00:00:00.000So you do think that she has a chance?
00:00:01.980She has a chance. I think she has two chances, slim and none.
00:00:06.900Hi and welcome to Flossom Talk. I'm Sjastri Floor, journalist, Hollywood truth teller,
00:00:14.860and your voice of reason in a town built on delusion.
00:00:18.700Okay, I have my favorite lawyer on today, John Genga.
00:00:23.820John was the one who defended me against Blake Lively when she filed a subpoena against me
00:00:29.560to get access to everything in my google account she did the same thing to 106 other journalists
00:00:35.720and content creators and john stepped up and defended me and it ended up with blake lively
00:00:41.060dropping the subpoena and today i wanted to ask his reaction on the latest ruling by the judge
00:00:47.560if he's surprised by it and if he can explain a little bit more about what we can expect moving
00:00:53.320forward. And if he thinks Blake Lively's lawyers overstepped. John Genga, my favorite attorney in
00:01:02.000the entire world, is back to explain things for us. Thank you so much, John. It's great to see you
00:01:07.700again. Well, thanks for having me back. And, you know, great work on covering this whole case. I
00:01:13.980mean, you've been doing a great job. And, you know, a lot of what you've been saying has kind
00:01:18.840of been vindicated now by the court. That's certainly one way to look at it. But I mean,
00:01:22.840you've done a really great job. You've done a fair job. You've done hard work. You've spent a lot
00:01:27.640of time researching and understanding the case. And I think it's been a great service to people.
00:01:37.740So thank you for doing that. Thank you. And thank you so much. John was the one who defended me
00:01:43.840against Blake Lively's subpoena, and he fought it and we won. So this is kind of a second wind,
00:01:51.060I would say. So what was your reaction when you saw the news yesterday? What was your like first
00:01:57.400instant reaction? My first reaction was to go to the court file and actually look at it. That was
00:02:02.880my first reaction because you don't necessarily know when you see a headline or even a brief
00:02:11.800story when something first comes out, how accurate it is or, you know, how well it presents what
00:02:18.260really happened, what the decision really was. So that's what I wanted to do. And I got a I got a
00:02:24.140good sense of it pretty quickly, because the way that the court presented its reasoning was really
00:02:29.880clear. And it presented up front what its conclusions were. And so I thought that was
00:02:36.040very helpful. And, you know, I needed to dig in deeper to understand, you know, the court's
00:02:42.780reasoning. But I do understand what the court did, why the court did what it did. I was pretty
00:02:47.540surprised by, you know, the extent to which the plaintiff tried to go in some of her claims that
00:02:54.700were really had a lot of a lot of legal problems right out of the gate. I think Manette must have
00:03:02.420realized that, but made some conscious decisions to pursue certain claims because they had some
00:03:10.040advantages if they could keep them alive. But they just couldn't do it despite their best efforts.
00:03:16.980What were those, by the way, the ones that you thought were just like, why are they, this is so weak?
00:03:21.580Well, the ones that really depended upon, for example, her claim status as an employee, which was really a tough reach, particularly given documents.
00:03:39.340Yeah, she sent it to the PGA, right, to try to get admitted to the union, I guess, to show that she has done all of these things that are so contrary to what it means to be an employee. And she had no choice but to admit that, yes, I adopt all of these. Everything I said in here was true. She had to say that.
00:04:00.880And the judges said, look, when you look at all of this, you're just you're just not an employee.
00:04:06.640That's just not the way these things work.
00:04:08.540So and if you if you believe you did all these things, there's no way.
00:04:13.300And they should have known that you're saying, Manat, representing her, should have known that that was such a risk.
00:04:20.040They tried to bring these these claims under the California law, FEHA, the Fair Employment and Housing Act,
00:04:25.080Because there are certain advantages in terms of, you know, you get more, you get greater damages, more attorney's fees, things like that.
00:04:34.200So they made a calculated decision to do something that was risky and unlikely.
00:04:40.780And at the end of the day, they couldn't carry the day.
00:04:44.920But they would have had to inform Blake lively about this.
00:04:47.940So she also must have known there was a risk and willing to take that.
00:06:16.440it's going to be hard for her to prove
00:06:19.140that the retaliation happened because she spoke up in those 17 points, because that's a long time
00:06:25.620in between when that 17-point list was presented and signed until they allegedly started smearing
00:06:34.100her. How is she going to, I mean, isn't that just like very far-fetched? Because that happened like
00:06:40.26088 months in, there was like eight months between, so why didn't they retaliate then?
00:06:45.500And why did they wait until the movie came out, which was, you know, they spent so much money, they put so much money into this movie.
00:06:54.320And for them to smear the lead actress would make no sense because that could really hurt their own film.
00:07:01.060So, right, this is what she has to prove now, right?
00:07:03.900Yeah. So that's where, right, that's where she's going to have trouble potentially with the jury.
00:07:09.940I mean, the court said, look, a jury could decide that that this was motivated by those improper reasons and therefore find in her favor.
00:07:21.620So he said he couldn't decide as a matter of law.
00:07:24.940There were there was conflicting evidence and that it had to be up to a jury to decide.
00:07:30.800But the hurdle that she faces now is that she has to, you know, convince a jury that those were the reasons that this was done, number one.
00:07:40.720Number two, I think an even bigger thing, which I would be worried about and I would be telling her about if I were a lawyer, is causation.
00:07:50.660did what the defendants do actually cause her reputational harm
00:08:00.720as opposed to, is it her own reputation that caused her harm?
00:08:05.660And there's going to be a lot of juicy and fun bits
00:08:11.100for Brian Freeman to get into on cross-examination.
00:08:15.780And I don't know that she's going to want to go through that.
00:08:34.560And I'm not saying she is or she isn't, by the way.
00:08:36.620I'm just saying these are the kind of things that are going to come out at the trial if there is one.
00:08:42.060And that's a whole other topic, I suppose, that you may want to look into is what, you know, if we have a crystal ball, what are the parties going to do now?
00:08:55.440You know, I certainly have some thoughts as to what I would do if I were in either of their positions, which is basically the same thing, really.
00:09:02.480I would get on the phone with the other side and say, let's settle.
00:10:04.980And Hollywood's very forgiving. People come back.
00:10:07.940Should be interesting. Let's go back to that retaliation for a second, because I find it interesting.
00:10:12.100I read about my little bump video that was also mentioned by the judge.
00:10:16.540And he was saying that they were or he implied that they had asked their team to amplify that video and other videos.
00:10:26.220So if they did that, if they amplified some videos that were negative for Blake, they were amplifying only things that were already out there.
00:10:35.840They didn't make any content to harm her.
00:10:38.800Would that even be an argument for them that they could say, oh, they amplified positive stuff about Boldoni and this interview with Blake Lively seemed like she was a bully?
00:10:51.200Well, yeah, but the court said there was enough there that a jury could decide that by doing that, they crossed the line. You know, there was, you're right, there was already that stuff out there.
00:11:07.180They had all these experts get, you know, file declarations that said, well, based on this, there was a, I found 30% more than I would have expected to find under normal circumstances. And that suggests to me that there was some effect of this, you know, promotion of these, you know, negative stories about Ms. Lively. So therefore, I think there is a causal link.
00:11:32.020So, you know, an expert is basically someone who, if you pay them enough money, will say what you want them to say.
00:11:37.840Exactly. I read those expert reports and that's exactly what I thought.
00:11:41.500They're told beforehand, this is the result we want, just make it happen.
00:11:45.040And then they will just like put together some numbers and, you know, whatever, spin things around.
00:11:49.780What do you think now with these three claims she has left?
00:11:52.260You know, she originally she asked for like all these damages on top of each other.
00:11:57.240So it ended up being like six hundred and fifty million dollars or whatever.
00:12:00.460And she's going to have to say, as you say, she's going to have to show that it really harmed her and that what they did really harmed her.
00:12:06.980So how much money would anything like this, like what would this be worth?
00:12:12.980You know, the retaliation claims, they do go to her reputation. So it goes to her employability money that she's lost because she can't be employed as she used to be because of the image that's being promoted negatively about her. And so there's value there. I mean, she's a highly paid actress. I was surprised that she only made what she made on this movie, by the way. It wasn't a huge amount of money that she made.
00:12:42.500But for bigger pictures, she'd be making a lot more money, and there might be a lot of opportunities that she would have had that she doesn't have now.
00:12:50.660Now, those are always difficult to prove.
00:12:52.500I mean, you have to prove – I mean, it's kind of speculative in a way that, oh, yeah, we would normally expect her to have gotten, you know, XYZ parts at $10 million a pop, you know, twice or three times a year.
00:13:05.360So she's lost, you know, $50 million a year for the next five years discounted to present value, you know, whatever.
00:13:11.720But then but then they would have to prove that she lost that because of what happened during the promotion and not what happened after she filed a lawsuit, because it's like, yeah, no, it's going to be hard.
00:13:23.300It's going to be hard. I, you know, and again, at the end of the day, it's the lawyers that are making the money here.
00:13:30.120So this is not good for any of the parties.
00:13:34.040They are distracted from what they do for a living.
00:13:37.560They should get back to what they do and raise their families, get some jobs, you know, and move on.
00:13:47.240How much do you estimate that her team could have, you know, what they have charged her until this point?
00:13:53.620I mean, she has two big firms, I think, working for her.
00:13:56.680Oh, yeah. No, she's paying over a million dollars a month in legal fees.
00:14:46.000She has been so adamant in public about this.
00:14:51.700it's going to be hard for her to kind of admit that she you know might have gone a little too
00:14:58.820far so she might feel that she has to keep going i don't know it's very difficult that's what i
00:15:04.500think too because also she said today by the way i don't know if you saw that she said i look forward
00:15:08.920to telling my story uh to in front of a jury basically and i feel like you know i don't think
00:15:16.120she does by the way no no one would do that no one looks forward to be on a stand i'm guessing
00:15:21.440That is just like such a stressful, stressful thing, especially if you know your case is so weak, as she knows.
00:15:28.740But the fact that she said she's looking forward to that and as we know, so much more could come out in this case during trial and what she, you know, when she has to sit there and defend all of this in front of a jury.
00:15:42.540And as I'm guessing, because now there are no individuals from Justin Baldoni's side, Justin Baldoni's out, Jamie Heath is out, Steve Saris, Jennifer Abel, and Lisa Nathan.
00:15:53.740So do they even have to be in court, these individuals, or could they send people from the Wayfair parties or others to represent them?
00:16:03.540Well, they're going to be witnesses for sure. I mean, they can be subpoenaed. And I mean, there's still parties to the case that could be they could be made to testify, but they don't have to be in court. I mean, I would be surprised at this point if maybe they will be. Who knows? I mean, maybe Baldoni will be in court the whole time. Who knows?
00:16:21.300Maybe he will be enjoying it, watching her stand there and sweat.
00:17:13.160So even though the judge said a jury could find this, it just means that he thinks, OK, this is not up to me.
00:17:18.780it's up to a jury to decide. Not that, oh, she has a good case here that the jury will probably
00:17:24.020agree with her, basically, right? Yeah, right. No, he doesn't say that at all. And he is very
00:17:29.600careful to make clear that he's not saying that. And several points to the opinion, he says, look,
00:17:34.840I'm not saying a jury is going to find this. I'm saying a jury could find this. And I'm not,
00:17:40.700by going through all this, you know, what I think doesn't matter, he says. Many times he says that.
00:17:46.220But, you know, in certain facts, he says this is not relevant because there are certain there's certain evidence he's probably going to keep out.
00:17:55.220I can't remember what it all is because of over the course of 152 page opinion.
00:18:01.820I just and I'm not as close to the cases as you have been because you're covering it every day.
00:18:07.080But there's certain evidence is going to be kept out, most likely because it was not considered relevant.
00:18:13.200Freeman will make what's called motions in limine to keep certain evidence out.
00:18:18.140Manat will do the same thing on their side.
00:18:22.280So, you know, what a jury ultimately hears, you know, we'll see.
00:18:27.440I wouldn't, if I'm her lawyers, I'm not looking forward to trying this case.
00:18:37.680Defending something like this must be like such a, oh my gosh.
00:18:41.820Yeah. Even though Blake Lively is looking forward to being on that stand, her lawyers are definitely not looking forward to that.
00:18:47.960I don't. And by the way, I don't think she's looking forward to being on the stand. She's saying that.
00:18:52.360But and she's, you know, look, in Hollywood, obviously, there's the whole public facing aspect of a case that's not as important in your typical, you know, slip and fall case or business dispute between people who are just fighting about money.
00:19:09.800And there's what she says in public and then what she has to deal with in a court of law.
00:19:15.560I'm not surprised that she's saying what she's saying.
00:19:35.560I mean, and this now the problem, part of the problem is from her side, if she's perceived as, you know, trying now trying to settle now, it looks like, oh, they won.
00:19:50.020The other side won. So you got to work out all those delicacies of, you know, and nuances of timing and perception.
00:19:59.300I think experienced Hollywood lawyers like these lawyers understand that they can figure out a way to resolve this case, present perhaps a joint press release of some sort, do some other creative things that where each side is sort of acknowledging that the other side in good faith, you know, acted in good faith and that we're just putting our weapons down now.
00:20:27.040You know, the lawyers have done a great job on both sides, I think.
00:20:30.680One thing that I'm not clear on, because I haven't been following it, I'm sure like you have,
00:20:37.220but when I was representing you, they were going after a lot of people like you.
00:21:22.980I don't know the right word for it to say that, you know, they didn't file the subpoenas in fact, basically because they withdrew them, which makes no sense to me, because then they weren't really interested in what we had that they thought that we had if they just withdrew them.
00:21:38.640But then the judge said that that means that they I don't know.
00:21:42.160Yeah. So the reason I ask that question is because in the connection with the retaliation claim, it would seem to me that some evidence from people like you would be important because they're trying to prove that there was some manipulation going on.
00:22:01.200and you've got these content creators such as yourself
00:22:05.200or I don't know if you like to be called a content creator
00:22:08.740or a journalist or, you know, that was an issue for Perez Hilton.
00:22:22.260But it would seem to me that on their retaliation claim,
00:22:27.420If they're going to suggest that some salacious narrative was being promoted to the public, that they got to find someone who was doing it.
00:22:43.020And so I don't see that in what you're describing, unless who's Andy Sengdor, this last fellow that's it would seem to me that they would need someone like that.
00:22:55.240I don't know what they're going to do with him.
00:22:58.440I'll be interested to see how that turns out.
00:23:00.280I think the reason why they go after him so hard is because he's working on a documentary about this case
00:23:06.080and that he has interviewed people who are close to the set working on the set of It Ends With Us.
00:23:11.760As he said, you know, he's a journalist.
00:23:13.480He worked as a journalist contacting both sides here because he wanted information about the case,
00:23:21.160So the fact that they're saying that he was working with them,
00:23:24.440He reached out to both sides and he got communication with Melissa Nathan, I think it was, that worked as the PR crisis management for Justin.
00:23:34.360But he did ask to get quotes from her that he could present in his reporting.
00:24:48.120No. So, I mean, you have the right, everyone has the right to have an opinion and to share it on the Internet.
00:24:55.580Correct. And there's always, there's often a fine line between what's fact and what's opinion.
00:25:03.840And, you know, the actual malice standard, of course, that you, I'm sure, know about very well from the New York Times versus Sullivan case,
00:25:11.260which is a case that the Supreme Court is considering revisiting, by the way.
00:25:15.980Oh, actual malice means essentially that you haven't done enough to ask or really to ascertain the truth of what you what you're saying.
00:25:25.680And that, you know, it's not true what you're saying.
00:25:27.800No, it's not true. Or you publish it with it with recklessly not doing what you should have done to ascertain whether it was true.
00:25:36.120Like New York Times did with me, basically.
00:25:38.040Right. So that's another actually that that reminds me that, you know, there's still his cross complaint, his counterclaim that it could be reinstated after an appeal.
00:25:53.060So he has some leverage there. So, you know, it's not like she's completely, it's not like she can just take a shot. He still has some powder in his magazine there. So he can say, look, if you want to take a shot, then I'm going to keep, you know, I'll just keep going with my appeal and then I'll have my free shot at you once the second circuit reverses and I'll, you know, I'll take you to trial.
00:26:22.700You don't want that. You don't want that.
00:26:25.480I feel like now when thinking about how his case was dismissed, this is what is baffling to me.
00:26:31.260His case was dismissed for the reason that he was he could not legally sue her because she sued him first for S.H. and retaliation.
00:26:42.960So but now that she was not allowed to sue him for S.H., then doesn't that just fall apart, this old argument from the judge of why he dismissed Justin's case to begin with?
00:26:55.660Well, I don't think that whether the claim was valid or not has anything to do with whether he could have counterclaimed.
00:27:07.380The only question is on his counterclaim is whether he adequately alleged what he had to allege in order to state a viable claim.
00:27:18.400And whether her claims themselves were valid or not has nothing to do with that.
00:27:25.200I don't think so. But in any event, he still has that leverage. If there's an issue about
00:27:31.860how do we resolve this and she's being difficult, if she is, say, look, you know, I still have this
00:27:37.540thing out there. I, you know, do you really want me to go and spend another five years going after
00:27:43.520you? And, you know, you have young kids, you have a career, you know. Career. And also another thing
00:27:53.700that's still alive, which is also interesting, is the countersuit from Justin Baldoni and Jennifer
00:27:59.680Abel against Stephanie Jones. The defamation claim against her is also alive. The judge dismissed a
00:28:08.020few of her claims, but these are alive. So he and Jennifer Abel are still suing Stephanie Jones for
00:28:17.080defamation. So there's a lot of information could come out in that case as well, because they have
00:28:23.600even started discovery yet so okay there's a lot on the line there is a lot on the line
00:28:29.520cases never quite end oh anyway well listen trusty this has been great i thank you again for having
00:28:37.020me i really appreciate it uh you're like again you're doing a great job and you're gonna have
00:28:42.320to find you know when this case goes away you'd have to find more to talk about maybe we'll talk
00:28:47.460about the taylor swift case but you can't ask me because i'm a lawyer oh you oh on the um
00:29:25.660I would love to cover that, actually, if, I mean.
00:29:30.280Then you'll have to find other lawyers to ask questions about.
00:29:34.100Can you explain quickly what that case is about
00:29:36.880so people know if they haven't followed that?
00:29:38.780Oh, so that case has to do with the whole fiasco
00:29:42.620that happened when Taylor Swift started her Ares tour
00:29:46.040There was supposed to be a presale for verified preferred fans, and it ended up being what I would charitably call a dumpster fire.
00:29:58.960I would use more explicit language if I were talking behind closed doors.
00:30:05.360But in any event, we allege that that resulted from basically systemic issues within Live Nation and Ticketmaster, whereby they've so dominated the marketplace that they can provide substandard service, get away with it and charge outrageous prices and screw the public.