7:32am PT by Eriq Gardner
Harvey Weinstein Argues No "Pervasive" Sexual Harassment Toward Ashley Judd
Harvey Weinstein has taken his first shot at attempting to dismiss a lawsuit from Ashley Judd.
The actress sued the movie mogul in April and alleged her career suffered as the result of sexual harassment. She accuses Weinstein of making sexual demands in a hotel room about 20 years ago — an encounter she allegedly only escaped after relenting to a deal where she would let him touch her if she won an Academy Award. Later, Judd says she was in serious discussions for a big role in Peter Jackson's Lord of the Rings, but her opportunity was torpedoed after Weinstein or someone at Miramax told the director that she was a "nightmare" to work with. Based on these allegations, she's suing for defamation, sexual harassment, interference with prospective economic interference, and unfair competition.
Weinstein, represented by attorney Phyllis Kupferstein, attacks the claims in several ways.
First, he's arguing that she has waited too long to sue.
" Plaintiff certainly knew of the alleged sexual harassment and her injuries, if any, at the time of the hotel encounter," states a motion to dismiss. "She further knew she was not cast in LOTR by the time filming began (the first film in the trilogy was released in December 2001), but claims she did not know until late 2017 that Weinstein was purportedly behind the casting decision. However, Plaintiff admits she made no inquiries about why she was not cast in the film because she did not want to upset Jackson. Accordingly, her failure to file a timely complaint is due to her own lack of reasonable diligence and not any affirmative misconduct on Weinstein’s part."
The argument appears to set up a potential battle over whether her claims are tolled due to the ongoing harm that Judd says she suffered in her career. Judd has also put forward that she didn't discover Weinstein's alleged statements until an interview with Jackson was published last year.
Weinstein next attempts to frame the allegations as not fitting squarely in the legal definition of sexual harassment.
His legal brief contends that Judd "fails to plead that she and Weinstein had the kind of professional relationship grounded in trust covered by the Act, or that the purported harassment she experienced from Weinstein was severe or pervasive — especially since Plaintiff alleged it was a one-time event and she and Weinstein struck, in Plaintiff’s words, 'a bargain' with respect to future sexual activity."
As for the defamation claim, Weinstein challenges statements as non-actionable opinion and faults Judd for not alleging that any comments specifically gave rise to her economic harm.
Judd will have a chance to reply to these arguments soon and will surely dispute the contention that Weinstein wasn't in a position to exert control over her career though actions and statements. The judge's decision on whether to allow the case to move forward will also determine whether discovery will happen. That not only means that industry veterans like Jackson and agents may testify, but also potentially a deposition for Weinstein himself.
The latter could put the case on dangerous ground for Weinstein. He's also in a battle with insurers to fund his legal defense, but earlier this week, moved to pause those proceedings. Benjamin Brafman, his criminal attorney, submitted a declaration that if the case moved forward and Weinstein was questioned, his client might have to assert Fifth Amendment rights.
UPDATE: Theodore Boutrous, the Gibson Dunn partner representing Judd, provides this statement: "Mr. Weinstein’s arguments seeking to escape the consequences of his despicable misconduct are not only baseless, they are offensive. We look forward to opposing his flawed motion, moving forward with discovery into his outrageous behavior, and proving to a jury that Mr. Weinstein maliciously damaged Ms. Judd’s career because she resisted his sexual advances."