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If one were to rank Harvey Weinstein’s greatest threats at the moment, New York prosecutors looking to send him to jail for the rest of his life probably are tops. Next might be the insurance companies who refuse to pay his mounting legal bills. Then, there’s noted Gibson Dunn litigator Ted Boutrous, who represents actress Ashley Judd and clearly has a talent for the poison pen.
On Friday, Boutrous provided Judd’s opposition to Weinstein’s motion to dismiss her lawsuit. It starts off with a flourish.
“Harvey Weinstein’s motion to dismiss is a baseless and offensive study in misdirection that demonstrates his malicious and reckless disregard for the law and for Ms. Judd’s rights to be free from sexual harassment and retaliation,” states the brief. “It ignores and misstates key allegations in the complaint, impermissibly cites (contradictory) extrinsic evidence, and relies heavily on cases interpreting a statute that has nothing to do with this case. Weinstein also makes the bizarre argument that he purportedly sought to advance Ms. Judd’s career as part of a ‘deal’ for sex that Weinstein presents as real — rather than the decidedly ‘mock bargain’ Ms. Judd alleges she made in her complaint. He even claims that Ms. Judd was no ‘ingénue in the film business when she went to Weinstein’s hotel room,’ saying that she was ‘well-versed in the entertainment industry’ and suggesting that she should have known that a purported business meeting with Weinstein really was a ‘casting couch’ invitation. To state the obvious: conditioning career advancement on sex is textbook harassment.”
In her lawsuit, Judd asserts her career was hampered by Weinstein. Judd says that she barely escaped sexual demands in a hotel room some 20 years ago — only to have Weinstein interfere with her starring in Peter Jackson’s The Lord of the Rings. She says she only learned about this in December.
Weinstein’s lawyer Benjamin Brafman responded with a statement on Friday: “When Ms. Judd is effectively cross-examined, the revisionist versions of her various narratives will quickly be seen for the fiction they are.”
Weinstein has moved to dismiss the lawsuit on several grounds including that she waited too long to sue.
“Weinstein seeks refuge behind the statute of limitations,” writes Boutrous. “But California courts have adopted an exception to statutes of limitations — the ‘delayed discovery rule’ — precisely because a defendant like Weinstein, whose misconduct occurred in secret and was concealed for years, should not be allowed to benefit from his subterfuge.”
Here’s the rest of the brief that also argues that Judd has sufficiently alleged an ongoing business and professional relationship with drastically unequal bargaining power as required by California’s Unruh Act. Boutrous also attacks Weinstein’s argument to dismiss a defamation claim as non-actionable opinion, pointing among other things, to an unaddressed allegation that Weinstein claimed Miramax had a “bad experience” with Judd.
Aug. 10, 4:45 p.m. Updated with Weinstein’s lawyer’s statement.
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