u/katie151515

I am making a short post because I have seen a bit of confusion surrounding how the settlement affects Wayfarer's right to appeal the NYT decision. I know many of you have been hoping for good news on this front, but after working through the language of the stipulation, I have to be honest with you: the document does not leave room for Wayfarer to appeal. I'm going to walk through why because understanding the reasoning helps with accepting the conclusion.

The stipulation of settlement is between Blake Lively, on one hand, and the Wayfarer Parties (Wayfarer Studios, It Ends With Us Movie LLC, Justin Baldoni, Jamey Heath, Steve Sarowitz, The Agency Group PR, Melissa Nathan, and Jennifer Abel) on the other. Together, Lively and the Wayfarer Parties (“WP”) are referred to in the stipulation as the "Stipulating Parties." The two actions at issue in the stipulation are: Case No. 24-cv-10049 (the "Lively Action") and Case No. 25-cv-449 (the "Wayfarer Action"), which are collectively defined as the "Consolidated Action."

Paragraph 1 contains a very broad, unconditional appeal waiver. The Stipulating Parties irrevocably waive appeal of any orders in the Consolidated Action, with explicit identification by docket number of the Order on the Motion to Dismiss entered in the Wayfarer Action. As we know, that order resolved the NYT’s motion to dismiss WP’s claims against it, and as we also know, it did not resolve in WP’s favor. Because the Wayfarer Action is one half of the Consolidated Action, that order falls squarely within the scope of what the Stipulating Parties have agreed never to appeal. The NYT is not among the Stipulating Parties and could not be bound by this agreement, but it obtains the practical benefit of the language and the finality of the settlement.

This is also reinforced by the fact that, as we know, WP is represented by some of the best lawyers in the country. These are not lawyers who miss things. If WP had wanted to preserve their right to appeal the NYT dismissal, that carve-out would be in the document. The stipulation instead does the opposite - it calls out that specific order by docket number, making explicit what the broad "any orders" language already accomplished. The Wayfarer Parties intended to waive their right to appeal the NYT decision.

Paragraph 2’s drafting is instructive on this point. Lively's pending 47.1 motion is expressly carved out and remains pending before Judge Liman. The stipulation states plainly that the 47.1 motion is not withdrawn. This is exactly what a deliberate carve-out looks like: the motion is named, identified by docket number, and explicitly preserved. That precision stands in direct contrast to Paragraph 1, where no equivalent carve-out exists for the NYT ruling. As we can see, the document and the lawyers know how to preserve rights when the parties want to preserve them, and they didn’t do that in paragraph 1.

Finally, the mechanics of the stipulated dismissal itself likely foreclose any path to appeal. The Lively Action is dismissed with prejudice under Rule 41(a)(1)(A)(ii), which is a stipulated dismissal that requires no court order and is effective upon filing. Combined with the unconditional appeal waiver in Paragraph 1, the Wayfarer Parties have unfortunately closed every door behind them. WP, unfortunately, have no appellate recourse on any ruling entered in either action.

I know this is not the outcome many of us were hoping for on this particular issue, and I understand the frustration. I hope this walkthrough was helpful, even if the answer wasn't the one we wanted.

Caveat: The actual settlement agreement is much more detailed than the stipulated settlement, and there is always a chance that it contains language that could save WP's appeal rights - but that is very very improbable because none of the attorneys would want to misrepresent something to the court.

As we know, Wayfarer just filed a letter with Liman stipulating to the protected activity element of Lively's FEHA retaliation claim. Within hours, our friend MJ Morley turned that letter into a threads post declaring it a concession that "contradicts everything" Wayfarer said publicly and that it validates Livly's complaints about her workplace. Her framing is wrong. Not nuanced-wrong, but legally wrong.

You can find her post here: https://www.threads.com/@morewithmj/post/DXu0tJ0EQ4h

Let’s start with thr language. The entire operative text of the filing is one sentence: "The Wayfarer Defendants agree that for purposes of trial only and with respect to the FEHA retaliation claim, the jury will be instructed to presume that Ms. Lively engaged in protected activity by complaining about or opposing a hostile work environment."

MJ frames the stipulation's language as meaning that Lively's complaints have been validated and that Livey’s “complaints were the kind the law recognizes and protects." She then says that the stipulation undermines the public narrative that Lively made up SH claims. But this is exactly backwards. Under FEHA, "protected activity" is a threshold procedural element. It asks only whether the plaintiff made a complaint that falls within the categories the statute covers. A complaint can be protected activity even if it is factually baseless, exaggerated, or ultimately unproven at trial. Stipulating to this element removes a hurdle from the jury's deliberations. It says NOTHING about whether the underlying SH actually occurred or whether Baldoni/WP actually retaliated.

MJ actually acknowledges this in her thread by saying “stipulating to protected activity is not an admission that the harassment happened” – but she then immediately proceeds to use the filing as though it were exactly that. Acknowledging a distinction and then ignoring it is a rhetorical device.

MJ also claims that Wayfarer's prior statements - calling Lively's allegations "revoltingly false" and "a huge lie" - are now contradicted by the stipulation. They absolutely are not, because those statements and the stipulation are answering completely different questions. The prior statements were about whether Lively's SH allegations were factually true. The stipulation addresses only whether her complaints fall within the category of activity FEHA protects at trial. Those are not the same inquiry. Whether WP retaliated against Lively for her complaints is the factual question the jury will decide (not whether the underlying harassment actually occurred). And like I said earlier, a complaint does not need to be factually accurate to qualify as protected activity under FEHA. A false allegation can still be a protected complaint. There is no contradiction here - just two different legal and factual tracks that MJ is treating as one.

If MJ's argument were correct - that stipulating to protected activity means conceding the truthfulness of the underlying complaints - then defendants in virtually every employment retaliation case would refuse all such stipulations. They don't, because that isn't what the element means.

What we can actually conclude from this stipulation is that WP’s team looked at the protected activity element and decided it was not worth fighting in front of a jury. That's a litigation decision and it tells us nothing about the merits of Lively's harassment allegations and nothing about whether retaliation occurred. The stipulation is a routine pretrial procedural concession on a threshold element of a single claim. MJ's framing - that it "contradicts everything" the defense said publicly and validates Lively's harassment narrative - is not supported by the text of the filing, the legal meaning of the element at issue, or any reasonable understanding of why defendants enter trial stipulations.