What began as a happy trip to a reproductive clinic has now blossomed into some education for humanity. On Friday, in the latest twist in a novel battle over frozen embryos, Nick Loeb accused his ex, actress Sofia Vergara, of violating First Amendment rights by suing him.
Loeb, a scion to a wealthy family and a bit actor on several films, first sued Vergara in 2014 upon the end of a four-year relationship. He initiated litigation with the aim of getting a court order so he could obtain custody of embryos the two had created at the ART Reproductive Center in Beverly Hills. That lawsuit was dropped last December after a judge ordered that Loeb disclose the identities of two former girlfriends who had abortions. According to his latest court papers, he withdrew the litigation to protect his former girlfriends’ personal privacy.
Then came a new legal approach by Loeb that garnered international attention. In Louisiana, he established trusts for the two pre-embryos — apparently female ones named “Emma” and “Isabella” — and the trustee then sued the Modern Family star in a “right-to-life” lawsuit.
Vergara’s reaction to this gambit was to file her own lawsuit against Loeb in California court. She’s seeking declaratory and injunctive relief as well as alleging her former boyfriend breached contract, committed promissory fraud and is pursuing malicious prosecution. According to her complaint, “The terms of the Contract expressly state that neither party may use the pre-embryos created from the IVF procedure without the ‘explicit written consent’ of the other party.”
On Friday, it became Loeb’s turn to respond, and he’s doing so by looking to California’s SLAPP statute, which protects First Amendment activity by giving defendants an early out from frivolous lawsuits.
Loeb’s lawyer Jennifer McGrath at Johnson & Johnson writes that the SLAPP statute “requires that [Vergara’s] entire Complaint be stricken immediately: Loeb’s actions in initiating litigation to determine his rights constitute speech pursuant to a judicial proceeding, and Plaintiff cannot demonstrate a ‘reasonable probability’ of success on the merits of any of her claims.”
Part of the argument now being made is that the act of establishing a trust for the benefit of female embryos is protected activity, and that it doesn’t matter that Loeb isn’t directly suing Vergara in Louisiana because what’s important is that the trustee case on behalf of “Emma” and “Isabella” is in connection to such activity.
Just as provocative is the discussion of the merits of Vergara’s claims. (These arguments are echoed in a separately filed demurrer, which allows Los Angeles Superior Court judge William Fahey to tackle the sufficiency of Vergara’s claims if he wishes to side step the whole First Amendment mess.)
McGrath describes the contract at issue as a consent form and argues that it really was for the benefit of the ART Center and shouldn’t be deemed as a binding contract between Loeb and Vergara. She also contends there can be no valid contract because of two more reasons.
“First, the agreement lacks bargained-for consideration between Loeb and [Vergara],” states the motion. “The Form Directive imposes requirements on Defendant Art in handling the Parties’ Female Embryos, but does not reflect any bargained-for exchange between [Vergara] and Defendant Loeb…Second, the purported contract’s terms are uncertain, as it only addresses the disposition of the Female Embryos in the event of the death of one of the Parties. It is silent with regard to the question of the disposition of the embryos in the event that the Parties romantic relationship and engagement ended (as actually occurred). This is insufficient.”
Other arguments for why Vergara’s lawsuit fails include that she is compelled to bring a counterclaim in Louisiana if she wishes to challenge his assertions in court and that her demand for relief is barred by litigation privilege. McGrath also suggests that Vergara can’t show that Loeb had any intent to defraud her.
Read the entire anti-SLAPP motion filed by Loeb here. A hearing is scheduled for May 11.