OA61: Flyin' the Friendly Skies & Newt Gingrich Still Has a Contract on America

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello, and welcome to Opening Arguments. This is episode number 61. I'm your host, Thomas Smith. That over there is your other host, Andrew Torrez. How are you doing, Andrew?

0:01:27 Andrew: I'm great, Thomas. How are you?

0:01:28 Thomas: Doing great. Pleasure to be on. We're going to do something that we, you know, kind of were avoiding a little bit last week, but, you know, the people demand certain things. So, with that, we'll get to our first... This might be our first listener's question, as As in, like, it's the listeners as one unit asked a question and we'll be answering it. So let's get over to that.

0:01:54 Clip: He who questions training, only trains himself at asking questions. What?

0:02:02 Thomas: All right, Andrew. Listener, every single person asked you about the United case. Now, what are they asking? I don't know. I guess they're asking, you know, is it okay for United to beat the crap out of a guy and throw him off a plane? Roughly speaking, but, uh, what about overbooking? Is that something that's okay to do? A lot of people are concerned that, you know, how can that be right? You buy a ticket, you know, shouldn't you have the right to, you know, sit on the plane? I, my guess is, uh, lawyer Thomas's guess is that it's all going to be in the fine print because I think this is a pretty common practice. Seems like every airline does overbookings, but, uh, let's say you, Andrew, the

0:02:40 Andrew: Yeah, so a couple of things here. And this really does fit in with our theme for this episode, which is the powers of administrative agencies. Regulations we have talked about before. These are not laws, but this is how an administrative agency that has been delegated the power to promulgate rules that help us interpret the laws by the Congress has, and in this case, we're talking about the Federal Aviation Administration, the FAA. It is a subgroup of the Department of Transportation, and the section is Title 14 of the CFR, Chapter 2, Subchapter A, so 14 CFR Section 250 at SEC, and that governs over sales of tickets by airlines, right?

0:03:34 Andrew: The FAA is the administrative agency that specifically governs airlines. United has promulgated to its passengers, this is part of the conditions under which you buy a ticket, the operative rules are Rule 21, which governs refusal of transport and rule 25, which is denied boarding compensation, um, which basically says, uh, when they've oversold a flight, uh, the rules that they have to use in order to, um. Go through the list of, of who they're going to, uh. Kick off the flight when they have kicked you off the flight, do they have the right to remove you from the plane? Uh. Let me cut through all the arguments that you've been sort of arguing back and forth.

0:04:22 Andrew: Um, from my review, uh, my review of the relevant statutes of all of thee, articles and arguing back back and forth. When you buy an airplane ticket, you buy it subject to the notification that airplanes may oversell their tickets, that they are going to follow certain procedures that have been approved by the FAA in terms of how they deal with the overbooking of passengers. And and they're entitled to do that. Now, look, should they use—right.

0:04:51 Thomas: First rule of fight club is don't talk about not a fight club is the last part of that law. But yeah, good. And

0:04:55 Andrew: Yeah. So this is a case where, after having forcibly removed passenger in question with, you know, I think what would be called excessive force, uh, and, um, the the other piece of evidence that's that's come to light is that, um, the reason the the that there were no, that the flight, the flight was oversold because all airline flights are oversold. Because, like, uh, just like all restaurants are overbooked if they're, if they're a busy restaurant, right? Because there's a certain number Of.

0:05:25 Thomas: Doctor's offices do that too. They overbook appointments.

0:05:26 Andrew: Yeah. Right, there's There's... there's a certain number of cancellations. And so if you mathematically know.

0:05:31 Thomas: And airlines are a very borderline business. Like they're not, they go out of business all the time. Like they've, historically, they've had a rough time business-wise. So they're Not exactly sitting on tons of extra profit margin that they can just kind of do whatever they want with.

0:05:48 Andrew: Yeah. I mean, as, as an aside, like, if you were to time travel back to 1995 and and show people the state, the status of our airline industry in 2017, I think people would be shocked because, you know, the the price of a ticket has remained sort of roughly constant, uh, and, you know, if you had the sort of, um, science-fictiony view of, you know, technology is moving us forward and airline tickets are going to get cheaper and the service will get better like the fact that

0:06:14 Thomas: Yeah. The flights will be half the time now. None of that has happened.

0:06:19 Andrew: Yeah and and And the third, the cost, and the fact that we basically turned it into a bus in the sky, uh, is, I mean, like, seriously, like, you know, you have to pay for your bags and you haveto line up and you don't get a guaranteed seat. And, I mean, you know, that I don't I don't want to turn this into Andrew bitches about flying, but like, I mean, that's ridiculous.

0:06:21 Thomas: Yeah. Yeah.

0:06:41 Andrew: Like Andrew and Thomas bitch about the airlines. That's a Good, that's to patreon.com/law, leaving aside the financial state of the airlines, it, this is, it's a, it's a necessary practice in the industry because roughly, you know, 20% or whatever, I mean, I don't know the number, but a demonstrable number of tickets, of ticketed passengers don't show up. So if you don't overbook the flight, you have no guarantee of leaving with a full flight, which is what you need in order to maximize the profits to go up. And so in this case, I means it seems to me very obviously what United should have done is take in one of its crewed passengers, assuming that they could operate that, you know, there was a guideline that allowed

0:06:40 Thomas: That's our other podcast, but yeah. Let

0:07:31 Andrew: Them to operate minus one crew member and put that person on a different flight in order to free up a seat.

0:07:39 Thomas: Me ask you this. Is

0:07:40 Andrew: Go

0:07:40 Thomas: It also a requirement that you offer some sort of compensation? I'm guessing that's got to be a rule, but I'm guess it's not a requirement to, cause some airlines do the thing where they, they up it. There's like a silent, there's like silent auction going on. They're like, all right, anybody want to leave the flight for this much money? How about this much? And I'm guessing that must not be a requirement because they didn't do that in this case. They just were like, "Well, no takers then, oh well."

0:07:44 Andrew: It is. Yes. Yes, yeah.

0:08:06 Andrew: And in fact, It is a requirement under 14 CFR 250.8 that every carrier shall tender to a passenger eligible for denied boarding compensation on the day in place the denied boarding occurs, except as provided in paragraph B, cash or an immediately negotiable check for the appropriate amount of compensation, which I'm going to get to in a second. And Then B says, where carrier arranges for the passenger's convenience alternative means of transportation that departs before the payment can be prepared and given to the passenger, tender shall be made by mail or other means within 24 hours after the time the denied boarding occurs.

So what is that payment? 250.5. This is a regulation that says a carrier shall pay compensation in interstate air transportation to passengers who are denied boarding involuntarily from an oversold flight, as follows. Number one, no compensation is required if the carrier offers alternative transportation that, at the time the arrangement is made, is planned to arrive at the airport of the passenger's first stopover, or if none, the airport of the passenger final destination not later than one hour after the planned arrival time of the passenger original flight. So they gotta give you nothing if they put you on another flight. B,

0:08:27 Thomas: Sure.

0:09:19 Thomas: Less.

0:09:19 Andrew: Compensation shall be 200% of the fare to the passenger's destination or first stopover with a maximum of $675. If the carrier offers alternate transportation that at the time the arrangement is made is planned to arrive at the airport of the passenger first stop over, or if none, at the airport of passengers final destination, more than one hour but less than two hours after the planned arrival time, or. Subsection three is 400% if the carrier does not offer alternative transportation that would arrive within less than two hours. So, you know, if it's going to take you a day, if it's going to Um, that's how the, right.

0:10:03 Thomas: It maxes it for. Yeah, right.

0:10:05 Andrew: Yeah. And max is at four times the price of your ticket or $1,350, whichever is less, uh, if they don't offer you alternative transportation at all. Okay. So that seems to me to be the, uh. The section of the regulations, uh, that would apply to this person. Um, and, uh. United's implementation is, uh it's rule 25 and all of this is contracts of carriage, which is a delightful phrase that I just wanted to say on the air. But, Uh, yeah. And they. And again, it tracks the regulations and it says, if UA offers alternative transportation that at the time the arrangement is made is planned to arrive at the passenger's destination or first stop over more than two hours after the planned arrival time of the original flight, UA shall pay compensation to passengers denied boarding involuntarily from an oversold flight at the rate of 400% of the fare to that destination with a maximum of $1,350, right? Right.

So in other words, the regulation in the law allows them to deny you flight, provided that they make alternative arrangements. And the maximum cap is four times the price of the ticket or one thousand three hundred and fifty dollars. This is another case, I think, where, again, you know, you and I can burnish our sort of, you you know, free market libertarian credentials, right?

0:10:05 Thomas: Yeah. Okay. Yeah.

0:10:35 Thomas: Sounds quaint.

0:11:28 Andrew: Like this was an example of where United forcibly ejected the man from the flight and their stock dropped. I think it was 11% over. I mean, like they suffered in a massive PR. They have subsequently announced that that they will give refunds to anybody who was on that flight, all, who was unhappy with the flight. So, you know, if you, if you go back and think like, what would it have cost them not to make this decision, less than what it's costing them to.

0:12:04 Thomas: Than the stock price drop of like 800 million dollars or whatever, yeah.

0:12:07 Andrew: Yeah. And and the passenger, you knows, has sued. Right. Right. And, and, and, you know, look, like the fact that it is I want to make it clear, as we are opining on this, the fact that the United rules and the CFR permit United to overbook their flights and eject somebody from the airplane who is then not an authorized passenger, not mean that they can use whatever means necessary.

0:12:11 Thomas: Yeah.

0:12:34 Andrew: Right. So, you know, I want to express no opinion whatsoever.

0:12:34 Thomas: Lethal force, yeah. I thought you were going to get to the paragraph that was like shoot to kill, after that, there's lower down in the thing. Yeah,

0:12:42 Andrew: Right. I was in a casino in Atlantic City in which the bouncers, six rather large individuals picked up an intoxicated person who fell through my table. Not somebody who was known to me, somebody who came up and started like shouting at me and then fell face first through my table. And within 30 seconds, six bouncers had picked him up and then proceeded to use him like if you watch a lot of documentaries about castles, you know, that the old school like battering rams that they used to use to knock down doors. And they used his head in the place of that battering ram to open every door on the way out.

0:13:30 Andrew: So what I mean to say by this is, yeah.

0:13:32 Thomas: Okay. So there's you know, I I take it all back, because there's a lot I could ask you about this. So let's forget everything else that just happened. I mean, what if you're in this scenario in any business, really, I mean, maybe an airline actually will probably be different because of all the terrorism concerns and all that but if, if you've got a place of business where someone should not be there, is not authorized to be there, and you're like, "Okay, you can't be here," I mean, you're allowed to have some sort of security force to get that person out of the premises. So that much makes sense to me, at least, but I guess it's a question of like, if they went too far, who really should be liable? Is it just the, the two dudes who, like, you know, obviously were way too rough with this guy? How does that work? Hmm.

0:14:16 Andrew: Well, my understanding is that it was airport police who escorted and it was David Dow.

0:14:22 Thomas: So not even United employees.

0:14:25 Andrew: Yeah. Not United employees. Right. Right. Now, how does how does United get responsible for that? Because United was the agent that called that that's that made the determination that this person was, illegally on their property. Right. Like and look like you can try that out.

0:14:25 Thomas: Wow. Yeah.

0:14:37 Thomas: But still yeah, you you could have had a guy who just didn't even have a ticket who like was somehow on and then they're like, can you get out of here. And then if the police did this to them, if the airline security did this, I mean, it's not, it's not United's fault in that situation. Like, I, and I, I, I kind of don't even think it's their fault in this situation, and and now we can talk about the response to it, but, but just so far, how I mean, this is, this is not their police force. They don't employ a security force all.

0:14:42 Andrew: Right. Yeah. Yeah, who who bowled his way under the plate. Right.

0:15:02 Andrew: Well, look, sure.

0:15:13 Andrew: No, but, but consider the following two hypotheticals. Hypotheticals, right, hypothetical number one is someone shows up at your house and won't leave, right? Like you invite them over for a party and they are the classic like a bad guest from hell, right, and Three days later you're like, "Uh, Andrew, get get out of my house," and I'm like, "No, you know what, like, this is I I've enjoyed being here.

0:15:16 Thomas: Right, yeah.

0:15:25 Thomas: I do this all the time to people. No, yeah. Squatters' rights." Yeah.

0:15:36 Andrew: You know, you, you and Lydia are terrific hosts, and I've, I've been helping myself to your liquor cabinet." No, I'm not leaving.

0:15:37 Thomas: I feel like I'm part of the family. This you're just describing what happened a few weeks ago when he came to it, by the way, yeah, okay, go ahead, we're going to talk about that, yeah.

0:15:43 Andrew: Right. Yeah. Yeah. Eventually. Right. Right. Yeah. Eventually, you can call the police and you can say seriously, like there's a guy in my house who won't leave. At the conclusion of that, the police will forcibly escort me from the premises. Right. Right. Because one of the rights that you have as a property owner.

0:16:03 Thomas: And if they hit you with a nightstick, and they shouldn't. Is it my fault? No, Andrew wouldn't leave my house all.

0:16:10 Andrew: Right. But now then the question is, suppose you invite me over to the house and you say, hey, Andrew, make yourself totally comfortable in the living room. I'm just going to go get our pitcher of margaritas ready in the kitchen. And instead you go into the kitchen and you call the police and say, there's a guy in my living room that won't leave. Right. Then then I absolutely can sue you. Right. Because you are approximately responsible for the fact that the police beat me up. Right?

0:16:12 Thomas: Right. Okay.

0:16:37 Thomas: Interesting.

0:16:37 Andrew: So that that that's the argument that his lawyers are going to make that brings United into a potential lawsuit against, you know. Right.

0:16:46 Thomas: But that assumes that he didn't know what was going on. He wasn't warned several times, you know, first,

0:16:51 Andrew: It presumes that they were not, again, I'm trying to make this analogy as tight as possible. It presumes that they did not have the legal right to eject him from the plane. And that really is, you know, what we sort of covered in the first part. Like, it seems pretty clear to me. Like I know Jon Banzhoff has written an article that that suggests that 21 of the U.A.

0:16:51 Thomas: Uh-huh. True, right. Yeah. I

0:17:19 Andrew: Rules.

0:17:18 Thomas: Was gonna say well, I

0:17:19 Andrew: Schools

0:17:19 Thomas: Thought they were gonna, go "There's got to be some crackpot citing the, like, freedom of movement between the states or something like that," so. You haven't gotten to that level of, uh, crack pottery in this one.

0:17:25 Andrew: Yeah I I am sure there is um yeah No, but there's not. Look, John Banzhoff is a law professor, um, I think he's still at GW, I know he used to be at GW, who has opined that, um, that rule 25 only applies to prohibiting you from entering the plane as opposed to you know sort of once you're on the plane you can't be required to give up your seat and I don't see anything in yeah I don't see anything in the construction or the history, right? Like they're allowed to make the determination, and there's... there's no time limit on that as to whether you're entitled to be in your seat, and there's... there's nothing magical about, like, being down the jetway, in my view, that converts you're entitled to be in your seat to you're no longer entitled to be in the seat. Under ordinary conditions, what would have happened was they come to you.

They are about to remove you from the seat, and they're required under the CFR and under United's policies to give you the compensation for putting you on another flight or not putting you on another flight, right? Which is cap caps out at four times the value of your ticket or $1,350. Um, uh, and so, you know, part of what I think is, is interesting here.

0:17:50 Thomas: Not totally sure why that would be. Yeah, yeah.

0:18:40 Andrew: So we've sort of talked about, uh—and we've talked about the specifics of the law. Uh, we have also talked about, um, the ways in which the market, uh can handle this. Um—there's also, I think, kind of an interesting point on the enforceability of contracts in general. And I've gotten this question. That is the I installed a piece of software and it has a 17 page end user licensing agreement. And I just click the button of yes, I accept this. Go ahead ahead and install. Did I really accept that? Or can I argue later in court? No, I didn't really accept it. Those kinds of contracts are typically called, when they're online, they're called click wrap agreements, right? You have to affirmatively click and say, yes, I have the terms of service. And, you know, obviously most people don't read the terms of service, and I can tell you that, as a general principle, click wrap agreements are enforceable. Now that doesn't mean every provision in the contract, right? If they, if they write, yeah, right.

0:19:32 Thomas: Yeah.

0:19:43 Thomas: If they pop one in there that's, "We get your firstborn child," that's

0:19:46 Andrew: They can put unconscionable terms in the contact, but those are just as unenforceable, uh, on the basis of whether it was a click wrap agreement or a form contract or, or, you know, or whatever, right, Right. Like they use ordinary principles of contract law to determine whether those provisions are enforced. The fact that you probably didn't read it.

0:19:47 Thomas: Yeah, oh, I see, yeah. So, there's nothing, yeah, the fact that the clip, click wrap part, there's no separate set of things that are unacceptable because of that, it's just, yeah, if you put something that's normally unacceptable in a contract anyway, it's unacceptable, regardless of if you had someone look through it and sign it, or click yes. Is that what you're saying? Interesting.

0:20:08 Andrew: Yeah. Extra protection. Right. Right, right, right. Yes. And I and I would say that that those that prior to click wrap agreements, you know, there was the there's the standard practice of, you you sign that contract when you rent a car, right? That's 13 pages long and in two point font and it's one in the morning and you're, you know, dying to get to your destination and most people just sort of sign it and move on. Those are called the law of that is called a contract of adhesion, right? Something where you really don't have the opportunity to negotiate. Somebody just kind of gives you a contract on a take it or leave it basis. And, and again, by and large, those terms are enforceable. Unless there is an independent reason not to enforce those terms. I would differentiate that and the courts have differentiated that from what they call browse wrap agreements, which you can probably figure out the difference.

0:20:27 Thomas: Yeah,

0:21:16 Andrew: Like if I just stick terms of use on the website, but you don't have to affirmatively click and agree, then there's a lesser degree of enforceability of the things that we say, you know, because, you You know, we could put on the opening arguments site, right, like all sorts of delightfully onerous terms of if you're browsing this Web site, then, you know, you've got to do X, Y and Z. And people can sort of get around that by proving that they never assented to it. Right.

By proving that that that key element of contract is missing. But when you have to click like, you know, yes, I have read and I agree to the terms of service and you have to check the checkbox and click, you know, yes, courts typically do enforce those. So, you know the I counterweight to that is just because something is a contract term doesn't mean that it's always enforceable. And a Um, really good illustration of that is if you have a residential rental agreement, um, again, you've listened to the disclaimer on this podcast, you know, do not take legal advice from this podcast. Um, one of the things that a landlord, in many areas in the country has, right, may be different where you are. Don't take legal advice from a podcast, uh. Is, uh landlords often have a duty to mitigate damages. Right. And so if you sign a one year residential lease and then one month into it, yeah, one month into it you move out, your lease will say, right, right.

0:22:38 Thomas: Oh, I know about this, yeah, they yeah, you can't, just, the oftentimes they'll try to say, "Okay, you owe me the whole year," but They have a responsibility. In California, at least, can speak for California, they have to try to fill that and they have a reasonable amount of time to do so, and if they if they don't try to feel behind you, um, they can't make you pay that whole amount. They have to do a reasonable of trying to, uh, to fill it, and and it may even max out how much you have to pay in California, but, but yeah.

0:23:06 Andrew: Yeah. And the reason, so let's draw kind of the two.

0:23:12 Thomas: And So you can't double dip, like you can make me pay for a year and then also you have someone else pay for, uh, you know, most of that year.

0:23:13 Andrew: Yeah, there you go. Right. Because if they didn't have that duty, and in particular, suppose the market drops a little bit, right? Like, and you're renting a place for $1,500 a They can only rent it for fourteen hundred dollars a month. If there was no duty to mitigate damages, then the landlord's incentive you move out after one month is to sue you, get the 11 months and leave their apartment vacant for 11 months while we have homeless people in, you know, and people who can't otherwise find apartments. So there's a public policy reason that says, no, no. I don't care that the contract says Thomas owes you $17,000. If you don't use your best efforts to rent the apartment, then you can't go after him. We we want to override, even though Thomas signed a rental agreement that said he's going to pay you the seventeen thousand dollars. We think the public

0:23:19 Thomas: Hmm. Yes.

0:23:39 Thomas: To not even try. I, Andrew, the words

0:24:17 Andrew: Policy.

0:24:18 Thomas: Of the agreement said, and the literal meaning is, yeah, no, that sounds like a reasonable accommodation that the law makes, don't

0:24:18 Andrew: Yeah, right. Yeah. Now, let me be super clear on this. Right. If you live in Orem, Utah, right, population nine, again, don't take legal advice from the podcast.

0:24:33 Thomas: Count on this. Yeah, yeah.

0:24:33 Andrew: Um, the public policy interest may be very, very different, right? Like they may not have, you know, they may not have the same landlord may nothave the same duty to, uh, to mitigate damages as they do, you know, Boston or Sacramento or San Francisco or whatever, you know, a large city, uh that has a lot of turnover and a lot of rental properties. So, uh I, I don't mean this as here's how you can break your lease and not pay any money, but what I mean that as the fact that something is written in a contract is not always the final word. But in this case, I think it's reasonably close to where the final word is. How about that?

0:24:38 Thomas: Well, Okay, but what how did we get onto that? So, if you're renting a uh, yeah, an apartment in an airline line.

0:25:15 Andrew: From United. Yeah, right. Right. Right?

0:25:20 Thomas: Um, if we're trying to get to put a button on this whole thing, is it possible, I mean, gosh, is it going to be one of these things where these security guards can say, I'm sure there'll be a bunch of cell phone video and all that that, some of which is already floated around, but now they're going to say, look, the guy didn't belong on the plane, we had the right, we've already established, you've already established, I think pretty clearly they had the right to remove him from the plane, and they say, look, he fought back, he he went, he did a thing where he just turned into like a sack of potatoes, he wouldn't move, you know, whatever he did, I don't really know all the details, and they can say the injuries he sustained where we were trying to get, we had the right to get him off, we're trying to give him off the plane.

Do you think, they if you're just speculating, again, just just for fun, not not any official legal opinion or anything, is this something they're they they have a chance of getting away with? What do you think?

0:26:13 Andrew: Let me give a a practical answer to this, which is, um, oftentimes in the law, uh, the question of what what the law says uh is a secondary question to how bad are the facts on our side. Um, and and and and seriously, there's no No doubt in my mind.

0:26:28 Thomas: So So settlement is what you're saying. Yeah,

0:26:32 Andrew: This guy, we know this guy, Dow, has already filed a lawsuit. There is zero doubt in MyMind that United will settle that lawsuit. They do not want to litigate this. I have made mention to cases in the past in which I represented certain defendants and bad facts would come out. And my favorite of that is when I represented a that operated a lead smelting plant in Omaha, Nebraska, and they had a memo that was internally circulated that began in like 1934. And it's on that like old timey kind of mimeograph paper that says, boy, the people in the surrounding area are complaining that the air looks kind of thick and dank.

0:27:18 Andrew: And they're wondering if our plant is is responsible. And then there's a there's align memo from the president that says. Well, let's add another 10 feet on the smokestack. And and stapled to this original 1930s memo are like three follow ups, like every 10 or 15 years. And the policy of the of the smelter was, you know, let's add another 10 feet to the smokestack. That's a real bad document. And our and our policy was, you know. We we fought the the class action. But when they brought an individual lawsuit, suit uh we had no interest in in in

0:27:45 Thomas: That's not good. But hold on, hold on. Now I want to know who is settling. I mean, because again, this was the airport security though.

0:27:57 Andrew: Sure United because again right but remember the I refuse to leave your house example, right? Like the it's the question is, can you plausibly put United in the chain of causal events that led to this person's injuries? And if you can, right, and they and they can plausibly state a case on face sure, because what they can say is that they can make the the the bands off argument of uh he was not uh in the terminal and offered four times the face value of his ticket to not get on the plane. He was already on the plain and they dragged him off um and and there's enough ambiguity that that's going to survive a motion to dismiss in my view um

0:28:39 Thomas: Can they? Okay. But couldn't there be a defense? We're going too long on this. But couldn'There be a defensive of United? I mean again, I think obviously you're right. They're just, they are going to settle and get the hell out of this. But couldn't they say, look, hey, we, we we totally agree. The, the treatment was terrible. We, but how dare those security guards? We just wanted, you know, a peaceful exit on the plane, which, you Know, we had every right to ask for and that everything that happened to you, that sucks. That's totally wrong, but it wasn't us. It wasn't United. We didn't do it. They can't say that.

0:28:47 Andrew: Yeah.

0:29:16 Andrew: Well, they could, they wouldn't in this case for all the reasons that we've just talked about. But in that case, then what you would do is go forward and you would put on evidence of how many times United has had to eject passengers either from the immediate area or from the plane under every condition. And so it would put at issue whether United has observed airplane cops before and what their behavior is, because. Right. Because in order to say, like, "Well, we don't know what airline cops are doing," that that's a factual question.

0:29:49 Thomas: Still don't get how that makes it not the responsibility of the airline, airline cops to yeah

0:29:54 Andrew: Well, because because you can be multiply responsible for things. Right. Like, again, you know.

0:29:59 Thomas: So they have a percentage responsibility I mean, what if you, okay, different set of facts, what if he just got one airline cop where United is like, hey, can you uh escort someone off the plane, and they just walk in the plane, just shoot him in the head, like what they're like here I'll take his dead body off the plan, I did what you wanted, I'm a model agent yeah but

0:30:12 Andrew: Yeah. And in that case, then the parties would align differently. Right? Yeah. Yeah. You you certainly would. But but but but. But again, it would be it would be subject to the same factual questions. Right. Because in that case, United would very certainly say, yeah, we write that. I'm trying to think of the like Pulp Fiction, you know, take her out. You can take her off. Take her out like, you know. Pointing the gun to your, you know, finger making a gun to her head. Right? Like what United would say was, yeah. We asked the airline police to escort this passenger off the plane and he shot them and that was a total surprise to us um that would be a really, that would be a really really good defense, right? And but you would put the same things in evidence, right? Like it would be what is your experience with the airline please and

0:30:26 Thomas: That's more extreme so this is just a question of theirs, yeah yeah well most

0:31:08 Andrew: Yeah

0:31:08 Thomas: Of them don't just fatally shoot passengers okay all right all right well

0:31:09 Andrew: Very rarely do they come on the plane in shoot people so So, yeah.

0:31:13 Thomas: We got to move on what is that the final word on this, did you have anything else you need to get out about it all right, you know, I think this hopefully clarified some things for people, a little, a little late, I know, but I just didn't, we both kind of weren't sure it was worth even commenting on, but we were, were wrong, turns out we were wrong it was worth worth it, yeah that's

0:31:17 Andrew: Now that's the final word.

0:31:31 Andrew: As always, as always, our listeners are right and we're wrong. So thank you very much.

0:31:34 Thomas: True the customer's always uh the customer is always right uh except sometimes um we we double book listener spots and sometimes we have to forcibly eject a listener from the podcast so we'll we'll see that, no there's all those available

0:31:44 Andrew: Do you know what we never double book, Thomas, is our patron spots at Patreon dot com slash law. You will get your own individual seat at the Patreon table. Table so yeah

0:31:52 Thomas: Yeah cushy seat there's a lot of leg room in patreon.com/law, it's a comfortable reclining seat, you know, this is a sensitive subject for me because because I had to fly to Europe on a discount budget airline. It was, boy, was it uncomfortable. But no, not at patreon.com/law. So so let's get over to our main segment without further delay.

0:31:58 Andrew: Oh yeah

0:32:19 Thomas: All right, Andrew. Interesting article here. A little scary, actually, that you're going to break down for us. How powerful is the Congressional Review Act? This seems to be something that's come up recently that there's this act that maybe is a little bit more powerful than previously thought. And this could be somethingthat Republicans can use to essentially get rid of a lot of regulation. What's going on here? Should we be worried?

0:32:45 Andrew: Yeah the the the answer is yes. So there we

0:32:48 Thomas: Oh, okay. That's fine. I already was, so that's good.

0:32:51 Andrew: Go. So now we can we can end the show early. No, I it it This is part of the sort of growing trend among within the Republican Party that there is a segment that is is just opposed to the actions of government in whatever form. Right. This is these are the people that you might consider like sort of Ayn Rand style libertarians, minarchists, you know, government minimalists. And it's part of why, you know, we we beat the drum about Neil Gorsuch. I want to talk a little bit, and we've talked on this show about Chevron deference. Chevron deference dates back to a conservative court in the 1980s saying that the legislature will defer to the findings of an administrative agency in reviewing its own regulations.

0:32:54 Thomas: Can

0:33:45 Andrew: And so to set the stage, I just want to tell you, this is what Neil Gorsuch Gorsuch thinks about executive administrative agencies. And keep in mind, right, you know, we had eight years of George W. Bush putting his folks in charge of executive agencies. We're going to have four years, at least, of Donald Trump putting his folk in charge of administrative agencies, right? Like, the administrative agencies are what you get to run when you're the president. Here's what Neil Gorsuche has said. This case is Gutierrez-Brizuela versus Lynch, 834 F third 1142. We have mentioned it on our previous episodes talking about Neil Gorsuch, but uh, but I just want to read the conclusion of his dissent in this case. He says, "All of this dissent raises the question, what would happen in a world without Chevron? If this goliath of a modern administrative law were to fall, surely Congress could and would continue to pass statutes for executive agencies to enforce."

0:34:43 Andrew: "And just as surely, agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is. Of course, courts could and could consult agency views and apply the agency's interpretation when it accords with the best reading of the statute. But de novo judicial review, that means the court gets to look at it of new, fresh, and gets to disregard whatever the agency has had to say. De novo review of the law's meaning would limit the ability of an agency to alter and amend existing law. It would avoid the due process and equal protection problems of the kind documented in our decisions. It will promote reliance interest by allowing citizens to organize their affairs with some assurance that the rug will not be pulled from under them tomorrow, the next day, or after the next election."

0:35:31 Andrew: "And an agency's recourse for a judicial declaration of the law's meaning that it dislikes would be precisely the recourse the Constitution prescribes, an appeal to higher judicial authority on a new law enacted consistent with bicameralism and presentment. We managed to live without the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron, very little would change, except perhaps the most important things."

Okay, and I, perhaps I should have read this before the Gorsuch hearings, uh, when I was, it would have mattered not at all, um, but but when I was beating the drum about Neil Gorsuch as a conservative activist, this is what I'm talking about, somebody who muses while sitting on the 10th circuit, "Gosh, I really wish I could overturn this case on the Supreme Court," and for uh for the president to then say, "Why don't we put that guy in in the Supreme Court," uh is a pretty clear signal of what you want to do, right, which is to dismantle the administrative state. Now let's travel back in time 20 years, uh, 21 years actually, to uh Newt Gingrich, uh and the Contract with America, this is, yeah.

0:36:43 Thomas: Listen to some of your favorite grunge music while we're there.

0:36:45 Andrew: Yeah. Yeah. Right, exactly. So so I am uh sulking in the corner because all of rock music is terrible. It's 1996, uh, and Newt, Newt Gingrich, coincidingly with the decline of rock music, is is Newt Gingrich assuming his role as speaker of the House of Representatives?

0:37:06 Thomas: Coincidence?

0:37:06 Andrew: Yeah.

0:37:06 Thomas: I think not.

0:37:08 Andrew: If you like Soundgarden, this is on you, people. And as part of Newt Gingrich's ascent, he promulgated something called the Contract with with America, which was a litany of kind of random right wing talking points that a lot of which got passed. And and one of the things that got passed was something called the Congressional Review Act. OK, so part of the 1996 Contract of America says that when an administrative agency is making rules, that administrative agency has to notify Congress of the rules that they've passed. And then Congress has 60 days there, 60 legislative working days.

0:37:09 Thomas: Yeah,

0:37:59 Andrew: So that's like, you know, 12 years because Congress never does. But but seriously, it's like a couple of months. They have 60 legislative work days in which they can introduce a special joint resolution of disapproval of the rule that's been made. And I'm going to get into what that specific process is because it's a fairly amazing process and I want to document what that is. The reason this is coming up because lots and lots of administrative rules that were promulgated, particularly ones that were promulgated closer to 1996 but are still in effect, failed to comply with the technical requirements of this, right? Like, there was not a report that was made after the rule was passed.

0:38:46 Andrew: And so under the statute, I'm not going to read the particular provisions, but basically, if you haven't made the report, then that 60 day period hasn't begun to run. And so various independent efforts to investigate this have estimated that there may be hundreds of regulations for which there was never a report filed. So Congress can use this special procedure to pass a joint resolution of disapproval. And now let me tell you what that joint resolution of disapprove says. Okay, so this is five USC Section 802, subsection A says, "For purposes of the section, the term joint resolution means a resolution introduced in the period beginning on the date in which the report is received by Congress and ending 60 days thereafter."

0:39:33 Andrew: The matter after the resolving clause of which is as follows, quote, that Congress disapproves the rule submitted by the blank relating to blank and such rule shall have no force or effect. The blank space is being appropriately filled in. This is actually in the statute. I'm not just adding that as editorial. So Congress then has to submit a rule saying Congress disapproves of this particular rule submitted by this executive agency relating to this particular matter.

Then says, in the Senate, if the committee to which is referred a joint resolution described in subsection A has not reported such joint resolution, parenthesis, or an identical joint resolution, close parenthesis, at the end of 20 calendar days after the submission or publication date defined in subsection B2, Such committee may be discharged from further consideration of such joint resolution upon a petition supported in writing by 30 members of the Senate, and such joint resolution shall be placed on the calendar. Now, if you were not an OA listener, that sounds sounds like a whole bunch of gibberish. OK. But in light of our last episode, last Tuesday's episode discussing the nuclear option, does that gibberish make some sense to you? Or can you maybe parse out what they're trying to do?

0:40:54 Andrew: Yeah.

0:40:54 Thomas: Listeners, answer him. No, yeah, it's like 50% gibberish for me.

0:40:59 Andrew: So. Right. So, yeah.

0:41:02 Thomas: So it goes on the calendar. It sounds like the report went on the calender. I don't really know what that means. You may have to explain this. Sorry.

0:41:09 Andrew: Well, let me Let me read subsection D first. In the Senate, when the committee to which a joint resolution is referred has reported, or when a committee is discharged under the section that I just read, from further consideration of a joint resolution as described in subsection A, it, for a motion to proceed to the consideration of the joint resolution, and all points of order against the joint solution are waived. This motion is not subject to amendment, or to a motion to postpone, or to emotion to proceed to consideration of other business. A motion to reconsider the vote by which the motion is agreed or disagreed to shall not be in order. If a motion to proceed to the consideration of the joint resolution is agreed to, the joint resolution shall remain the unfinished business of the Senate until disposed of. And then, subsection two: in the Senate, debate on the joint solution and on all debatable motions and appeals in connection therewith shall be limited to not more than 10 hours, which shall be divided equally between those favoring and those opposing the joint revolution.

0:42:05 Andrew: A motion to further limit debate is in order and not debatable. An amendment to, or motion to postpone, or motioned to proceed to the consideration of other business, or motion to recommit the joint resolution is not in order. So I could read some more, but now does that give you enough of a hint to sort of know where this is going?

0:42:25 Thomas: You're gonna have to dumb it down, it's just, I, it's, you're reading this crap at me, so if I don't there's no way I can, yeah, yeah,

0:42:29 Andrew: Understood. So Here's what these provisions do. They prevent the Senate from filibustering one of these joint resolutions. So, in other words, so long as it passes a majority of the House and a majority of the Senate, you can't use any of the procedural devices that the Senate uses to filibuster to prevent these sorts of resolutions from coming forward. That's why D1 and D2 say we limit debate to 10 hours and you can't do any of the other thing. And until you finish debating this, you have to consider it. You can't lay it on the table. You can't postpone. You can't move to proceed to other business. All of those are things that we do in the Senate once you've filibustered and refused to vote for cloture that allows the filibustering of legislation by the minority.

0:43:22 Andrew: And the subsection C is you also can't bury this in a committee, right? So if the committee doesn't advance it within 20 days, it's automatically placed on the calendar so long as 30 senators vote for the the thing.

0:43:36 Thomas: I think where I had a disconnect, and what I missed, was what is placed on the calendar? Is this something that's going to strike down a previous law, I guess?

0:43:36 Andrew: No,

0:43:44 Thomas: I, I think I lost it there, but what does that do? I don't know. What is a joint resolution of disapproval

0:43:44 Andrew: Just just just consideration of this joint resolution of disapproval. But remember that what the right. Well, the joint resolution of disapprovals? If it passes, says that executive agency's rule is no good. OK, so the idea is you could, all, you're always free, for Congress to take a rule passed by an executive agency and for them to supersede that rule by of Congress.

0:43:54 Thomas: Hmm but You'd need, and eventually you'd needs 60 votes, but this is bypassing that, so there's essentially no, Philip, it's a filibuster-proof way to

0:44:17 Andrew: You'd need 60 votes to get out of the Senate. Right. This is a way that you pass A, that you passed a law that says you can pass future laws that evade the filibuster. And that's the whole point of the CRA procedure, is everything that the Senate uses to to filibuster legislation is about failing to call a vote. Right? It says we want to debate, we want to, because that's a motion for, that says we're done debating this, it's time to vote. You filibustered that by going, no, no, we're still debating this, and then, remember, I told you that the difference between us and the Mr. Smith Goes to Washington era is you would have a motion to proceed to consideration of other business, right?

So in other words, the way a filibuster works now is a law is supported, let's say, by 52 Republicans, all 52 Republicans opposed by all 48 Democrats. In order order to that as a law, the Senate has to have a vote. And in order to have a vote, they have to first call for cloture to say, OK, we've all made up our minds. Let's stop debating. But it takes 60 votes to end debate. So the Republican majority says, OK. We done debating here. And the Democrats say, no, we're not done debating.

0:44:24 Thomas: Yeah yeah so it gets tabled, it never, never happens but I think what I'm not getting is you, you were saying this could be a way for any legislation to be filibustered proof but I thought this was just relating to this original

0:45:38 Andrew: Right. Only. No, no. Yeah. Not. I'm sorry. If I said any, I'm I'm wrong. This applies only to joint resolutions introduced pursuant to this particular CRA, which is 5 U.S.C.

0:45:48 Thomas: Okay so

0:45:58 Andrew: 202.

0:45:58 Thomas: Long story short, and it's only if they never filed this original report thing they were supposed to do within 60 congressional days, so they just ended, ended up not doing it, in some cases, right

0:46:07 Andrew: Yeah. And well, and all administrative agency acts that pass going forward. Right. Congress has 60 days to file this joint resolution under the CRA of disapproval, which makes the rule of no effect. Now, again, you might think, well, you know, it's Trump's, Trump is a Republican, they are Republicans in charge of the administrative agencies, you know, are we really going to do this? But as we saw from, you know, that's why I began with the Gorsuch dissent, if your view is, I I don't want government to do anything, then this is a procedure whereby by a bare majority filibuster proof, you can and get a majority vote to strike down administrative agency determinations rules.

0:46:17 Thomas: You Have a specific thing that could get struck down as an example using this method? Like, what do you mean? Are there any rules that on the chopping block that we should be worried about to

0:47:06 Andrew: There are, I'm going to link this Brookings Institution article, but there are an estimate of 340 pending regulations, it breaks it down by which agency, that have significant rules that have failed to comply with the reporting requirements, Including part of the Clean Air Act, part of the Family and Medical Leave Act, various rules from the Department of Labor. So there are potentially a lot of these. And there is the person who drafted this piece of legislation for Newt Gingrich is still alive and is still a right-wing gadfly.

0:47:54 Andrew: His name is Todd Gaziano. And he has has set up a website whereby he encourages people to come by, do a search, and then submit various pieces of administrative agency rulemaking that have failed to comply with the rule. So he's compiling a database of this, and he's still well-connected in the legislative world. So there are people out there who are planning to use this to roll back aspects of, you know, what Neil Gorsuch referred to as the administrative state. So you're going to see this. And when you see, you knows, the Senate on a 52-48 vote has struck down this particular aspect of the Clean Air Act, that's how they were able to get around the filibuster. They were able to get around it because of the CRA.

0:48:48 Thomas: Be fair, they could also just get rid of the filibuster, right?

0:48:52 Andrew: That that that could happen. I mean, my belief is that that will happen the next time we have a Democratic president and Democratic Senate. But

0:49:00 Thomas: As we've talked about, yeah, yeah, but, but, I guess this, just to clarify, like, this isn't doing anything more than that would have already done, right?

0:49:01 Andrew: Yeah. Yeah. Well, this is doing far less than that, because this only applies to these joint resolutions of disapproval that apply under the CRA

0:49:10 Thomas: Yeah, that's right, exactly. It's another way of saying what I meant to say. Yeah, this isn't, this is an, I meant we shouldn't be more worried than that, would make us worried anyway.

0:49:13 Andrew: All right. Yeah. But we should we should be worried that there is.

0:49:22 Thomas: But it's a way to get away with it without opening up that Pandora's box, yeah.

0:49:24 Andrew: Right. Because presumably getting rid of the filibuster will at least be something that you will fight political battles over. And by God, if people will go to the polls to vote on term limits and finance reform and other sort of procedural rules, I would hope that they would go to the polls to vote abolishing the filibuster. Uh, but uh, but there's no way, like, nobody is going, you are not going to motivate, you know, more than our listening audience, uh, to get out and vote against the people who, you know, uh, voted in the Congressional Review Act of 1996, right?

0:49:31 Thomas: Something that's politically costly.

0:50:06 Thomas: Yeah. Yeah

0:50:06 Andrew: Like that just sort of seems like that, that's going to be kind of misreported and we're going to have to cover those stories because that's what we do here on opening arguments

0:50:13 Thomas: It's, it's this is Honestly, it's really confusing. This is going to be something that people aren't going to get, and I don't blame them, because, wow, that's a, that's complex thing. But long story short, it's sort of a politically expedient way to be able to get rid of a lot of administrative rules that are doing things that you and I probably want to be done, but someone like Gorsuch and others won't want. So, all, I get it, we should be worried that, that sucks. Another bit of, you things sucking on this podcast.

0:50:14 Andrew: Yeah Yep.

0:50:40 Andrew: Another bit of the sun is shining

0:50:44 Thomas: But what are we?

0:50:44 Andrew: Birds are singing and things are fantastic in Trump's America. If you listen to opening arguments, how

0:50:45 Thomas: Yeah, exactly. Yeah. What more can we say? I guess we'll have to move on to a cheerier topic in our list of questions here.

0:50:54 Andrew: About Holocaust denial?

0:50:57 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:51:06 Thomas: All right, Andrew, listener question, take this one on for size here. That's, I mix my metaphors or something. Listener Sharon Torres asks, is Sean Spicer going to be your next topic of discussion? How many ridiculous things can someone say and still keep his job? Not sure what the legal question is there.

0:51:25 Andrew: There, there, I don't think there is a legal question, and I, and uh, that's, that's my, and a big shout out to my mom, whom I love dearly.

0:51:31 Thomas: Yeah By the way, if you want to get your question answered, either be married to me like we've seen in previous weeks, or be Andrew's mom. So if anyone out there wants to be Andrea's mom, I, maybe he's taking applications, I don't know.

0:51:39 Andrew: Or be my mom. Yeah. Just want to make sure that we record for posterity what the press secretary to the president of the United States said.

0:51:50 Thomas: Just a quick mention, just like get it on the record, is that what you're saying?

0:51:54 Andrew: Okay. Yeah. And that is, and I quote, we didn't use chemical weapons in World War II. You know, you had someone as despicable as Hitler who didn't even sink to using chemical weapons. And then when called upon that, because that's an unbelievable statement to make, this was his first line of defense, obviously Nazis used chemical weapons within their concentration camps to exterminate six million Jews.

0:51:56 Thomas: Yeah, yeah well what terminology are you using, is that the technical term? Because I only know the Holocaust center terminology. I don't know, concentration, what is that? Yeah.

0:52:30 Andrew: Yeah. Well, and as you previewed, here was Sean Spicer's defense of how he could have missed that. He said, I think when you come to sarin gas, he, Hitler, was not using the gas on his own people the same way that Assad is doing. And then this is from the New York Times. Mr. Spicer said incorrectly, and I love the fact that we, yeah, right, before mentioning, quote, Holocaust centers, an apparent reference to Nazi death camps. Now, actual sort of historical note here, which is of the six to seven million Jews that is estimated were exterminated during the Holocaust, most of the concentration camps were located outside of Germany, were Poles and other European Jews, non-German European Jews.

0:52:59 Thomas: They just put that on there, yeah, but there must have been some German shoes

0:53:30 Andrew: Um, but there were, there were the estimates are, the estimates are 160 to 180,000, uh, German Jews. Now, now again, why were there, right.

0:53:31 Thomas: Oh wow but that's because they kicked them all out, right? I mean, yeah.

0:53:41 Andrew: I was just going to say the reason there were so few German Jews is that, you know, beginning in the 1930s, uh.

0:53:48 Thomas: So what you're saying is, in order to be a little better than Hitler, what Assad should have done is just expelled his citizens first and then dropped sarin on them, then that's pretty reasonable that's a reasonable thing to

0:53:57 Andrew: Right. Yeah. Had, had some, had something. Some kind of rule that said, you know, you know, subgroups of individuals were required to wear, you you know, let's say an identifying mark. Uh, and then they could all, uh, you know flee the country.

0:54:00 Thomas: Yeah and then he would have been only as bad as Hitler and not worse by, by Sean Spicer's logic. All right, well, we've got that into the record, etched in uh stone permanently on our podcast.

0:54:11 Andrew: Yeah. Uh, it, it, yeah. Um, yeah. It's, I, I, I don't, I mean, this was a, this was, this was truly astonishing thing to say.

0:54:30 Thomas: You see though, did you see that Mike Huckabee, of course, defended it? Did you see this? He, the tweet, Andrew, here's uh Mike Huckybee, this is, this is real, this is uh, you know, verified Twitter, verified, I'm on, this isn't the screenshot of a tweet, this is, is, this is the guy. "Sean Spicer showed class and humility in clarifying Holocaust comments. Media showed bias and arrogance pretending they didn't understand." Oh, man.

0:54:56 Andrew: I, wow. Well.

0:54:58 Thomas: So there you go, how dare we pretend to not understand his perfectly cogent uh Holocast references.

0:55:06 Andrew: Thanks for the question, mom, hope you enjoy your shout out, uh, I, as always, I love you, and thanks for uh, for giving us the segment.

0:55:13 Thomas: All right, and that's, that was a fun one to do because we had to spend so, so much time on United, so that fits perfectly, nice little fun short segment there, and now, guess what time it is, Andrew, it is New Patron Tuesday, and that is what exactly you know, I was just gonna say that it was like, literally, in the top two favorite days for me of the week, and here we go, our schedule is a little wonky, so as you know, know, they were divided a little weirdly, but here's our new patrons for this particular recording on New Patron Tuesday. Nick Kooiman, Eric Barsic, Jeff & Maggie Watkins, Nathan Watkins. God, I hate that last guy.

0:55:26 Andrew: My co-equal favorite day of the week

0:55:52 Thomas: Nice one. Nice pledge. God hate that last guy, and Laura van Braam-Stewart. Thank you guys so much for being our new patrons this week.

0:55:51 Andrew: Yeah Thank you, I've got nothing to say, so if you'd like me to say something on the next New Patron Tuesday, you know how to make that happen.

0:56:08 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:56:08 Thomas: All Now is the most dreaded time of the week for me, and this is the second, it's so funny because we've got two of my favorite things, which are New Patron Tuesday and Hall of Fame Patron Friday, and then right after that we get my least favorite thing, which is Thomas Got the Answer Wrong Tuesday, and Thomas is about to get the answer wrong Friday, I don't know why we named him that, but yeah, oh,

0:56:34 Andrew: And, and, and I should say there, there continues to be a discussion on Twitter, on Facebook regarding TTTBE number 18.

0:56:44 Thomas: I know the status of my appeal, so maybe we should get an update on that one. My, I filed the necessary paperwork with Andrew, drew, I feel like there's some confusion on that question about equal uh protection versus whatever the hell your answer was, which, didn't, you know, I've never heard of, yeah.

0:56:48 Andrew: Yeah. Yeah, right. Substantive due process. And so I will say I'm going to to continue to come down on the side of the materials here, which is to say that if you interpret the question as saying, given the fact pattern, and this fact pattern was the crazy, like, Moral Dress of America Act, under some president who they couldn't have possibly would have imagined would have been rhymes with Mike Pence. The question is, is that best understood as, as unconstitutional, as an equal protection violation or as a violation of substantive due process? I am going to continue to say substantive due process is the right answer, even though the wording of the answer with respect to substantive due process was not great.

0:57:25 Thomas: Wonky

0:57:48 Andrew: Yeah, it was it was definitely not not good. But but our lawyers who listen to the show know that the bar is written that way, like Like bar exam questions are are often very terribly written.

0:57:48 Thomas: Okay you know tough but fair, tough but

0:58:00 Andrew: Yeah. So so I have denied the appeal, but but but I do want some understanding from the folks. But now we're on question 19. Question 19 was a federal jurisdiction question. Right, this was construction company and a landscaping firm got into a dispute. The landscaping farm was a company incorporated in New York, did all its business in that state. Construction company was an LLC with three members that were domiciled in Pennsylvania, Vermont, and Virginia, but the LLC was filed in New York. And then the question says, assume that the amount in controversy over a hundred thousand, so exceeds the $75,000 federal case in controversy amount, will the court likely grant the motion to dismiss? Miss, you answered, A, yes, there is no diversity and that the construction company LLC and the landscaper corporation were both

0:58:00 Thomas: Faire, all right, application denied okay okay yeah yeah

0:58:56 Andrew: Registered and filed in New York, making them citizens of the same state, no diversity. B was, yes, because diversity must be between natural citizens and business entities are not entitled to diversity and must find some other reason for federal jurisdiction. I will tell you that answer is nonsense, you yeah

0:59:13 Thomas: I just realized upon hearing it the second time, I was like, that, that's, yeah, that is nonsense, okay, that

0:59:17 Andrew: Total nonsense, sense businesses can take advantage of diversity. Uh, C, no, the motion to dismiss is premature and must wait until all discovery is completed before it will be considered, obviously ridiculous, even Thomas knew that, right, like yeah, of course, right, right, and D, no, the plaintiff is a citizen of New York, which is true, and the three members of the LLC are each from different states, which gives complete diversity of citizenship, which I am sad to say is the correct answer.

0:59:26 Thomas: One's total nonsense, right, okay good, I at least knew that, so I, A and D were the, were the tricky ones, I, oh, okay go ahead, keep going,

0:59:46 Andrew: Answer D.

0:59:45 Thomas: Yeah I knew it, god, I almost told

0:59:47 Andrew: I know. Now, so

0:59:47 Thomas: You, I changed my mind, but I didn't, but even though it's A, it's an LLC and they, they don't, well I guess they have limited liability, okay never mind, if it, would it matter wonder if it was a different corporate structure of some kind.

0:59:51 Andrew: The interesting concept here is the concept of complete versus incomplete diversity of citizenship.

1:00:05 Thomas: Like yeah. I knew this I knew this

1:00:05 Andrew: Yeah, if it were if it Were a company, then the Yeah, and again, it's because there is case law that that says the state of organization and the principal place of business of an unincorporated association are legally irrelevant. So the citizenship of an LLC is determined by the citizenship of its members.

So, uh, the, the interesting issue here is the question of complete diversity of citizenship, uh which is if I am from Maryland and I sue Thomas from California, uh even if I sue you, if I can sue you in New York, I can see you in Maryland, uh we have complete diversity of citizenship because we're citizens of different states so as long as we meet the amount and controversy requirement we get to go into federal court if however uh there is a co-defendant from Maryland then we would no longer have complete diversity and now that you know that that may seem like no big deal uh when you're talking when you're thinking about like one person suing one person or one person doing two or three people. But let me give you a real-life example that happened to me all the time that is an issue in insurance coverage litigation.

I represented a runoff entity for Lloyds of London, and because of the structure, the underlying defendants were real persons that were scattered across the country, that were investors, that took on, that severally subscribed a percentage risk of these policies. And because those investors are in virtually every state of the country, when you sue Lloyds in the particular way in which they were sued, you are suing all of these individual investors.

1:01:51 Andrew: Investors. And so all of these cases wind up being brought in state court rather than federal court. Because if you have at least one defendant who is in the same state as the plaintiff, you do not have complete diversity and you go into state court. You don't get to go to federal court, even if it's a billion dollar coverage case of the sort that I used to do. So sort of of an interesting wrinkle there. I realize, yeah, you

1:02:14 Thomas: Story short, I'm wrong, I think I'm like let's see what am I like one for 40 now or something like that, uh three for 12, 1200 yeah

1:02:18 Andrew: Are, you are, 10 for 19. You have gotten close to the 500 mark before, but never dipped below it. And I, well, no, I take that back because you, yeah. At the beginning, but since we've gotten a reasonable sample size, you've kept your head above water and I have high hopes for you on question number 20.

1:02:27 Thomas: Well yeah early on, but yeah, yeah true I think I've missed virtually every single one where I'm like, uh, it's either this one or this one, I think I'm, I, you would, you would hope that I get 50 of those, like I've gotten zero percent of those and that's been 80 of the questions, so that's that's a challenge for me

1:02:50 Andrew: Yeah I I think that's right, but look, we the nice part is you, you have 180 more of these to go, so oh we

1:03:06 Thomas: Yeah, I'm sure I'm gonna get all those right so we'll be, I'll be fine. All right, well there you have it and of course we've got to ask future Andrew, now that we're back on our regular uh recording schedule, future and drew uh who was our winner, not me, but who, who picked the right answer, or maybe, or a funny answer, or whatever, uh for this week.

1:03:24 Andrew: Yeah.

1:03:24 Thomas: All

1:03:25 Andrew: So Thomas, as it turns out, almost everyone guessed incorrectly along with you. The only person I saw that got the answer right was user Tarn on Twitter. I really, really hope he picked that name as a Transformer shout out. That is at S-O-M-E-R-V-T-A. So at Summer VTA, Tarn says, "Pretty sure the answer is D, though the fact that Thomas thought it was hard threw me. Jurisdiction the requires diversity of persons and corporations count." So give Tarn a follow and a shout out. Congratulations on getting it right. Almost everybody picked A along with you and the corporations counting but but unincorporated associations not counting, uh made this really really hard, um, so you know you're in, you're in decent company, uh, but our man Tarn got it right, so he gets the shout out, right.

1:04:17 Thomas: Right, thanks for playing everybody and you're probably all doing better than I am. Oh well, I'll come back, uh, no I won't. So that's it for this weak, thanks Andrew, thanks listeners, and most certainly of all thanks patrons who have plenty of leg room on that flight there on patreon.com/law, we will see you guys on Friday.

1:04:43 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.