MANHATTAN (LN) — U.S. District Judge Lewis J. Liman on Tuesday denied summary judgment for The Agency Group PR LLC, the crisis-communications firm Blake Lively accuses of participating in a coordinated campaign against her in retaliation for reporting sexual harassment on the set of It Ends With Us, ruling that California's Fair Employment and Housing Act can reach a third-party public-relations firm's conduct even when that firm never employed the plaintiff.
The ruling addresses an open question the California Supreme Court expressly reserved in Raines v. U.S. Healthworks Medical Group — whether FEHA's aiding-and-abetting provision extends to business-entity agents that carry out retaliatory conduct on an employer's behalf — though the court declined to issue any definitive ruling on that broader question, deciding only the narrow issue TAG raised.
Lively alleges that Wayfarer Studios LLC and It Ends With Us Movie LLC hired TAG and its founder, Melissa Nathan, to damage her reputation after she complained about harassment during production. According to Lively's allegations, as summarized by the court, TAG and Nathan planted false narratives in online and traditional media outlets portraying Lively as, among other things, a "bully" and a "mean girl," and worked with crisis-communications specialist Jed Wallace and his firm Street Relations to amplify negative content about Lively online in an attempt to "bury" her for engaging in protected activity.
TAG's renewed motion rested on a single premise: that its public-relations work was not "FEHA-regulated activity" within the meaning of Raines, and that without direct liability there could be no indirect aiding-and-abetting liability either. Liman rejected that framing as an argument the court had already dispatched when it denied summary judgment to Wayfarer and IEWUM in its April 2 opinion.
"To the extent Wayfarer and IEWUM might be liable under FEHA for engaging in retaliation, TAG's argument now that its participation in these very same activities was not 'FEHA-regulated' lacks merit," Liman wrote. "If the activities that form the basis of Lively's retaliation claim were not at least potentially regulated by FEHA, the Court would have granted Wayfarer and IEWUM's motions for summary judgment and judgment on the pleadings."
The court also rejected TAG's fallback argument that FEHA's aiding-and-abetting provision runs only one direction — prohibiting employers from helping third parties discriminate, not the reverse. Liman called that reading "an inaccurate statement of law," noting that the California Supreme Court's own language in Reno v. Baird identifies "third parties such as customers or suppliers" as the natural targets of the provision. Requiring an agency relationship for aiding-and-abetting liability, he added, would effectively collapse the provision into the employer-liability framework California courts have already rejected.
The ruling keeps TAG in a case that earlier this year saw Liman deny summary judgment to Wayfarer, IEWUM, and their co-defendants — including director Justin Baldoni — on the underlying FEHA retaliation claim. The court identified triable issues on whether the alleged campaign materially impaired Lively's career advancement in an industry with a heavy emphasis on personal and professional marketability, even though she was never demoted, fired, or docked pay.
TAG did win one earlier round: Liman granted summary judgment to Nathan and Abel as individuals in the April 2 order, holding that individual non-employers acting in their capacity as agents for an employer cannot face aiding-and-abetting liability under FEHA. TAG's status as a business entity with potential independent liability is what kept it in the case — and what Liman declined to extinguish Tuesday.
TAG has reserved the right to contest the common-law elements of aiding-and-abetting liability at trial, and a separate renewed motion for judgment on the pleadings on FEHA's extraterritorial reach remains pending before Liman.