Lawyers for Justin Baldoni appeared in court Thursday, hoping to persuade a judge to dismiss a lawsuit against Blake Lively that alleges sexual harassment and retaliation during and after the production of the 2024 film “It Ends With Us.”
Baldoni’s team argued that the allegations involved improvising during the filming of a sexual scene and did not amount to gender-based harassment.
“I don’t know if the court is familiar with the show ‘Heated Rivals,'” lawyer Jonathan Buck said at one point. Laughter spread throughout the courtroom when U.S. District Judge Louis Lehman said, “No, he doesn’t know any better.”
Bach went on to explain that the series, a gay romance drama that recently concluded its first season on HBO Max, contained several “explicit” scenes. He was contradicting an earlier point made by one of Lively’s attorneys. Esra Hudson argued that Baldoni’s choice to improvise on set does not excuse Lively’s non-consensual kissing and nuzzling, and therefore grounds a claim of gender-based discrimination. Bach disputed this argument, saying if a male actor who was a “hot rival” improvised an intimate scene with another man, could there be a claim of gender-based discrimination?
Bach returned to the idea that any contact that occurred between Baldoni and Lively came from the relationship between the characters in the film and had nothing to do with Lively herself being a woman.
He was the first lawyer to take the stage at the hearing, and began his argument by saying that Lively signed on to appear on “It Ends with Us” knowing it would include “hot, sexy scenes” and that it would be “steamy and loud.”
Mr. Lehman quickly pushed back, suggesting that Mr. Bach was certainly “not suggesting” that the film’s sexual themes gave Mr. Baldoni permission to touch Lively as he pleased. Bach agreed. “So maybe you can help us understand where the boundaries actually are,” Lehman said, prompting Bach to emphasize that “context is important.” If something “awkward” happened, he insisted, it was because he was pursuing a certain aesthetic. He repeatedly argued that Lively’s complaints were “small potatoes” and did not rise to the level of sexual harassment.
Mr. Hudson was the first to speak from Mr. Lively’s side. She began by clarifying her team’s position that material facts were in dispute between the parties and required a jury’s opinion. As an example, she offered different perspectives on a particular interaction between Lively and “It Ends with Us” executive producer Jamie Heath, when he entered the room shirtless. Heath said she heard someone telling her to come in, but she remembers Lively and her hair and makeup artist saying, “Hey, hey, hey, no, no, no.”
Ms. Hudson then focused her time on the issue of Ms. Lively’s consent. Hudson said that while filming a scene, Lively was “kissed, nuzzled, and touched” in ways she did not consent to, even though she knew she would be performing an intimate scene. Mr. Lehman pressed Mr. Hudson on what exactly consent meant in intimate scenes, and asked if and how improvisation would be included.
Hudson clarified that she is not saying that improvisation should be prohibited or that actors must agree to every move in a scene, but that for improvisation to be considered consensual, there needs to be a discussion about what kind of contact is expected. Hence the emergence of nude riders and intimacy coordinators.
Lehman continued to question whether all decisions regarding touch would be decided by a jury, but “that’s not true,” he said. Hudson argued that there are subjective criteria that need to be considered in this scenario. In other words, Lively was uncomfortable, surprised, and hunched over, indicating that she did not consent. Hudson said it should be up to a jury to decide whether other generally rational people would have a similar reaction.
Mr. Lehman will accept the arguments in progress and rule on the motion at a later point. The case is scheduled for trial in May. Mr. Lehman may choose to narrow the scope of allegations for the jury to consider.
