Ratner Trap

The fight against one mogul’s attempts to chill sexual abuse claims is the perfect test case for Hollywood’s #MeToo moment.

Director Brett Ratner attends the 2017 Vanity Fair Oscar Party on Feb. 26 in Beverly Hills, California.

Pascal Le Segretain/Getty Images

On Monday, a powerful group of Hollywood women announced a new initiative known as Time’s Up. The movement is aimed at fighting sexual harassment, abuse, and assault, not just in the movie business, but in industries like farming, hospitality, and home health care, where standing up to predation is structurally and financially almost impossible. A big part of that mission will turn on supporting accusers in the courts. That initiative will be shouldered by Time’s Up’s new legal defense fund, administered by the National Women’s Law Center, which has already raised more than $14 million on a GoFundMe page to subsidize lawsuits supporting victims of sexual harassment, assault, or abuse.

The litigation efforts will be spearheaded by Tina Tchen, who served as chief of staff to former first lady Michelle Obama, and Roberta Kaplan, who successfully represented Edie Windsor at the U.S. Supreme Court. The project will offer pro bono legal support to women who have suffered harassment or discrimination. Time’s Up is also shoring up the new Commission on Sexual Harassment and Advancing Equality in the Workplace, which will be chaired by Anita Hill. These women, in short, are not kidding around.

One of the first test cases for the idea that big-name lawyers can level the playing field for ordinary women involves Melanie Kohler, who experienced what looks to be retaliation for speaking up about filmmaker Brett Ratner and Hollywood’s endemic harassment culture. In many ways, Kohler is the ideal bridge between the two worlds Time’s Up is seeking to bring together: Hollywood privilege and women without many resources to fight back.

Who is Melanie Kohler? In late October, bolstered by the #MeToo campaign and the rapid fall of Harvey Weinstein and other Hollywood predators, Kohler posted allegations about the producer and director Ratner on her Facebook page. Among other claims in her 450-word post, Kohler wrote that about 10 years ago, when she worked in marketing in Hollywood, Ratner had “preyed on me as a drunk girl” and “forced himself upon me.” She wrote that Ratner took her back to the home of producer Robert Evans and sexually assaulted her after she repeatedly said “no.” Kohler explicitly used the word “rape” to describe the incident.

The post stayed up for less than two hours. In that time, Ratner’s lawyer, Marty Singer, called Kohler and told her that “she [could] be sued if she didn’t take it down.” Kohler, who co-owns a scuba shop with her husband in Hawaii, took the post down immediately. (Singer also represents actor Danny Masterson—whom four women have accused of rape—and used to represent Bill Cosby, who has been accused of sexual assault and misconduct by dozens of women.)

A few days after the litigation threat to Kohler, the Los Angeles Times published a piece containing stunning allegations against Ratner from six other women, including actresses Olivia Munn and Natasha Henstridge. In the article, Henstridge said that Ratner masturbated in front of her and forced her to perform oral sex on him. Munn said that he masturbated in front of her while holding a shrimp cocktail in one hand. (In 2011, Ratner said on the TV program Attack of the Show that he didn’t masturbate in front of Munn, but rather, “I banged her a few times … but I forgot her.” Days later, he told Howard Stern that last part was a lie.) Other actresses described acts of predation and manipulation from one of Hollywood’s biggest power players on movie sets over the decades, including alleged efforts to elicit sex for better parts. Singer “categorically” disputed each of the accounts, and he and Ratner’s local counsel, Eric Seitz, immediately took action—against someone whose name never appeared in the Times expose. Hours after the article appeared, Ratner sued the scuba shop owner Kohler for defamation in a federal court in Hawaii, leaving the big-name Times accusers out of any litigation. Ratner’s suit claims that Kohler’s post was “entirely false, fabricated and fictional,” and that it had hurt his professional standing and caused him “emotional distress.”

In a statement, Singer offered that “we are confident that his name will be cleared once the current media frenzy dies down and people can objectively evaluate the nature of these claims.” That confidence did not stop Warner Bros. from severing ties with the filmmaker, shelving a project about Hugh Hefner and opting to not renew a production deal with his company. In the weeks since, many more women have come forth with multiple damning claims against Ratner. None of them have been sued for anything.

On Wednesday, Kohler’s lawyer, Roberta Kaplan, filed a motion to dismiss Ratner’s libel suit. (Disclosure: Kaplan and I are friends.) Along with Bill Burton, a former Obama White House deputy press secretary who is representing Kohler pro bono, Kaplan is arguing that suing powerless and faceless accusers for libel is a common tactic meant to silence other such women who may not have the means or the fame to come forward more safely against powerful men.

In the 38-page motion, Kohler seeks to have Ratner’s petition dismissed because his conclusory three-page complaint alleges no specific facts and because it appears to target Kohler alone for the destruction of Ratner’s reputation. As the motion notes:

A few hours after these reports emerged—and in an apparent effort to intimidate other women from speaking out—Mr. Ratner filed this case against Ms. Kohler. The Complaint alleges that she, and she alone, defamed him in a Facebook post that had been published for less than two hours in mid-October 2017 (the “FB Post”). That post accused Mr. Ratner of rape and described the encounter in considerable detail. According to Mr. Ratner, that FB Post renders Ms. Kohler responsible for the damage that his reputation has sustained. To the best of our knowledge, Mr. Ratner has not sued any of his other accusers, many of whom are far more wealthy and famous than Ms. Kohler.

The motion goes on to cite the Supreme Court’s requirement that all federal plaintiffs must plead “enough facts to state a claim to relief that is plausible on its face” and decries Ratner’s complaint for containing only 170 words in the section he titles his “factual allegations.” The motion also remarks on the fact that Ratner’s complaint stripped the section of Kohler’s Facebook post that contained her justification for coming forward in the era of #MeToo. This deceptive move was done, the suit argues, because Ratner was trying to argue that Kohler showed actual malice in her accusations, removing it from the context of the current moment and implying that her sole objective was to harm him. The motion then urges the court to dismiss the complaint under state laws barring nuisance litigation, under the theory that Ratner’s suit is a classic SLAPP (Strategic Lawsuit Against Public Participation) case. “[It was] brought with the goals of obtaining an economic advantage over a citizen party by increasing the cost of litigation to the point that the citizen party’s case will be weakened or abandoned, and of deterring future litigation,” Kohler’s attorneys wrote. The motion ultimately contends that at the very least, the Hawaii court should apply the broader anti-SLAPP protections afforded under California law since the alleged rape occurred in that state.

Kohler’s lawyers argue here that Ratner’s initial lawsuit was a thinly supported attack on the weakest of his accusers, filed for the express purpose of intimidating her and any other accusers who might follow her, even though her post appeared on Facebook for only two hours, and despite the number of other women whose accusations appeared in print and likely did far more damage to his reputation. The suit certainly looks like something designed to chill important speech on a matter of vital public importance.

Not only is Ratner ducking a frontal attack on the more prominent women who have accused him of wrongdoing, he’s actually trying to keep them entirely out of this suit. Last weekend, Ratner’s lawyers sought to limit Kohler’s ability to probe the other allegations of sexual misconduct against Ratner. They argued that Kohler’s “New York lawyers intend to try this case in the media and to depose and publicize any and all ‘bad acts’ allegedly committed by Plaintiff as a means to show that he likely committed the criminal misconduct” alleged here. In other words, they seek to hive off all the other women who have offered up similar complaints against Ratner, and whose allegations would support Kohler’s, and then blame their connection to this litigation on her powerful “New York attorneys.”

This entire effort at damage control and possible retaliation is essentially an illuminating answer to the question: How does harassment still persist in Hollywood? As a new, deeply researched New Yorker piece by Dana Goodyear contends, women will continue to be treated as expendable and trivial in Hollywood, so long as men with money can continue to freeze out and pound down on powerless women who lack financial or legal resources of their own. Thus far, Ratner’s legal moves smack of efforts to keep the playing field tilted against all of his accusers while blaming Kohler’s powerhouse attorneys for cheating at the game by matching his money and influence with some of their own. The real change today is that when Brett Ratner’s lawyer called Melanie Kohler and told her to take down her Facebook post, he didn’t know Robbie Kaplan would be signing her legal pleadings.

I asked Kaplan what it means to be doing this work, pro bono, at this moment. She said:

For far too long, far too many women understandably feared sharing their experiences of sexual misconduct at the hands of powerful men because such men were protected by the intimidation that money and status can buy. But our client Melanie Kohler, who has neither wealth nor fame, had the courage to tell her story, even in the face of threats that she would be sued. The whole point of Times Up is to give many more women the legal and other resources they need so that they too, like Melanie, can stand up and speak out.

Who knows what legal systems might eventually be put in place to protect women who have never been fully able to deploy the law to protect themselves? You have to think that this effort is a pretty good start.