Lively v. Wayfarer Studios LLCLively v. Wayfarer Studios LLC
LEWIS J. LIMAN, United States District Judge:
Consolidated Defendants Blake Lively (“Lively”), Ryan Reynolds (“Reynolds”), Leslie Sloane (“Sloane”), Vision PR, Inc. (“Vision PR,” and together with Sloane the “Sloane Parties” or “Sloane”1), and The New York Times Company (the “New York Times” or “Times,” and together with Lively, Reynolds, and the Sloane Parties, “Defendants”), each move to dismiss the Amended Complaint of Wayfarer Studios LLC (“Wayfarer”), Justin Baldoni (“Baldoni”), Jamey Heath (“Heath”), It Ends With Us Movie LLC, Melissa Nathan (“Nathan”), Jennifer Abel (“Abel,”), and Steve Sarowitz (“Sarowitz,” and collectively with Wayfarer, Baldoni, Heath, It Ends With Us Movie LLC, Nathan, and Abel, the “Wayfarer Parties”) pursuant to
Reynolds, Sloane, and Vision PR additionally move for an award of attorney’s fees and costs pursuant to New York’s anti-SLAPP law,
Finally, Lively, Sloane, and Reynolds move to strike Exhibit A to the Amended Complaint pursuant to
For the following reasons, the motions to dismiss are granted. The motion to strike is denied, but the Court will disregard
BACKGROUND
The Wayfarer Parties’ Amended Complaint contains allegations regarding a dispute between two well-known actors over the making of a Hollywood motion picture. Virtually every fact is hotly contested. For purposes of this motion, the Court accepts as true the well-pleaded allegations of the Wayfarer Parties’ Amended Complaint. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n.1 (2002). Accordingly, the narrative set out below “do[es] not reflect the Court’s own findings” but simply repeats the account of events stated by the Wayfarer Parties in their Amended Complaint. Brown v. Maxwell, 929 F.3d 41, 52 (2d Cir. 2019). At this stage of proceedings, the Court has not considered whether the allegations in the Amended Complaint are true.3
In addition to the allegations in the Amended Complaint, the Court has considered several documents which are deemed to be part of the Amended Complaint as a matter of law. A complaint is “deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint.” Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 88 (2d Cir. 2018) (quoting L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)). If a complaint makes “clear, definite, and substantial” reference to a document, for example by quoting from it extensively, the entire document is deemed to be part of the complaint. Trump v. Vance, 977 F.3d 198, 210 n.8 (2d Cir. 2020)); see Geiger v. Town of Greece, 311 F. App’x 413, 416 (2d Cir. 2009) (“Geiger’s amended complaint quoted extensively from the Assurance, thereby incorporating it into the pleading.”). Relatedly, if the complaint “relies heavily on [the] terms and effect,” of a document, but for some reason does not include the entire document, the Court may consider the entire document as part of the complaint. Searle v. Red Creek Cent. Sch. Dist., 2023 WL 3398137, at *2 (2d Cir. May 12, 2023) (quoting Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016)). The purpose of this rule is to prevent a complaint from surviving simply because a clever plaintiff included certain parts of a key document and left out others. See Guzman v. Bldg. Serv. 32BJ Pension Fund, 2023 WL 2526093, at *6 (S.D.N.Y. Mar. 15, 2023) (“The purpose of the rule is to prevent complaints from being invulnerable at the motion to dismiss stage purely ‘by clever drafting.’” (quoting Glob. Network Comm’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006))).
Under this standard, the Amended Complaint is deemed to include the New York Times article that is the subject of the Wayfarer Parties’ defamation claims (the “Article”), Dkt. No. 107-1, the accompanying video (the “Video”), Dkt. No. 107-2, Lively’s California Civil Rights Department (“CRD”) complaint, Dkt. Nos. 107-3–107-7, a list of seventeen protections demanded by Lively to return to production in November 2023, Dkt. No. 84-1,4 and
In determining whether the Wayfarer Parties have stated a claim for relief, the Court does not consider Exhibit A to the Wayfarer Parties’ Amended Complaint. Dkt. No. 50-1. Under the Federal Rules of Civil Procedure, a “[d]efendant is entitled to know the allegations against it, and to have those allegations framed in separate paragraphs, with sufficient clarity to allow the defendant to frame a responsive pleading.” In re Turquoise Hill Res. Ltd., 2024 WL 4711185, at *11 (S.D.N.Y. Nov. 7, 2024) (quoting Ahmad v. Experian Info. Sols., Inc., 2023 WL 8650192, at *5 (S.D.N.Y. Dec. 14, 2023)); see Smith v. Hogan, 794 F.3d 249, 255 (2d Cir. 2015) (refusing to consider an “affidavit, buried in 170 pages of exhibits” attached to the complaint because it “would do considerable damage to Rule 8(a)’s notice requirement”);
Justin Baldoni is an individual residing in Los Angeles, California. Dkt. No. 50 ¶ 301. Baldoni co-founded Wayfarer Studios LLC (“Wayfarer”) in 2019 to be a studio that would produce “world-class entertainment driven by a powerful vision for change.” Id. ¶ 20. Wayfarer is a Delaware limited liability company with its principal place of business in Los Angeles, California. Id. ¶ 300. All of Wayfarer’s members are citizens of California. Id.
Wayfarer produced and co-financed the film It Ends With Us. Id. ¶ 6. Baldoni directed the film and played the lead role of Ryle. Id. ¶¶ 6, 89.
It Ends With Us Movie LLC is a California limited liability company with its principal place of business in California. Id. ¶ 303. All of the members of the LLC are citizens of California. Id.
Jamey Heath is an individual residing in Los Angeles, California. Id. ¶ 302. He is the CEO of Wayfarer Studios and a producer of It Ends With Us. Id. ¶ 157.
Steve Sarowitz is an individual residing in the County of Lake, Illinois. Id. ¶ 306.
Jennifer Abel is an individual residing in Los Angeles, California. Id. ¶ 305. She managed the Baldoni/Wayfarer account at Wayfarer’s public relations firm, Jonesworks. Id. ¶¶ 196–197.
Melissa Nathan is an individual residing in Los Angeles, California. Id. ¶ 305. She is a crisis public relations (“PR”) specialist and was engaged by Wayfarer in approximately August 2024. Id. ¶ 227.
Blake Lively is an individual residing in New York, New York. Id. ¶ 307. She played the lead role of Lily Bloom (“Lily”) in It Ends With Us. Id. ¶ 27.
Ryan Reynolds is an individual residing in New York, New York. Id. ¶ 308. Reynolds is married to Lively and is a well-known actor. Id. ¶ 176.
Leslie Sloane is an individual residing in New York, New York. Id. ¶ 309. She is Lively’s publicist. Id. ¶ 14. Sloane is affiliated with Vision PR, a New York corporation with its principal place of business in New York, New York. Id. ¶¶ 282, 310.
II. It Ends With Us
The book It Ends With Us is a romance novel by Colleen Hoover (“Hoover”) published in 2016. Id. ¶ 22. The book explores themes of domestic violence and generational patterns of abuse. Id. Baldoni was moved by the book and wanted to make it into a film. Id. ¶¶ 21, 23. In early 2019, he emailed Hoover complimenting the book’s realistic depiction of a difficult subject matter, stating that it could “change (and save) lives” and “have a huge impact,” and asked to option it for production as a film. Id. ¶ 23. Hoover believed Baldoni was the right person for the project because she appreciated his film Five Feet Apart, which told the story of a woman with cystic fibrosis. Id. ¶¶ 21, 23. She emailed Baldoni that “[y]ou ‘get’” the book, stating that “[m]y big fear is that I’ll option it to someone who thinks it’s a hot romance and they’ll take it in the absolute wrong direction.” Id. ¶ 23. Hoover also suggested that Baldoni portray one of the lead characters, Ryle. Id. ¶ 23.
Wayfarer acquired the film rights to It Ends With Us in 2019. Id. ¶ 22. Wayfarer partnered with Sony to co-finance and distribute the film. Id. ¶ 24. As part of the deal, Baldoni insisted that 1% of the film’s proceeds be donated in support of survivors of domestic abuse. Id.
On or around December 31, 2022, Lively agreed to take the lead role of Lily Bloom in the adaptation of It Ends With Us. Id. ¶ 27. Lively was granted an executive producer credit. Id. In the film, Lively’s character Lily is romantically involved with Baldoni’s character Ryle. Id. ¶¶ 39, 89, 100.
III. Early Production of the Film
Production of the film occurred in two parts. Initial production occurred in approximately May–June of 2023, at which point filming was disrupted by the Writers Guild of America (“WGA”) and Screen Actors Guild (“SAG-AFTRA”) strikes. Id. ¶¶ 27–65; see id. ¶¶ 79–121 (further describing events during this period). The strikes ended in September and November 2023, respectively, and the second stage of filming occurred in January–February 2024. Id. ¶¶ 73, 132. The film premiered on August 6, 2024. Id. ¶ 166.
A. Pre-Production
The parties took a number of steps in early 2023 to prepare for the filming of It Ends With Us. Beginning around February 2023, Baldoni and Lively worked with trainers to physically prepare for their roles. Id. ¶¶ 47–50. Lively introduced Baldoni to the personal trainer he worked with for the film. Id. ¶ 47. On February 17, 2023, Lively texted Baldoni expressing a desire to do body scenes at the end of the schedule. Id. ¶ 50. Baldoni responded that she would look amazing, that she should not stress about her body, and that they would talk through anything she was insecure about. Id. Lively responded stating that she would work extremely hard and make sure to be in shape, even though she just had her fourth baby, and that Baldoni’s support in this area was critical and appreciated. Id.
In early April 2023, Baldoni hired an intimacy coordinator to work on the film. Id. ¶ 79. Although an intimacy coordinator is not required by SAG-AFTRA, Baldoni was eager to engage one to ensure that he and others felt safe during intimate scenes. Id. ¶ 80. It was important to him that the intimacy coordinator be female to help craft sex scenes that would appeal to the mostly-female audience of the book. Id.
At some point during pre-production, Lively asked Baldoni if she could “take a pass” at writing the rooftop scene in It Ends With Us in which Lily and Ryle first meet. Id. ¶ 39. Lively sent Baldoni a draft that differed dramatically from what was originally written. Id. ¶ 40. Baldoni thanked Lively for her passion and told her the scene would likely end up being somewhere between the original version and the version she submitted. Id. Lively told Baldoni to come to her apartment, where Reynolds and a famous friend of Lively’s enthusiastically praised Lively’s script. Id. ¶ 41. On April 14, 2023, Baldoni texted Lively that her writing made the scene “more fun and interesting” and he “would have felt that way without Ryan and Taylor.” Id. ¶ 42. Lively responded with thanks and encouragement, stated that it “didn’t feel great” when he originally praised only her passion, stated that Ryan and the friend had watched her be overlooked in the past, and stated that Ryan and the friend want to make sure Lively is “seen for all I can, and do, offer.” Id.
On April 22, 2023, Baldoni reached out to his personal trainer to ask how much Lively weighed so that he could train his back muscles to prepare for a lift scene. Id. ¶¶ 47–48. On April 25, 2023, Lively invited Baldoni to her penthouse to discuss the script, but when Baldoni arrived he was met by Reynolds, who screamed at him about “fat-shaming” Lively and demanded that he remove the lift scene. Id. ¶ 49. Baldoni apologized. Id. Lively eventually refused to perform the lift scene, and Baldoni rewrote it. Id. After the April 25 incident, Lively told Baldoni that if he could not get on board with her work methods, he still had two weeks to recast her. Id. ¶ 51.
By May of 2023, Lively was making daily alterations to the script. Id. ¶ 43. Although Baldoni initially invited Lively to make changes to the script, the frequency of her changes alarmed the producers and studio. Id. ¶ 43. On May 1, 2023, a producer texted Heath “Blake is now directing the movie,” “[t]his is bad.” Id. Around the same time, the same producer texted Heath “[h]e cannot let her have her opinions on everything” “[o]r shes going to be codirecting this film,” “[t]his is why everyone is starting to lose it,” and “[w]e been talking about the same thing for months.” Id. ¶ 52.
Lively insisted on creative control over her character’s wardrobe, ignoring the director’s vision for her character and the choices made by the wardrobe team in accordance with that vision. Id. ¶ 31. She required the costume designer to re-shop her wardrobe in the style she wanted, insisted that her character could afford $5,000 shoes as a small business owner, and required that her wardrobe be delivered to her personal residence instead of the production office. Id. ¶¶ 32–33. To maintain harmony, Baldoni and Wayfarer reluctantly ceded to Lively full control over her wardrobe. Id. ¶ 34.
Prior to filming, Wayfarer attempted to secure Lively’s signature on a certificate of engagement and a nudity rider. Id. ¶¶ 106–107.
B. Initial Filming
Filming began in early May of 2024. Id. ¶¶ 54, 79. On the first day of principal photography, paparazzi photographs of Lively’s wardrobe were negatively reported and led to Baldoni receiving criticism from Sony. Id. ¶ 35. Baldoni had a conversation with Lively in her trailer to discuss wardrobe adjustments, reassert his role as director, and get her on board with him having approval over her character’s wardrobe. Id. ¶ 36. Lively suggested that Baldoni was being “gaslit” by Sony and Heath. Id. ¶ 37. She also complimented Baldoni’s work as a director and actor, which led him to become emotional. Id. ¶ 37. The conversation took “considerable time” but was “professional.” Id. ¶ 36.7
During the first period of filming, Lively had a close relationship with Baldoni and repeatedly expressed gratitude for his work. Id. ¶¶ 55–61, 98. She spoke openly with him about what would make her character look “sexier.” Id. ¶ 56. She freely breastfed in front of him during meetings and took photographs of him soothing her crying baby. Id. ¶ 59.
Lively sometimes invited Baldoni, Heath, and other producers into her trailer. Id. ¶ 104. For example, she invited Baldoni into her trailer to work on lines while she pumped breast milk. Id. On one occasion, Heath was invited into Lively’s trailer while she was having makeup removed from her collarbone, with Lively’s nanny, makeup artist, and assistant present. Id. Lively was fully covered while either nursing or pumping breast milk. Id. Lively asked Heath to turn away while they spoke, and he did so. Id. At some later point, Lively told Heath that she was uncomfortable that he had made eye contact with her during this interaction. Id. Heath said “I’m so sorry, I really didn’t realize,” and Lively responded “I know you weren’t trying to cop a look.” Id.
No intimacy or simulated sex scenes with Lively were shot during the first phase of filming. Id. ¶¶ 82, 108. However, some romantic or otherwise sensitive scenes were shot during this phase. One simulated nude scene was shot, for which Lively wrote and directed the action. Id. ¶ 82. Lively never requested a nudity rider or intimacy coordinator for that scene. Id. A scene was shot showing Lively’s character giving birth, in which Lively was wearing black briefs and a pregnancy suit and her top was covered by a hospital gown. Id. ¶ 83.8 Only essential individuals were present for the scene, and only Lively’s legs were exposed. Id. ¶¶ 83 & n.16, 84. The actor portraying the obstetrician in the scene was an experienced actor who is friends with Baldoni. Id. ¶ 119. In connection with this scene and Baldoni’s vision
A romantic scene shot in the first phase depicted a “romance montage” of Lily and Ryle on a date. Id. ¶ 89. As part of the scene, the characters were slow dancing. Id. Lively insisted she liked the idea of the characters constantly talking, because that is what she and her husband like to do. Id. Baldoni said this was “cute” but tried to persuade Lively that they should instead silently look into each other’s eyes. Id. As the scene continued, Lively apologized for the smell of her spray tan and body makeup. Id. ¶ 90. Baldoni responded “it smells good” and continued acting and dancing. Id. ¶ 90. Footage of the scene shows that there was no unprofessional conduct. Id. ¶ 90.
There were only two kissing scenes filmed before the strike break, both of which included kisses written in the script. Id. ¶ 92. In one scene, Lively initiated unchoreographed kissing, with different variations for different takes. Id. ¶ 91. Baldoni accepted this as a normal and acceptable part of filming romantic scenes. Id. Although some kissing by Lively was “unchoreographed,” the kissing scenes were not “improvised.” Id. ¶¶ 91–92.9 Baldoni acted professionally during the kissing scenes. Id. ¶ 91.
In another scene, where everyone was wearing “onesies,” Lively covered her onesie with a big coat. Id. ¶ 94. Baldoni asked that she take off the big coat so that her onesie would be visible. Id. He stated that “it will be hot,” referring to the fact that it was 90 degrees in a small bar with no air conditioning. Id. He also said “it’s sexy,” to which Lively responded “that’s not what I’m going for.” Id. Baldoni then recognized that Lively appeared offended, and he apologized multiple times. Id.
Although the planned sex scenes between Lily and Ryle were not shot during the first phase, Lively and Baldoni did discuss them. Id. ¶ 100. In response to a proposal from the intimacy coordinator that Ryle not orgasm in one of the scenes after he satisfied Lily, Lively remarked “I’d be mortified if that happened to me.” Id. Baldoni responded that “those have been some of the most beautiful moments” between him and his wife. Id. In another instance, Lively stated that she did not want a scene to “look like porn,” and then additionally stated that she had never seen pornography in her life. Id. Baldoni stated that this was wonderful, because he had been exposed to pornography early in his life and had struggled with a pornography addiction. Id. Pornography addiction is an issue Baldoni had openly discussed in several books. Id.
On May 2, 2023, the WGA went on strike. Id. ¶ 63. Production on the film halted temporarily on June 14, 2023, due to WGA picketing. Id. ¶ 64. Production resumed the next day after the WGA agreed not to picket the set, but Lively was already gone and refused to immediately return. Id. ¶ 64. Wayfarer reworked the shooting schedule, at great expense, to film scenes which did not require Lively. Id. ¶ 64. However, production shut down entirely on June 27, 2023. Id. On July 14, 2023, SAG-AFTRA went on strike. Id. ¶ 65.
During the strikes, Baldoni began editing the film footage in his role as director. Id. ¶ 66. Lively repeatedly asked for access to the “dailies,” raw footage of what is filmed on a given day that is generally not shared with the cast, and early cuts of scenes. Id. ¶ 68. Baldoni asked Heath and another producer about the request for dailies. Id. ¶ 69. All of the producers agreed the answer was no, with Heath saying “[i]t’s an absolute no.” Id. Baldoni expressed concerns that Lively would then “start to edit the movie and tell me which takes to use,” similar to what had happened with the writing of the rooftop scene. Id. When Baldoni told Lively it was “too early” to share the dailies, Lively asked: “none of the producers have had access to dailies? It’s just you?” Id. ¶ 71. Baldoni responded that Heath and another person had access to the dailies, and he shared some limited scenes with Lively. Id. ¶ 72.
The WGA strike ended on September 27, 2023, and the SAG-AFTRA strike ended on November 9, 2023. Id. ¶ 73.
On November 9, 2023, Lively’s lawyer sent Wayfarer “a list of protections that will need to be guaranteed and observed by the Film’s producers” for Lively to return to work. Id. ¶ 75. The document listed seventeen demands. Id.; see Dkt. No. 84-1.
- That an intimacy coordinator be present at all times when Lively was on set. Dkt. No. 50 ¶ 79.
- Limiting review of intimate scene footage to essential personnel. Id. ¶ 82.
- No spontaneous improvisation of scenes involving physical touching, simulated sex, or nudity, which must be choreographed with the intimacy coordinator. Id. ¶ 85.
- No physical touching of Lively (including hugging) or comments on her physical appearance except in connection with the character and/or scene work. Id. ¶ 93.
- No discussion of personal experiences with sex or nudity, including as it relates to conduct with spouses or others. Id. ¶ 98.
- No one to enter Lively’s trailer while she is undressed. Id. ¶ 104.
- No filming nude or sex scenes without a nudity rider in place, and no use of scenes shot without a nudity rider except with Lively’s consent. Id. ¶ 106; Dkt. No. 84-1 ¶ 7.
- Lively may have a personal representative on set. Dkt. No. 50 ¶ 109.
- Notice of COVID-19 exposure. Id. ¶ 110.
- No retaliation for making these requests. Id. ¶ 112.
- Mutually-approved Sony representative required on set. Id. ¶ 113.
- Additional, Lively-approved producer to be hired to supervise filming. Id. ¶ 114.
- Existing third-party producers empowered to actively supervise the production. Id. ¶ 116.
- Use of a Lively-approved body and stunt double for rape and sexual violence scenes. Id. ¶ 117.
- No filming nude or sex scenes of any actor’s portrayal of Lily except in accordance with the nudity rider. Id. ¶ 118; Dkt. No. 84-1 ¶ 15.
- All day players must be hired through talent agencies, not personal connections. Dkt. No. 50 ¶ 119.
- All-hands meeting before production resumes. Id. ¶ 122.
On December 27, 2023, Baldoni sent an email to other members of the production team attaching a revised script with further changes demanded by Lively. Id. ¶ 124. He stated that he was angry that “Blake has taken over our film and somehow re-wrote a movie we spent years developing,” but he had decided to wave “the white flag” and “give her 98% of what she wants” since “none of us have the energy to fight anymore.” Id. ¶ 124. He also expressed concerns about further intimacy given “the risk of something innocuous or not meeting her standards could and would very likely be used against me (as it already has).” Id. On January 1, 2024, Baldoni stated there would now be a “negotiation” with Lively “for what the final script looks like.” Id. ¶ 126.
On January 4, 2024, the day before filming was scheduled to resume, Lively reached out to Baldoni, Heath, and the film’s producers to meet in her home in New York. Id. ¶ 127. At the meeting, Lively read a list of grievances which were separate and apart from the seventeen demands already made. Id. ¶¶ 128, 131. Reynolds then aggressively berated Baldoni, demanding that he apologize for actions that did not happen or were grossly mischaracterized. Id. ¶ 129. One of the producers stated that in his forty-year career, he had never seen anyone speak to someone like that in a meeting. Id.
Baldoni and Heath were deeply unsettled by the meeting, but they felt compelled to finish the film given that the financial and reputational implications of shutting down a film halfway through production. Id. ¶ 131. On January 19, 2024, the parties signed the seventeen-point list of demands. Id. ¶ 131. Filming resumed the next day and concluded on February 9, 2024, without any further grievances from Lively. Id. ¶ 132.
V. Post-Production
The Directors’ Guild of America (“DGA”) requires a ten-week editing period for directors to privately edit and assemble their director’s cut. Id. ¶ 134. Lively
In April and May 2024, Sony agreed to allow Lively to create her own cut of the entire film, a right that is generally reserved exclusively for directors. Id. ¶ 140. Sony told Wayfarer that Lively refused to promote the film unless her demands were met. Id. Wayfarer argued that Lively should at least finally sign her engagement contract before her demands were met, but Sony disagreed. Id. Sony told the editors and Baldoni that they were not permitted to look at Lively’s cut. Id. ¶ 141. At this point, Baldoni assumed that Lively’s edits would simply supplement his work. Id. ¶ 142. However, as Lively threatened to refuse to promote the film or approve related marketing materials, Wayfarer and Baldoni were forced to agree to more demands, including co-funding a “friends and family” screening of Lively’s version of the film. Id. ¶ 142. Lively ultimately replaced the film’s editors and composer with her own choices, who had previously worked with Reynolds. Id. ¶ 143. Sony supported these demands. Id.
Wayfarer and Sony ended up with two competing versions of the film: Lively’s and Baldoni’s. Id. ¶ 144. Because of Lively’s threat to withhold promotion of the film and the concern that she would end Baldoni’s career with false accusations, Wayfarer agreed to do an audience test of both versions. Id. This decision was made on the understanding that Lively had agreed with Sony to drop the matter if Baldoni’s cut of the film scored higher than hers. Id. Baldoni’s cut did score higher with most key demographics, with Lively’s cut scoring higher only with men, who were not the target audience of the film. Id. ¶ 145. However, Lively still insisted that her version, rather than Baldoni’s, be publicly released. Id. ¶ 146. Sony told Wayfarer that neither Lively nor the rest of the cast would promote the film unless Lively’s cut was used. Id. Baldoni reluctantly stood down and allowed Lively’s version of the film to be released and promoted. Id. ¶ 146.
Sony did convince Lively to put much of Baldoni’s work back into the film. Id. However, Baldoni was completely locked out of Lively’s final cut of the film. Id. ¶ 149. He was permitted only to “give notes as a studio” due to his role at Wayfarer. Id. ¶ 150.
Lively additionally threatened to abandon her contractual obligation to promote the film and approve marketing materials if she was not awarded a producer credit. Id. ¶ 152. Lively sought the p.g.a. mark on her producer credit, a designation licensed by the Producers Guild of America (“PGA”) to identify a producer who has performed the majority of the production work on a motion picture. Id. ¶ 153. She demanded “with extortionate threats” that Baldoni, Heath, and other producers send letters to the PGA in support of this mark. Id. ¶ 154. Wayfarer reluctantly agreed to give Lively a producer credit, id. ¶ 152, but Wayfarer and Baldoni refused to support the p.g.a. mark because Lively had not earned it, id. ¶ 155. In response, Lively instructed Sony to tell Wayfarer and Baldoni that “any good will left between us is done.” Id. ¶ 156. Eventually, Wayfarer and Baldoni did send a letter of support for the
VI. Release of the Film and Public Relations Efforts
Around June 6, 2024, Baldoni was hospitalized with a serious spine infection. Id. ¶ 146. At that time, Lively was dictating much of the marketing for the film. Id. ¶ 147. She removed Baldoni from all posters, trailers, and promotional materials, saying she would otherwise refuse to promote the film. Id. ¶ 148. She also removed his “A Film By” credit. Id. ¶ 158. Lively insisted on screening her cut of the film at Book Bonanza, an annual Colleen Hoover convention, but stated that Baldoni could not attend. Id. ¶ 149. Lively informed Sony that she and the cast would not participate in any marketing or promotion of the film alongside Baldoni. Id. ¶ 158. Lively, Reynolds, and other cast members “unfollowed” Baldoni on social media. Id. ¶¶ 158–159. Lively encouraged the other cast members to shun Baldoni. Id. ¶ 159. Baldoni was not invited to any cast promotional events, cast screenings, premieres, photo shoots, or other cast campaigns. Id. ¶ 163.
Because Baldoni was systematically excluded from marketing of the film, he also did not agree to Sony‘s marketing plan for the film. Id. ¶ 163. That plan suggested marketing “focus more on Lily‘s strength and resilience as opposed to describing the film as a story about domestic violence,” “avoid talking about this film that makes it sad or heavy,” and “focus on the positive elements in interviews” rather than “discussing abuse.” Id. As he had always planned, Baldoni wanted to use the film to bring awareness to domestic violence. Id. Baldoni was specifically focused on Wayfarer‘s partnership with No More, a global initiative aimed at raising awareness, inspiring action, and sparking conversations to end domestic violence and sexual assault. Id. ¶ 172.
In July 2024, Lively‘s social media posts promoting the film took a lighthearted tone, focusing on fun, fashion, and floral motifs. Id. ¶ 179. She also promoted the launch of her new hair care line, Blake Brown, which was timed to coincide with the film‘s release, and her alcohol brand Betty Booze. Id. ¶¶ 180–181.
Reynolds’ movie Deadpool and Wolverine premiered on July 26, 2024. Id. ¶ 164. The film had a character named Nicepool, also portrayed by Reynolds, who could be interpreted as a reference to Baldoni. Id. Nicepool is a caricature of a “woke” feminist who inappropriately comments on a female character‘s body after childbirth, excuses his inappropriate remarks by claiming he is a feminist, and references an intimacy coordinator. Id. Nicepool is shot and killed by a character voiced by Lively. Id. During the premiere of Deadpool and Wolverine, Reynolds approached an executive at William Morris Endeavor (“WME“), Baldoni‘s agency, and told him Baldoni was a “sexual predator.” Id. ¶ 162. At a later date, Reynolds also demanded that WME drop Baldoni. Id. WME also represented Reynolds and Lively. Id. ¶ 16.
Wayfarer and Baldoni became fearful that Lively and Reynolds were attempting to destroy Baldoni‘s career and personal life. Id. ¶ 162. Baldoni sought help from Wayfarer‘s public relations firm, Jonesworks, which Wayfarer had engaged since
A particular public relations concern at the time was a threat by Lively that if Baldoni attended the film‘s premiere on August 6, 2024, she and a majority of the cast would boycott. Id. ¶¶ 166, 227. Eventually, Heath and Sony negotiated a compromise in which Baldoni and Wayfarer attended the premiere but arrived before Lively and others. Id. ¶ 169. When Lively arrived, Baldoni and his group were required to leave the red carpet and were escorted by security to a makeshift area in the basement with folding tables and chairs. Id. ¶¶ 169–170. Once the main theater was cleared of Lively and her guests, Baldoni and his group were permitted to watch the film in a separate theater. Id. ¶ 171. The fact that Lively and Baldoni did not appear together at the premiere led to further speculation on social media regarding their relationship. Id. ¶ 231.
In a red-carpet interview at the New York premiere of the film, Lively stated that Reynolds actually wrote the rooftop scene. Id. ¶ 44. The Wayfarer Parties and Sony were not previously aware that Reynolds, who had no formal role in the film, contributed to the scene. Id. ¶¶ 44–46.
On August 8, 2024, two days after the premiere, Nathan and Lively‘s publicist, Sloane, agreed that neither would speak to any reporters about problems between Lively and Baldoni without informing the other. Id. ¶ 188. However, Sloane then immediately responded to a text from a reporter at the Daily Mail who reached out regarding problems on the set between Lively and Baldoni. Id. ¶ 189. Sloane texted back that the reports were “1000 percent untrue“; “[y]our info is totally off“; “[y]ou have it all wrong“; and “[y]our reporters are so wrong.” Id. ¶ 190. She added: “wtf is going on. The whole cast doesn‘t like Justin nothing [to] do with Blake,” and “[t]hey are panicking as the whole cast hates him.” Id. ¶ 190. Nathan was contacted by the same reporter the next day and told Sloane she “would have to speak with him,” but would “tell him nothing.” Id. ¶ 191. Nathan was not aware that Sloane was speaking to the media outside of their agreement, and she and Abel still sought to maintain the truce they had agreed on with Sloane. Id. ¶¶ 192, 230.
However, also on August 8, 2024, Abel‘s supervisor, Jonesworks’ CEO Stephanie Jones (“Jones“), spoke to a Daily Mail reporter about a story the Daily Mail had published about Baldoni and Lively. Id. ¶ 231. Jones had not previously been closely involved with Wayfarer and Baldoni, leaving management of the account to Abel. Id. ¶ 226. But Abel was transitioning out of Jonesworks to start her own business and was set to finish work on August 23, 2024. Id. ¶ 212. Jones was unhappy with this decision and, with Abel leaving, Jones sought to reassert her authority over the account and convey her engagement. Id. ¶ 226. Even though Abel had expressly told Jones and others not to speak to the press because of the truce agreed to between Lively‘s and Baldoni‘s teams, Jones did so. Id. ¶ 231. Contemporaneous texts show that Nathan and Abel were furious with Jones for ruining their plan. Id. Wayfarer directed Jones to cease all activities on behalf of Wayfarer and Baldoni and let Abel, Nathan, and another Jonesworks employee handle the crisis. Id. ¶ 232.10 Sloane and Sony learned that
In the days after the premiere, Lively received a wave of online criticism for her marketing of the film, which was criticized as “shallow” and “tone deaf.” Id. ¶¶ 184–185, 279. Her cross-promotions with her alcohol brand were criticized due to the ties between alcohol and domestic violence. Id. ¶¶ 181, 280. A post stating “grab your friends. wear your florals” went viral and was perceived as insensitive given the film‘s focus on domestic violence. Id. ¶¶ 183–185, 280. On August 9, 2024, Heath emailed Sony noting that “many people are pointing out that the DV is being glossed over and that Justin is essentially the only one appreciating the subject matter whilst others may be not giving it the proper respect it deserves.” Id. ¶ 182. He further stated that “this has always been a concern of ours” and suggested that the movie be “more deliberate in embracing the DV aspect” so that people know “we too recognize the gravity and sensitivities of this subject.” Id.
On August 12, 2024, Heath and Abel had a call with two executives from “their then talent agency.”11 Id. ¶ 250. One admitted that the criticism of Lively was caused by the focus on frivolities and glamor in her promotion of the film. Id. However, the executive also told Heath and Abel that Lively believed Wayfarer, Baldoni and Heath were waging a shadow campaign against her. Id. ¶ 251; see id. ¶ 282 (messages from Sloane denying that the backlash was organic and stating that Lively “did nothing“). Abel stated her belief that the parties had reached a truce. Id. ¶ 251. The executive communicated a demand from Lively and Reynolds that Wayfarer, Heath, and Baldoni make a public apology that day or else “the gloves would come off.” Id. ¶ 250. The next day, Heath told talent agency executives that Wayfarer, Baldoni, and Heath had no connection to the negative publicity but that Lively and Reynolds had demanded they take the blame. Id. ¶ 253. The executives told Heath and Abel that Lively and Reynolds demanded Wayfarer put out a statement that Lively and Reynolds had dictated calling It Ends With Us a “troubled” production and requiring Wayfarer to take “accountability,” or else Lively and Reynolds would attack Wayfarer in the press. Id. ¶ 254. The executive admitted that Lively and Reynolds brought the backlash on themselves but were looking to find someone else to blame. Id. ¶ 255.
In a number of contemporaneous messages, Nathan and Abel stated that they were not creating negative publicity about Lively. On August 13, 2024, Nathan sent Abel a text describing a negative TMZ story about Lively as “completely unsolicited.” Id. ¶ 279. Abel stated that “The post has a similar tip / Not from any of us obv,” and further stated “These are clearly people on set coming out to defend JB which is good and we just let them do their thing.” On August 15, 2024, Nathan texted Baldoni a negative Daily Mail story about Lively stating “This just ran – obviously none of us knew about this either.” Id. On August 16, 2024, Baldoni texted Nathan‘s team asking to confirm that certain Instagram comments defending him that “feel like bots” were not created by his team, to which Abel and Nathan responded that it was not them and they do not use bots. Id. ¶ 286. Baldoni expressed worry about the perception that “we are planting these stories
On August 16, 2024, Nathan forwarded Abel a screenshot of a message from a reporter informing her of a story in the Daily Mail titled “Is Blake Lively set to be CANCELLED?” Id. ¶ 276. The screenshot shows that Nathan had responded to the reporter: “Damn this is unfair because its also not me / Everything now looks like it‘s me / Maybe not to you.” Id. Nathan then sent Abel a link to the story, and Abel responded: “Wow / You really outdid yourself with this piece 🙃.” Id. ¶ 275. The 🙃 emoji is commonly used to convey irony, sarcasm, joking, or silliness. Id. ¶ 277. Nathan responded “That‘s why you hired me right? I‘m the best.” Id.
On August 21, 2024, two days before her last day at Jonesworks, Abel arrived at the office and was ushered into a conference room with an attorney, a security guard, and others. Id. ¶ 217. The attorney told her that Jonesworks believed she had proprietary information on her personal laptop and that Jonesworks would likely have grounds to sue if Abel did not allow it access. Id. Abel went into a state of shock and signed several documents without digesting their contents, at which point an IT professional searched her laptop and found nothing. Id. ¶ 219. The lawyer instructed Abel to hand over her phone, which she agreed to do as long as Jonesworks would immediately release her personal cell phone number. Id. ¶ 220. Jonesworks’ chief of staff and attorney expressly confirmed that they would do so, and Abel handed them the phone and was ushered out of the building. Id. Abel went directly to a Verizon store to transfer the number to a new phone, but Jonesworks did not release the number. Id. ¶ 221. Abel‘s access to her contacts and critical accounts was cut off, and Jonesworks gained unrestricted access to everything in Abel‘s phone, including personal messages and accounts. Id.13
On the same day, Sloane called Nathan stating that she had seen Nathan‘s text messages and that Nathan should expect to be sued. Id. ¶ 238. The Wayfarer Parties allege on information and belief that Jones provided Abel‘s texts, including her texts with Nathan, to Lively. Id. ¶¶ 244–245, 283. Jones had a motive to do so because she was upset that Wayfarer and Baldoni continued working with Abel, not Jones, after Abel left Jonesworks. Id. ¶¶ 239–240. Rather than accepting Wayfarer‘s decision to leave, Jones threatened to
VII. The New York Times Article
On December 20, 2024, Lively filed a complaint with the California Civil Rights Department. Id. ¶ 262; Dkt. Nos. 107-3–107-6. The complaint alleged that “Baldoni and his Wayfarer associates embarked on a sophisticated press and digital plan in retaliation for Ms. Lively exercising her legally-protected right to speak up about their misconduct on the set,” attempting to “destroy Ms. Lively‘s reputation.” Dkt. No. 103-3 ¶ 8 (internal quotation marks omitted). The complaint alleged among other things that Baldoni bit and sucked on Lively‘s lower lip during an improvised kissing scene that he insisted on shooting over and over again, id. ¶ 31, slowly dragged his lips down her neck during the romance montage in a way that had nothing to do with their roles, id. ¶ 32, personally added graphic content, including a scene where Lively would orgasm on camera, id. ¶ 33, insisted that Lively be naked in the birthing scene, id. ¶ 35, discussed his pornography addiction with Lively and revealed to other cast and crew that Lively had never seen pornography, id. ¶ 41, and repeatedly commented that Lively looked “sexy” or “hot,” id. ¶¶ 43–44. It included a number of quotations and screenshots of messages allegedly showing that after Lively complained about this treatment, Baldoni and Wayfarer worked with Abel, Nathan, and Wallace on an online campaign to ruin Lively‘s reputation. See generally Dkt. Nos. 103-3–103-6. The complaint asserted claims for sexual harassment, retaliation, breach of contract, intentional infliction of emotional distress, and false light invasion of privacy under California law. Dkt. No. 103-3.
At 9:46 p.m. the same day, New York Times reporter Megan Twohey (“Twohey“) emailed the Wayfarer Parties requesting comment on an imminent 4,000-word story concerning their alleged orchestration of a smear campaign against Lively as a response to her disclosure of concerns about the working environment on the set of It Ends With Us, based on the CRD complaint. Dkt. No. 50 ¶ 257; see Dkt. Nos. 107-8–107-12. Twohey described the allegations of the CRD complaint and stated:
[W]e are seeking your response . . . and we would welcome the opportunity to talk with you on the record. . . . Please offer any on-the-record comment, as well as any other information you think we should know. Additionally, please notify us of any inaccuracies. We need to hear back from you tomorrow by noon Eastern.
Dkt. No. 107-8; see Dkt. Nos. 107-9–107-12.
At 2:16 a.m., the Wayfarer Parties’ legal representatives responded:
It is shameful that Ms. Lively and her representatives would make such serious and categorically false accusations against Mr. Baldoni, Wayfarer Studios and its representatives, as yet another desperate attempt to “fix” her negative reputation which was garnered from her own remarks and actions during the campaign for the film; interviews and press activities that were observed publicly, in real time and unedited, which allowed for the internet to generate their own views and opinions. These claims are completely false, outrageous and intentionally salacious with an intent to publicly hurt and rehash a narrative in the media. Wayfarer Studios made the decision to proactively hire a crisis manager prior to the marketing campaign of the film, to work alongside their own representative with Jonesworks employed by Stephanie Jones, due to the multiple demands and threats made by Ms. Lively during production which included her threatening to not showing up to set, threatening to not promote the
film, ultimately leading to its demise during release, if her demands were not met. It was also discovered that Ms. Lively enlisted her own representative, Leslie Sloan with Vision PR, who also represents Mr. Reynolds, to plant negative and completely fabricated and false stories with media, even prior to any marketing had commenced for the film, which was another reason why Wayfarer Studios made the decision to hire a crisis professional to commence internal scenario planning in the case they needed to address. The representatives of Wayfarer Studios still did nothing proactive nor retaliated, and only responded to incoming media inquiries to ensure balanced and factual reporting and monitored social activity. What is pointedly missing from the cherry-picked correspondence is the evidence that there were no proactive measures taken with media or otherwise; just internal scenario planning and private correspondence to strategize which is standard operating procedure with public relations professionals.
Dkt. No. 50 ¶ 294; Dkt. No. 107-7. Twohey responded by asking who was represented by the statement, and Abel stated that it was Baldoni, Heath, Sarowitz, Abel, Nathan, and Wallace. Dkt. No. 107-7.
The Article was published at 10:11 a.m. on December 21, 2024, with the headline “‘We Can Bury Anyone‘: Inside a Hollywood Smear Machine.” Dkt. No. 50 ¶ 261. The Article draws heavily from Lively‘s CRD complaint and includes a link to a PDF of the complaint. Id. ¶¶ 262, 265. The Article states that the CRD complaint “includes excerpts of thousands of pages of text messages and emails that [Lively] obtained through a subpoena. These and other documents were reviewed by the New York Times.” Id.; Dkt. No. 107-1. The Wayfarer Parties allege on information and belief that Lively provided her CRD complaint to the Times long before filing it. Dkt. No. 50 ¶ 275. URLs for images in the Article include strings of characters such as “2024-12-16” and “2024/12/18,” apparently referencing dates before the CRD complaint was filed. Id. ¶ 264. The CRD Complaint linked in the Article states that it was created on December 21, 2024, but a web crawler (a program that scours the Internet to locate and catalog websites and files) records the file as having been uploaded on December 10, 2024. Id. ¶ 265. The file name for a video of Twohey reporting on the contents of the Article contains the characters “2024/12/12,” apparently a reference to December 12, 2024. Id. ¶ 266.14
The body of the Article details “an alleged campaign to tarnish Blake Lively after she accused Justin Baldoni of misconduct on the set of ‘It Ends With Us.‘” Dkt. No. 107-1 at 1. It states that “according to a legal complaint,” Baldoni and Heath hired a crisis PR expert with an “explicit goal” to “harm Ms. Lively‘s reputation” after expressing fears that her allegations of on-set misconduct would “become public and taint them.” Id. at 2. The Article is framed by the idea that the documents reviewed by the Times “show a[] . . . playbook for waging a largely undetectable smear campaign in the modern era.” Id.
The Article specifies that on August 2, 2024, Nathan sent Baldoni an initial planning document with media talking points, including negative talking points regarding Lively. Id. at 7. Baldoni texted Abel and Heath that he was “[n]ot in love with the document” and “[n]ot sure I‘m feeling the protection I felt.” Id. Abel then texted
The Article states that Nathan then “went hard at the press, pushing to prevent stories about Mr. Baldoni‘s behavior and reinforce negative ones about Ms. Lively, the text messages show,” and that the effort “appears to have paid off” via negative media coverage “within days of the film‘s release.” Id. at 2–3. The Article specifies that Baldoni texted Abel a social media thread that accused another celebrity of bullying behavior, stating “[t]his is what we would need.” Id. at 8. Nathan then proposed hiring contractors to “dominate social media through ‘full social account take downs‘” that would be “untraceable,” and the Wayfarer Parties started working with Jed Wallace and his company Street Relations for that purpose. Id. Abel told Nathan on August 4 that “I‘m having reckless thoughts of wanting to plant pieces this week of how horrible Blake is to work with,” and Nathan responded that she had already spoken off the record to an editor at the Daily Mail. Id. at 9. The Article quotes a text from one of Nathan‘s employees stating “[w]e‘ve started to see shift on social, due largely to Jed and his team‘s efforts to shift the narrative.” Id. at 10. The Article cites a brand marketing report completed for Lively that “concluded she had likely been the object of a ‘targeted, multichannel online attack.‘” Id. at 12.
The Article quotes the August 16 texts between Abel and Nathan in which Nathan shared the Daily Mail article headlined “Is Blake Lively set to be CANCELLED?” Id. It quotes Abel as stating “[y]ou really outdid yourself with this piece,” and Nathan responding “[t]hat‘s why you hired me right?” Id. It did not provide any context suggesting these statements could have been sarcastic. Id.
The Article prominently includes statements from Wayfarer‘s counsel that the Wayfarer Parties “did nothing proactive nor retaliated,” that the claims are “completely false” and that Lively planted her own negative stories, which “was another reason why Wayfarer Studios made the decision to hire a crisis professional.” Id. at 2. The Article comments that “[i]t is impossible to know how much of the negative publicity” against Lively “was seeded by Ms. Nathan, Mr. Wallace and their team, and how much they noticed and amplified.” Id. at 9. It also notes that during the film rollout, Lively was criticized for being insensitive about domestic violence, for cross-promoting the film with Betty Booze, and for stating that Reynolds had written the rooftop scene. Id. at 10. It states that Baldoni encouraged the campaign but sometimes “vacillate[d], seeking assurances about the tactics being deployed.” Id. at 11.
The Article was accompanied by a Video in which Twohey, drawing on text messages and other images, explained the story. Dkt. No. 50 ¶¶ 266–267; Dkt. No. 107-2. The Video states that:
In a legal complaint Lively filed on Friday, private text messages and other documents that we‘ve obtained reveal what really happened: a campaign to tarnish Lively after she alleged that Justin Baldoni, her co-star and director, and Jamey Heath, the producer, had engaged in misconduct while shooting the film.
Dkt. No. 107-2. The Video otherwise does not mention the CRD complaint. Id. It follows a similar narrative to the Article. Id. It concludes by stating that “[t]his
The Wayfarer Parties allege that “Lively and her team used cherry-picked text messages, stripped of context and even manipulated, to peddle a narrative that the Wayfarer Parties had responded to Lively‘s complaints about purported sexual harassment by plotting to destroy her reputation through a shadow smear campaign” to the New York Times. Id. ¶ 272. It states that Lively “selectively and deceptively edited” the text messages in her CRD complaint, and “apparently in the materials she forwarded to the Times,” to tell the false story that the Wayfarer Parties committed public relations sabotage as revenge for her sexual harassment complaints. Id. ¶ 275. For example, Lively‘s CRD complaint includes the message from Abel to Nathan stating “[y]ou really outdid yourself with this piece” while omitting the upside-down smiley face and preceding messages suggesting that this comment was sarcastic. Id. ¶¶ 277, 285. In the CRD complaint, the initial statements by Nathan that “you know we can bury anyone” and “[w]e can‘t write we will destroy her” are included without the context of communications in which Nathan and Abel are discussing how to explain the process to Baldoni and explain to him “why we can‘t be proactive.” Id. ¶ 285.
The Amended Complaint alleges that the Times then “failed to review and/or investigate the plethora of communications demonstrating that the Wayfarer Parties’ press strategy was at all times wholly defensive.” Id. ¶ 286. It also alleges that the Times “deliberately takes [the text] communications out of context to bolster a fallacious narrative (designed in concert with Lively) to harm the Wayfarer Parties.” Id. ¶ 285. It claims the Article deliberately omits “any meaningful discussion of the true source of tension between Lively and the Wayfarer Parties,” which was Lively‘s effort to take over the film, id. ¶ 284, as well as any mention of “a critical player in this manufactured controversy: Stephanie Jones,” id. ¶ 283. It states that the Times “failed to follow its own journalistic standards,” including by publishing the Article without further inquiry only hours after the Wayfarer Parties informed them that the story was false. Id. ¶¶ 292, 295.
After publication of the Article, Nathan received death threats. Id. ¶ 296. A reporter from the Daily Mail texted Nathan saying that now Sloane is “saying that Blake was sexually assaulted,” noting that this differed from Sloane‘s original story that “the whole cast hates Justin and its nothing to do with Blake.” Id. ¶ 193.
PROCEDURAL HISTORY
On December 31, 2024, Lively filed a complaint against the Wayfarer Parties in this Court, bringing claims for sexual harassment, retaliation, breach of contract, and intentional and negligent infliction of emotional distress. Dkt. No. 1.15 The Wayfarer Parties then filed their original complaint on January 16, 2025. Dkt. No. 1, 25-cv-449.16 The Times was not named in that complaint. Id.
On January 30, 2025, the Court ordered the parties to show cause by January 30, 2025, why the case initiated by the Wayfarer Parties should not be consolidated with the previously-filed case brought by Lively,
On January 31, 2025, the Wayfarer Parties filed an Amended Complaint naming the New York Times as a defendant. Dkt. No. 50.17
On February 3, 2025, the Court held an initial pretrial conference and entered a Case Management Plan and Scheduling Order. Dkt. No. 58; February 3, 2025, Minute Entry. The Case Management Plan and Scheduling Order provided, among other things, that any motion to amend or join additional parties would be filed no later than April 18, 2025. Dkt. No. 58.
On February 20, 2025, Sloane and Vision PR filed a motion to dismiss accompanied by a memorandum of law. Dkt. Nos. 86–87. On March 6, 2025, the Wayfarer Parties filed a memorandum in opposition to Sloane and Vision PR‘s motion to dismiss. Dkt. No. 121. On March 13, 2025, Sloane and Vision PR filed a reply memorandum of law. Dkt. No. 126. On March 17, 2025, Sloane and Vision PR moved to stay discovery pending a decision on their motion to dismiss. Dkt. No. 129. The motion was denied on March 21, 2025. Dkt. No. 156.
On February 28, 2025, the Times filed a motion to dismiss accompanied by a memorandum of law and a declaration of counsel with twelve exhibits. Dkt. Nos. 105–108. The Times also moved for leave to file hard copy materials with the Court on a flash drive, which was granted. Dkt. Nos. 108, 115. The same day, the Times moved for a stay of discovery pending a decision on its motion to dismiss. Dkt. No. 109. On March 4, 2025, the motion was granted and discovery was stayed as to the Times. Dkt. No. 118. On March 14, 2025, the Wayfarer Parties filed a memorandum in opposition to the Times’ motion to dismiss, accompanied by a declaration of counsel with one exhibit. Dkt. No. 128. The Times filed a reply memorandum of law in support of its motion on March 21, 2025. Dkt. No. 158.
On March 18, 2025, Reynolds filed a motion to dismiss accompanied by a memorandum of law. Dkt. Nos. 132–133. On April 1, 2025, the Wayfarer Parties filed a memorandum of law in opposition. Dkt. No. 160. On April 9, 2025, Reynolds filed a reply memorandum of law in support of his motion. Dkt. No. 166.
On March 20, 2025, Lively filed a motion to dismiss accompanied by a memorandum of law and a declaration of counsel with one exhibit. Dkt. Nos. 144–146. On April 3, 2025, the Wayfarer Parties filed a memorandum of law in opposition. Dkt. No. 162. On April 10, 2025, Lively filed a reply memorandum of law in support of her motion. Dkt. No. 172.
On April 15, 2025, the Wayfarer Parties filed a letter notifying the Court that the Wayfarer Parties would not move to amend their pleading by the April 18, 2025 deadline set out in the Case Management Plan and Scheduling Order. Dkt. No. 178; see Dkt. No. 58. However, the Wayfarer Parties stated that “[i]f the Court were to grant one or more of the motions to any extent, the Wayfarer Parties will move for leave to amend pursuant to Fed. R. Civ. P. 15(a)(2) and seek a commensurate modification of the Scheduling Order under the ‘good cause’ standard pursuant to Fed. R. Civ. P. 16(b)(4).” Dkt. No. 178.
LEGAL STANDARD
To survive a motion to dismiss pursuant to
DISCUSSION
The Amended Complaint focuses broadly on two types of claims. First, the Wayfarer Parties claim that Lively, assisted by Reynolds and Sloane, stole the film from Baldoni and Wayfarer, threatening to refuse to promote the film and attack Baldoni and Wayfarer in the press if the Wayfarer Parties did not agree to grant her, rather than Wayfarer, control over and credit for the film. Dkt. No. 50 ¶¶ 124, 130, 144, 146, 152–157, 192–193, 250–255. The Wayfarer Parties seek damages for this conduct based on a legal theory that Lively, Reynolds, and Sloane committed civil extortion. Id. ¶¶ 316–323. Second, the Wayfarer Parties claim that Lively, Sloane, Reynolds, and the Times spread a false narrative that Baldoni committed sexual misconduct towards Lively and the Wayfarer Parties then engaged in a smear campaign to ruin her reputation. Id. ¶ 17; see id. ¶¶ 8, 162, 193, 272–273, 275, 370. The Wayfarer Parties claim that by doing so, Lively, Reynolds, Sloane, and the Times committed the torts of defamation and false light. Although these two types of claims are the focus of the Amended Complaint, the Wayfarer Parties also bring claims for breach of contract, tortious interference with contract or prospective economic advantage, and promissory fraud. See id. ¶¶ 340–391.
The Wayfarer Parties cannot recover for Lively‘s alleged actions to steal creative control of the film from Baldoni and the Wayfarer Parties. Regardless of the propriety of these actions, they do not constitute civil extortion under California law. California courts have recognized a claim for civil extortion in situations where a plaintiff gives a defendant money or property under threat and seeks to have it returned. See Fuhrman v. Cal. Satellite Sys., 231 Cal. Rptr. 113, 122 (Cal. Ct. App. 1986). However, the Wayfarer Parties have not adequately alleged that Lively‘s threats were wrongful extortion rather than legally permissible hard bargaining or renegotiation of working conditions. Additionally, the Wayfarer Parties have not shown that some of Lively‘s allegedly extortionate acts damaged them.
The Wayfarer Parties also cannot recover on their defamation claims. The Wayfarer Parties have not alleged that Lively is responsible for any statements other than the statements in her CRD complaint, which are privileged. The Wayfarer Parties have alleged that Reynolds and Sloane made additional statements accusing Baldoni of sexual misconduct and that the
The Wayfarer Parties’ additional claims also fail. Accordingly, the Amended Complaint must be dismissed in its entirety. However, the Wayfarer Parties have leave to amend their claims for breach of implied covenant and tortious interference with contract.
I. Choice of Law
The Wayfarer Parties plead their claims under California law. Dkt. No. 50 at 211 n.27. Lively agrees with the Wayfarer Parties that California law applies to the claims asserted against her. Dkt. No. 145 at 10. However, Sloane, Reynolds, and the Times argue that New York law applies to the claims against them. Dkt. No. 87 at 7; Dkt. No. 106 at 6–7; Dkt. No. 133 at 5–6.
This dispute is important because New York and California law differ in a number of ways relevant to the Wayfarer Parties’ claims. See Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (“Pertamina“), 313 F.3d 70, 85 (2d Cir. 2002) (“The first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved.” (quoting In re Allstate Ins. Co. & Stolarz, 81 N.Y.2d 219, 223 (N.Y. 1993))). New York law does not recognize causes of action for civil extortion, false light invasion of privacy, or negligent interference with prospective economic advantage. See Shak v. Krum, 2018 WL 5831319, at *5 (S.D.N.Y. Nov. 6, 2018) (“Civil extortion is not a recognized cause of action under New York law.“); Minnelli v. Soumayah, 839 N.Y.S.2d 727, 728 (1st Dep‘t 2007) (same); DeIuliis v. Engel, 2021 WL 4443145, at *9 (S.D.N.Y. Sept. 27, 2021) (“New York does not recognize the tort of false light invasion of privacy.“); Howell v. N.Y. Post Co., 612 N.E.2d 699, 703 (N.Y. 1993) (declining to recognize such a tort); Lokai Holdings LLC v. Twin Tiger USA LLC, 306 F. Supp. 3d 629, 643 (S.D.N.Y. 2018) (“The third cause of action, negligent interference with prospective economic relations, does not exist.“); Alvord & Swift v. Stewart M. Muller Const. Co., 385 N.E.2d 1238, 1241 (N.Y. 1978) (“[T]he interference must be intentional, not merely negligent.“). In addition, although the elements of defamation under New York and California Law are generally similar, the New York Constitution provides independent protection for statements of opinion, see Immuno AG. v. Moor-Jankowski, 567 N.E.2d 1270, 1277–1280 (N.Y. 1991), and the two states have different statutory privileges against defamation, see, e.g.,
“[A] federal court sitting in diversity borrows the forum State‘s choice-of-law rule.” Cassirer v. Thyssen-Bornemisza Collection Found., 596 U.S. 107, 115 (2022). “In the context of tort law, New York utilizes interest analysis to determine which of two competing jurisdictions has the greater interest in having its law applied in the litigation.” Padula v. Lilarn Props. Corp., 644 N.E.2d 1001, 1002 (N.Y. 1994).18 This requires
As to the claims against Sloane and Reynolds, the Court is unable to determine what law applies at this stage. “The record lacks facts necessary to conduct the context-specific . . . analysis required by New York‘s choice-of-law principles.” Speedmark Transp., Inc. v. Mui, 778 F. Supp. 2d 439, 444 (S.D.N.Y. 2011); see DarkPulse, Inc. v. Crown Bridge Partners LLC, 2024 WL 3872725, at *3 (2d Cir. Aug. 19, 2024) (“[A]ccepting the complaint‘s allegations as true, and relying solely on those allegations as we must at this stage, it is not clear whether a reasonable relationship exists between the parties, the transaction, and any particular state.“); Bristol–Myers Squibb Co. v. Matrix Lab‘ys Ltd., 655 F. App‘x 9, 13 (2d Cir. 2016) (summary order) (noting that “choice-of-law determinations are fact-intensive inquiries” which may be “premature to resolve at the motion-to-dismiss stage“). The Wayfarer Parties’ defamation and false light claims are based on allegations that Sloane made false statements in texts to a Daily Mail reporter, Dkt. No. 50 ¶¶ 189–190, 193, that Reynolds made false statements that Baldoni
was a “sexual predator,” id. ¶¶ 8, 162, and that both Sloane and Reynolds participated in a campaign to leak false information to the press, id. ¶¶ 17, all of which occurred at unspecified locations. The civil extortion and false light claims against Sloane and Reynolds are based on essentially the same allegations, as are the claims for tortious interference against Reynolds. See Dkt. No. 121 at 36 (civil extortion against Sloane); Dkt. No. 50 ¶¶ 17, 162, 250–255 (civil extortion against Reynolds); id. ¶¶ 332–339 (false light); id. ¶¶ 347–374 (tortious interference).
Because it is unclear from the pleadings where the facts underlying the claims against Sloane and Reynolds occurred, the Court cannot dismiss the claims based on a holding that they must be brought under New York law. If the allegations state a claim under California law, the claim must be allowed to continue until such time as the facts developed show California law does not apply. Therefore, the Court will analyze the claims against Sloane and Reynolds under California law for purposes of this motion. See Halberstam, Tr. of Zupnick Fam. Tr. 2008 B v. Allianz Life Ins. Co. of N. Am., 2017 WL 10187689, at *3–4 (E.D.N.Y. June 9, 2017) (evaluating claims under each potentially applicable law when “[t]he complaint and its attachments do not contain sufficient allegations . . . to determine” which law applies); Meserole v. Sony Corp. of Am., 2009 WL 1403933, at *5 n.6 (S.D.N.Y. May 19, 2009) (same); Foisie v. Worcester Polytechnic Inst., 967 F.3d 27, 42–43 (1st Cir. 2020) (“[W]hen there are important holes in the record, discovery will likely illuminate critical facts bearing on the unanswered questions and, thus, on the ultimate question of which state‘s law should apply.“).
However, the defamation and false light19 claims against the Times must be analyzed under New York law.20 The Wayfarer Parties argue that these claims are properly brought under California law, because they are California citizens and feel the impact of the defamation in California. Dkt. No. 127 at 9. But the Second Circuit analyzed a similar situation in Kinsey v. N.Y. Times Co., 991 F.3d 171, 176–78 (2d Cir. 2021), in which the Times published an allegedly defamatory article regarding events that took place in the District of Columbia and affected the plaintiff‘s employment there. The Circuit distinguished between defamation cases involving a targeted publication, in which “the state of the plaintiff‘s domicile will usually have the most significant relationship to the case,” and “multistate defamation cases” in which “an allegedly defamatory statement is published nationally” and the plaintiff suffers harm in every state simultaneously. Id. (quoting Lee v. Bankers Tr. Co., 166 F.3d 540, 545 (2d Cir. 1999)). The Circuit stated that in multistate defamation cases, the traditional rule that the law of the plaintiff‘s domicile applies is only “presumptive” and may be overcome if “some other state has a more significant relationship,” taking into account “where [the] plaintiff suffered the greatest injury; where the statements emanated and were broadcast; where the activities to which the allegedly defamatory statements refer took place; and the policy interests of the states whose law might apply.” Id. (quoting Catalanello v. Kramer, 18 F. Supp. 3d 504, 512 (S.D.N.Y. 2014) and then quoting Condit v. Dunne, 317 F. Supp. 2d 344, 353-54 (S.D.N.Y. 2004)). The Circuit then held that although the plaintiff suffered the greatest injury in the District of Columbia and Maryland (where he was domiciled), New York had the most significant interest in the litigation because “the Times is domiciled in New York,” “the allegedly defamatory statement emanated from New York, and “New York has strong policy interests in regulating the conduct of its citizens and its media.” Id. at 178.
The same factors require application of New York law to the defamation and false light claims against the Times here. The Wayfarer Parties presumably suffered the greatest injury in California, where they are domiciled,21 but Kinsey holds that this is not decisive. The events underlying the allegedly defamatory statements took place in New York, where Lively, Sloane and Reynolds were based and sometimes met with Baldoni and the Wayfarer Parties, California, where the Wayfarer Parties were based, and the location of filming, which is not clearly specified but at least some of which occurred in New York. See Dkt. No. 50 ¶ 67 (“Lively expressed excitement over returning to shoot in the
II. Impermissible Pleading
All Defendants argue that the Amended Complaint should be dismissed without further analysis because it engages in impermissible group pleading and otherwise violates
”
“The key to
Where the Amended Complaint does lack clarity, the Court will consider only the claims of which Defendants have fair notice. To the extent a fair reading of the Amended Complaint does not provide notice that the Wayfarer Parties are making a particular claim, against a particular defendant, based on a particular statement, the Court will not parse through the various allegations and documents to determine whether a claim could theoretically be stated. For example, although the Amended Complaint alleges the CRD complaint “was rife with lies and doctored ‘evidence,‘” Dkt. No. 50 ¶ 4, the Court will not consider whether the CRD complaint contained any defamatory statements beyond those specifically alleged in the Amended Complaint. Similarly, in analyzing the defamation claim against the New York Times, the Court will not consider whether any statements in the Article are defamatory beyond those identified
Accordingly, though the Court will not strike or dismiss any allegations on
III. Civil Extortion
The Wayfarer Parties’ first claim is for civil extortion under California law against Lively, Reynolds, and Sloane. Dkt. No. 50 ¶¶ 316–323. In support of this claim, the Wayfarer Parties allege 1) that Lively refused to return to production unless the Wayfarer Parties agreed to her return to production demands, id. ¶¶ 6, 75, 124, 130; 2) that Lively threatened to abandon her contractual obligation to promote the film or approve marketing materials unless the Wayfarer Parties agreed to co-fund a screening of her version of the Film, id. ¶ 142, eventually release that version, id. ¶ 146, and grant her a producer credit and support in seeking the p.g.a. designation, id. ¶¶ 152–157; 3) that Lively threatened to boycott the premiere unless Baldoni was excluded, id. ¶¶ 166–170; 4) that Lively and Reynolds threatened to attack Wayfarer in the press if it did not take the blame for problems during filming, id. ¶¶ 250–255; and 5) that Sloane carried out Lively and Reynolds’ threats by spreading false allegations that the Wayfarer Parties had engaged in or concealed sexual misconduct, id. ¶¶ 192–193; see Dkt. No. 121 at 36.23
A. Governing Law
The parties advance different understandings of the tort of civil extortion under California law. Lively, Reynolds and Sloane argue that civil extortion is a cause of action for “moneys obtained by duress,” which is separate from the crime of extortion and requires proof of actual damages. Dkt. No. 145 at 27 (quoting Fuhrman, 231 Cal. Rptr. at 122). The Wayfarer Parties argue that civil extortion is a cause of action based on the criminal extortion statute and that it does not require money or property actually be obtained. Dkt. No. 162 at 24. Lively, Reynolds, and Sloane are correct. Although the claim is labeled “civil extortion,” it is derived from the common law rather than the criminal extortion statute and requires actual damages.
“Blackmail and extortion are, in almost all jurisdictions, crimes, not civil causes of action.” Rader v. ShareBuilder Corp., 772 F. Supp. 2d 599, 606 (D. Del. 2011), aff‘d sub nom. Rader v. ING Groep NV, 497 F. App‘x 171 (3d Cir. 2012). The crime of extortion involves “the obtaining of property or other consideration from another, with his or her consent, . . . induced by a wrongful use of force or fear.”
A slightly larger number of states have recognized a similar cause of action for duress. See Troutman v. Facetglas, Inc., 316 S.E.2d 424, 426 (S.C. Ct. App. 1984) (collecting cases); First Nat. Bank in Albuquerque v. Sanchez, 815 P.2d 613 (N.M. 1991); Wurtz v. Fleischman, 278 N.W.2d 266, 270–72 (Wis. Ct. App. 1979), rev‘d on other grounds, 293 N.W.2d 155 (Wis. 1980); Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App. 1985). Like extortion, duress involves the obtaining of a benefit by wrongful threats. However, the tort of duress is not descended from the criminal law but rather from the contractual defense of duress. This defense allows a party to void a contract and receive restitution for any benefits it provided to its counterparty if it entered into the contract due to “unlawful threats or wrongful, oppressive, or unconscionable conduct on the part of the defendant which leaves the plaintiff no reasonable alternative but to acquiesce.” Mach. Hauling, Inc. v. Steel of W. Va., 384 S.E.2d 139, 142 (W.Va. 1989); see
California permits plaintiffs to bring a claim labeled “civil extortion.” However, “an action for extortion under
The few published California cases discussing the tort involve the return of money conveyed due to a wrongful threat, a situation which the cases analogize to voiding a contract made under duress and receiving restitution. See Fuhrman v. California Satellite Systems, 231 Cal. Rptr. 113, 122 (Cal. Ct. App. 1986); Leeper v. Beltrami, 347 P.2d 12, 18 (Cal. 1959); Woodham v. Allen, 162 P. 398, 399 (Cal. 1900). The leading California case articulating the tort is Fuhrman v. California Satellite Systems. See Intermarketing Media, 2021 WL 5990190, at *12 (citing and discussing Fuhrman, 231 Cal. Rptr. at 122); Monex Deposit Co. v. Gilliam, 666 F. Supp. 2d 1135, 1136 n.3 (C.D. Cal. 2009) (“[T]he Court relies on Fuhrman as the most relevant authority for this issue.“). In Fuhrman, the plaintiff brought a claim for “extortion,” alleging that the defendants baselessly accused her of illegally receiving satellite broadcasts and threatened to sue her unless she paid them $275 to settle the claim. 231 Cal. Rptr. at 115, 121. The California Court of Appeal held that a claim for “extortion”
This reading of Fuhrman is supported by the decisions on which it relies. Although Fuhrman was an intermediate appellate court decision, it relied on two California Supreme Court decisions which had previously recognized “a cause of action for the recovery of money obtained by the wrongful threat of criminal or civil prosecution.” 231 Cal. Rptr. at 122. In Woodham v. Allen, the California Supreme Court sustained a tort claim by a woman seeking to recover money that was “unlawfully extorted” from her based on the defendant‘s threat that he would have her husband arrested on false pretenses. 62 P. 398, 398–99 (Cal. 1900). The court stated that “the ultimate fact to be established” was that the money was paid under duress, and if this were established, “the money can be recovered back.” Id. at 399.
In Leeper v. Beltrami, the California Supreme Court sustained a cause of action “for wrongful acts in the nature of duress” when the defendant filed a false suit which clouded the title of plaintiff‘s property, preventing its sale, and demanded consideration to withdraw the claims, which the plaintiff paid. 347 P.2d 12, 17–18 (Cal. 1959). The court expressed some uncertainty over whether the case should “be considered a suit for restitution to recover money paid under duress,” “an action for money had and received sounding in tort,” or “simply an action for money damages for the tortious conduct of the defendants resulting in injury to the plaintiffs.” Id. at 20–21. But it stated that “the basic nature of the wrongdoing of these defendants is duress.” Id. at 21. Leeper explained that although generally “the taking of legal action or the threat to take such action cannot constitute duress,” the pressing of a false claim is a wrongful act that may constitute duress. Id. at 19. It added that duress does not exist if the plaintiff “had a reasonable alternative to the parting with the consideration to satisfy the false claim,” which should be judged by the standard of “a reasonably prudent person.” Id. at 19.
Each of these cases involved a suit to recover money paid under a threat of wrongful prosecution. As stated in Leeper, this type of claim sounds in restitution, “the return of money or other property
Accordingly, a civil extortion claim under California law will not lie in the absence of a threat that would be sufficient to support a claim of duress. “Duress generally exists whenever one is induced by the unlawful act of another to make a contract or perform some other act under circumstances that deprive him of the exercise of free will.” Tarpy v. County of San Diego, 1 Cal. Rptr. 3d 607, 614 (Cal. Ct. App. 2003). As recognized in Leeper, “[u]nder modern law duress is not limited to threats against the person” but “may also consist of threats to business or property interests.” Leeper, 347 P.2d at 18. The law of criminal extortion may help elucidate the civil concept of duress, and indeed some California courts have drawn on it for this purpose. See Philippine Exp. & Foreign Loan Guarantee Corp. v. Chuidian, 267 Cal. Rptr. 457, 466 (Cal. Ct. App. 1990); Morrill v. Nightingale, 28 P. 1068, 1069 (Cal. 1892); Tran v. Nguyen, 315 Cal. Rptr. 3d 607, 613–15 (Cal. Ct. App. 2023). However, the list of wrongful acts that will support a claim for civil extortion is neither defined nor limited by those listed in the California Penal Code. See
Fuhrman also makes clear that a civil extortion claim requires “actual damages.” Fuhrman, 231 Cal. Rptr. at 122. Fuhrman stated that “[t]he fatal flaw in plaintiff‘s action is that she apparently never paid the money defendants demanded in their letters,” and dismissed the case on this ground. 231 Cal. Rptr. at 122. Accordingly, a civil plaintiff cannot recover simply for being threatened. See Raiser v. Ventura Coll. of L., 2009 WL 10692058, at *3 (C.D. Cal. Sept. 1, 2009) (dismissing civil claim for “attempted extortion” for lack of damages); Baffert v. Wunderler, 2024 WL 5237442, at *3 (S.D. Cal. June 6, 2024) (dismissing civil extortion claim that only alleged “emotional distress and punitive damages“); Intermarketing Media, 2021 WL 5990190, at *12 (collecting cases). This differentiates the elements of civil extortion from the elements of criminal extortion. See Intermarketing Media, 2021 WL 5990190, at *12 (“[A] civil claim for extortion requires proof of elements not associated with the crime of extortion.“). Because attempted extortion is a crime under California law, a defendant can be criminally prosecuted for making a threat even if the plaintiff does not acquiesce. See
Further evidence that the civil extortion claim requires damages comes from the repeated statement in the California cases that duress is a “species of fraud.” Leeper, 347 P.2d at 18; see Fuhrman, 231 Cal. Rptr. at 122; see also Intermarketing Media, 2021 WL 5990190, at *13 (“[E]xtortion is in substance a fraud claim.“). When duress involves some type of coercion other than the pressing of a false claim, it is not literally a form of fraud.27 See Steinger v. Smith, 213 S.W.2d 396, 400 (Mo. 1948) (noting that while courts sometimes state that duress is “species of fraud,” “there is a clear distinction between them“). But the analogy drawn by the California courts is logical, as both fraud and duress are grounds to revoke an apparently voluntary transaction that was in substance involuntary. Under California law, “unless the plaintiff merely seeks to rescind the contract, it must suffer actual monetary loss to recover on a fraud claim.” All. Mortg. Co. v. Rothwell, 900 P.2d 601, 609 (Cal. 1995); see Zamfir v. CasperLabs, LLC, 2023 WL 2415262, at *5 (S.D. Cal. Mar. 8, 2023) (requiring Plaintiff in fraudulent misrepresentation claim to show actual monetary loss from competitor‘s misappropriation of a trade name); NRG Energy, Inc. v. Fuchs, 2011 WL 1625169, at *4 (S.D. Cal. Apr. 28, 2011) (dismissing fraud claim when plaintiff alleged “that his harm was lack of information rather than an actual monetary loss“). Monetary loss is measured by “out-of-pocket” damages, which are “directed to restoring the plaintiff to the financial position enjoyed by him prior to the fraudulent transaction, and thus awards the difference in actual value at the time of the transaction between what the plaintiff gave and what he received.” Rothwell, 900 P.2d at 609 (quoting Stout v. Turney, 586 P.2d 1228, 1232 (Cal. 1978)). This remedy is akin to restitution in that it places the plaintiff in his former position. See 37 C.J.S. Fraud § 64 (“[O]ut-of-pocket damages are restitutionary.“). Given that a tort action for duress is a “form of fraud” and akin to an action for restitution, Leeper, 347 P.2d at 20, a plaintiff must similarly show some out-of-pocket loss which may be restored to him. The cause of action is one to reverse a transfer of value, not simply for emotional damages or distress. See
The Wayfarer Parties argue to the contrary that a plaintiff can recover for civil extortion even if no money or property was obtained. Dkt. No. 162 at 25. This argument relies on a district court decision, Monex, which inferred a private right of action from the extortion provision of the California Penal Code. Monex, 666 F. Supp. 2d at 1137 (citing
Accordingly, to plead a tort claim for civil extortion under California law, it is neither necessary nor sufficient for a plaintiff to plead the elements of criminal extortion. Instead, the plaintiff must plead a wrongful threat constituting duress, to which the plaintiff acquiesced, causing damages. See Fuhrman, 231 Cal. Rptr. at 122; Intermarketing Media, 2021 WL 5990190, at *12.
B. Application
The Wayfarer Parties’ civil extortion claim is based on allegations 1) that Lively refused to return to production unless the Wayfarer Parties agreed to her return to production demands, Dkt. No. 50 ¶¶ 6, 75, 124, 130, 2) that Lively threatened to abandon her contractual obligation to promote the film or approve marketing materials unless the Wayfarer Parties agreed to co-fund a screening of her version of the film, id. ¶ 142, eventually release that version, id. ¶ 146, and grant her a producer credit and support in seeking the p.g.a. designation, id. ¶¶ 152–157, 3) that Lively threatened to boycott the premiere unless Baldoni was excluded, id. ¶¶ 166–170; 4) and that Lively and Reynolds threatened to attack Wayfarer in the press if it did not take the blame for problems during filming, id. ¶¶ 250–255. The last set of allegations is not actionable because Wayfarer did not acquiesce in the threat and did not accept blame for problems during filming. Wayfarer did not lose anything and Lively and Reynolds did not gain anything from the threat. The remaining allegations must be dismissed because the allegations regarding Lively‘s wrongful threats are conclusory and fail to support that the threats were wrongful. In addition, the Wayfarer Parties have failed to plead that several key instances of alleged extortion caused “actual monetary loss.” Rothwell, 900 P.2d at 609.
The Wayfarer Parties focus significantly on “the demand by Reynolds and Lively that the Wayfarer Parties issue a self-destructive statement taking blame for Lively‘s press woes or else ‘the gloves would come off’ and they ‘would attack Wayfarer in the press.‘” Dkt. No. 160 at 18 (quoting Dkt. No. 50 ¶¶ 250–256); see Dkt. No. 162 at 23. However, the Wayfarer Parties refused to issue any such statement. Dkt. No. 50 ¶ 256. Accordingly, there was no reliance on the threat, the Wayfarer Parties did not give up anything to Reynolds or Lively, and “plaintiff did not sustain damages cognizable in a cause of action for duress.” Fuhrman, 231 Cal. Rptr. at 123; see Raiser, 2009 WL 10692058, at *3; Baffert, 2024 WL 5237442, at *3; Am. Shooting Ctr., Inc. v. Secfor Int‘l, 2015 WL 1914924, at *4 (S.D. Cal. Apr. 27, 2015) (dismissing claim when “it is unclear what damages were proximately caused by the alleged attempted extortion.“).28
The Wayfarer Parties’ claims do not turn on what Lively threatened to do but what she threatened not to do. The Wayfarer Parties allege that Lively “threatened to refuse to promote the Film or approve any related marketing materials,” id. ¶ 142, and threatened to “abandon her contractual obligations to promote the Film or approve marketing materials,” id. ¶ 152.29 However, the Wayfarer Parties do not allege facts showing that Lively had an obligation to promote the film or to approve marketing materials. They do not point to any contractual provisions, explain what Lively’s contractual obligations were, or even explain what contract is being referenced. Similarly, with regard to Lively’s refusal to attend the premiere with Baldoni, the Wayfarer Parties do not allege that Lively had any obligation to attend the premiere with Baldoni. Id. ¶ 166–170. While the Wayfarer Parties plead that Lively had an obligation to act in the film, they do not allege that she had such an obligation no matter the circumstances.30 A refusal to provide that which one has no obligation to provide is not a threat; it is a bargaining position. Conclusory allegations are insufficient to plead a breach of contract, and are therefore insufficient to plead that Lively threatened to breach her contract. See AK Futures LLC v. LCF Labs Inc., 2022 WL 2784409, at *4 (C.D. Cal. June 24, 2022) (“A complaint for breach of contract must include the contract itself or plead its essential terms.” (quoting J D Factors, LLC v. Reddy Ice Holdings, 2016 WL 6996152, at *2 (C.D. Cal. June 6, 2016))); Wiebe v. NDEX W., LLC, 2010 WL 2035992, at *3 (C.D. Cal. May 17, 2010).
Moreover, assuming the Wayfarer Parties did plead that Lively refused to do that which her contract required her to do, that would not alone be sufficient to plead that such a refusal was wrongful and could support a claim for civil extortion. A threat to breach a contract may constitute a breach of contract or an anticipatory repudiation of a contract, but it “is not, of itself, improper.” Restatement (Second) of Contracts § 176, cmt. e; see Drink Tank Ventures LLC v. Real Soda in Real Bottles, Ltd., 286 Cal. Rptr. 3d 333, 344–45 (Cal. Ct. App. 2021), as modified on denial of reh’g (Dec. 2, 2021). There are circumstances in which a breach or threatened breach may be commercially reasonable or
It thus is not uncommon in commercial relationships that one or the other party will demand that a condition to their agreement change before performance is rendered. A refusal to perform unless the counterparty agrees to additional consideration or a new term may, depending on the circumstances, give rise to a claim for breach of contract. See Riddick v. Summit House, Inc., 835 F. Supp. 137, 142 n.14 (S.D.N.Y. 1993) (“Contracts cannot be amended unilaterally by one party.” (citing Restatement (Second) of Contracts § 318(3)); Asmus v. Pac. Bell, 999 P.2d 71, 78 (Cal. 2000) (noting that modification of a bilateral contract requires “mutual assent“); Carlsen v. Glob. Client Sols., LLC, 423 F. App’x 697, 699 (9th Cir. 2011). But, if the other party finds the modification to be acceptable—either because it is in the mutual interest of the parties or because the modification is not so significant that the counterparty believes she is denied the benefit of her bargain—she can accept the modification either by words or by conduct. See
It follows that not every statement that a party will stop performing a contract unless the conditions are changed or new consideration provided will give rise to a claim in tort for civil extortion. Rather, courts consider a claim to involve “economic duress” only under limited circumstances, generally involving “the wrongful exploitation of business exigencies to obtain disproportionate exchanges of value.” Martinez-Gonzalez v. Elkhorn Packing Co. LLC, 25 F.4th 613, 620 (9th Cir. 2022) (quoting Sheehan v. Atlanta Int’l Ins. Co., 812 F.2d 465, 469 (9th Cir. 1987)); see Rich & Whillock, 204 Cal. Rptr. at 89–90; Chan v. Lund, 116 Cal. Rptr. 3d 122, 134 (Cal. Ct. App. 2010).31 A
The facts alleged do not support an economic duress claim. The Wayfarer Parties first allege that Lively threatened to stop acting in the film unless they agreed to her return to production demands. Dkt. No. 50 ¶ 75. The Court assumes, though it is not explicitly pleaded, that Lively had a contractual obligation to perform in the film. But the Wayfarer Parties do not plead that she had an obligation to perform no matter the conditions on the set, and is it not unusual for employees to seek changes or improvements in workplace conditions. The demands Lively is alleged to have made, including that there be no physical touching of her except in connection with character or scene work, that there be no discussion of personal experiences with sex, that she have a personal representative on set, and that there be a nudity rider, are all closely related to the conditions of her own performance and largely involve adherence to protections for Lively (and other cast members) that the Wayfarer Parties had already implemented. The only apparent cost to the Wayfarer Parties was hiring an additional producer, id. ¶ 114, which would not financially benefit Lively. The allegations do not support that Lively was attempting to extort the Wayfarer Parties into hiring a producer, as opposed to seeking to confirm previously understood terms and conditions or at worst seeking slightly more favorable terms of employment.32 Even if they turn out to be unneeded, an employee can insist on protections at workplace for sexual harassment without being accused of extortion. If an employer accedes, it cannot later claim to be a victim of the employee’s wrongful threats.
A similar result applies with respect to the Wayfarer Parties’s allegations that Lively threatened to breach her contractual obligation to promote the film unless they allowed her to edit the movie and
The Amended Complaint is not clear whether the Wayfarer Parties, as opposed to Sony, had the ultimate right to choose the cut of the film that would be distributed or the marketing plan that would be used to promote the film. There are indications from the Amended Complaint that such rights resided with Sony. Dkt. No. 50 ¶ 142 (“Lively’s extortionate threats coerced Sony to allow her to create her own cut of the Film.” (emphasis added); id. ¶ 149 (stating that Lively insisted on screening her cut “[o]ver Sony’s objection” and that Sony informed Wayfarer Baldoni could not attend); id. ¶ 163 (noting that the marketing plan for the film was created by Sony). If so, Lively would not have been withholding from the Wayfarer Parties anything that the Wayfarer Parties had a right to obtain from her in the first place. But even assuming that the Wayfarer Parties had such a right as against Lively, they were not without a remedy. If, in fact, Lively announced that she would not perform unless the Wayfarer Parties gave something of value to her to which she was not entitled, the Wayfarer Parties could have sued. They were not without “a reasonable alternative” to meeting Lively’s demands. Leeper, 347 P.2d at 20; see Hartsville Oil Mill v. United States, 271 U.S. 43, 49 (1926) (“Before the coercive effect of the threatened action can be inferred,
Finally, the Wayfarer Parties allege that Lively’s threat to boycott forced Baldoni to accept marginalization from the premiere. Dkt. No. 50 ¶ 166. Initially, the Wayfarer Parties do not allege that Lively had an obligation to them to attend the premiere, much less to attend the premiere with Baldoni. However, even if Lively had such an obligation, her suggested modification is directly related to the conditions of her own performance; there is no threat extrinsic and unrelated to the production of the film. There is also no disproportionate exchange of value, as the separation of the parties at the premiere is not alleged to have had any financial implications.
Lively, Sloane, and Reynolds also argue that the Wayfarer Parties have not alleged damages from any of Lively’s threats. Dkt. No. 87 at 7–9; Dkt. No. 133 at 19; Dkt. No. 145 at 27–30. For reasons largely stated above in the analysis of disproportionate value, this provides an alternative basis for dismissal of most aspects of the extortion claim.33
Similarly, although the Wayfarer Parties allege that conditions at the premiere were “demeaning and humiliating,” Dkt. No. 50 ¶ 169, they do not allege any costs to Wayfarer. There are also no allegations supporting that providing Lively a producer credit and p.g.a. support resulted in a monetary loss to the Wayfarer Parties. See Evans v. Sleep No. Corp., 2025 WL 1093332, at 10 (E.D. Cal. Apr. 11, 2025) (holding Plaintiff failed to plead actual damages when she was deceived into buying a product but failed to plead she lost money in the transaction); Fladeboe v. Am. Isuzu Motors Inc., 58 Cal. Rptr. 3d 225, 244 (Cal. Ct. App. 2007), as modified (Apr. 24, 2007) (similar). The injury the Wayfarer Parties focus on regarding the p.g.a. mark is essentially a moral injury that they believed that “Lively did not perform the duties of a producer and therefore did not merit the p.g.a. mark,” but were forced to write a letter “omitting the truth.” Dkt. No. 50 ¶¶ 155, 157.
Finally, there are no allegations supporting Reynolds or Sloane’s liability. The Wayfarer Parties argue that Sloane and Reynolds are liable in conspiracy because by actually spreading defamatory statements, Sloane and Reynolds “play[ed] the role of the ‘heavy’ [in] carrying out Lively’s extortionate threats.”
The Wayfarer Parties’ claims for civil extortion must be dismissed.
IV. Defamation
The Wayfarer Parties bring defamation claims against all Defendants. Dkt. No. 50 ¶¶ 324–331. The allegedly defamatory statements are statements to the effect that 1) “the Wayfarer Parties engaged in, permitted, and/or failed to prevent sexually inappropriate conduct toward Lively” and 2) “the Wayfarer Parties retaliated against Lively and others for reporting the alleged sexual misconduct including by propagating false and misleading narratives about Lively for the purpose of damaging her image and reputation.” Id. ¶ 325. The Wayfarer Parties allege that Lively, Sloane, and Reynolds engaged in a conspiracy to spread these defamatory narratives to the Times, other media outlets, and Baldoni’s agency, id. ¶¶ 8, 17, 162, 193, 273, 370, and that the Times committed defamation by publishing the same narratives, id. ¶¶ 272–276. These allegations fail to state a defamation claim.
A. Legal Standard
The Court refers to California law in setting out the legal standard for defamation, leaving any distinguishing aspects of New York law for discussion as applicable to the Times. Although some applicable statutes and privileges differ, “the elements of defamation in both states are similar.” Feitosa v. Keem, 2023 WL 2267055, at *4 (W.D.N.Y. Feb. 28, 2023).
“Defamation constitutes an injury to reputation” by a false oral or written communication. Shively v. Bozanich, 80 P.3d 676, 683 (Cal. 2003), as modified (Dec. 22, 2003). Under California law, “[t]he tort of defamation involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Taus v. Loftus, 151 P.3d 1185, 1209 (Cal. 2007) (citation and internal quotation marks omitted). California defamation law incorporates, as it must, speech protections required by the First Amendment to the United States Constitution. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) (holding that defamatory falsehoods about public officials are protected unless made with “actual malice“); Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990) (noting that the First Amendment protects statements which lack “a provably false factual connotation“).
“Publication” does not refer to “a written dissemination, as suggested by the common meaning of that term,” but merely requires communication of the statement “to a third person who understands its defamatory meaning as applied to the plaintiff.” Shively v. Bozanich, 80 P.3d 676, 683. Publication “need not be to the public or a large group; communication to a single individual is sufficient.” Ringler Assocs. Inc. v. Md. Cas. Co., 96 Cal. Rptr. 2d 136, 148 (Cal. Ct. App. 2000). “Each publication ordinarily gives rise to a
“The sine qua non of recovery for defamation . . . is the existence of a falsehood.” Baker v. L.A. Herald Exam’r, 721 P.2d 87, 90 (Cal. 1986) (quoting Letter Carriers v. Austin, 418 U.S. 264, 283 (1974)). “Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability.” Summit Bank v. Rogers, 142 Cal. Rptr. 3d 40, 59 (Cal. Ct. App. 2012) (quoting McGarry v. Univ. of San Diego, 64 Cal. Rptr. 3d 467, 479 (Cal. Ct. App. 2007)); see Taus, 151 P.3d at 1209. If a statement “cannot reasonably [be] interpreted as stating actual facts,” it is protected by the First Amendment and not actionable. Knievel v. ESPN, 393 F.3d 1068, 1074 (9th Cir. 2005) (quoting Milkovich, 497 U.S. at 20); see Seelig v. Infinity Broad. Corp., 119 Cal. Rptr. 2d 108, 116 (Cal. Ct. App. 2002); Reed v. Gallagher, 204 Cal. Rptr. 3d 178, 188 (Cal. Ct. App. 2016).
“‘[R]hetorical hyperbole,’ ‘vigorous epithet [s],’ ‘lusty and imaginative expression[s] of [] contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.” Ferlauto v. Hamsher, 88 Cal. Rptr. 2d 843, 849 (Cal. Ct. App. 1999) (quoting Greenbelt Pub. Assn. v. Bresler 398 U.S. 6, 14 (1970) and then quoting Letter Carriers, 418 U.S. at 284). However, the publication may be actionable if “a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion.” Nygard, Inc. v. Uusi-Kerttula, 72 Cal. Rptr. 3d 210, 226 (Cal. Ct. App. 2008); see Milkovich, 497 U.S. at 21. “[E]xpressions of opinion may imply an assertion of objective fact, and a statement that implies a false assertion of fact, even if couched as an opinion, can be actionable.” McGarry, 64 Cal. Rptr. 3d at 479 (citing Milkovich, 497 U.S. at 18–19).
“It is the province of the court to determine whether a statement is actionable as a statement of fact susceptible of a defamatory meaning, versus a nonactionable statement of opinion privileged under the First Amendment.” John Doe 2, 206 Cal. Rptr. 3d at 68–69; see Gallagher v. Philipps, 563 F. Supp. 3d 1048, 1086 (S.D. Cal. 2021). “To determine whether a statement is actionable fact or nonactionable opinion, [courts] apply a totality of the circumstances test pursuant to which [they] consider both the language of the statement itself and the context in which it is made.” Summit Bank, 142 Cal. Rptr. 3d at 60; Gallagher, 563 F. Supp. 3d at 1086; Steam Press Holdings, Inc. v. Hawaii Teamsters, Allied Workers Union, Loc. 996, 302 F.3d 998, 1005 (9th Cir. 2002). Courts look to “the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed.” Baker, 721 P.2d at 90–91; see Knievel, 393 F.3d at 1074–78; Reed, 204 Cal. Rptr. 3d at 189. “[T]he publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in law, but by the natural and probable effect upon the mind of the average reader.” Baker, 721 P.2d at 90 (quoting MacLeod v. Trib. Pub. Co., 343 P.2d 36, 41–42 (Cal. 1959)); see Knievel, 393 F.3d at 1074.
“[T]ruth is a complete defense” to a defamation claim. Bently Rsrv. LP v. Papaliolios, 160 Cal. Rptr. 3d 423, 434 (Cal. Ct. App. 2013). Where the plaintiff is a public figure or the speech involves a matter of public concern, the plaintiff bears the burden of showing the falsity of the statements. See Carver v. Bonds, 37 Cal. Rptr. 3d 480, 493 (Cal. Ct. App. 2005); Unelko Corp. v. Rooney, 912 F.2d 1049, 1056 (9th Cir. 1990); Appel v. Wolf, 2023 WL 5108962, at *4 (S.D. Cal. Jan. 31, 2023). “As in other jurisdictions, California law permits the defense of substantial truth and would absolve a defendant even if she cannot justify every word of the alleged defamatory matter; it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details.” Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517 (1991) (citation and internal quotation marks omitted); see Reed, 204 Cal. Rptr. 3d at 192. The test is whether the statement “would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Masson, 501 U.S. at 517.
The state of mind necessary to support a defamation claim depends on whether the plaintiff is a private figure or a public figure. If the defamatory statement concerns a private figure, the standard under California law is whether the defendant acted negligently by “fail[ing] to use reasonable care to determine the truth or falsity” of the statement. Hecimovich v. Encinal Sch. Parent Tchr. Org., 137 Cal. Rptr. 3d 455, 470 (Cal. Ct. App. 2012). However, the First Amendment requires that “public figures may prevail in a libel action only if they prove that the defendant’s defamatory statements were made with actual malice, i.e., actual knowledge of falsehood or reckless disregard for the truth.” Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797, 803 (Cal. 2001); see Gertz v. Robert Welch, Inc., 418 U.S. 323, 344–47 (1974); N.Y. Times, 376 U.S. at 283. Public figures have generally “invite[d] attention and comment” by “thrust[ing] themselves to the forefront of particular public controversies,” and enjoy “significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.” Gertz, 418 U.S. at 343; see Khawar v. Globe Int’l, Inc., 965 P.2d 696, 702 (Cal. 1998), as modified (Dec. 22, 1998). Applying the actual malice standard to such figures allows “the freedoms of speech and press that ‘breathing space’ essential to their fruitful exercise.” Gertz, 418 U.S. at 342 (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)).36
“Under
Several privileges under California law may prevent an otherwise defamatory statement from being actionable. Relevant here, California recognizes a litigation privilege,
The fair and true report privilege applies to “a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof.”
In 2023, the California legislature added a privilege for “[a] communication made by an individual, without malice, regarding an incident of sexual assault, harassment, or discrimination.”
B. Lively, Sloane, and Reynolds
The Wayfarer Parties allege generally that Lively, Sloane, and Reynolds worked together to “advance[] a fabricated narrative in the press that the Wayfarer Parties had sexually harassed Lively, then embarked on a calculated and malicious smear campaign to destroy her reputation as retaliation for daring to complain about the harassment.” Dkt. No. 50 ¶ 17. This general allegation has multiple facets. Most prominently, the Wayfarer Parties allege that Lively, Sloane, and Reynolds worked together to spread a false narrative to the Times. Id. ¶ 273. In addition, the Wayfarer Parties allege that as part of the same conspiracy, Sloane and Reynolds individually made false statements about Baldoni to other press outlets and Baldoni’s agency. Id. ¶¶ 8, 162, 193, 370
The Wayfarer Parties have not adequately alleged a defamation claim as to any part of the purported conspiracy. The Wayfarer Parties have not adequately alleged that any false statements were made to the Times other than the statements in Lively’s CRD complaint, which were privileged under California law. There also is no allegation that the distribution of the CRD complaint was made by anyone other than Lively or, more particularly, with the involvement or agreement of Sloane or Reynolds. The Wayfarer Parties have not adequately alleged that Sloane or Reynolds individually did any more than repeat Lively’s version of events, which they had no reason to doubt. And the Wayfarer Parties have not adequately alleged that Lively should be held responsible for Sloane or Reynolds’ statements. Their allegations of a conspiracy between the parties are conclusory.
1. Statements to the New York Times
The Wayfarer Parties’ claims of defamation against Lively, Sloane, and Reynolds are partly based on allegations that Lively “and her team” made false statements about the Wayfarer Parties to the Times. Dkt. No. 50 ¶¶ 272–273, 275; see Dkt. No. 121 at 19; Dkt. No. 160 at 7; Dkt. No. 162 at 10. A fundamental obstacle to this claim is that the Wayfarer Parties do not plead, and may not know, exactly what if anything the Lively Parties and the New York Times communicated to each other. Accordingly, the Amended Complaint fails to allege facts regarding who said what (if anything) to the New York Times, and when. The Amended Complaint instead relies on inferences from the fact that the Times had the CRD complaint before it was publicly available and on conclusory and often dramatized allegations—sometimes “on information and belief,“—that the Lively Parties worked together to feed the Times a false narrative, Dkt. No. 50 ¶¶ 275–276, 278, “apparently” based on text messages that were “selectively and deceptively edited” id. ¶¶ 275, 278, that “the Wayfarer Parties had responded to
Lively’s complaints about purported sexual harassment by plotting to destroy her reputation” via a “smear campaign,” id. ¶¶ 272, 275–276, 278.
“The tort of defamation involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Taus, 151 P.3d at 1209 (citation and internal quotation marks omitted). Accordingly, if the Wayfarer Parties allege facts supporting that a given defendant made statements to the Times that were true, privileged, or mere opinion, coupled with a “bare assertion” that defamation occurred, the pleading is insufficient. Twombly, 550 U.S. at 556. On the other hand, if the Wayfarer Parties plead facts, including circumstantial evidence, that create a plausible inference that a defendant made statements to the Times that were false, defamatory, and unprivileged, the Wayfarer Parties have stated a claim.
The factual allegations pleaded in the Amended Complaint do not state a claim. They support at most the plausible inference that Lively or someone acting on her behalf provided the Times with a copy of the CRD complaint and related text messages before the complaint was filed. While the Article was published on December 21, 2024, the day after Lively filed her CRD complaint, Dkt. No. 50 ¶¶ 258, 263, the Times asked the Wayfarer Parties to comment on the Article at 9:46 p.m. reporting on the CRD complaint on December 20, 2024, the same day it was filed, id. ¶ 257. There is a powerful inference that the Times had access to the CRD complaint well before that date. The Article and CRD complaint are both purportedly based on “thousands of pages of text messages and emails that [Lively] obtained through a subpoena,” which the Article states “were reviewed by the New York Times.” Id. ¶ 262. URLs for images, PDFs, and videos associated with the Article contain the dates December 12, December 10, and December 16, 2024. Id. ¶¶ 264–266. The Article draws heavily from Lively’s CRD complaint. Id. ¶ 262. It would have taken time to review that complaint and its attachments. In addition, source code for a portion of the Article contains the date October 31, 2024. Id. ¶ 268. And because the Times had access to the CRD complaint before it was filed and while it was still confidential, there also is a powerful inference that it was provided by Lively or by someone on her team. Lively obviously had access to the CRD Complaint before it was filed. It only makes sense that the CRD Complaint was given to the Times by Lively or someone acting on her behalf. If the complaint was provided to the Times, it is highly likely that Lively played a “responsible part.” See Dickinson v. Cosby, 250 Cal. Rptr. 3d 350, 365 (Cal. Ct. App. 2019).40
The act of
The Wayfarer Parties’ main response is that the privilege does not apply because at the time Lively provided the CRD complaint to the Times, it had not yet been filed in an official proceeding. Dkt. No. 162 at 20. However, under California law, a party need not wait until a legal document is formally filed before providing it to members of the press. The fair report privilege extends to advance communication to a public journal of a complaint so long as the party intends in good faith to file it in a public official proceeding. See Bond v. Lilly, 2024 WL 4879324, at *5–6 (Cal. Ct. App. Nov. 25, 2024) (unpublished).41
The fair report privilege originally applied only to reports in a public journal, not communications to that journal. See Healthsmart Pac., 212 Cal. Rptr. 3d at 601. In 1996, however, the California legislature extended the privilege to protect individuals who communicate litigation statements to the press. Id. “This amendment was enacted to abrogate the holding in Shahvar v. Superior Court [] that an attorney’s transmittal of a copy of a pleading to a newspaper was not protected by the fair report privilege.” Id. (citing 30 Cal. Rptr. 2d 597, 599 (Cal. Ct. App. 1994), as modified (June 22, 1994)). The legislature noted that statements in an official proceeding “are protected when originally uttered by the litigation privilege and are protected when published by the press by the fair report privilege.” J-M Mfg. Co. v. Phillips & Cohen LLP, 201 Cal. Rptr. 3d 782, 791 (Cal. Ct. App. 2016) (quoting Cal. Assem. Com. On Judiciary, Analysis of Sen. Bill No. 1540 (1995–1996 Reg. Sess.)). The legislative decision to include communications to the media within the privilege was intended to “create the bridge between these two privileges to protect a third party who communicates
The rationale of providing a “bridge” between protected statements supports application of the privilege here. The litigation privilege can protect statements in a complaint that has not yet been filed if they are related to “an imminent lawsuit or judicial proceeding which is actually contemplated seriously and in good faith.” Edwards v. Centex Real Est. Corp., 61 Cal. Rptr. 2d 518, 531 (Cal. Ct. App. 1997); see Laffer v. Levinson, Miller, Jacobs & Phillips, 40 Cal. Rptr. 2d 233, 238 (Cal. Ct. App. 1995) (collecting cases); Visto Corp. v. Sproqit Techs., Inc., 360 F. Supp. 2d 1064, 1068 (N.D. Cal. 2005).42 Thus, if the CRD complaint had been sent between the Lively Parties or to an adversary as an attempt to secure settlement in good faith before the complaint was filed, the statements would be regarded to be in the “course of” the proceeding and the litigation privilege would apply.
Here, there is no basis to infer anything other than that “litigation was actually contemplated seriously and in good faith.” Edwards, 61 Cal. Rptr. 2d at 531; see Bond, 2024 WL 4879324, at *6. In the first place, Lively commenced litigation. She filed the CRD complaint within months of the events described in the CRD complaint and not long after it was plausibly given to the Times. Dkt. No. 50 ¶ 263. Eleven days after she filed the CRD complaint, Lively filed suit in this Court, making the same allegations that she made before the CRD. Id. ¶ 4; see Dkt. No. 1. The Wayfarer Parties assert that the fact that Lively eschewed the administrative process and filed suit in federal court instead demonstrates that she did not file her claim in good faith. Dkt. No. 162 at 13. But the conclusion does not follow from the premise. It is a requirement under California law that “before suing for any violation of the [California Fair Employment and Housing Act], a plaintiff must file a timely and sufficient administrative complaint with the CRD.” Collins v. Wal-Mart Stores, Inc., 2024 WL 56993, at *6 (S.D. Cal. Jan. 4, 2024), reconsideration denied, 2025 WL 1435525 (S.D. Cal. May 19, 2025). “The CRD then issues a ‘right-to-sue’
To be sure, as the Wayfarer Parties argue, the fair report privilege does not protect “litigating in the press.” Dkt. No. 162 at 13; see Rothman v. Jackson, 57 Cal. Rptr. 2d 284, 291–95 (Cal. Ct. App. 1996) (privilege did not extend to press conferences and press releases related to litigation); GetFugu, Inc. v. Patton Boggs LLP, 162 Cal. Rptr. 3d 831, 840 (Cal. Ct. App. 2013) (same). And the fair report privilege does not extend to communications which go beyond the allegations in a judicial proceeding or which “communicat[e] the alleged facts without reference to the complaint.” Healthsmart Pac., 212 Cal. Rptr. at 435.
The Amended Complaint plausibly alleges that Lively provided the Times with text messages and emails that are not included in the CRD complaint. The Article suggests the Times reviewed “thousands of pages of text messages and emails,” Dkt. No. 107-1 at 2, and the Article includes messages that are not in the CRD complaint, id. at 11. However, the Wayfarer Parties do not allege that any text messages and emails not included in the CRD complaint and that could have been provided to the Times were defamatory. The messages in the Article and Video providing the strongest support for the smear campaign narrative are those included in the CRD complaint, with those not included lending minimal, if any, additional support to this narrative. On the contrary, the messages discussed in the Article but not in the CRD complaint are often supportive of Baldoni’s narrative. See Dkt. No. 107-1 at 11 (quoting messages showing that Baldoni “appear[ed] to vacillate” and that Baldoni and Nathan believed Lively was creating bad press about Baldoni). The Amended Complaint alleges that the Times had access to “a plethora of communications” demonstrating that Lively’s narrative was not true. Dkt. No. 50 ¶¶ 286–287. But if Lively provided messages
The Wayfarer Parties additionally allege that Lively provided the Times with text messages that were “apparently selectively and deceptively edited.” id. ¶¶ 275, 278. But that does not add to her claim. The Amended Complaint alleges that the “selective[] and deceptive[] edit[ing]” was simply the editing of the CRD complaint, i.e. that in the CRD complaint, Lively provided excerpts of the messages that were deceptively edited. Id. ¶ 278 (“In her CRD complaint and apparently in the materials she forwarded to the Times for their malicious and reckless publication, Lively deliberately excluded not only the preceding screenshot of the text exchange in which Nathan denies involvement in the story, but also the ‘🙄’ emoji.”). The Wayfarer Parties assert, as litigants frequently will assert, that the version of events recited by their adversary is selective and does not tell the whole story. But the claim that the CRD complaint painted a deceptively favorable picture in favor of Lively and took quotations out of context does not deprive Lively of the litigation privilege. See Silberg, 786 P.2d at 370 (“To effectuate its vital purposes, the litigation privilege is held to be absolute in nature.”). A litigant is not required to file a balanced pleading before an agency or in court; she is permitted to marshal the facts to tell her side of a contested story. And an adversary cannot invoke the law of defamation and defeat the privilege by contending that the allegations are untrue. See id. at 373 (“The salutary policy reasons for an absolute privilege supersede individual litigants’ interests in recovering damages for injurious publications made during the course of judicial proceedings.”). He must respond in kind by telling his side of the story, as Baldoni has done. If the CRD complaint was privileged, as the Court has held it was, the addition of the claim that it contained selectively edited emails thus does not do away with the privilege.
To the extent that the Wayfarer Parties mean to assert that the Wayfarer Parties separately sent the Times selectively edited messages, beyond merely providing the Times with a CRD complaint that had selectively edited messages, no facts support that conclusory allegation. If Lively wanted to paint an overly rosy picture of her narrative and did so by selectively quoting messages in the CRD complaint, there is no reason why she would have needed to provide the Times with other selectively edited messages. No such other selectively edited messages are pleaded.
The Amended Complaint insinuates that in addition to leaking the CRD complaint and providing the Times with related messages and emails, Lively, Reynolds, or the Sloane Parties could have made other unspecified communications pressing their version of events. See Dkt. No. 50 ¶ 260 (alleging a “scheme” in which the Lively Parties and Times “worked closely together” to defame the Wayfarer Parties). But the Wayfarer Parties allege no facts to support those insinuations. Allegations that “Lively and her co-conspirators” told the Times “a false and damning story about an insidious PR sabotage operation,” id. ¶ 273, or that Lively spread a narrative “that the Wayfarer Parties had responded to Lively’s complaints about purported sexual harassment by plotting to destroy her reputation through a shadow smear campaign,” id. ¶ 272, are indistinguishable from the allegation that Lively leaked the CRD complaint. The alleged narrative peddled by Lively and her team is simply the narrative of the CRD complaint. See Dkt. No. 107-3 ¶ 8 (“Mr. Baldoni and his Wayfarer associates embarked
2. “Sexual Assault” and “Sexual Predator” Statements
The Wayfarer Parties separately allege that Sloane and Reynolds made defamatory statements that Baldoni was a “sexual predator” or committed “sexual assault.” Dkt. No. 50 ¶¶ 8, 162, 193. Specifically, the Amended Complaint alleges that Sloane told a Daily Mail Reporter that Lively was “sexually assaulted,” id. ¶ 193, and Reynolds told a WME executive and Baldoni’s agent that Baldoni was a “sexual predator, id. ¶¶ 8, 162. The Wayfarer Parties have not alleged that these statements were made with actual malice. Their claim thus fails.
A false accusation of sexual assault or similar sexual misconduct can support a defamation claim. See Todd v. Lovecruft, 2020 WL 60199, at * (N.D. Cal. Jan. 6, 2020) (“Lovecruft’s argument that the First Statement is ambiguous as to whether it accuses Todd of rape or of a less serious sexual assault is unavailing, since both interpretations would be defamatory.”); Harvey v. Netflix, Inc., 2024 WL 4536639 (C.D. Cal. Sept. 27, 2024) (holding statements accusing plaintiff of sexual assault constituted defamation); see also White v. Gabriel, 2025 WL 1218201, at *11 (Cal. Ct. App. Apr. 28, 2025) (unpublished); Hi-land Mountain Homes, Inc. v. McEntyre, 2019 WL 3335176, at *10 (Cal. Ct. App. July 25, 2019) (unpublished). Sexual assault is a crime, and an allegation of criminal activity is defamatory per se. See Barnes-Hind, Inc. v. Superior Ct., 226 Cal. Rptr. 354, 385 (Cal. Ct. App. 1986) (“Perhaps the clearest example of libel per se is an accusation of crime.”). A statement that an individual committed sexual assault would generally be understood as a statement of fact. See Giuffre v. Maxwell, 165 F. Supp. 3d 147, 152 (S.D.N.Y. 2016) (“Sexual assault . . . is a clear-cut issue; either transgression occurred or it did not.”); Luke v. Schwartz, 2024 WL 2304594, at *3 (W.D. Tex. May 21, 2024). Likewise, in the context of It Ends With Us and Reynolds’ relationship with Lively, the comments from Reynolds that Baldoni is a “sexual predator” could reasonably be understood as a claim of fact that Baldoni
However, the Wayfarer Parties have not alleged that Sloane or Reynolds had knowledge that the statements they are alleged to have made were false or that they entertained “serious doubts” as to their truth. St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Because Baldoni is a public figure,47 he may only recover if the statements were made with actual malice, meaning “actual knowledge of falsehood or reckless disregard for the truth.” N.Y. Times, 376 U.S. at 279–80. At the pleading stage, a plaintiff in federal court cannot simply state in a conclusory fashion that a defendant knew a statement was false. See Biro v. Conde Nast, 807 F.3d 541, 545 (2d Cir. 2015). He must “plead facts demonstrating that the claim of actual malice is plausible.” Id.; see Brimelow v. N.Y. Times Co., 2021 WL 4901969, at *1–2 (2d Cir. Oct. 21, 2021); BYD Co. Ltd. v. VICE Media LLC, 2022 WL 598973, at *3 (2d Cir. Mar. 1, 2022); see also Resolute Forest Prods., Inc. v. Greenpeace Int’l, 302 F. Supp. 3d 1005, 1028 (N.D. Cal. 2017) (“[C]ircuits that have considered the question have uniformly held that a claim may be dismissed for failing plausibly to allege actual malice without permitting discovery.”). Although actual malice is a state of mind, it “can be proved by circumstantial evidence.” Reader’s Dig. Assn. v. Superior Ct., 690 P.2d 610, 618 (Cal. 1984); see BYD Co., 2022 WL 598973, at *3 (“[A]ctual malice can be established using circumstantial evidence.” (quoting Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013))). Direct or circumstantial evidence thus must be pleaded. Evidence may include allegations of “failure to investigate,” “anger and hostility toward the plaintiff,” “reliance upon sources known to be unreliable,” or the plaintiff’s possession of contrary information. Reader’s Dig., 690 P.2d at 618–19; see Balla, 273 Cal. Rptr. 3d at 684; Palin v. New York Times Co., 940 F.3d 804, 813–15 (2d Cir. 2019). However, “courts must be careful not to place too much reliance” on motive or lack of care, which are not themselves sufficient in the absence of evidence that the defendant had some awareness of the falsity or likely falsity of the statements. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 667–68 (1989); see id. at 666 (“[T]he actual malice standard is not satisfied merely through a showing of ill will.”); St. Amant, 390 U.S. at 732 (“Failure to investigate does not itself establish bad faith.”).
a. Sloane
The Amended Complaint alleges that, after the publication of the CRD complaint, Sloane told a reporter that Lively was “sexually assaulted.” Dkt. No. 50 ¶ 193.48 The Amended Complaint alleges that this statement is false, because all contact between Lively and Baldoni was consensual and within the bounds of their roles. See id. ¶ 91; see generally id. ¶¶ 76–123. However, the Amended Complaint does not allege facts to support the inference that Sloane would have known (or recklessly failed to know) that the sexual assault statement was false. Sloane was Lively’s PR agent; she was not Lively’s custodian. There is no allegation that she was present when any contact between Lively and Baldoni occurred. Nor are there allegations that she would have been told secondhand by Lively (or Reynolds) anything other than what Lively had alleged in the CRD complaint. See Hughes v. Twenty-First Century Fox, Inc., 304 F. Supp. 3d 429, 453 (S.D.N.Y. 2018) (holding actual malice was insufficiently alleged when general counsel simply repeated the client’s version of events). From the facts available to Sloane, the contact between Baldoni and Lively was not consensual nor was it within the bounds of their roles. As the Amended Complaint alleges, Lively’s version of events included that “that there was inappropriate and improvised kissing.” Id. ¶ 92. The CRD complaint, which was filed prior to Sloane’s statement, more specifically states that, without Lively’s consent, Baldoni “discreetly bit and sucked on Ms. Lively’s lower lip during a scene in which he improvised numerous kisses” and “dragged his lips from her ear and down her neck . . . caressing M[s]. Lively with his mouth in a way that had nothing to do
Moreover, once Sloane credited Lively’s account of the facts, she also could have reasonably and not recklessly concluded that Baldoni had engaged in sexual assault. Although “sexual assault” has many different legal definitions, Sloane is not a lawyer and is not alleged to have used the term in a legal sense. The core of the concept in colloquial use is nonconsensual sexual conduct. See Sexual Assault, U.S. Dep’t of Justice, https://www.justice.gov/ovw/sexual-assault (“[T]he term ‘sexual assault’ means any nonconsensual sexual act proscribed by federal, tribal, or state law.”); Sexual Assault, U.S. Dep’t of Health and Human Services, Office on Women’s Health, https://womenshealth.gov/relationships-and-safety/sexual-assault-and-rape/sexual-assault (“Sexual assault is any type of sexual activity or contact that you do not consent to.”); Sexual Assault, Merriam-Webster (“[I]llegal sexual contact that usually involves force upon a person without consent.”). A bite on the lip and a caress of the neck with the mouth, without consent, could fit within that definition.49
The Wayfarer Parties argue that as a close associate of Lively, Sloane had a motive to defame Baldoni. Dkt. No. 121 at 33. First, aside from the generic premise that Sloane was Lively’s publicist and was on Lively’s “side” of the conflict, no allegations suggest any particular benefit Sloane would derive from telling a falsehood in this context. More importantly, that a person bears “ill will or ‘malice’ in the ordinary sense of the term” toward another does not establish that the person has “actual malice” with respect to their statements in the constitutional sense. See Harte-Hanks, 491 U.S. at 666; Palin, 940 F.3d at 814 (holding that “political opposition alone does not constitute actual malice,” but may support other evidence of malice). The plaintiff must show facts pointing to “knowledge of falsehood or reckless disregard for the truth.” N.Y. Times, 376 U.S. at 279–80; see Westmoreland v. CBS Inc., 596 F. Supp. 1170, 1172 n.1 (S.D.N.Y. 1984) (Leval, J.) (“[W]hat is meant [by ‘actual malice’] is something distinctly different from malice in its everyday sense of spite, ill will, or hatred.”).
b. Reynolds
The Wayfarer Parties argue that Reynolds defamed Baldoni by telling a WME executive at the premiere of his movie Deadpool & Wolverine that Baldoni was a “sexual predator,” Dkt. No. 50 ¶ 162, and using the same term in a phone call to Baldoni’s agent, id. ¶ 8. The term “sexual predator” is broader than the term “sexual assault,” but in this context could reasonably be understood to imply that Baldoni engaged in sexual misconduct towards Lively.
However, as with Sloane, Reynolds was not present for any events during filming, and the Amended Complaint does not provide any reason he would have doubted Lively’s version of events. See Prince, 634 F. Supp. 3d at 139 (Plaintiff does not “allege facts that would have prompted [Defendants] to question the reliability of any . . . sources” (quoting Biro, 807 F.3d at 546)). In fact, several allegations in the complaint support that Reynolds believed that Baldoni engaged in sexual misconduct towards Lively. During pre-production, Reynolds screamed at Baldoni after finding out that Baldoni had asked his trainer about Lively’s weight. Dkt. No. 50 ¶ 49. Reynolds then later yelled at Baldoni and demanded that he apologize for “actions that had never happened” in connection with the return to production demands, becoming further enraged when Baldoni refused to apologize. Id. ¶¶ 128–129. Given that the return to production demands concerned Baldoni’s alleged inappropriate behavior towards Lively, the obvious inference is that Reynolds was yelling about Baldoni about this alleged behavior.50 These facts tend to suggest that Reynolds believed that Baldoni had inappropriately commented on Lively’s body and then engaged in inappropriate or “predatory” actions towards Lively during filming.
The Wayfarer Parties argue that actual malice can be inferred from Reynolds’ “deep disdain” for Baldoni and the fact that he was trying to convince WME to drop Baldoni when he made the “sexual predator” statements. Dkt. No. 160 at 10–11. But as noted above, “actual malice”
The Wayfarer Parties’ theory of the case is that Reynolds, Sloane, and Lively all knew Baldoni’s behavior was appropriate but conspired to exaggerate and fabricate events that had occurred on set. Dkt. No. 50 ¶¶ 8, 16–17. The Amended Complaint alleges that Lively knew there was no sexual misconduct, and the Wayfarer Parties’ desired inference is that given Lively’s close relationships with Reynolds and Sloane, she would have told them the truth. But the Court cannot simply infer, on the theory that Lively knew her allegations were false, that Reynolds and Sloane also would have known them to be false. See Prince, 634 F. Supp. 3d at 141 (“It is well established that denials without more are insufficient to support a plausible claim of actual malice.”); Edwards v. Nat’l Audubon Soc’y, Inc., 556 F.2d 113, 121 (2d Cir. 1977). Lively’s version of events is not so “inherently improbable” that there was obvious reason to doubt it. See Biro, 807 F.3d at 545 (quoting St. Amant, 390 U.S. at 732).53 The Wayfarer Parties must plead more than factual allegations
3. Additional Statements by Sloane
The Wayfarer Parties additionally suggest that Sloane made defamatory statements to the Daily Mail reporter “concerning Lively’s accumulation of power over the production . . . and the resulting turmoil.” Dkt. No. 121 at 19–20. These statements are not actionable.
The Daily Mail reporter texted Sloane regarding reports of “probs on the set involving [Lively] and Justin Baldoni and fallout over that with Blake being labeled difficult and a power struggle existing.” Dkt. No. 50 ¶ 189. Sloane texted back that the reports were “1000 percent untrue”; “Your info is totally off”; “You have it all wrong”; and “Your reporters are so wrong.” Id. ¶ 190. She added: “wtf is going on. The whole cast doesn’t like Justin nothing [to] do with Blake,” and “They are panicking as the whole cast hates him.” Id. ¶ 190.
These statements “cannot reasonably [be] interpreted as stating actual facts.” Milkovich, 497 U.S. at 20.54 Sloane’s initial statements that reports of a problem between Lively and Baldoni were “1000 percent untrue,” “totally off,” and “so wrong,” Dkt. No. 50 ¶ 190, are simply “rhetorical hyperbole,” and additionally are not defamatory because they convey nothing negative about the Wayfarer Parties, Ferlauto, 88 Cal. Rptr. 2d at 849 (citation omitted). The subsequent statements that “the whole cast hates” or “doesn’t like” Baldoni for reasons that have “nothing to do with” Lively, id. ¶ 190, are “subjective assertions” not “objectively verifiable events,” Milkovich, 497 U.S. at 22 (quoting Scott v. News-Herald, 496 N.E.2d 699, 707 (Oh. 1986)); see Lieberman v. Fieger, 338 F.3d 1076, 1081 (9th Cir. 2003) (holding statement plaintiff “was a terrible witness disliked by the jury” not actionable). In the context of Sloane’s hyperbolic defense of Lively, the statements cannot be taken as literal assertions that every single
cast member hated Baldoni for reasons entirely unrelated to his co-star in the film. Rather, they convey a general view that Baldoni is disliked and the cause of any problems, an assertion which “contain[s] too many . . . elastic terms[] and elements of subjectivity to be susceptible of proof or disproof.” James v. San Jose Mercury News, Inc., 20 Cal. Rptr. 2d 890, 898 (Cal. Ct. App. 1993); see also Adler v. Solar Power, Inc., 2018 WL 1626162, at *10 (S.D.N.Y. Mar. 30, 2018) (“[C]haracterizing Plaintiff as a bad person is a statement of opinion.“); Nygard, 72 Cal.Rptr.3d at 229 (holding statements that employer was “horrible” to work for and “used” plaintiff not actionable).
The Wayfarer Parties argue that the statements imply undisclosed facts, because
4. Lively Responsibility for Statements by Reynolds and Sloane
The Wayfarer Parties argue that Lively should be held responsible for the statements made by Sloane and Reynolds because she “took a responsible part in publishing each of the allegedly defamatory statements by approving or authorizing them prior to publication.” Dkt. No. 162 at 8 (quoting Dickinson v. Cosby, 250 Cal. Rptr. 3d 350, 362 (Cal. Ct. App. 2019)). The Wayfarer Parties argue that Lively is responsible via respondeat superior and independently under principles of agency. Dkt. No. 162 at 5-7.
The Wayfarer Parties’ second argument relies on principles of agency. Dkt. No. 162 at 7-10; see Dickinson, 250 Cal. Rptr. 3d at 366-67. Under principles of agency, “an employer may be directly liable for acts of its agents.” Myers v. Trendwest Resorts, Inc., 56 Cal. Rptr. 3d 501, 518 (Cal. Ct. App. 2007). This theory does not require Sloane herself to have known the statements are false; instead it requires Lively to have known that the statements are false and to be responsible for Sloane making them. A person who directs the conduct of another “may be subject to tort liability because of an actor‘s conduct although the actor is not subject to liability,” for example if the person has “notice of facts that the actor lacks.” Restatement (Third) Of Agency § 7.04 cmt. c (2006); see Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012). Accordingly, if Lively approved Sloane or Reynolds’ “sexual assault” and “sexual predator” statements or authorized them to be made, she could be held liable for those statements even if Sloane and Reynolds were not liable.
However, the Wayfarer Parties have not plausibly alleged that Lively is responsible for Reynolds or Sloane‘s statements based on principles of agency. The “essential elements necessary to establish an agency relationship are ‘manifestation of consent by one person to another that the other shall act on his [or her] behalf and subject to his [or her] control, and consent by the other so to act.‘” Hoffmann v. Young, 515 P.3d 635, 646 (Cal. 2022) (quoting Church Mut. Ins. Co., S.I. v. GuideOne Specialty Mut. Ins. Co., 287 Cal. Rprt. 3d 809, 824 (Cal. Ct. App. 2021), as modified on denial of reh‘g (Jan. 11, 2022)). There are no allegations supporting that Lively agreed that, in communicating with Baldoni‘s agency, Reynolds was acting on Lively‘s behalf and under her control. Reynolds also was a client of the agency and capable of communicating with the agency on his own behalf—he would not need Lively‘s consent or assistance to contact the agency and state his views. “[A]gency cannot be implied from the marriage relationship alone.” Valentine v. Plum Healthcare Grp., LLC, 249 Cal. Rptr. 3d 905, 915 (Cal. Ct. App. 2019).56
The
Relatedly, the Wayfarer Parties allege that each of the Lively Parties conspired with the others to commit defamation. Dkt. No. 50 ¶ 330. Under California law, conspiracy to commit a tort is not actionable in the absence of an underlying tort. See Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994) (“Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort.“).57 Because the Wayfarer Parties have not adequately alleged the underlying tort of defamation, the Lively Parties cannot be liable for defamation on a conspiracy theory.
* * *
The Wayfarer Parties have not alleged a defamation claim against Lively, Sloane, or Reynolds. The factual allegations of the Amended Complaint show at most only
C. The New York Times
The Wayfarer Parties argue that the Times committed defamation by publishing the Article and Video, which stated “that the Wayfarer Parties engaged in, permitted, and/or failed to prevent sexual misconduct and orchestrated a ‘smear campaign’ in retaliation for Lively‘s purportedly protected disclosure thereof.” Dkt. No. 127 at 15-17 (citing Dkt. No. 50 ¶¶ 257, 266-267, 272, 274-275). The Times argues that the Article and Video are privileged as a fair report of Lively‘s CRD complaint, that the statement the Wayfarer Parties engaged in a “smear campaign” is protected opinion, and that the Wayfarer Parties have not pled actual malice. Dkt. No. 106 at 10-22. The statements in the Article and Video regarding the alleged sexual harassment are subject to the fair report privilege and were not plausibly made with actual malice. It is plausible that the statements in the Article and Video that the Wayfarer Parties engaged in a “smear campaign” are not subject to the fair report privilege, but the Wayfarer Parties have also not alleged that these statements were made with actual malice.
The Wayfarer Parties allege two types of defamatory statements made by the Times: “(1) Allegations that certain of the Wayfarer Parties engaged in sexual misconduct towards Lively; and (2) Allegations that the Wayfarer Parties orchestrated a retaliatory ‘smear campaign’ to damage Lively‘s image and reputation after she purportedly reported their alleged misconduct.” Dkt. No. 127 at 6. To the extent the Article makes the first statement at all, it is covered by the fair report privilege. The Article does not state that sexual misconduct actually occurred, only that “Lively . . . complained that [Baldoni and Heath] had repeatedly violated physical boundaries and made sexual and other inappropriate comments to her.” Dkt. No. 107-1 at 2. This and similar statements are clearly marked as the complaints in Lively‘s legal filing and are privileged as a fair and true report of that filing. See id. at 4 (“Lively had expressed concerns about Mr. Baldoni from the beginning, according to her legal complaint.“); id. at 5 (“She detailed her complaints during a meeting with Mr. Baldoni, Mr. Heath and other producers in January, according to the legal filing. She claimed . . .“). The Amended Complaint does not even allege that the Article accuses any of the Wayfarer Parties of sexual misconduct. See Dkt. No. 50 ¶¶ 257, 266-267, 272, 274-275.58 The Times is not liable for any statements that the Wayfarer Parties engaged in or condoned sexual misconduct.59
The Article focuses not on the sexual harassment allegations but on the “smear campaign” against Lively. Dkt. No. 107-1; see Dkt. No. 50 ¶¶ 272, 274. The statement that the Wayfarer Parties engaged in a “smear campaign” may not be covered by the fair report privilege, but the Wayfarer Parties have not alleged it was made with actual malice.
In explaining the “smear campaign,” the Article states both that the campaign is alleged in Lively‘s legal complaint and that “the text messages show” it occurred. Dkt. No. 107-1 at 2. The Article makes clear that it is reporting on a “legal complaint,” repeatedly references the complaint, and includes the Wayfarer Parties’ denials of the allegations. Id. It includes a link to a PDF of the CRD complaint. Dkt. No. 50 ¶ 265.
However, the Article also prominently states that the Times has reviewed “thousands of pages of text messages and emails,” of which only “excerpts” are included
The Video explains the basis for the story by stating as follows:
In a legal complaint Lively filed on Friday, private text messages and other documents that we‘ve obtained reveal what really happened: a campaign to tarnish Lively after she alleged that Justin Baldoni, her co-star and director, and Jamey Heath, the producer, had engaged in misconduct while shooting the film.
Dkt. No. 107-2. The Video, which is four minutes and thirty seconds long, otherwise does not mention Lively‘s legal complaint. Id. Like the Article, it includes some messages not included in the Amended Complaint. Id. at 3:00-3:20.
At the motion to dismiss stage, the role of the Court is to “decide whether the statements, considered in the context of the entire publication, are reasonably susceptible of a defamatory connotation, such that the issue is worthy of submission to a jury.” BYD Co. Ltd. v. VICE Media LLC, 531 F. Supp. 3d 810, 818 (S.D.N.Y. 2021) (citation omitted), aff‘d, 2022 WL 598973 (2d Cir. Mar. 1, 2022); see Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997); Biro, 883 F. Supp. 2d at 456. “If the words are reasonably susceptible of multiple meanings . . . ‘it is then for the trier of fact, not for the court acting on the issue solely as a matter of law, to determine in what sense the words were used and understood.‘” Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 178 (2d Cir. 2000) (quoting Davis v. Ross, 754 F.2d 80, 83 (2d Cir. 1985)).
The challenged statement here is that the Wayfarer Parties participated in a smear campaign to ruin Lively‘s reputation. See Dkt. No. 50 ¶¶ 272, 274. In the context of the Article and Video as a whole, this statement is susceptible of multiple meanings. The Article states that “[t]he documents show an additional playbook for waging a largely undetectable smear campaign,” Dkt. No. 107-1 at 2, a statement which in combination with the repeated references to “thousands of pages” of documents and text messages could be read to mean that the Times’ independent review of text messages and documents outside of the CRD complaint showed that the Wayfarer Parties waged a smear campaign. This statement would not fall within the fair report privilege. See Freeze Right Refrigeration & Air Conditioning Servs., Inc. v. City of New York, 475 N.Y.S.2d 383, 389 (1st Dep‘t 1984) (holding privilege did not apply to the “product of [defendant‘s] own research after learning of the Department‘s findings“); Greenberg v. Spitzer, 62 N.Y.S.3d 372, 388 (2d Dep‘t 2017) (denying motion to dismiss based on privilege when plaintiff was
However, due to the Article‘s extensive focus on the allegations in Lively‘s CRD complaint, which itself also includes excerpts of text messages and documents, the statement could also be read to mean that the CRD complaint and the excerpts therein show that the Wayfarer Parties waged a smear campaign. The reference to the excerpts of emails and text messages in the Article, when coupled with the reported facts that the CRD complaint contains excerpts and that the emails were obtained only by subpoena, could be understood by the ordinary reader to refer to the emails as excerpted in the CRD complaint. A reporter need not add the caveat “as excerpted in the CRD complaint” to enjoy the benefit of the privilege. See Kinsey, 991 F.3d at 180 (holding that attribution of a particular statement to a filing can be “clear from the context and structure of the article as a whole“). Understood as a reference to the CRD complaint, this statement would fall within the fair report privilege. Because there is “a genuine issue of fact as to whether [the] statement was in fact a report on a judicial proceeding,” the Court cannot conclude at this time that the privilege applies. Wenz v. Becker, 948 F. Supp. 319, 323 (S.D.N.Y. 1996); see Sheindlin v. Brady, 597 F. Supp. 3d 607, 638 (S.D.N.Y. 2022) (holding fair report privilege was an issue for the jury when it was unclear whether context would have led the ordinary viewer or reader to determine that YouTube videos were reporting on a judicial proceeding).60
The Times next argues that the statement that the Wayfarer Parties engaged in a “smear campaign” is not actionable because it is a protected opinion based on disclosed facts. Dkt. No. 106 at 19-20. Although in some contexts the phrase “smear campaign” could lack factual content, in the context of the Article a reasonable reader could understand it to mean that Baldoni, Heath, Nathan, and Abel engaged in a public relations campaign with “an explicit goal: to harm Ms. Lively‘s reputation.” Dkt. No. 107-1 at 2; see id. at 3 (“Nathan . . . went hard at the press, pushing to . . . reinforce negative [stories] about Ms. Lively“); id. at 9 (“negative publicity was seeded by Ms. Nathan, Mr. Wallace and their team“). Whether Baldoni, Heath, Nathan, and Wallace participated in a campaign to spread negative stories about Lively is a factual question. The Article discloses certain facts supporting its statement that such a campaign existed, but for the same reasons stated above, it can also be read to “impl[y] that it is based upon facts which justify the opinion but are unknown to those reading or hearing it.” Davis v. Boeheim, 22 N.E.3d 999, 1004 (N.Y. 2014) (quoting Steinhilber v. Alphonse, 501 N.E.2d 550, 552-53 (N.Y. 1986)). If the smear campaign statement is read as based on the allegations
However, the Wayfarer Parties fail to allege that the Times made this statement with actual malice. The Wayfarer Parties concede that under New York law, the “actual malice” requirement extends to claims brought by all the Wayfarer Parties, including not only Baldoni but also Wayfarer, Heath, Nathan, Abel, and Sarowitz, because the alleged defamation involves “communication in a place open to the public or a public forum in connection with an issue of public interest.”
The CRD complaint and Article contain numerous messages and documents strongly suggesting the Wayfarer Parties did spread negative stories about Lively. Specifically, Abel stated to Nathan that Baldoni “wants to feel like she can be buried,” Nathan responded “we can‘t send over the work we will or could do because that could get us in a lot of trouble,” and Nathan provided a “Scenario Planning”
The Wayfarer Parties rely on other text messages, also allegedly reviewed by the Times, which suggest that the negative publicity Lively was attracting derived from sources other than Nathan and Abel. For example, Nathan and Abel sent each other and Baldoni specific stories they described as “completely unsolicited,” and “not from any of us,” and similar phrases, id. ¶¶ 276, 279; Nathan and Abel stated to Baldoni that negative publicity was “reacting to Blake‘s own actions and interviews,” was “organic,” and that “they are doing all of this themselves,” id. ¶ 286; and Nathan stated to a reporter “BL camp keeps thinking its us placing and we are doing f all,” id. ¶ 282.
These messages do not show that the Times had a “high degree of awareness” the Wayfarer Parties probably did not engage in a smear campaign. Dongguk Univ., 734 F.3d at 123 (quoting Harte-Hanks, 491 U.S. at 667). At most, the messages reflect the Times chose among “a number of possible rational interpretations of a document that bristled with ambiguities,” which is “not enough to create a jury issue of ‘malice.‘” Time, Inc. v. Pape, 401 U.S. 279, 290 (1971); see Harte-Hanks, 491 U.S. at 681 (noting that the choice of one version of events over another conflicting version “does not alone constitute clear and convincing evidence that the defendant acted with [actual malice]“). The messages relied on by the Wayfarer Parties must be read together with the other messages the Times possessed. General statements to the effect that “they are doing all of this themselves” and “we are doing f all” do not explain how a specific reference to
The alleged facts indicate that the Times reviewed the available evidence and reported, perhaps in a dramatized manner, what it believed to have happened. The Times had no obvious motive to favor Lively‘s version of events. Though the Article largely follows the narrative of the CRD complaint, it includes additional context favoring Baldoni. It acknowledges criticism of Lively‘s promotional efforts, and comments that it is “impossible to know how much of the negative publicity” was caused by the smear campaign. Dkt. No. 107-1 at 9-10. It prominently includes the Wayfarer Parties’ denials. Id. at 2. It states that Baldoni was unsure about the publicity tactics and that the Wayfarer Parties believed Lively was using the same tactics against them. Id. at 11. These facts further cut against an inference of actual malice. The Times may have otherwise parroted the breathless “smear campaign” narrative of Lively‘s complaint, but it had evidence to support that narrative. Biro v. Conde Nast, 963 F. Supp. 2d 255, 285 (S.D.N.Y. 2013) (“The fact that an article is one sided or fails to include as many positive features about the subject as negative ones ‘has no tendency to prove that the publisher believed it to be false.‘” (quoting Westmoreland, 601 F. Supp. at 69)), aff‘d, 807 F.3d 541, and aff‘d, 622 F. App‘x 67 (2d Cir. 2015). “The issue in the libel suit is whether the publisher recklessly or knowingly published false material.” Id. (quoting Westmoreland, 601 F. Supp. at 68). It is not defamatory for the Times to dramatize the impact of the smear campaign or downplay the
The Amended Complaint identifies a single specific quotation in the Article that plausibly was taken out of context. The Article strongly implies that Nathan contributed to a Daily Mail article headlined “Is Blake Lively set to be CANCELLED?,” reporting Abel texting “[y]ou really outdid yourself with this piece” and Nathan replying “[t]hat‘s why you hired me right? I‘m the best.” Dkt. No. 102-1 at 11-12. However, the Amended Complaint plausibly alleges that in the context of the full text exchange, the exchange was sarcastic and Nathan did not contribute to the Daily Mail article. Dkt. No. 50 ¶¶ 276-277. An inference of actual malice may arise from allegations a reporter “knowingly or recklessly misstates ... evidence to make it seem more convincing or condemnatory than it is.” Westmoreland, 596 F. Supp. at 1174. But the Amended Complaint does not allege that this quotation in isolation is defamatory, nor is such a theory mentioned in the Wayfarer Parties’ briefing. See Dkt. No. 127 at 16 (focusing only on “statements that the Wayfarer Parties engaged in, permitted, and/or failed to prevent sexual misconduct and orchestrated a ‘smear campaign’ in retaliation for Lively‘s purportedly protected disclosure thereof“); Dkt. No. 50 ¶ 277 (describing this misrepresentation as “further evidence” of “the New York Times’ malicious and reckless defamation“). The Wayfarer Parties’ complaint is that the overall smear campaign narrative is defamatory. Given the strength of the evidence in favor of a smear campaign, it is not plausible that the Times “entertained serious doubts as to the truth” of the smear campaign narrative as a whole, even if, for whatever reason, it misrepresented one particular set of messages in aid of that narrative. Harte-Hanks, 491 U.S. at 667.
“[T]he great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood.” See Greenbelt Co-op. Pub. Ass‘n v. Bresler, 398 U.S. 6, 10 (1970). Even assuming that the Wayfarer Parties prepared and laid the groundwork for a negative publicity campaign but never in fact put that campaign into operation, and the references to “using their own words against them,” Dkt. No. 107-5 ¶¶ 169-170, and “shining a spotlight on Blake and Ryan,” Dkt. No. 50 ¶ 286, were innocuous, it is not plausible the Times would have known this. “Freedoms of expression require breathing space,” and a publisher must be permitted to publish the story that it believes in good faith to be before it. Hustler Mag., 485 U.S. at 51 (quoting Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 772 (1986)). The Times is not liable for defamation.
V. False Light
The Wayfarer Parties’ third cause of action is for false light invasion of privacy against all Defendants. Dkt. No. 50 ¶¶ 332-339.
California law recognizes a false light claim for “an invasion of privacy by publicity that places the plaintiff in a false light in the public eye.” Fellows v. Nat‘l Enquirer, Inc., 721 P.2d 97, 99 (Cal. 1986). The false light must be “highly offensive to a reasonable person.” Id.; see Jackson v. Mayweather, 217 Cal. Rptr. 3d 234, 256 (Cal. Ct. App. 2017). In addition, the defendant must “kn[o]w or act[] in reckless
Although some false light claims may not constitute defamation, “publicity placing one in a highly offensive false light will in most cases be defamatory as well.” Fellows, 721 P.2d at 99-100; see id. at 106 n.12 (noting “substantial overlap in the interests protected“). But see Restatement (Second) of Torts § 652E cmt. b (providing illustrations of false light that do not constitute defamation). When “[a] ‘false light’ cause of action is in substance equivalent to a libel claim, [it] should meet the same requirements of the libel claim.” Jackson, 217 Cal. Rptr. 3d at 256 (quoting Med. Marijuana, Inc. v. ProjectCBD.com, 212 Cal. Rptr. 3d 45, 55 (Cal. Ct. App. 2016), as modified on denial of reh‘g (Dec. 19, 2016)); see Fellows, 721 P.2d at 106-08 (reasoning that restrictions on defamation claims should also apply to false light claims based on defamatory language).
The Wayfarer Parties suggest that the false light claim is independent of the defamation claim because it is based on allegations of “distorting factual statements beyond recognition into falsehoods.” Dkt. No. 162 at 25-26 (citing Dkt. No. 50 ¶¶ 162, 274-282); Dkt. No. 160 at 18. The Wayfarer Parties cite paragraphs of the amended complaint alleging that Lively and her team “selectively and deceptively edited” text messages so that they portrayed a false narrative of a smear campaign. Dkt. No. 50 ¶¶ 162, 275-278. However, those factual allegations simply allege in different words the same conduct that is alleged to constitute defamation. See Issa v. Applegate, 242 Cal. Rptr. 3d 809, 820 (Cal. Ct. App. 2019) (“If the defendant juxtaposes [a] series of facts so as to imply a defamatory connection between them, or [otherwise] creates a defamatory implication . . . he may be held responsible.” (quoting Weller, 283 Cal. Rptr. at 652 n.10)). The Court has already explained why the Wayfarer Parties do not state a claim for defamation based on these allegations. To the extent that the Wayfarer Parties mean to allege that Lively provided selectively and deceptively edited text messages to the Times through the CRD complaint, such communication was privileged. To the extent the Wayfarer Parties mean to allege that she separately provided selectively edited texts, the Amended Complaint is conclusory. The Wayfarer Parties cannot benefit by the expedient of simply relabeling their defamation claim as false light.
The Wayfarer Parties otherwise concede that the false light claim stands or falls based on “whether it meets the same requirements as the defamation cause of action.” Dkt. No. 162 at 26 (quoting Eisenberg v. Alameda Newspapers, 88 Cal.Rptr.2d 802, 823 (Cal. Ct. App. 1999)). Accordingly, the false light claim must be dismissed for the same reasons as the defamation claim.
The false light claim against the New York Times is based on the same facts as the defamation claim against the Times, and accordingly must also be analyzed under New York law. Therefore, the false light claim against the Times must be dismissed for the additional reason that “New York does not recognize the tort of false light invasion of privacy.” DeIuliis, 2021 WL 4443145, at *9.
VI. Breach of Implied Covenant of Good Faith Against Lively
The Wayfarer Parties allege that Lively breached the implied covenant of good
California recognizes “an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.” Kransco v. Am. Empire Surplus Lines Ins. Co., 2 P.3d 1, 8 (Cal. 2000) (quoting Comunale v. Traders & Gen. Ins. Co., 328 P.2d 198, 200 (Cal. 1958)). The covenant “is aimed at making effective the agreement‘s promises,” and “[t]he precise nature and extent of the duty imposed by such an implied promise will depend on the contractual purposes.” Foley v. Interactive Data Corp., 765 P.2d 373, 389 (Cal. 1988) (quoting Egan v. Mut. of Omaha Ins. Co., 620 P.2d 141, 145 (Cal. 1979)). The covenant of good faith and fair dealing “cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.” Guz v. Bechtel Nat. Inc., 8 P.3d 1089, 1110 (Cal. 2000).
Accordingly, “to state a claim for breach of the implied covenant of good faith and fair dealing, Plaintiff must allege: (1) the existence of some specific contractual obligation; and (2) interference with plaintiff‘s performance of the contract or failure to cooperate with the plaintiff.” Kaurloto v. U.S. Bank, N.A., 2016 WL 6808117, at *6 (C.D. Cal. Nov. 17, 2016). The “plaintiff must identify the specific contractual provision that was frustrated.” Rockridge Tr. v. Wells Fargo, N.A., 985 F. Supp. 2d 1110, 1156 (N.D. Cal. 2013).
The Wayfarer Parties’ breach of implied covenant allegations are conclusory. The Wayfarer Parties do not plead the terms of a relevant contract, which of the Wayfarer Parties it was with, or when it was made. The Amended Complaint contains vague references to contract negotiations or entitlements, Dkt. No. 50 ¶¶ 31, 33, 117, 144, 152, but it also indicates several times that Lively did not sign her employment contract for the Film, id. ¶¶ 106-107, 140. The Wayfarer Parties do not allege any particular contractual provision that gave any particular Wayfarer Party to “the opportunity to produce, edit, and market” the film or that prohibited Lively from involvement in the production, editing or marketing of the film. Id. ¶ 344. They therefore do not identify any contractual provision the exercise of which Lively frustrated. The Wayfarer Parties attempt to specify the relevant contractual provisions in their opposition briefing, Dkt. No. 162 at 32, but “the [c]omplaint cannot be amended by the briefs in opposition to a motion to dismiss.” Jordan v. Chase Manhattan Bank, 91 F. Supp. 3d 491, 500 (S.D.N.Y. 2015) (quoting Weir v. City of New York, 2008 WL 3363129, at *9 (S.D.N.Y. Aug. 11, 2008)). The breach of implied covenant claim is dismissed.
VII. Tortious Interference with Contractual Relations or Prospective Economic Advantage
The Wayfarer Parties allege that Lively and Reynolds intentionally interfered with a contract between the Wayfarer Parties and WME by making threats to induce WME to “drop” Baldoni. Dkt. No. 50 ¶¶ 347-355. They also allege in the alternative
Under California law,64 “[t]ortious interference with contractual relations requires ‘(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant‘s knowledge of that contract; (3) the defendant‘s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.‘” Ixchel Pharma, LLC v. Biogen, Inc., 470 P.3d 571, 575 (Cal. 2020) (quoting Reeves v. Hanlon, 95 P.3d 513, 517 (Cal. 2004)). Tortious inference with prospective economic advantage requires “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant‘s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937, 950 (Cal. 2003). In addition, the plaintiff “must plead that the defendant engaged in an act that is wrongful apart from the interference itself.” Id.; see Della Penna v. Toyota Motor Sales, U.S.A., Inc., 902 P.2d 740, 751 (Cal. 1995). “Negligent interference with prospective economic advantage requires [a] plaintiff to show the same elements as intentional interference with prospective economic advantage” except that the intent is replaced by negligence and the plaintiff must show that “the defendant owes the plaintiff a duty of care.” Axia Fin., LLC v. Mason McDuffie Mortg. Co., 2023 WL 7280443, at *10 (N.D. Cal. Sept. 20, 2023) (quoting LiMandri v. Judkins, 60 Cal. Rptr. 2d 539, 551 (Cal. Ct. App. 1997)).
The Wayfarer Parties fail to allege facts regarding their relationship with WME to support any of these torts. The Amended Complaint alleges that WME is Baldoni‘s agency, Dkt. No. 50 ¶ 162, that Lively, Reynolds, Wayfarer, and Baldoni were represented by the same talent agency, id. ¶ 16, and that Reynolds told WME that the agency was working with a “sexual predator” and demanded that “the agent ‘drop’ Baldoni,” id. ¶ 162. However, the Wayfarer Parties do not allege that they had contract with WME the breach of which Reynolds knowingly induced or any economic benefit that would have been realized from a prospective relationship with WME with which Reynolds could have interfered. They also fail to allege that WME was influenced by Reynolds’ statements in any way, aside from conclusory statements that WME “cease[d] performing,” id. ¶ 350, the relationship was “disrupted,” id. ¶ 361, or the Wayfarer parties “were harmed,” id. ¶ 362; see Twombly, 550 U.S. at 555 (“[A] formulaic recitation of the elements of a cause of action will not do.“). This is fatal to all three claims, because there is no claim in
VIII. Promissory Fraud and Breach of Implied Contract Against the New York Times
The Wayfarer Parties bring claims for promissory fraud and breach of implied contract against the Times for stating that the Wayfarer Parties had until noon on December 21, 2024, to comment on the Article and then subsequently publishing the Article at 10:11 a.m. on December 21, 2024. Dkt. No. 50 ¶¶ 375-391. These claims are meritless.
Under California law,65 promissory fraud is a “subspecies” of the general cause of action for fraud. Lazar v. Superior Ct., 909 P.2d 981, 985 (1996). “The elements of a promissory fraud action are: (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage.” Fuks v. Vanetik, 2024 WL 94312, at *2 (9th Cir. Jan. 9, 2024). “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor‘s conduct.” Yari v. Producers Guild of Am., Inc., 73 Cal. Rptr. 3d 803, 811 (Cal. Ct. App. 2008). The plaintiff must plead “(1) the existence of a contract; (2) performance by the plaintiff or excuse for nonperformance; (3) breach by the defendant; and (4) damages.” T & M Solar & Air Conditioning, Inc. v. Lennox Int‘l Inc., 83 F. Supp. 3d 855, 872 (N.D. Cal. 2015).
A reporter for the Times emailed the Wayfarer Parties at approximately 9:40 p.m. Eastern Time on December 20, 2024, describing the allegations of the CRD complaint and stating:
[W]e are seeking your response . . . and we would welcome the opportunity to talk with you on the record. . . . Please offer any on-the-record comment, as well as any other information you think we should know. Additionally, please notify us of any inaccuracies. We need to hear back from you tomorrow by noon Eastern.
Dkt. No. 107-8; see Dkt. Nos. 107-9, 107-10, 107-11, 107-12. The Wayfarer Parties’ counsel then responded at 2:16 a.m. Eastern Time providing comment on behalf of the Wayfarer Parties. Id. ¶ 294; Dkt. No. 107-7. The reporter sought to clarify who was represented by the statement, and Abel stated that it was all of the Wayfarer Parties as well as Jed Wallace. Dkt. No. 107-7. The on-the-record comment was included in the Article. Dkt. No. 107-1. No allegation is made of any additional attempt to provide a comment between 2:16 a.m. and the publication of the article at 10:11 a.m. or of any comment provided after that time.
The Wayfarer Parties have not pleaded the existence of a contract. The emails do not constitute a contract. There is no offer, no acceptance, and no consideration. The email sets a deadline of noon
For the same reasons, the promissory fraud claim is also flawed. At most, the email promises that the Wayfarer Parties will have until noon to send comments, i.e., that if the Wayfarer Parties have not submitted comments by noon the Times will publish. Dkt. No. 107-8. But the Wayfarer Parties did provide comment, and the comment was included in the Article. Dkt. Nos. 107-1, 107-7. The Wayfarer Parties did not suggest that further comment was forthcoming. The Times did not promise to withhold publication after receiving comments. Additionally, no facts are pleaded to support that the Wayfarer Parties relied on the alleged representation that they had until noon to submit comments or were injured by the belief that they had until noon rather than until 10:11 a.m. to provide comment which they had already provided at 2:16 a.m. Dkt. No. 50 ¶ 294; Dkt. No. 107-7. Notably, the Wayfarer Parties do not allege any further response they could have or actually would have made between 10:11 a.m. and noon had the Article not been published.
IX. Leave to Amend
The Wayfarer Parties seek leave to amend their complaint to cure any pleading defects. See Dkt. Nos. 162 at 32; Dkt. No. 121 at 13, 17 n.6, 26, 36, 39; Dkt. No. 160 at 2, 5 n.4, 19; Dkt. No. 127 at 7, 9 n.8, 25 & n.29. The Wayfarer Parties’ proposed amendments would 1) cure impermissible group pleading, Dkt. No. 127 at 7 n.3; 2) include additional facts relevant to choice of law, Dkt. No. 127 at 9 n.8; 3) address the fair report privilege and actual malice as applicable to the New York Times, Dkt. No. 127 at 25; 4) more fully incorporate the allegations in Exhibit A, Dkt. No. 162 at 2; 5) amend allegations relevant to the civil extortion claim, Dkt. No. 162 at 25; 6) amend the false light claim, Dkt. No. 162 at 26; 7) add additional allegations of conspiracy to defame, Dkt. No. 162 at 32; 8) specify that Lively‘s contract requires that her right to consult and approve on the film be exercised in a reasonable manner and not frustrate Wayfarer‘s production and development rights, Dkt. No. 162 at 32; and 9) adequately allege Baldoni‘s contract with WME in support of the tortious interference with contract claim, Dkt. No. 160 at 23. Defendants oppose leave to amend on the grounds of futility and undue delay. Dkt. No. 158 at 9-10; Dkt. No. 172 at 2 & n.2, 4 n.5; Dkt. No. 166 at 15.
“When a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint.” Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999); see
The Court will not grant leave to amend the majority of the Wayfarer Parties’ claims because amendment would be futile. The dismissal of the claims does not rest on technical pleading defects, and the Wayfarer Parties have not made “a showing that the complaint‘s defects can be cured.” Porat v. Lincoln Towers Cmty. Ass‘n, 464 F.3d 274, 276 (2d Cir. 2006). The Wayfarer Parties do not identify any particular factual allegations that could be added to support the defamation or civil extortion claims, nor is it plausible that any allegations not yet mentioned would change the basic substance of Lively‘s threats, the conclusion that the CRD complaint was privileged, or the conclusion that relevant statements were made without actual malice. In addition to their 224-page Amended Complaint, the Wayfarer Parties have already submitted to this Court an additional 168-page Exhibit with additional details relevant to their claims. Dkt. No. 50-1. Although the Exhibit is not properly considered for purposes of the motion to dismiss, the allegations within it still would not allow the Wayfarer Parties to state a claim.
The Exhibit contains additional detail on Lively‘s threats, but if anything these details cut against a finding of extortion. For example, the Exhibit details that for some time Sony and Wayfarer in fact resisted Lively‘s requests, stating “This is a Wayfarer movie. Wayfarer has Final Cut and runs the process.” Dkt. No. 50-1 at 72-73. It then states that Lively did not sign her acting agreement so that she could “continu[e] to leverage her promotional participation as a bargaining tool,” implying that Lively may not have had a contractual obligation towards Wayfarer to promote the film. Dkt. No. 50-1 at 74. Incorporating these facts would not aid the Wayfarer Parties in alleging that Lively‘s threats were legally wrongful and could not be resisted. If, in fact, Lively did not owe the Wayfarer Parties an obligation to promote the film, her demands regarding what she would need in order to comply with their request that she engage in promotion would not have been wrongful. They would constitute hard bargaining.
Similarly, although Exhibit A contains a number of messages between the Wayfarer Parties not included in the Amended Complaint, e.g. Dkt. No. 50-1 at 143, 148, these messages are consistent with those included in the Amended Complaint and would not show that the New York Times acted with actual malice. Given that the Wayfarer Parties have already provided an extensive record of facts that purportedly portrays their claims in the best possible light, the promise that more unspecified facts will now change the central aspects of their core claims suggests a “dilatory motive” to extend the litigation rather than a legitimate belief that amendment will alter the Court‘s determination. Loreley Fin., 797 F.3d at 190.66
However, the Court will grant leave to amend the claims for tortious
X. Motions for Fees
Reynolds, Sloane, and Vision PR have moved for an award of attorney‘s fees and costs pursuant to New York‘s anti-SLAPP law,
The Court denies the motions without prejudice to renewal in accordance with the ruling here. The Court has ruled that the law applicable to the claims against Reynolds and Sloane cannot be determined absent further factual development. The Court has not ruled on whether Lively‘s statements were privileged under
CONCLUSION
The motions to dismiss are GRANTED. The Wayfarer Parties have leave to file a Second Amended Complaint by June 23, 2025, amending only the allegations relevant to the claims of tortious interference with contract and breach of implied covenant. The motions to strike are DENIED. The motions for fees and damages pursuant to
The Clerk of Court is respectfully directed to close Dkt. Nos. 86, 105, 132, 144.
SO ORDERED.
Dated: June 9, 2025
New York, New York
LEWIS J. LIMAN
United States District Judge