Tyra is Suing Over Her Edit and Lively's Team is Misstating Things Again

As a parting gift, Blake Lively's lawyers once again put out a misleading statement about the court's ruling on that novel California law, which I clear up. I'm also breaking down Tyra's new lawsuit about the ANTM documentary, which smells like reputation management to me. I also apply an employment lens to the Matt Kaplan toxic boss claims from the Vanity Fair article. 

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Transcript

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The information and ideas expressed in the allegedly golden podcast are legal explanation and legal analysis, not legal advice. While I am a lawyer, I am not your lawyer. If you need legal advice, please contact a licensed legal professional in your area. My opinions are my own. For better or for worse. One is that I am in between baseball games today. I am running back and forth to a baseball field. Um, baseball is one of those sports where on Sunday uh you play till you lose. And so you don't know if you're gonna be there for one game or three or sometimes even four. And we had a break, and I decided to come home and record this. Um, and I am very sweaty and I don't want to sit on the furniture. Also, though, it just feels appropriate. I don't know why. I like my bathroom floor. Sometimes I sit here when I need to think about something. Uh, the tile is cool on my body. I don't know. It just feels like the appropriate thing for today. I'm feeling kind of like I need to get out of my normal places. So if you're watching this, you can see the cabinets behind me. If you're not, I'm sitting on the floor of my primary bathroom. Um, like I said, I am baseball momming today. And if you're a sports parent, you know that like when they get to be about four, 13, 14, mine's 14, about to be 15, it gets so much better because they can like do their own shit. They can make their own water in the morning, they can get their own water if they need it during the game, they can make sure they have the right uniform. I mean, yeah, you have to say, like, do you have everything? Do you have everything? And do I throw a protein bar in my bag? Sure. Um, but the fact that I don't have to worry, oh my God, what if we don't have X? Is so much better, so much more enjoyable. Also, sometime in the last year, he flipped from pretending like I didn't exist at the baseball field to acknowledging that I exist and even Billy being willing to talk to me, which is like a huge improvement. Um, there were a couple of years there where it was like nobody's talking to their moms, like, ew. And he would kind of look at me like, like my very existence. He wanted me there. He would be mad at me if I didn't go, but when I did go, he refused to even make eye contact with me. Those were really fun years. But we have now gotten past that one, thank God. And so he'll actually come up to me in between games, or when he's getting up to bat, he'll look at me and kind of give me a wink. It's really a lot more fun than it used to be. Um, I mean, I try to follow his lead the best that I can, which I think is all you can really do with teenagers is try to figure out what they want from you, how little, how much it might change from day to day, or or even hour to hour. And it's a little bit weird for me because, as I've said before, on this particular team, my husband is also the coach. And so he can talk to a parent without ever interacting with me because he's in the dugout with his dad the whole time. Anyway. But all in all, I think it's better. I enjoy it more. I feel like I get to watch the game and not constantly be worrying about whether he needs something or whether I forgot to bring something. I am a very bad bringer of things. I've never been one of those moms who has like everything in the world in their bag. I'm just shitty at it. Um, and so I'm glad we've now reached the point where I don't have to be. Yeah, I have some Tylenol in my purse. That's probably all I'm gonna need. If you need more than that, I'll run to the store. It's also really fun at this age to watch him interacting with his teammates who are friends in a really unique way, right? Like the people you play sports with are friends on like a different level than your school friends or, you know, friends from growing up or neighborhood friends or whatever. Um, because you're all engaged in this synergy. And so you all have to like be there for each other to pump each other up and to pick each other up when things are down. And just watching him now, all of them, some of these kids I've known since they were like nine, watching them walk around and like have their little relationships and have handshakes that they do between a couple of them. It's just the cutest thing in the world. And I really like it. I'm enjoying myself very much. As I've also said before, I am very bad at making mom friends. Um, but I I have made some friends on this team and a couple of other teams, just a handful of people where we're all kind of, you know, on the same level. Um, it, you know, you you kind of do this little dance when you're trying to make a mom friend, especially like if your kids are engaged in the same activity. You're trying to find out, like, oh, are they like us? Do they raise their kid the way that we do? Do they see their kid the way that we do? Right. Um, I'm not a boy mom because that has become ew. But I am the mom of a boy. And there's something about moms of boys, and particularly moms of only children boys, that we just get each other. I mean, it's nice, of course, to talk to somebody else about like, does your house smell like feet also? Great. Can you also not get anyone to brush their teeth? Me too. Um, but it's even better, it's even deeper when you meet someone that has those things in common, and then you find out that, like, oh, they're also the same way with their kid. Like, for example, your kid forgets their something. I'm not running home to get that shit. Sorry. We reminded you, you didn't bring it, you're gonna have to deal. I feel like that's a real divide for parents. You know, there's the kind that will run home and get stuff or run out and buy stuff. And of course, I'm not talking about stuff you need for like safety or health. Um we have a kid on our team, and I remember one time he got to the field and he didn't have any shoes. He forgot his shoes. He got in the car in his socks and forgot his shoes. And his dad was like, I guess you better find somebody's shoes you can borrow, because I'm not going home and I'm not buying you new shoes. And I respect. I respect that. Um not to like crap on anyone's parenting, but I feel like sports, playing sports, especially travel sports, which is what we're doing this weekend, is a privilege for these kids. They ought to treat it as such. You're lucky that you get to do this. Your parents pay a lot of money for this. And so at this stage of life, I mean, a lot of these kids are gonna be getting their learner's permits in the next year, including mine. You gotta start being a responsible person. I can't do everything for you. So, anyway, what I'm getting to is I made a new mom friend this weekend because she was the same way about her kid. And I was like, you and me are gonna be besties. But I'm not gonna belabor. I'm just gonna get right to it this week because we have got an awful lot to talk about. I forgot to tell you, I do have my Diet Coke. It is a McDonald's Diet Coke, so I am happy as a person can be to talk to you about civil disorder. There have been a lot of interesting things that happened this week. There were some real down days where nothing was happening, and then everything happens all at once, which is just how the world works. Um, but I'm just gonna go ahead and start off with the biggest thing, which is we got a ruling, we got an order in the Blake Lively case on the issue of 47. On the issue of Blake Lively's motion for fees, attorney's fees and costs, and also damages related to the dismissal of Wayfarer's defamation claim back in the summer of 2025. The misinformation about this ruling was swift and immediate because of her lawyers, um, because of the way that they behaved, because of the things they said, like she has won this motion when she won part of it and lost part of it. Maybe I'm old-fashioned, but you know, these things still matter to me. Um and, you know, this is part of my issue with the way this case has been litigated. It's one thing to litigate really hard for your client. It's one thing to stretch an argument to make it work for your client because you're a zealous advocate. It's another thing to purposely put out misinformation and sometimes outright lies just to make your client look good. For my personal ethics, that's a bridge too far, but apparently not for theirs. So here's what the order actually says: it actually says that the judge is granting Blake Lively the right to recover from Wayfarer her reasonable attorney's fees that she expended on getting the defamation part of Wayfarer's complaint dismissed. Everything else is denied. Okay, no damages, no trouble, no compensatory, no punitive. I'll talk about the other thing they're claiming they can do in a minute here. And in legal ease, I'm going to explain how fee shifting provisions work generally, so you'll have a little bit of a deeper understanding about this ruling. But it is really important for people to understand that she asked for two things. One of them was granted and one of them was denied. And it is only for the dismissal of the defamation claim. What did she pay lawyers? What did she incur in getting that claim dismissed? And people noticed really quickly, and they're absolutely right, that how do you untie the dismissal of the defamation claim from the dismissal of the other claims that were in Wayfair's complaint, right? Because a huge part of that complaint got dismissed with prejudice, some without prejudice. But like, how do you how do you separate the attorney work, right? And that's something she's gonna have to figure out how to do. And Wayfair is gonna have to decide if they want to argue with her about it. And frankly, it really comes down to the way that the time entries are written by the people who worked on the case. You know, when you're a practicing lawyer, you have to write down how you spend either every six minutes of your time or every 15 minutes of your time, depending on the way that you keep time. And sometimes those entries say really specific things like research for defamation claim against Blake Lively. And sometimes they say research for motion to dismiss, right? So you can't tell if it's the defamation claim or the extortion claim or the tortuous interference claim, right? So she is going to have to present to the court. The court has said you may seek reasonable fees. Now she has to do the next step, which is to present what she considers those reasonable fees to be. Right. But when you are in the fees part of litigation, it also can become really circular really fast. Because how much do you want to spend on your lawyers to keep from paying her lawyers? Do you want to spend $25,000 to Kevin Fritz and Ellen Garofalo to save $10,000 paying Blake Lively? Maybe you do. Maybe it's a principle, but maybe not. So they have the right to fight every single entry. Whether they will is something else. We're just gonna have to see. The super fun part about this part of litigation is that you get to see what the bills look like. Now they will redact them, of course, for any attorney client privilege or work product information. If the judge needs to see those redactions to determine what the work was done, he can see those bills in camera. But we should be able to see how the time entries are put in, and we will definitely be able to see what the hourly rates, which will be fun because we've been guessing. The burden is on Lively to prove that these are the number of hours that were spent on the dismissal of this particular claim. And the burden is on her to show that the rates that she was charged are reasonable for the work that was done and for the market that they are in. And the reason that's built into all these fee statutes is you can't have somebody saying, Well, you know, I charge $3,000 an hour to do, to read a statute and tell it what it tell you what it says. Well, that's a lawyer fee, but it's not reasonable. In other words, if the client's willing to pay more than it's worth, that's between the client and their lawyer. But you can't ask the opposing party to then jump onto that bus as well. They get to say, I'm not gonna pay that just because you were dumb enough to think that it was worth that. So they get to have that whole part of litigation and we get to see all of that kind of stuff. The kind of things that get challenged are typically either huge entries of time or duplicative work. So, for example, let's say that on one of the bills from one of the Wilkie attorneys, somebody has billed 12 hours for research. And when you look at the entries, they have billed 12 hours to find a case that says what the dismissal standard is under Rule 12B6 in federal courts. That is not reasonable. Because you can find a case that tells you what the standard is under 12B6 in about 30 seconds by looking up 12B6. Right? So when it's like, how could this possibly have taken that long? That is where people start to throw darts at it and say, I don't think that's reasonable. The other place is where there's too many people doing the same thing. Um big institutional clients already hate this on their bills, and courts don't like it either. And that's when you have a whole bunch of people in every single meeting. Do you really need eight people in the room, each of whom is billing $800 to $1,200 an hour every single time something comes up? You might need that for like periodic status conferences to figure out who's doing what work and what the strategy is and all that. That might be reasonable. But every time, does everybody need to be on the call? Like if you think back to some of the um the emails we've seen in the case where they're conferring over email about discovery disputes, did you notice all of those people that were on those emails? There's like 20 people for each side. Every single one of those people build to read those emails, which means that one email on just the lively side of the case could have hours and hours and hours of attorney time just to read a one-paragraph email. That's the kind of stuff that Wayfarer can challenge if it wants to. And that's the kind of stuff that the judge can cut if they want to. Usually in an attorney's fees proceeding, when you are proving that fees are reasonable for both the work and the market, you have expert testimony. You have another lawyer who will draft an affidavit for you. And if you have to have a hearing, who will testify for you to say this is reasonable for this work. Right. Because the market does not charge the same thing for defamation plaintiff's work as it does for Fair Labor Standards Act claims for overtime, right? The market charges different things. There are certain kinds of lawyers that charge more so than others. And so you need someone to come in and say, I do this same type of work in the same type of market. And based on my knowledge and experience, here's what a reasonable rate would be. I think what might be really interesting is because Lively was represented by and by the end, several different firms, they've got not only New York rates, but also Los Angeles rates, and I believe some DC rates in there. Um, so it'll be interesting to see what the rates are like in the different markets. Now, those are all big markets, so they might be the same, but they might be a little bit different. My guess is that the New York rates are the highest, but I guess we'll see. Lots of questions about how does the money actually get paid and does Blake Lively get the money? And the answer to that is probably not. So lawyers have what are called trust accounts, where they hold money for their clients. And depending on the type of lawyer, it can be different stuff. If you're a real estate lawyer, you might put closing fees or sale proceeds into your trust account. You hold it there in trust for your client. As a litigator, a lot of times what you will hold in trust is like a retainer that they pay you up front. Okay. If there is a settlement and money changes hands, it doesn't go straight from one party to the other. It goes into the lawyer's trust account. And then the lawyer decides how much they're going to pay the client. And the reason for that is that if a client receives money from a case in some way, shape, or form, but they have not paid the lawyers for the lawyer's work, the lawyers can say, I'm not going to give you that money because you owe me that money. Okay. So if and when Wayfarer has to write a check or send a wire transfer for reasonable attorney's fees, what will happen is that that money will go into a trust account at Wilkie Farr or Manat that is under the control of that firm by way of those attorneys. And then once it gets there, it really depends on how up to date the lively Reynolds people are with paying their invoices to their lawyers. Because as I'm going to explain in legal ease, when you are getting attorney's fees in this way, you are being paid back. Are being reimbursed for fees you have already had to pay. So if the fees have already been paid by Lively and or Reynolds, right? Whatever they get from Wayfarer, those bills, those invoices, and there's numbers on them, you know exactly which entries they are. If those have been paid, then the firms will probably say, you know what, then we'll just take the money and we'll apply it to whatever outstanding invoices there are, as like a set-off, right? If it hasn't been paid, then they apply it to the outstanding balance. So basically, the law firm is owed money, right? The invoices that are sent to clients are accounts receivable for the law firms. And if their clients receive money in the case, whether it's through a settlement or whether it's through damages or whether it's through attorney's fees, it is first going to go into the lawyer's account. And then the lawyer has the right to hold it to determine how to apply it. And let's just say I'm making this up. Lively owes Wilkie $2 million for the stuff that's happened in the last month. If Wayfair wires over to Wilkie $150,000, Wilkie's going to be like, okay, we'll just set that off against the $2 million that you owe us. Do you see what I'm saying? So while it is possible that the money could end up in Lively's bank account, to me, it is highly unlikely. Um, but it is typically not a check goes from Steve Sarowitz to Blake Lively. And there's a lot of reasons for that, not the least of which is, like I said earlier, the tax implications of that money. That would be income to her if it went that way. Right? So I don't think it's possible, but I don't think it's likely that it's actually going to get into their hands. I think it's going to go to the law firms, and the law firms are going to apply it to whatever they have. Outstanding. The other big question is, because her lawyers put it out there, well, they're just going to go refile this thing in California and get the damages there. And about one million people have asked me, can we do, can they do that? And my answer is we don't know because it's not clear, the law's not clear. But my opinion is I doubt it. And there's a bunch of different reasons for that. So what Lively's attorneys appear to be claiming is that Judge Lyman said, I'm not going to award the damages, punitive damages, treble damages stuff. Because if I were to do so, that would do so, sort of flying in the face of the rights of Wayfarer to have a full-blown litigation over those issues, to have a trial, their Seventh Amendment rights, all this kind of stuff. And what Lively's people seem to be arguing is: well, he didn't say we can't try another court. And he didn't. He didn't say one way or the other. But that's not the end of the story. There are all kinds of things that could go into this. And I would bet Dollars to Donuts that Alexander Shapiro totally disagrees with what the lively lawyer said in their statement. And there could be several reasons for that, right? First of all, we don't even know that 47.1 allows a private right of action to sue all by itself in California. We don't know that. It doesn't say. And I've said this before, I think it was on a Patreon video. You can't sue for violations of all laws. Not all laws have private rights of action. Now, clearly, 47.1 allows a defendant in a defamation claim to recover if certain standards are met. But we don't even know if that law allows someone to just file a lawsuit, claim one violation of 47.1. We do not know. And if Lively's lawyers are asking like acting like they know, they don't know either. The other thing, of course, is what did they settle and what was left open? Right? We have not seen, we the public, have not seen the actual settlement agreement. What we have seen is the document that was filed with the court, the notice of settlement, saying that the 47.1 motion was still before the court and had not been settled. It also said that both parties waive their right to appeal, whatever that decision is. So there's this secondary question of would going to California to try to get a California court to look at the issue of damages, even though Lyman's already done it, would that fall into the category of appeal? And or is Lyman's decision on that issue the end of the story? Can another court look at the exact same issue and make a different ruling? There's a concept that's called the law of the case or race judicata that says once an issue has been decided between parties, it is decided between those parties forever. You can't go through one court and have one judge decide it and then go try another court. So I think the Wayfair parties have the option to say that this has been decided. Judge Lyman decided this. This is the law of the case. You can't ask a California court to now come in and do it again. And if you do, then it's an appeal of what Judge Lyman said and you waived your right to appeal. So I think all of those things are on the table. Also, there's just little things like if she tried to sue in California, has the statute of limitations run? I mean, because that law doesn't tell you that it has a private right of action, in other words, you can sue for it, it also doesn't have a statute of limitations in it. What if it's been too long? What if it was a year? You know, I I think there's all kinds of obstacles to that. But I can't give you um a certainty because nobody can. Um, I don't think they're going to do that. And here's why. First of all, doesn't everybody just want to be done with this? But I know that, you know, sometimes they can get relentless. I do think that that statement was my guess is, my speculation is that that statement was heavily, heavily written by uh the actor whose movies are not funny, who wanted them to say that, to make them look like less uh of the losers that they have been in this case. But also, let's just go with it for a second and say that there is a private right of action and she can bring it, she can go to California and all that. As we saw with Judge Lyman's order, the issue is going to be the malice, right? She communicated about sexual harassment. Did she believe that was true? Did she believe her own sexual harassment story? Or did she have knowledge that it was false when she made it? That would be the issue of the case. So the entire litigation would be about one issue, and that issue would be Blake Lively's motivation. Is that really what they want? You really want to put that out on the table again? And there's, you know, when you get into this case, if you were to file that case, there's no like, oh no, it's about Israel and Hamas and those statements and Claire Ayyub's video. No, no. The whole entire case would be did she believe it when she said she was sexually harassed? And if I were her, and I was anybody near her, I would tell her absolutely not to do that. This one is new, and um I jumped on it, somebody found the complaint, and I was happy to read it. Um, and this is the new lawsuit that was filed by Tyra Banks against Netflix and the people who made the America's Next Top Model documentary, which I watched, which I talked about on my TikTok. I remember America's Next Top Model. I remember those years, I remember when it was on TV. It made an impression on, I think, all women at that point in time, especially young women. Um, and it did not portray Tyra in a very favorable light, for sure. Some things about it did, but then the more it went on, the more it portrayed her quite negatively. And so she has sued Netflix and the production company who made that documentary for a whole bunch of things that I'm going to explain. But I think that we ought to also just keep in mind the possibility that at least part of the reason for filing this complaint, which was sent to People Magazine, is a little search engine optimization. Because when I was trying to find the complaint before someone found it for me, when you Google Tyra Banks' lawsuit, what comes up is this two and a half million dollar dispute she is having with a landlord in, I believe, DC, um, over, remember, she decided she was gonna be into ice cream and then like it shut down and she owes this person all this money. So now, when you Google Tyra Banks' lawsuit, her lawsuit against Netflix is gonna come up instead of that one. So I don't, I don't think it hurts, is what I'm saying. Umtable is who her lawyer is. Um her lawyer in this case is Thomas Clare. Thomas Clare is a very uh well-regarded and renowned defamation lawyer. He and his wife, who they own their firm together, um, represent the Macrones in their case against Candace Owens. They represented Dominion Voting Systems in that case against Fox News. Um, when you were talking about defamation, they know what they are doing. I've been giving him a little bit of side eye over the last few months because he also represents Amy Griffin, sort of behind the scenes, um, but not on the docket. And I don't know, something about that doesn't feel right to me. But they definitely know what they are doing. If you wanted to file a big defamation suit, they're probably the people you would go to if you had the money. So what are they suing over? Well, they've got a couple accounts of false light. This is filed in California. Um, false light, but it's under New York law because of a contract I'm gonna tell you about. False light, which is basically defamation, you made me look bad. And then pure defamation and defamation by implication, which is an interesting one. Essentially, for the edits that were made around Tyra that made her look, um, made her appear to have said things and taken positions on things that they claim she did not. The major focus is the editing of the material around Shandy, who was that model who was on, I believe, the very first season, who claimed that she was sexually assaulted during the season. And when you watch the documentary, it looks like Tyra was like, I don't even remember that. And I didn't think of it as sexual assault at the time. And it does make her look pretty uncaring about the whole thing. Her lawyers claim off camera, or in parts that you chose to edit out, I was like, Oh, yes, I absolutely remember that. And then they made it look like she didn't remember. Um, you know, defamation is an uphill battle to begin with. You know, trying to find factual statements, because remember for defamation, it has to be a factual statement because it has to be something that you can prove is true or false. And that can be difficult. I think the one that gets the closest is that issue. Did she remember that that happened at all? Because that's one of those things you can sort of test the yes or no of it. But you know, I think that the rest of it could be said to be opinion, editorial discretion, all that kind of thing. In addition to the defamation claims, there's also a claim for breach of contract, the contract that she had with the production company, and then a Lanamact violation for putting her face, her likeness on an album that was made about that documentary without her permission. And I'm gonna tell you why those things are in there. There is a 100% chance that Netflix and probably the production company are going to file an anti-slap, a pro-speech motion in response to this and say, we were making a show, we were making a documentary, we were engaging in free speech that has long been protected under the law. This was just editorial discretion, you're trying to sue us for engaging in free speech, this case should go away, right? And defamation claims are very subject to that. But contract claims and trademark claims are not, or at least less so. Right? So those claims, in addition to the defamation, are there to anchor the case because they know that this pro-speech motion is coming. It's very similar to what happened with The Pit, right? The show The Pit, where they were sued by Michael Crichton's widow, who said your characters in your show is derivative of ER. The Pitt filed a pro-speech motion and said making TV is free speech and you can't stop us. And the only reason it was denied is because there was a provision of a contract between Michael Crichton's estate and the studio that was at issue. So a contract claim can put a halt on dismissing a case for free speech, because of course, contracts are not speech. So I think that these contract, the contract claim and the Lanham Act claim, in my opinion, are there so that when the pro-speech motion gets filed, when the production company and Netflix file it and say you should throw this thing out, this is all free speech, the response is going to come from Tyra Banks' lawyers that how can it be free speech? We're talking about a contract and a trademark issue. Those have nothing to do with free speech. Now, in addition to that, so you might think like, okay, well, then why did they sue for the defamation at all? Why not just sue for the contract breach and the trademark breach, right? And not throw in the defamation? Like, why would you sue under claims that are probably going to get kicked? Well, it's because of the language of the contract. So the contract that Tyra Banks signed with the production company identifies the types of conduct that would be material breaches of that contract, which is very helpful, right? This contract will be considered to have been breached if these things happen. Number one is if Tyra Banks is defamed in a way that is actionable under the law. So the defamation is the breach. So they can't bring the breach of contract claim without also bringing the defamation claim because the defamation is the breach, which I know is very circular and confusing. But the point that I'm getting to is I think they know that the defamation claims are vulnerable, but anchoring them into these contract claims gives them more longevity. That is my guess as to what is going to happen. Now, the complaint also claims that Tyra tried to work this thing out before she filed. It says that they contacted Netflix and they contacted the production company and said, Can't you just let us see the footage? Let us see the raw footage so that we can show you the stuff that was edited out. Just let us see it. And they told her to fuck off. They would not let her see the footage. Um, so they claim, you know, this was a last resort. This is not what we wanted to do. I think that this lawsuit is reputation management to some degree. I don't think anybody can deny that, right? We know that people got this impression. I mean, the internet was all ablaze about how uncaring she was about this woman and what she claimed happened to her. And you can only make so many public statements for people to care about. I think she did do a social media post that was like, I know there's been a lot of criticism of me, and I agree with it. I, you know, at the time I wasn't as thoughtful about these things as I should have been. But I think filing this lawsuit is reputation management, depending on how far it goes, to say, you know, I am so adamant that this was not accurate that I'm willing to sue over it. So we'll see where it goes. I definitely think we're going to get a pro-speech motion to dismiss right out of the gate. One that is not an active case, but it's an employment issue. And I talked about it when the scuttle butt first started, and now we have the full-blown article. And that is the Vanity Fair article about Matt Kaplan, who is Alex Cooper's husband. Months ago, there was all this talk about how this big expose was coming out about what a shitty boss he was and how he yelled at everybody and he was so difficult, and maybe some other things, right? And everybody was speculating about what was going to be in it and was he harassing people and all that kind of stuff. And the article finally came out this week. And it it seems like it's pretty much what we expected, right? There are some vague allegations about like asking people about their sex lives, but that appears to be the most uh sort of egregious, which is probably not going to rise to the level of severe or pervasive. And the bulk of the article is the guy just seems like a gigantic asshole, right? He yells at people, he treats people like shit. You know, when people, there's a whole part of the article that when ex-employees were contacted by this journalist about doing this story, they were like, you know, I'm scared of them, they're gonna retaliate against me and they don't work there anymore. So, you know, he definitely confirms Matt Kaplan's reputation for the way that he runs his workplace. But, you know, as I say to people all the time, being an asshole is mostly, usually not illegal. And I never miss an opportunity to say this when I'm talking about employment issues. As someone who has practiced indiscrimination law for a very long time, the language can be twisted. Um, either intentionally, so people misunderstand, or unintentionally just because of terms that are in the zeitgeist. But it is a good time to remind everyone all workplaces are hostile. Just because somebody says it's a hostile work environment does not mean that discrimination is going on. And all workplaces are hostile. It's not fun. Right? Um, similarly, all bosses discriminate. All bosses have favorites, they have people they like, they have people they don't like, they have people they give the good work to and they give the promotions to, and they have people they give the shit work to and they ignore, right? Both of those things are always true. The legal question is why is the workplace hostile because you're Hispanic? Now you got a legal problem. But if the workplace is hostile because you know the people who run it have metrics for success that aren't reasonable, that's a shitty place to work. But there's nothing the law can do. Similarly, if you have a boss who discriminates against five employees because all of those employees are gay, that is a legal problem. But if you have a boss who discriminates against Against five employees, because those five employees always come in late. That is not a legal problem. So just when you're reading things out there, when you're reading articles, when you're reading things in your own workplace, people oftentimes think that they can just use these magic words of hostile work environment or someone is discriminating against me, and think that that automatically gives them a legal claim. And that is just not true. It depends on why. I will also say, although it is not my area of expertise, just as a consumer, that it's really unfortunate that the show is called Call Her Daddy. She's having a baby, so he's the daddy, and then the article is he's an asshole. So it doesn't take a genius headline writer to imply that the daddy who runs the daddy show might not be a great daddy, right? I mean, I don't know like what Molly McPherson or somebody thinks about this, but when you've got um the star, Alex, who is pregnant, and they're out there in public talking about how excited they are to have this baby, and then you've got an article coming out about how your husband, the father of this child, blows his top at everybody who looks at him funny. That's not a great look. Doesn't mean he won't be a good dad, but is it a little bit of a flag for me? Sure is. We are also going to get, unless they get last minute extensions, which who the fuck knows, we should also get at least one and maybe two responses to the complaint in the Amy Griffin case this week. From Penguin, from Griffin, and I don't know what the hell's going on with Sam Lansky. But cross your fingers that nobody gets extensions, and we have big fat files that I have to pay lots of money for because they're a million pages. So for legalese, it just made sense to talk about fee shifting provisions because it's on everybody's mind. I should have said, and I didn't earlier, that Frank is on the bathroom floor with me. He is laying on a bath mat that is kind of the same color as him. So he kind of looks like one of those color-changing iguanas, but he's listening very intently because he really cares about fee shifting provisions. Okay. So as we saw with 47.1, there are some circumstances in civil litigation where the burden of attorney's fees can shift from one party to the other. And this is not the case for every single claim by any stretch of the imagination. It is not the default. The default in America, it's literally called the American rule. The default is everybody pays their own lawyers. However, it is possible for there to be permission given to shift the fees to the party that loses to have to pay for the party that wins. But it can only happen with consent. So there are, without getting too into the weeds, we as a an alleged democracy, um, the laws apply to us by consent, right? We live in this place and we utilize the government and its protections, and in exchange, we consent to its laws, right? Um you can only be required to potentially be stuck with shifting fees if someone in the lawmaking process or the business process has consented to it. In other words, the only way that there might be an issue where one party in litigation has to pay another party's fees and costs, which I'm gonna get into in a second, is if it's built into a law that is sued over, or if it's built into a contract that is sued. So a lot of business contracts have prevailing party language in them that say if a dispute ever arises about this agreement, the party who prevails in the litigation is entitled to recover their reasonable attorney's fees and costs from the other party. So the parties have consented to it by signing a contract that says that that's allowed. If it's not in a contract, then it has to be in a statute, which means the legislature builds it into the law and says, this has a private right of action. People can sue each other for violation of this law that we just made, and whoever wins might be entitled to recover their fees. But it has to come from somewhere. It has to come from a statute or it has to come from a contract. The only other way it can happen is like as a punishment, as like a sanction, right? Where like you filed some bullshit thing that was frivolous, and so now you have to pay me back for the attorney's fees that I was out. But the only way it happens, there are cases where I've seen plenty of cases where there are no fee shifting provisions. There just isn't one in play. Because they're not suing over a contract, and none of the statutes that are being utilized have a fee shifting provision in it. They don't all have it, only the ones that the legislature chooses to put in there. Now, some fee shifting provisions are permissive and some are mandatory, right? So typically the ones in contracts are mandatory. It'll say if there's ever a dispute over this agreement, the prevailing party shall be able to recover their attorney's fees and costs from the losing party. A lot of times in statutes, it is a permissive, meaning it'll say they may. And then it's up to the judge, which is essentially what just happened with Blake Lively and Judge Lyman. There is one, well, there's more than one, but as an example of one that is really draconian, right? It's a mandatory fee provision and it applies no matter what the case is, is the Fair Labor Standards Act, which is an employment law that, you know, it does a lot of things. It determines, you know, who's exempt from overtime and who's not, that kind of thing. But the way that the Fair Labor Standards Act, the FLSA works, is that if you sue your employer or your former employer for violations of the FLSA and you win, you get all of your attorney's fees paid. You must get, it is mandatory, the court does not have any discretion, you get all of your attorney's fees paid, no matter how little you recover. So you could sue your employer under the FLSA and say, you forgot to pay me one extra hour of overtime. And that's worth $22. Okay. If the court finds that you are in fact owed that $22, not only must your employer pay you the $22, they must pay every single cent of the attorney's fees that you had to pay to recover that $22. Right? So what fee shifting provisions essentially do is they put you back in the place you would have been in if whoever you sued or whoever you were litigating with had done the right thing in the first place. It's for your wasted time. It's to make you whole again. It's to say you had to spend this amount of money to recover the things that were kept from you. And because of that, you shouldn't be out of pocket for the lawyer's fees to get what this court has decided you deserved all along. Right? It is putting you back in the place you would have been in had these things not happened. It also has the effect of, of course, discouraging the bad behavior in the first place. Because if you are the employer, certainly with the FLSA, I've lost track of how many times I've said to people, if you're in doubt, pay them the fucking overtime. Because if they sue us and win, it's not just the overtime we're gonna have to pay. We're gonna have to pay thousands and thousands and thousands of dollars worth of attorneys' fees for them to recover essentially nothing. So it discourages people from sort of um splitting hairs on the law. When in doubt, just do it. Okay. So, like all other fee shifting provisions in laws, what 47.1 is supposed to do is to say you made a claim of sexual harassment or you communicated sexual harassment, and someone sues you for defamation over that communication. If you go to court and say that defamation claim should not be brought against me, I'm protected against that, and you win, then not only do you get to say you won and the defamation claim is dismissed, but all the money that you had to pay out of pocket and getting it dismissed should go back into your pocket. So you can be the part, the whole person that you should have been, had none of this ever happened. Now, some fee shifting provisions are mutual, like prevailing party, and some of them are one-sided. They will only give fees to a certain prevailing type of party. A lot of equal opportunity laws do this. They'll say if someone sues for race discrimination against their employer, if the plaintiff wins, if they prevail that there was race discrimination, then the court can also require the employer not only to pay their damages, but to pay them back for the attorney's fees that they incurred in bringing that case. But if the employer wins and there was no race discrimination, it doesn't work in the reverse. The employee doesn't have to pay the employer. So sometimes it's prevailing party, sometimes it's one side. One of the key things to know is it is not supposed to be a profit-making enterprise, which is why I had to get on the internet the very minute that that order came out and make sure everybody knew that attorney's fees are not damages, they are recouping out-of-pocket expenses. You're not supposed to come out ahead when you get attorney's fees as a prevailing party. You're supposed to be paid back. If you had to spend $50,000 to get a bullshit case against you dismissed, then you should have somebody pay you back the $50,000 that you had to spend. That's all that it is. It doesn't require a finding of liability. It's not damages, it's not a profit. Now, in terms of how does it work, and I talked about this a little bit at the top, um, the party who is being ordered to pay the reasonable fees can argue against every single dollar. It is not a situation where whoever's entitled to the fees just says, here's how much I'm owed, write me a check. No, no. Because you don't have to pay people who have run up fees that were unnecessary, that were duplicative, or that don't match the work that was done or don't match the rates for that market. You can probably uh get somebody to pay an attorney $1,200 an hour in Manhattan, but if somebody charged $1,200 an hour in Tulsa, no judge is gonna award that. That's not the market there. Attorney's fees, hourly rates change depending on the market, what the market will bear. And they're different all over the country. Nobody's even talking about the other issue, which is costs. There's fees and costs, and they are not the same. Attorneys' fees are the hourly rate that attorneys have charged to do legal work. Costs are all the expenses surrounding litigation. It's things like court reporters and copies and filing fees and stuff like that. And Blake Lively is entitled to recover reasonable costs as well. And I would not be surprised if she tries to push that one beyond the bounds because of the way that the Southern District of New York local rules are written when it comes to costs. Now, I am not a member of that bar, and I don't know how these work in practice, but I can in fact read. And there's a local rule, 54.1, that talks about taxable costs, which is what these would be, and it talks about what kinds of things can be recovered. And some of them are very typical things like transcripts, right? If you had to, when you get a court reporter, you not only have to pay the court reporter for the work of taking down the information, the transcripts have to be purchased. You may not know. So the cost of some of the transcripts can come into play. The SDNY also allows you to recover for some deposition costs. Now that would be silly here because, of course, there were no depositions because it was dismissed before there was discovery. But we know she might try. Witness fees, again, shouldn't be applicable here because it was dismissed, but who knows? Interpreting costs, if you had to have an interpreter, copies of papers, that can be a humongous expense. Now everything is electronically filed in the SDNY, but I have seen taxable cost bills for thousands and thousands of dollars worth of copies. So you just never know. Maps, charts, models, that kind of stuff, title searches. Sometimes you can try to get electronic stuff. Now, again, because this was dismissed before there was any discovery, a lot of those shouldn't apply. But it's not just going to be the hourly rates, it's also going to be the costs. It's going to be what it cost Wilkie Farr and Manat to, I mean, sometimes people try to uh put in like fees they had to pay for like Westlaw research and stuff like that. So knowing how shameless these folks are, nothing would surprise me. So it's not just fees, it's also costs. Can you also fight over the costs? You sure can. You can fight over anything. And the reason that you can fight over anything is because it has to be reasonable. And reasonableness is ultimately up to the judge. So in this situation, um, the next move is really on lively. She's gonna have to produce something that says, here's how much we spent, here's what the rates were, and here's how many hours. And then it will be up to Wayfarer to decide. Do we want to fight her on this or do we just write her a check and be done with it? And honestly, in this case, I'm not really sure. Because I could see it both ways. I could see them saying, you know what? F this woman. Let's let's fight. If she wants to go there, okay. Let's fight tooth and nail over every dollar and show everybody how much money she spent to ultimately lose a case and settle the rest. Or they could say, we're tired of this. Sarah Woods could say, I'm tired of paying lawyers. We're all tired of dealing with this. I'm tired of fighting. Just write her a check and let it go. It could go either way. Or um attorneys' fees can be settled, just like everything else. So let's say Lively comes out and says, We spent $400,000 getting that defamation claim dismissed. Wayfair could come back and be like, please, you absolutely did not. Um The New York Times said it took them $150. We'll give you $150. And Lively could say, well, how about three? Well, how about $250? You know what I mean? So you can settle this issue as well if you want to. But the next move is on Lively, and then we have to see what Wayfair does and it has been a very dramatic weekend. And so I think we all need to take a little bit of time away from this. I'm gonna go sit at a baseball game and cheer on my kid. Uh, but don't worry, come back next week. I'll be here because that drama never stops, and someone has to make it make sense.