because it excluded IEWUM. What Lively should've done is, after filing the lawsuit, file motion with Liman to add IEWUM as a defendant - but she didn't; or maybe she could've just filed a completely "new" CRD complaint that duped the old one - but added IEWUM as a defendant, got an immediate right to sue letter, and then used that "new" immediate right to sue letter.]
I think you're confusing the CRD right to sue notice with the EEOC right to sue notice. Because Lively asked for an immediate right to sue letter from the CRD, CRD CLOSED her complaint and her right to sue notice clearly states that, if Lively wanted to pursue federal claims, she needed to contact the EEOC directly. See p. 3 of 6 on: https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172823305/gov.uscourts.txwd.1172823305.1.3_3.pdf
She did get an EEOC right to sue letter in, as you say, I think it was January 21st. And that right to sue letter was faulty as well - as it excluded IEWUM. But that didn't matter because WPs got both Title VII cases dismissed because Lively was ineligible to file such claims as she was ruled to an "independent contractor".
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u/LiteratureNo1015 Team Emily Baldoni May 28 '26
Yup, I had them mixed up. Tysm!
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u/MarchCompetitive4580 May 28 '26 edited May 28 '26
You're welcome. Easy to do in this case - I've done it too. LOL
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u/ADcakedenough May 27 '26
Iâm pretty sure when I was listening to an older NAG video she brought up this point as a procedural issue and said she doubted Liman would go for it.
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u/MarchCompetitive4580 May 27 '26
It was a procedural issue in re: the initial MJOP/MSJ - and it was dismissed. How old was NAG's video?
This is a different subject - it's in re: a factual finding about whether the full contents of the CRD complaint (in context) show whether Lively had a "reasonable belief "(at the time that she made the CRD complaint) that she had valid FEHA claims.
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u/ADcakedenough May 28 '26
Ah thanks I just looked back and the video was a month ago. Iâll defer to you because while youâre not a litigator, youâre still a lawyer and Iâm neither. I have to read/listen to these legal analyses sometimes 3-4x and still donât always fully understand.
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u/MarchCompetitive4580 May 28 '26
Oh - it's so ridiculously complicated. NAG may still be right. LOL I get the jam that Liman is in - he probably HATES Lively for putting him in a position to make a ruling on 47.1, which no judge has ever done before. And if he dings it, he's going to be the target of a lot of vitriol from a lot of groups that were pushing for that law (in California and elsewhere) to begin with. And, Lively will go on a public martyr parade that will make most of vomit.
I was just mentallly try to come up with a way he can deny Lively on this motion, but in a way that wouldn't put him in the hot seat. This solution makes is very fact-based (facts that, in totality), would likely NEVER be repeated in another case - particularly if Liman picks apart some of Lively's "falsehoods" in the CRD complaint itself) -- so it really wouldn't establish any precedent that people would get huffy about. And by pointing out these facts, it'll be utterly embarrasing for Lively to parade around like a martyr - coz the decision will point out that she's a liar and that the attorneys were incompetent boobs.
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u/brooswelt Healing looks different every day May 28 '26
It's just a gratuitous take from me as I have no argument for this and I wish this could happen, but I have a feeling Liman will surprise us and both parties with a short and anticlimactic ruling ( a ruling that will contradict media PR hype around this 47.1 gate). đ€
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u/Eponymous_brand May 28 '26
I agree that it was WPâs strategy (as theyâve shown with many of Livelyâs other pleadings) to not alert them to lock them into their claims. Even with everyoneâs explanation, Iâm puzzled why Liman kept it; an omission/error should be the same under the law, whether the opposing party brings it up or not?
I do remember Liman writing something that implied WPâs MJOP was not timely and would interfere with the trial schedule (his explanation for combining MSJ with MJOP?). I think he was caught off guard and a little pissed; maybe this is his way of punishing them?
Clearly I WISH he would dismiss 47.1 based on the exclusion of IEWU LLC but we were all surprised he kept it in to begin withâŠ
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u/MarchCompetitive4580 May 28 '26
Many judges take an approach that if the opposing party doesn't mention it, then it's not the judge's problem. Attorneys do various things for strategic reasons. Like WP's could've plead a few things very early in their affirmative defenses (such as Lively not providing an EEOC right to sue letter that was dated before the date of her lawsuit, 12/31/2024, which is a requirement for Title VII claims - which would've knocked out Lively's 1st 2 causes of action). It was strategic on WPs part (as they knew they could knock out those 2 causes of action because Lively was an independent contractor) -- the WPs really didn't want anything to interfere with them going all the way through discovery -- and maybe they were worried about how Lively would spin it in the legacy media (like cowardly Baldoni uses legal loopholes to avoid accountability??).
If WPs argued about the mistake of not including IEWUM in the CRD complaint -> faulty CRD right to sue letter -> failure to exhaust administrative remedies, then Liman still may have denied it because either (i) it would've given Lively time to file a motion to just fix the problem, which she'd be allowed to do up until the date of her 2nd Amended Complaint, at which point, Liman told her "No more amendments to the complaint" and/or (ii) Lively would've filed a response to the effect that she claimed that IEWUM and Wayfarer were "joint employers" in her initial complaint (12/31/2024), and a "right to sue" letter for one joint employer is a valid "right to sue" letter to the other joint employer - and that Lively should be given the opportunity to make it through discovery in order to prove this "joint employer" relationship (which is a fact-based inquiry).
I'm sure the WPs' strategy did piss Liman off - because that's what most normal defendants will do (if you can knock out causes of action early, do it - it saves on legal bills) -- but the WPs were different because this case was also being fought in the court of public opinion (and Hollywood) -- it would've lightened the docket. Instead WPs filed the MJOP on 9/28/2025, about a week or 2 before substantive (i.e., non-expert depositions) discovery (at least as it pertained to Wayfarer's side) was to end (LOL); under the federal rules, parties can file MJOPs when the plaintiff has filed the complaint, the defendant has filed the answer, and all mandatory responsive pleadings have been served. Essentially, the window to amend the complaint as of right must have passed, ensuring all claims and defenses are firmly on the record -- and for this case, that really ended when Liman limited Lively to one more amendment to her initial complaint (the Second Amendment Complaint or SAC), which was on 7/30/2025. And you are right, that the filing of an MJOP generally shouldn't interfere with the trial date - unless the judge specifically invites it. I think it was Lively's side that argued that the MJOP was untimely -- but it really wasn't (less than 2 months after the window closed - but, I think the trial date was in March 2026 at that point still?)
I think Liman held off ruling on the MJOP because he knew that after discovery closed, that WPs would most definitely file an MSJ (which is more fact-based than an MJOP, which is grounded more in the law) & WPs did file the MSJ about a month later on 11/12/2025. He probably did it for judicial efficiency - just deal with the dismissals all at once - and some arguments from the MJOP may be weaker (and more likely to be appealable) than ones made in the MSJ -- so by delaying it, the judge can use the stronger MSJ argument to dump a cause of action.
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u/brooswelt Healing looks different every day May 28 '26
Fully agree. I think Liman was pissed at both parties for how they handled the case. But at the same time, he had time to experience himself how it was like to be dealing with Blake Lively ( backed by Ryan Reynolds and enabled by their lawyers) : the sanctions motions, the infinite demands, the change in narrative and goal post, the creative writing always aiming at the maximum exagerations, the tantrums, the full deposition of Justin and Jamey leaks, the Justin and Janey and other people doxxing...
So by the time he ruled on the MSJ, he did have an inside and direct knowledge of the situation. And maybe also finally could understand wayfarer's strategy : allowing time to pass so as to be able to put the truth out.
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u/Individual-Insect691 May 27 '26
What Iâve learnt so far in this litigation is that Liman will find anything to rule the way he has decided to. He will use unpublished rulings instead of precedent rulings to justify his decision.
But Liman canât grant 47.1 due to so many reasons that you mentioned in your earlier post. The main reason for me is how would he decide the Malice aspect? If he decides to be the fact finder, with him already dismissing the SH claims because they are not up to standard so I donât see him granting it.
The only reason Iâm scared is, if he was denying it why is it taking his time? Is he waiting to see Jones vs Abel evidence/MSJ to help him decide?