Ashley Judd Asks Ninth Circuit to Revive Harassment Claim Against Weinstein

This combination photo shows Ashley Judd during the 2017 Television Critics Association Summer Press Tour in Beverly Hills, Calif., left, and Harvey Weinstein at The Weinstein Company and Netflix Golden Globes afterparty in Beverly Hills, Calif. (Photo by Chris Pizzello/Invision/AP)

(CN) — There was an era in Hollywood when movie producer Harvey Weinstein was “a gatekeeper” who commanded immense influence over careers, actor Ashley Judd’s attorney told a Ninth Circuit panel during a remote court hearing Friday.

Judd claimed in a lawsuit filed in 2018 her career was hurt after she refused Weinstein’s sexual advances during a business meeting in a hotel room two decades ago. A federal judge threw out the sexual harassment claim from her suit in 2019 but allowed the defamation claim to move forward.

On appeal Friday, Judd’s attorney Theodore Boutrous, Jr. told a Ninth Circuit panel that Weinstein retaliated against her. The actor did not learn until years later that Weinstein told director Peter Jackson that she was “a nightmare” to work with. Jackson was casting “Lord of the Rings” at the time and Judd claimed Weinstein’s comments cost her a role.

She said years after the hotel encounter Weinstein continued to retaliate against her.

Last year, U.S. District Judge Philip S. Gutierrez ruled the sexual harassment claim in Judd’s complaint did not mesh with state law. The California Legislature amended the state’s sexual harassment statute to include specific jobs titles and to qualify professional relationships between directors and producers who can be held accountable.

This past March, Weinstein was sentenced to 23 years in prison in the Southern District of New York for two forced sex acts perpetrated against women in the entertainment industry. Now a convicted sex offender, Weinstein, 68, has come to epitomize the #MeToo movement and the powerful men who have been held accountable for their actions.

Judd says Weinstein’s professional relationship with her as an actress meant he had tremendous power over her career.

During Friday’s hearing, U.S. Circuit Judge Morgan Christen offered the hypothetical of a person looking for an apartment and working with a real estate agent. Christen, an Obama appointee, said the person would be free to walk away from the interaction but it would be difficult if they had put down a deposit.

“It seems to me that relationship could morph depending on facts and circumstances,” said Christen.

Boutrous said Judd couldn’t just sever her ties with Weinstein.

“He was the gateway toward professional success for an actor,” Boutrous said, noting the case is fact-dependent because the two had a longstanding business relationship.

“This was her seeking to advance her career as an independent businesswoman. She spurned his advances and he retaliated,” said Boutrous during the video hearing.

Weinstein argues California law does not apply to Judd, because the amendment applying to directors and producers was not retroactive. But Boutrous said the amendment only meant to clarify the statute.

“If this isn’t covered by a statute that broadly speaks of professional and business relationships in one of the biggest industries in California, with a history of abuse by people in power with respect to young actors, taking advantage of people in a sexual way, then it would make no sense,” said Boutrous.

Christen asked Weinstein’s attorney Phyllis Kupferstein why the court should not construe the original sexual harassment statute to include all professional relationships in which one person can coerce another.

Kupferstein said if the statute is interpreted through the element of coercion, then all business relationships must be examined for the potential for coercion.

“The statute has to put you on notice if you’re in a covered relationship,” Kupferstein said. “What professional service was he providing?”

Senior U.S. District Judge Sidney H. Stein, a Clinton appointee sitting by designation from the Southern District of New York, said personal relationships are extremely important for an actor.

“I don’t think there was any question that he was a major player in the industry at the time,” said Stein. “I would think it be reasonable for her to think and for her to be on notice that this man held substantial sway over her career. Am I wrong there?”

Kupferstein said, “That would be true then of any director, producer, other influential actor, investor, any one of those other persons could potentially have sway or maybe even a lot of sway over her career.”

Stein pushed back. “It’s not even potential. He had sway as perceived by her and as perceived by him I take it as well,” the judge said.

Kupferstein said Weinstein and Judd may have worked on a movie project before the encounter at the hotel room, but that relationship ends after the movie they made was released. The attorney noted Judd says in her complaint they did not interact again until their hotel meeting.

Judge Christen then asked about Weinstein’s comments to Jackson.

“Not that she’s a bad person or an unreasonable person but specifically called upon a prior working relationship to unrecommend her for this very important role,” said Christen.

That doesn’t transform into an existing relationship, Kupferstein said.

The panel did not indicate when or how it would rule.

U.S. Circuit Judge Mary Murguia, an Obama appointee, rounded out the panel.

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