OA104: Equifax, Class Actions, Sham Marriages & Redistricting!

Transcript

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

0:00:00 Andrew: Today's show is brought to you by HelloFresh. So please visit HelloFresh.com, use the promo code LAWPOD30, all one word, L-A-W-P-O-D-3-0, and save $30 off your first week of deliveries when you subscribe.

[0:00:16] Is that why you hit your wife? Withdrawn? Is that why you drink and pop pills? Withdrawn? Are you a virgin? Withdrawn?

[0:00:32] It says here you robbed a hospital. Why'd you do that? Yeah, I'm not guilty. That's not what the other lawyer said.

[0:00:44] Actually, I was going to stay in my office tonight and work on my law blog. Of course, the Bob Loblaw Law Blog. Wow, you, sir, are a mouthful.

[0:00:59] The jury is instructed to disregard its own testimony. Your honor, the prosecution rests. Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the law offices of P. Andrew Torrez, LLC. For entertainment purposes, is not intended as legal advice and does not form an attorney-client relationship relationship. Don't take legal advice from a podcast.

0:01:32 Thomas: Hello, and welcome to Opening Arguments. This is episode 104. I'm your host, Thomas Smith. I'm the expert lawyer on the show. And over there is someone who I think, gosh, I don't, I think you got the last bar

[0:01:44] question wrong. Is that right, Andrew? How are you doing, Andrew? Comic relief. It's well established. I'm the comic relief. Yeah, the original, that first ever, like, review we, or no, what was it, the list we got put on where they said I was the expert

[0:01:57] and you were the comic relief. I think they were just a profit. That's the, yes, yes, prescient. So, uh, so from here on out, uh, you're gonna answer all the legal questions and, uh, yeah, I think I'll let you, I think I'll let you take a stab at them. I think I'll let you, I'll just sit back and kind of, I'll let you know if you get anything wrong. Well, I'll go ahead and, okay, still

[0:02:15] let you handle it. I know it would kill you to have to, you know. That is magnanimous of you. I get to gloat all the way up until the very next question when I get it wrong. All right. I am so excited for today's breaking news show. You know the drill on Fridays. We've got a question from listener Eli Bosnick, who, this was really funny, he did some posts about this on Facebook about the solution to DACA being let's all marry DACA recipients and legalize them. So we're going to look at some of the details of that plan.

And, and in the main segment, we're talking Equifax. I'm sure you heard about that. There was also rumors that the way that they were notifying people, like if you went to this help portion of their website, was somehow clicking away your right to sue them or something. So we're going to look at those questions. And then in the C segment, we are tackling something a lot of people have been sending us about gerrymandering, redistricting. Ding. And Andrew, you said before the show, there's a lot of misunderstanding about that one. So I'm excited. I won't try to preview it because I'll probably preview it incorrectly.

[0:03:21] So I'm excited to get the correct picture on that. All right. So with that said, let's get over to our first segment, which is a listener Eli question. 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. Eli asks, or I sort of read what his post was. So who's the hero? He says, who's the hero who wants to make the website where we marry all the DACA participants to Americans who don't trust Congress before March?

[0:03:53] So sound like a plan? Yeah, we love Eli, friend of the show. And I thought this was obviously a fantastic sentiment. I like the idea of kind of an e

0:04:06 Andrew: -harmony for DACA participants where we arrange them with single individuals in the U.S. The only problem here, there are two problems, and they're a little bit of a hurdle. The first is that notwithstanding what you see on television, when an immigrant marries a U.S. citizen, that doesn't automatically confer

[0:04:30] anything. Yeah. What it does is it gives that person the right to apply under 8 U.S.C. Section 1255 for something that is called adjustment of status. And you can then adjust your status to permanent lawful resident of the United States. However, subsection C of the application process denies anyone who entered the country illegally or, quote, "has failed other than through no fault of his own or for technical reasons to maintain continuously a lawful status since entry into the U.S." And that very obviously is directed at folks who deliberately overstay their visas. So the two primary ways in which immigrants wind up being illegal in this country and requiring the sort of loophole of staying in the country by marrying a US citizen are expressly prohibited by statute. But suppose we could get around that one. We would still run afoul of eight USC 1325 C. And this is on the other side of the equation. This would apply to all of the well

[0:05:47] -meaning folks who started up. Eligible bachelors and bachelorettes. Yes, exactly. Who participated in Eli's, uh, I wish I'd come up with a good name for like, you know, the, the, the, the, the dating site. Yeah. Docket date. There we go. AUSC 1325 C says any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than five years or find not more than $250,000 or

0:06:20 Thomas: Both. So maybe we need a different name that doesn't give away the game, so, like, definitely not Undocumented People

[0:06:26] Date.com. That's, that was more subtle. Right. Yeah, exactly. So Eli's heart is, uh, as

0:06:32 Andrew: Usual, in the right place. But if I have to tell our listeners not to take legal advice from Eli Bosnick,

[0:06:39] I feel like, uh, we've lost them. That should have gone without saying. But no, I, it was, you know, was it was funny when I read it, and it was one of those where I think not a lot of of people know sort of both aspects of that, that, um, you know, the classic situation is that falls under the adjustment of status law would be somebody who is here on an education or

[0:07:03] work visa, and then meet somebody, falls in love, gets married, and then is able to apply and extend out, you know, to permanent lawful resident status as a result of that marriage. But no, you can't just find somebody who is in an undocumented status or has overstayed their visa, has in any way failed to maintain continuously

[0:07:28] their lawful status and bring them into lawful status via marriage. Huh. Wow. So all the TV shows and movies are wrong. Yeah. One area where they're right, I mean, that's why I went through the 1325C, is when you do undertake a marriage to somebody who is not a US citizen in this country, there can be, and very often is, an interview process to ensure

[0:07:53] that that is not a sham marriage. Oh, so they do check in. So that element of the sitcoms, right, where you know the couple has to pretend awkwardly that they're in love, but it's a sitcom, so

0:08:05 Thomas: Like one of them is probably gay or something, they probably... Right, exactly. Yeah, they don't really want to get married, so they have to act like they're

[0:08:12] straight or vice versa. Yeah, that's the hilarity that ensues. Yeah, that's every bit as funny as you make it sound.

[0:08:20] So there you go. Pretty straightforward question, sadly. Not the result Eli would like, but there's your quick primer on immigration laws with respect to marriage. All right, well, that leaves us plenty of time for Equifax.

[0:08:40] Okay.

0:08:41 Thomas: Equifax, Andrew. This definitely, this is one of those things that was such a big hack that it seemed to affect such a large number of people that I didn't even bother. I was like, all right, fine, I'm probably, I'm sure I'm affected, so I'll just keep an eye on my credit report and hope nothing happens. But what's going

[0:09:00] on with Equifax? Yeah, I have done the same thing. So Equifax is a credit reporting bureau.

0:09:06 Andrew: It handles the gathering the information for 143 million people and they sell services, right? You've probably seen some of their commercials about how, you know, you need to protect your credit information and, you know, if you don't, then, you know, nefarious people will steal your identity and then, you know, take out credit cards in your name and could bankrupt you and all of that. And, uh, and Equifax was hacked and that data of 143 million people was, uh, was, uh, compromised. And so precisely kind of the thing that they're fear mongering about is the thing that happened. It, uh, well,

[0:09:49] they were right. Now, so now there have been, uh, dozens and dozens of lawsuits, uh, that have been filed. I am going to link to one as a sample in the show notes, uh, but, uh, but they're all gonna, they're all gonna fall into the same thing, they're all gonna be consolidated, and we're gonna figure. So I really want to address kind of four questions here, right? And the first is, what's the argument against Equifax? This is a really, really straightforward one. And in fact, the lawsuit that I brought has just one cause of action. And that is, do you want to take a stab at this, Thomas? It will not count as a bar answer if you get

[0:10:33] it wrong, but I think you might get it right. What is the, say it again, what is the- Yeah, what's the claim for relief? Like, what's the cause of action against Equifax? What's the, emotional harm? No. Well, we had, what was, sorry, I was just spacing out thinking of a question, because we had a bar question that was like, what was it? It was like information, personal information, whether or not you could sue for that. Remember that bar question? And I was trying to think of that, of

0:11:03 Thomas: What, because I think you explained some of this at the time, time, but maybe that was, I don't know if that was exactly related.

[0:11:09] So maybe it was different, but I would say there's the one that sometimes is used for when people are trying to stop magazines from publishing stuff about them, the sharing, the private, what is it called, sharing the private, false

[0:11:22] false light, false light publicity. I don't know if that's it, but that strikes me as something, it could be, you know, false, false light, so it's, oh, it's, well, publicity, though, that doesn't really fit. But it's revealing private information

[0:11:34] that should be private, I thought. Yeah, and maybe that was a bit of attractive distractor information there. The claim here is a negligence claim, right? Ah, that makes sense. Yeah, and it's one

0:11:47 Andrew: Of the things we want to think about when you're sort of looking at a civil tort lawsuit against a private party, right? Negligence says, and I'm going to read the paragraph from the complaint. As alleged in this complaint, Equifax undertook care of credit and personal information belonging to plaintiffs and the putative class, and then breached its legal duty by failing to maintain adequate technological safeguards, falling below the standard of care in the technological industry, directly and proximately causing foreseeable risk of data loss and credit harm and identity theft and other

[0:12:18] economic losses in amounts to be decided by the jury. So that's the thing I didn't, cause I don't know like the technical,

0:12:25 Thomas: You know, details of how they got hacked. I don't know if it's the kind of thing, I guess that maybe I was being too optimistic and assuming it was some brilliant hacker job, you know, they hack the mainframe, and they tie, you know, and

[0:12:37] it was such a Swordfish. It was. Yeah. Has anyone seen what's his name lately? Maybe he's behind this. Uh, what is it? Oh, no, that was, uh, that was John For- yeah, I haven't seen him lately. Maybe he was behind this. We'll see, could be. So, but I guess that's a question I will have going into this is, like, do they just have to prove that they did kind of the normal industry standard stuff in order to say, no, it was just a really

[0:13:02] good hack job.

0:13:05 Andrew: That certainly could be a defense to a negligence action. But yeah, whenever you undertake to perform a service for someone or interact with them in any way, you owe certain duties of care to that person, right? Think about, right, this is how you bring lawsuits against, you know, doctors, right? Right. Medical malpractice is is called medical malpractice because it means you've fallen below the standard of care that a person thinks that that they're entitled to get when they hire you as a doctor or a lawyer or anything else. Right. So in this case, people gave their information to Equifax because Equifax said, we're going to collect this information and we're going to

[0:13:49] help you keep it safe. And then they failed to keep it safe um why I don't think you are ever going to see the Swordfish defense being offered here. Gets into the second question, uh, and this is

0:14:04 Thomas: Yeah, well, I also picture, like, it's a complex legal term, I can't remember, in the first Mission Impossible, what agency, or what thing, I think it was a government thing, that that Tom Cruise got, great, you know, with the the descending from the ceiling and doing all this stuff, because that... That would be a great defense for them, right? Wouldn't they be there in court? Like, look, your honor, we got the temperature regulation going on the thing. If the temperature increases 0.01 degrees or some crap, then we know. We got the door security. We got, I mean, come on. We did everything we could. This is not negligent. This was just an incredible action movie is what it was.

[0:14:39] Have you seen Sneakers with Robert Redford? Yeah it's it's kind of like that and there's a like heist scene

0:14:46 Andrew: In which they have to make sure that, uh, the the temperature doesn't go up by, uh, by

[0:14:52] more than, than 0.01, so so this guy is like slowly walking across the room in a head-to-toe neoprene suit. But yeah, exactly right. So, um, no, knee, I don't believe that Equifax is ever going to put on the Swordfish slash Sneakers maker's defense, because the real game is going to be fought by kind of question number two here, which is, why is this, what does it mean for something to be a class action, what does it mean

[0:15:22] When it says "on behalf of plaintiffs and the putative class," right, what is all that, right? And and as I kind of go through that, it's going to explain, if Equifax is able to knock out the class action claims, then there is a 100% certainty of, you know, every dollar I have in every bank account I've ever owned, uh, that, that they will settle the remaining lawsuits, the individual lawsuits. Okay, so what's a class action? A class

[0:15:53] action is, uh, when the number of people suing or, and you can have class action defendants, but it's it's very, very rare, and I'm not going to talk about that for purposes of the show, because it's... but basically, when the number of people suing somebody is so numerous that it would be really, really difficult for the court to keep track of everybody individually,

[0:16:18] then you may be able to bring those cases in a consolidated format where a small subset of the plaintiffs are appointed as

[0:16:31] representatives of the larger class. And so in that instance, you can get a verdict that runs to everybody, right? And here, potentially to 140 million people, right? Like getting 140 million people in a lawsuit, I think we all agree would be pretty impractical.

[0:16:51] That would be really, really hard to do. I mean, just reading the caption of the case. So now the question is, how do you go about turning 140 million people into five people that are in a representative class? So let me start off with kind of the paradigmatic case. It's one that most people are familiar with because you get these little notices in the mail, right? And the easiest, in many cases, the only kinds of cases that are going forward as class actions are antitrust suits, right? And so what you prove

[0:17:28] is that X company, let's say Shell Oil, Shell Oil, due to their monopolistic power, due to X, was able to charge during the time period January 1st to December 31st, January 1st, 2016 through December 31st, 2016, calendar year 2016, they were able to charge 10 cents more per gallon for regular unleaded gasoline. Right. In that case, you would then say, now what's our class of plaintiffs? Our class of plaintiffs is everybody who bought unleaded gasoline at any Shell station in calendar year 2016. And then what are the damages?

The damages are every gallon of gas that you bought, you paid 10 cents a dollar, 10 cents too much match per gallon, right? So you can figure out exactly who's in the class. You can figure out exactly what happened to them. And most importantly, you can figure out exactly how much they're owed because the same damage happened to the same person repeatedly, right? The same group of people, repeat, like, it doesn't matter. And, uh, and it doesn't matter the, the unique circumstances or identity of, of the plaintiffs. Right. There's no, there are no unique issues to be raised here. Right. Like, it's just, I

[0:18:49] paid 10 cents per gallon too much for my gallon of gas. So that kind of paradigmatic case is a way of stating the rule that applies here, which is rule 23 of the federal rules of civil procedure. And it says, one or more members of a class may sue or be sued as representative parties on behalf of all members, only if, one, the class is so numerous that joinder of all members is impractical. This is called the numerosity requirement. Clearly satisfied here. Two, there are questions of law or fact common to the class. That's the commonality requirement.

[0:19:25] Probably satisfied here. Here. Three, the claims or defenses of the representative parties are typical of the claims or defenses of the class. That's the typicality requirement. We're going to talk about that in a second. And four, the representative parties will fairly and adequately protect the interests of the class. And then there's a sub B requirement that has a couple of other things, but the most important additional criterion that forms sort of the fifth thing you have to prove in getting Rule 23 class certification is the court must find that questions of law or fact common to class members predominate over any questions affecting only individual members and that a class action is superior to the other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these These findings include, A, class members' interest in individually controlling the prosecution or defense of separate

[0:20:14] actions, B, the extent and nature of any litigation concerning the controversy already begun by or against class members, C, the desirability or undesirability of concentrating the litigation of the claims in the particular forum, and D, the likely difficulties in managing a class action. So you sort of put that all together and you can understand how antitrust cases are the paradigmatic case for consumer class action. Class is numerous, common questions of law in fact. The claims and defenses are typical across the class because everybody has suffered the same injury. And the representative parties are going to adequately, fairly protect the interests because they've all suffered the same injury. And the common questions way predominate over any individual treatment, right? In fact, it's really hard. Think of our gas station example. It's hard to imagine how your claim would differ from my claim if we both bought gas, right? Now, let me give you an example of something that doesn't meet Rule 23, has never met Rule 23, even though most people don't know this.

[0:21:18] We've talked a little bit about asbestos. That's so funny. I was just going to say, that's the other thing, the class

0:21:24 Thomas: Action thing you always talk about. So is that different because it affects the health differently? So I might have

[0:21:30] a claim for different damages? Is that the question or is it going to be some other difference? Yeah, no, that's exactly right. So every

0:21:36 Andrew: Asbestos case has been brought as an aggregation of individuals, has not been brought as a class action. And the difference is, right, in an aggregated case, you name out each person and they are required to appear in court either on their own behalf or represented by counsel. Whereas if you're part of a class action, you are represented through the named plaintiff class representatives. You don't have to be there. And the reason for that is because the individual issues in an asbestos case predominate over the class issues, right? Right. So in other words, proving exposure

[0:22:14] is not where those cases get litigated. Like, yeah, we get it. Right. There was asbestos insulation around the boiler. You worked in the boiler room. We can prove exposure. The question is, in each individual body, how does breathing in those asbestos fibers, how did that affect your lungs? Right. And

[0:22:33] so it's why those cases were not brought as class actions, because, you know, you, you might think about, you at a class, you have a class plaintiff with, uh, with cancer, right, uh, with mesothelioma, and you have mesothelioma, you might say, yeah, but my cancer is twice as bad as the class plaintiff's. Or, you know, the flip side, if you find the person with the worst possible cancer, you might say, as the, uh, as the defendant, hey, look, like, this is the worst possible case of, of mesothelioma, and we have hundreds of people who, and I get it, like, it's bad that they have cancer, but like, their cancer is a half or a third. Or a fraction of this. So you can't take the injury suffered by one

[0:23:16] person and easily translate that into the class context. The last time – so that's – those are sort of the poles of the number line, right? Think about the asbestos cases on one end, which nobody tries to bring as class actions. The antitrust cases on the other hand, which almost always pass the Rule 23 test. The last time I litigated a Rule 23 question, I was defending – I've mentioned this case before. I was defending the now defunct Asarco Corporation, the American Smelting and Refining Company. And, uh, and they had a, uh, refinery in, uh, Omaha, Nebraska, where they continued, we had a really bad document that came out in discovery, uh, that, that was like the, the earliest page was written in like 1913, and it said, oh,

0:24:13 Thomas: Is this the one where they just build the, the, yeah, right, they build the

[0:24:17] smokestack 10 feet higher, whatever. Yeah, it was, it's the Donald Trump, right? Like, so the 1913 page says,

0:24:23 Andrew: We are starting to get complaints from the community about the smell, and then there's a, a little handwritten note that says, build the smokestack 20 feet higher. And then what, what truly made this a bad document was, stapled to that was another, was a reissue from like 1935, and then another one from like 1948,

[0:24:42] and then, like, every 10, 15, 20 years, somebody would raise the question again, and they would be like, yeah, corporate policy is build the smokestack 20 feet higher, which of course is distributing more of, uh, you know, smoke throughout the downtown area, until, uh, they were sued in the late 1990s, uh, by a plaintiff's group. And, um, and we contested the appropriateness of the plaintiff's group on Rule 23 grounds. And one, And once, once we won and got the class dismissed, we then, as I predict will will happen here with Equifax, settled out with the individual plaintiffs that brought their case. And the reason in which we won was the exact same kind of reason that I went through, the idea that the legal questions that were likely to be at issue in the litigation were individualized and not common to

[0:25:39] the class members. And that, in particular, the damage suffered either to property, from precipitate collecting on your property over the years, or as a health hazard, were individualized, and we won on the class certification, got that kicked out. Now let's apply that to the Equifax context. We're not talking about diseases here. We're not talking about the individual, you know, body reacting differently. But it's

[0:26:10] not hard for me to imagine the argument that says the main issues that are going to be litigated in these cases is how did the credit breach affect you personally? Right. Right. And that is going to vary from person to person. Right. Like, there is some level of harm of somebody

[0:26:29] stole my information and they haven't done anything with it yet, but they might, have to, and I canceled a bunch of, you, not remember that bar question I'm talking about, because that ended up kind of being what it was about,

0:26:41 Thomas: Which was, you know, like the information was leaked out or something, right, and, and as

[0:26:47] part of a software thing. Am I imagining this? Yeah, so that was TTTBE question number 23, which

0:26:54 Andrew: Was the social media service, and the woman discovered that the service was selling her personal profile information

[0:27:00] yeah, that's right, yeah, to third-party purchasers, and, uh, she filed a class action breach of contract action, alleging that she suffered, quote, "embarrassment and humiliation" from the disclosure, and then that she and others must be compensated for the market value of the information seized. And the question was, will the court likely recognize these allegations as sufficient to state a claim for

[0:27:24] breach of contract, and end up being, no, right? Yeah, you got that wrong. Yeah, sorry, uh, that was in the dark ages. Yeah, well, that was an impossible question so I would get that wrong. And, and the answer was no, humiliation is not an item of damages in breach of contract case, which is true, and, and this was the part that was, that I wasn't sure about, uh, but unauthorized collection of personal data does not automatically establish an economic

[0:27:49] loss. So you're absolutely right, that, so it is relevant. So, like, as far as the law is concerned, uh,

0:27:55 Thomas: When this bar question was written, um, just having your, your information stolen or whatever, it's not like, okay, compensate me for that. Well, it's like, well, what is, what would that be what would

[0:28:08] that compensation be? Yep. Yep. And there I have as a note, we've got a couple, these are district court cases,

0:28:14 Andrew: Southern District of New York, Eastern District of New York. I'm going to link them in the show notes. InRay DoubleClick Inc. Privacy Litigation and InRay JetBlue Airways Corp. Privacy Litigation, about unauthorized collection of personal information and disclosure to someone else. And the most recent was 2005. Now, again, that's, you know, again, recent by Allie McBeal, lawyer terms, uh, but in 2005, a court held disclosure of passenger data to a third party in violation of the airline's own privacy policy had no compensable economic value. Now, I, I would certainly argue there are ways to distinguish that today, but uh, but yeah, no, I think that's, that's

[0:28:57] that's great memory uh and it's absolutely relevant uh to uh that's that's how my memory works

0:29:03 Thomas: Though it's like, like, I swear there's something that's kind of like this, but I can't remember any of the details or what it was or

[0:29:09] what. That's why I'm not going to be a good lawyer.

0:29:13 Andrew: You're going to be a great lawyer. You're going to be the world's first, I never went to law school, second chance law firm.

0:29:19 Thomas: Your Honor, I guarantee you I have eliminated two of the wrong answers in this case.

0:29:24 Andrew: So, yeah, I'm kind of pulling that all together. I think that that is why. And again, I think this will be litigated. I am not saying that there is not a Rule 23 argument for aggregating the class together. I am saying that my initial judgment, and I did about eight hours of research on this case, that eight hours worth of research, I would say I think that Equifax is likely to win on class certification. We have lawyers who listen to the show. If you are a class action lawyer and you want to make the best argument for why you think Equifax is going to lose, I'd love to hear it.

0:30:05 Andrew: I think you're going to have, in light of what, Thomas, you just described, I think it's going to get thrown out on the predominant issue. We're going to say that, yeah, calculating damages and understanding the injury suffered here is far more likely to be an individualized question. Did somebody take your data and steal your identity and clear out your bank accounts as opposed to a class question? Question. And again, from, you know, from a

[0:30:34] A civil, from a social engineering perspective, you'll want this to be a class action because that's how Equifax is, right? A class action is how Equifax is going to have to pay real money if they have to settle

[0:30:47] individually with a dozen people, that's not real money to Equifax. It's not going to do well. But what if, I mean, what if it's

0:30:54 Thomas: A way more than that who get hacked or stolen I don't know how many hackers are out there doing this stuff But, right. I mean, they could end up paying a lot, settling every one of those, you know, what if it's,

[0:31:06] What if it's a hundred thousand, 200,000? Well, we're going to talk about that in, in question number four. So

0:31:12 Andrew: I'm going to get there. So let's wrap up. That's question number two. What's a class action? How is

[0:31:18] it relevant?

0:31:20 Andrew: That was kind of the answer to that. I want to go super quickly. Yeah, the next issue

[0:31:26] that came up that you flagged is the issue of waivers. And, and this, I think, this is truly, I think, an example of kind of zealous lawyering gone awry, because lawyers, as a lawyer who drafts contracts, and as a media figure, we don't draft contracts expecting them to be discussed, you know, in the media. So here's what

[0:31:57] happened. Equifax created a site called EquifaxSecurity2017.com. Okay. And the The idea was you click on EquifaxSecurity2017.com and it tells you, was your data hacked, right? I was going to say, so already we,

0:32:17 Thomas: Is this different than the website previously that you didn't even want to go to because the government was requesting the info? So have you gone to this? That'll kind of tip the answer ahead of time.

[0:32:29] Yeah. And you can go because you have to actually affirmatively submit information there. So you can feel free to click on EquifaxSecurity2017.com. But when you sign up

0:32:42 Andrew: For it to say, hey, was my data potentially compromised? You have to sign, electronically sign one of these ClickWrap agreements, right? Right. Because the site is maintained by a third party named Trusted ID Premier. And so when you click on it, you click on, I agree to accept the terms and conditions of service. If you look at the terms and conditions of service, as is industry standard, they contain a litigation waiver.

[0:33:11] And it says, quote, this arbitration will be conducted as an individual arbitration. Neither you nor we consent or agree to any arbitration on a class or representative basis. And the arbitrator shall have no authority to proceed with arbitration on class or representative basis. Says no arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. This class action waiver provision applies to and includes any claims made and remedies sought as part of any class action, private attorney general action, or other representative action. By consenting to submit your claim to arbitration, you will forfeit your right to bring or participate in a class action, whether as a named plaintiff or as a class member, or to share in any class action proceeds, including class claims where class has not yet been certified, even if the facts and circumstances upon which

[0:33:54] the claims are based already occurred or existed So that looks and sounds bad and that prompted a number of news stories saying, if you click on the site to see if your data has been hacked, you're giving up your right to sue.

[0:34:11] And in reality, and Equifax has released a statement, they are now, I mean, this is an exception to the hearsay rule, right? It's an official statement. It's an admission by the party that says, no, no, that clause, arbitration and waiver of class action clause, applies to the terms and conditions of using the Equifax Security 2017 site, right? Right. So any lawsuit that might arise out of your use of that site, but not the underlying breach itself. OK, now no, no. I totally agree. I'm not saying it was irresponsible press. In fact, the attorney general's office, this is Eric Schneiderman, the attorney general of New York, sent a letter to Equifax that said, please state

[0:35:01] your public policy with respect to this disclaimer. Because you could see it. And they wrote back, this is what I was alluding to, that says, in response to consumer inquiries, we have made it clear that the arbitration clause and class action waiver included in the Equifax and Trusted ID Premier terms of use, that is to say the EquifaxSecurity2017

[0:35:20] .com site, does not apply to the cybersecurity incident. Right, right. Put that to rest, everybody. Yeah. So fake news on waivers, but look. Look, but yeah.

0:34:43 Thomas: I get it. That makes sense. Yeah, because I mean, in fact, I don't blame people for being a little. Yeah, no, Reasonable to to be worried about that. I mean, yes, the attorney general made them make a statement about it. Okay.

0:35:39 Andrew: And then the the last one, people sent us a bunch of uh links because this has been reported as there

[0:35:45] is a chat bot that will enable you to automatically sue Equifax, and uh and I've looked into it, that it overstates what the chat bot is. Let me tell you, uh, what, what the idea is, and um, but the answer is kind of yes. Right, so

[0:36:05] um, yeah, so the chatbot service is uh, this, this is uh, the related services is an outfit called Do Not Pay, uh, that uses this automated service

[0:36:18] to help you file to dispute parking tickets. Okay, nice. And uh, and the guy designed same thing to help people file profile claims in small claims court in their state against Equifax. So it's really describing it as a chat bot automatically filing your lawsuit for you is not accurate. What you do is you log on, you use the service, and it generates the documents in much the same way that like a LegalZoom would. Like, it asks you the right questions, it spits out the documents. I haven't used it, so I cannot attest to what the documents themselves say. I can say, look, it removes one of my major objections to LegalZoom is not helping

[0:37:06] people fill out legal forms. It is that they require you to pay for you doing all the work and then put that under the guise of giving you legal service, and oftentimes in ways that are significantly more expensive than hiring a lawyer.

[0:37:23] Chatbot here is free. So I don't have any qualms with assuming that the information is accurate. And again, I can't attest that it's accurate, but I want to answer the question in principle. So in principle, can you, either with the help of a chatbot or not, file a

[0:37:42] small claims court case against Equifax in connection with the brief? And the answer is yes. Nice. Because we've talked about how if you have parties that are of different states, that could potentially invoke jurisdiction in federal court, which is expensive. But in addition to diversity of the parties, you have to satisfy an amount in controversy requirement, $75,000 or more. In most cases, that's not the case. So if you want to sue Equifax for the amount that is the limit in your small claims court in your state, which ranges from $5,000 to $15,000 on average, you could absolutely do that. It means that you have to

[0:38:26] opt out of the Equifax nationwide class action, which you will want to do anyway. And the nice thing about being in small claims court is that small claims court is informal. Most people appear there without lawyers. We've talked about

[0:38:44] this before. It truly is kind of the application of just applying principles and the sort of fairness considerations trump everything else. Now, look, there are downsides in doing this. The downside is you have gotten yourself into a lawsuit. It will require your time to show up and argue this lawsuit. You may lack the ability to fully document your claims. And if Equifax shows up, even if they lose in small claims court, they will have the right then to appeal that to a trial court at the state. And so you may find yourself embroiled in a lawsuit that is taking on a

[0:39:28] dimension that you really never anticipated. But if you've got a lot of time on your hands, it certainly is a strategy to sue them separately. And it's an interesting approach to say, if you're going to sue them in small claims court, that is the best place for just an average Joe to sue a corporation. I agree with that 100%. So, can't say I'm endorsing the chatbot. I haven't changed my mind on LegalZoom, but there is this sort of neat aspect of the story, and you can opt out of a class, like you don't have to let them represent your interests. So I guess

0:40:06 Thomas: Keep an eye on if it, do you have to wait to like, if you're hacked and if something happens to, to really bother

[0:40:12] doing this? In order to, to demonstrate what your damages are. Right. Yeah. Okay. So there you go. Uh, but you know, don't take legal advice from a podcast. All right. And that does it for that segment. Thanks for explaining Equifax. And, uh, you can go to that website and check and do so without worrying about forfeiting your right to sue.

0:40:36 Andrew: You know, loyal OA listeners know that I love HelloFresh.com. Every time we get a delivery HelloFresh, they send up fresh ingredients pre-measured to the exact quantities that we need to follow their always changing recipes. And every time me, my 14-year-old son, Alex, we have a TV-style cook-off competition where we make both meals in

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Um, and, and the last thing that, that I would just mention that I really like about HelloFresh, uh, is that they have, uh, two full-time registered dietitians on staff. They review each recipe to ensure that it's nutritionally balanced. Um, I'm, I'm trying to lose weight. Uh, the HelloFresh meals are satisfying. They are healthy, uh, and, uh, and we use them. So head on over to HelloFresh.com. Use the promo code LAWPOD30, all one word, L-A-W-P-O-D-3-0, and you'll get $30 off the already low price. I can't imagine why you wouldn't want to try that out. Give it a shot, and I think you'll enjoy it as much as Alex and I do. So that's HelloFresh.com, LAWPOD30.

0:42:18 Thomas: All right, Andrew, let's talk about redistricting. I've seen a lot of people send this my way.

[0:42:24] I've been too busy debunking Scott Adams to read it yet. What's going on? Are the Republicans kind of trying to help with the gerrymandering? That's one of the headlines I've seen, like Republicans want to

[0:42:37] end gerrymandering. That sounds too good to be true. What's going on? Oh, yeah. And that's absolutely

0:42:43 Andrew: Not the case. So here's what happened this week, which is the Supreme Court granted a stay of a decision by a three-judge panel of the United States District Court for the Western District of Texas. That case is Perez versus Abbott. We're going to link that in the show notes. And what happened is that case is being appealed to the Supreme Court, kind of a weird quirk

[0:43:08] in election law and three-judge panels. So it's skipping over the Court of Appeals for the Fifth Circuit. And the parties applied – I should say specifically the state of Texas because what happened was the district court ruled that there must be

[0:43:26] changes made to two congressional districts that were drawn, congressional districts 27 and 35 in Texas, as well as the redistricting of the Texas

[0:43:39] state house districts, right? Right. And so on appeal, the state of Texas petitioned the Supreme Court to stay the effect of that decision pending review on the merits. So once again, this is your favorite procedural posture for a case, Thomas, the granting of a stay of judgment pending appeal, which is the same set of factors for, it's essentially the flip side of granting uh injunctive relief. It is saying we want to stop this district court opinion from going into effect, and the way in which you do that is by persuading the court that among other things, the balance of the equities favors granting the stay, and that you have a substantial likelihood of success on the merits. And that one sentence grant of stay was a 5-4 decision, breaking down exactly the way you would expect it to break down, which is to say the five conservative members of the court in the majority and the four liberal justices in the court dissenting

[0:44:41] and saying that they would not have granted the stay. So as a political consequence, what that means is that the Texas districts will

[0:44:54] be in effect for the 2018 elections, right? That's the consequence that's happening here. It's a really, really bad political issue. But this is being reported in the context of gerrymandering writ large. And having been through the case, this is a racial gerrymandering case. So let me pull back and give a little bit of history. We first talked about gerrymandering generally in Opening Arguments episode number 54, and we focused in on the case from Wisconsin that is pending before the US Supreme Court and will be addressed this term. And that case raises the issue of just partisan gerrymandering, right? Drawing these long convoluted districts that like in some cases are one street block wide that, you know, wrap around large areas and are designed in accordance largely lately with the red map software developed by the Republicans. But Democrats do the same thing, designed to maximize one political party's influence in a state that might be a 51-49 state, but all of a sudden it's electing

[0:46:15] an overwhelming majority of one political party. In my view, those are what I consider the sort of core gerrymandering arguments. So we talked about that, OA 54, we revisited that in OA 80. A subset or a related set of cases are racial gerrymandering cases. And we talked about the most recent Supreme Court pronouncement on that, Cooper versus Harris in episode 72. That

[0:46:47] featured a kind of a bizarre alignment in which Clarence Thomas joined the majority, the liberal justices in the majority, in striking down districts that were clearly designed with a racial animus in mind, right? Designed to minimize the votes of African-Americans. We mentioned, rather sadly, that that Cooper versus Harris decision was a good result, but had kind of ominous portents in the larger gerrymandering Wisconsin case because of the dissenting opinion that Anthony Kennedy signed on to, the fact that you're not going to get had a Clarence Thomas vote in the Wisconsin case, and we were hopeful of getting an Anthony Kennedy vote in the Wisconsin case. So I would also encourage people to go back. They're interested in gerrymandering episode 72. All of that is an awful lot of background, and I'm sorry,

[0:47:50] but we've talked about this issue a lot. And I wanted to be clear upfront, this case is a racial gerrymandering case. There's some really interesting implications and I want

[0:48:03] to go through that, but it does not implicate the Wisconsin case generally. And it doesn't affect one way or the other being able to make the argument that says, hey, if my state has deliberately drawn all the districts such that there's one overwhelming majority Democratic district and there are nine other districts where Democrats are about 40% of the population, then they've essentially taken away my ability to vote, right? That's a 14th Amendment

[0:48:35] violation.

0:48:36 Andrew: That argument will be before the court in the Wisconsin case.

[0:48:40] That's not what's at play here. So with all the discussion of what's not at play, what is at play? And what is at play here? This is year number six of Texas attempting to evade efforts by various courts all the way up to the Supreme Court that have instructed the Texas governor and the Texas legislature to redraw districts for U.S. congressional seats and also for the Texas state house that are not racially biased. And it begins in 2011 with the first plan that

[0:49:24] the Texas Republican legislature put into place. And I should add, precisely because of the large population of Hispanic minorities in Texas, we think of Texas as this deep red state, as the state that gives us my good buddy Ted Cruz, who I'm sad to say this week we can't do Ted Cruz's Twitter likes, but that was a great story. You know, we think of Texas as this, you know, sort of super deep red state. It's not that

[0:49:55] red. I mean, look, like it's a red state, right? Like, I mean, let's not be crazy, but it is not red. I remember they were talking about

0:50:02 Thomas: Like, maybe it could possibly have gone to Hillary. We were thinking like there could be a miracle and it would go to Hillary, but it didn't quite get there. Right.

[0:50:10] And yet, the Texas congressional delegation, which is, I believe, 38,

0:50:17 Andrew: 35 members of the House of Representatives, is overwhelmingly Republican, right? So in a state that is, let's say, 56-44 at the outset, right? And it could be other polls have suggested it's much closer than that. Again, solid red state, but not the District of Columbia, which is 90% Democratic, right? Not Massachusetts, which is 70% Democratic and yet manages to elect Republican governors, senators, and members of Congress from time to time. Uh, the Texas, Texas's representatives in, in the house, uh, are, uh, 85 % Republican. So, you know, there's a massive disproportionality, and the fact that Texas is the largest red state means that the, the impact is, is felt most broadly there. So back in 2011, there was a provision of the Voting Rights Act extending back to the

[0:51:16] turn of the century, turn of the 20th century, that required states in the South to Get preclearance for any changes in how districts were being drawn that implicated minority representation in those districts. So, in other words, you had to go to a court and get the court to sign off on your redistricting plan. And it was only ex

[0:51:41] -Civil War states that were part of the Voting Rights Act, and they were part of that for the explicit reason of a history of documented racial animus. That DC court invalidated the 2011 plan. It found under Section 5 of the Voting Rights Act, you do not have to find discriminatory intent. You just have to say, this is going to make the districts worse for minorities as an effect. And that was enough to deny preclearance under the plan. I want to read a little of this from pages five to six of the district court opinion.

They are summarizing what happened before the DC court on preclearance. And they say, the DC court also found incredible the testimony of primary house map drawer, Gerardo Interiano, that he was unaware of the capability of Texas's redistricting software. And there they say Red Apple, which is the state application of of the Red Map program to display racial data at the census block level, which reinforced evidence suggesting that map drawers split voter tabulation districts along racial lines to dilute minority voting power. The DC court concluded this and other record evidence may support a finding of discriminatory purpose in enacting

[0:52:56] The state house plan. Although we need not reach the issue, at minimum, the full record strongly suggests that the retrogressive effect we have found may not have been accidental. Incidental, okay. So that Was the DC court denying the uh U.S. congressional districts and also the house, uh, redistribution on preclearance grounds and saying, hey, look, we don't have to, we don't have to find that this is discrimination, but

[0:53:20] The evidence is pretty damnation. Yeah, we're like, layer stuff, you know, like a computer that's telling you how to minimize the impact of minority voters. That's, that's, uh, wow. Yeah.

0:53:32 Andrew: Yeah, but preclearance, the Section five of the Voting Rights Act, was declared unconstitutional

[0:53:39] by our vociferously activist Supreme Court. Oh, man. In 2013, in a case called Shelby County versus Holder, 133 Supreme Court 2612, and

[0:53:51] so that DC court opinion was vacated, right? So in other words, there was now no need for Texas to go to the DC court in order to get preclearance on its redistricting. So then various interest groups sued for declaratory relief in

[0:54:11] federal district court in Texas. Sorry, so what specifically was found unconstitutional? Section 5 of the Voting Rights Act that required states to get preclearance for changes to the the electoral map okay so the Supreme Court said nope, and this was, if we, this would have been a main B segment on Opening Arguments if we were around in 2013, right? The Shelby County versus Holder decision is one of the, like, preposterous, you know, Roberts Court's opinions, back when Scalia was still alive, that, you know, I mean, it says, you know, well, whatever purpose there may, may have been in requiring some states to get preclearance for changes to electoral maps. You know, obviously, today we've solved

[0:54:56] the problem of, you know, racial disparities in voting. And so, you know, it's not necessary and it is a racial classification and is therefore subject to strict scrutiny and we're going to strike it down. And, you know, I mean, just one of these, like, Like, you're kidding me saying that we've solved racial

[0:55:15] problems in voting, right? But, you know, five members of the Supreme Court thought we had. So they struck down that provision of the Voting Rights Act that was held unconstitutional. So now Texas doesn't have to go to the court to get approval for its plan. They can just go ahead and implement the plan. And that vacates the opinion that I just described, which contains the findings. Now, look, we've talked about

[0:55:40] Res judicata before. That doesn't negate the findings, right? It says there's no need to have this opinion. But nevertheless, a court of competent jurisdiction determined the following facts about the Texas redistricting effort, including the fact that it probably wasn't an accident that it dilutes minority votes in these congressional districts. So that's still a part of the record, and although, although it is no longer a part of the case, which is now before the Supreme Court,

[0:56:12] So, uh, you got to go back, you got to sue him all over again. And the case that then began as Perez versus Perry, Rick Perry, before Greg Abbott succeeded

[0:56:25] him as governor. I mean, he should have kept Perez versus Perry, but just applied it to his performance on Dancing with the

0:56:31 Thomas: Stars, and just, yeah, you still, you still can sue him for that, but just transfer that name over. That, I

[0:56:37] think you have a reasonably decent intentional infliction of emotional distress claim. Like, that dancing

0:56:44 Andrew: I would describe as extreme and outrageous, yeah.

0:56:49 Andrew: So, what claims are being raised in the Perez versus Abbott case? And I keep saying Abbott versus Perez because Abbott lost, so that's the caption on appeal to the Supreme Court. Right. So today it is Abbott versus Perez. At the trial court level, it was Perez versus Abbott and formerly Perez versus Perry. That's a little bit of your history there. A plaintiff is listed first in the caption at the trial court level. And then the losing party who appeals,

[0:57:21] the appellant, is listed first on appeal. So the case raises two arguments, a Voting Rights Act argument under Section 2, which is still valid, and a 14th Amendment challenge. Okay. And the main kind of, without going into all of the minutia of the Voting Rights Act, the main distinction between the two is that you can bring a Voting Rights Act challenge that says a state violates Section 2 if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the state are not equally open to participation by members of a class of citizens protected by the Voting Rights Act. And that its members have less opportunity than other members of the electorate, i.e. white people, to participate in the political process and elect representatives of their choice. So that is a results-based inquiry. It doesn't require you to prove discriminatory

[0:58:17] intent.

0:58:19 Andrew: Whereas when you bring a 14th Amendment claim, there's a Supreme Court case called Mobile v. Bolden, 446 U.S. 55, from 1980, which says it does require discriminatory intent. Okay, so we've talked before about how the general challenge of proving intent in the law. So it makes sense that this case kind of broke up into those, along those two lines, because oftentimes, you know, you can, you can prove effects without intent, or as we'll see here, you can prove intent without maybe necessarily being able to prove that that intent was

[0:58:56] carried out. Yeah, that makes sense. So, yeah. So this case, I think – and here's the major misconception.

0:59:04 Andrew: Almost all of the challenges made to the Texas redistricting failed.

[0:59:11] And they failed in a number of ways. And in my view, the most interesting way in which – and so in other words, those are not part of where the state appealed. They're not going to be part of the record on the appeal because the trial court said, yeah, this part of the district drawing was perfectly fine. The test

[0:59:29] for Section 2 for whether there have been discriminatory effects is a Three-pronged test. It says, – and we talked about this in Episode 72, but it's worth a refresher here, in case a few of our, – I know most of our listeners have every word of every show memorized, but a few might have joined us after Episode 72. So the three-part test is, number one, that the racial group is large and geographically compact so as to constitute a majority in a single-member district, right? That is the packing element. Number two, that the racial group is politically cohesive. And number three, that the majority votes sufficiently as a block to enable it to defeat the minority's preferred candidate. So the idea is you are able to pack a certain group of minorities into one district, and then by making it like 55-45 white versus, in this case, Latino, even though you've concentrated all of the minority members

[1:00:32] into one district, they're still outweighed by white people voting as a block. And this case was the first one to tackle the question of whether a racial group counts as being politically cohesive if it is formed of multiple

[1:00:52] minority group members. So a lot of the history of VRA, Voting Rights Act cases are African Americans in inner cities. So there's a well-developed body

[1:01:05] of case law about how inner-city African-Americans tend to vote as a bloc. Texas doesn't have a huge percentage of inner-city African-Americans. What it has are a small percentage of African-Americans, but then larger percentages of different Hispanic, Latino groups in the state. And it was clear that what the Republican redistricting committee was doing was sort

[1:01:37] of lumping all of the minorities in with a group and saying, oh, yeah, we're going to stick the brown people all in this district. And then otherwise, we're going to the opposite of packing the cracking. We're going to make sure that all of these other districts feather out and only have a small percentage of minority votes. And so there's a really

[1:02:01] interesting question on whether that – what they call in political science coalition districts, coalitions of minority groups, counts as politically cohesive when you have multiple groups of people of color that are packed into a single district. And the principal argument being raised by the state was lack of cohesion. And the district court said, we think this is a really, really close question, but they ruled in favor of the defendants, in favor of the state of Texas. And so said, look, we don't have proven discriminatory effect here because the minority groups that are the subject of the racial redistricting, the plaintiff interest groups have not sufficiently proven

[1:02:45] that they are a politically cohesive group. So to me, that is very, very interesting.

1:02:51 Andrew: And if you are part of a group, if you were thinking about how to present

[1:02:58] these kinds of cases, I think this case is really, really instructive for the high burden of proof that's going to be required to win those kinds of cases. So that threw out the Section 2 claims. And then going really, really quickly, it doesn't in the inquiry because you can still prove intent to discriminate by under the 14th Amendment, but they went through multiple districts. They threw out changes to – and I'm saying they threw out – the court threw out the voting rights group's challenges to redistricting of District 33 in Dallas-Fort Worth and said there was no discriminatory intent to various congressional districts in Houston. That was Section 4 of the case, starting at page 84, saying that there was no discriminatory intent. For Congressional District 23, this was a super interesting one where the argument was that the redistrictors used a, quote, nudge factor.

[1:03:53] This is the first time I've ever seen this. It's a nudge factor. The nudge factor is taking a Selective sampling of Latino because there were Latino groups in this, but but of the minority groups' voting records, in order to inflate the turnout to make the district appear to have larger minority representation than it does. Right. So, so what they did was they took results where Hispanic candidates were on the ballot. They took results from presidential elections but not from congressional, you know, off your gubernatorial. Like, it was the evidence was pretty strong that they were inflating the, uh, the Hispanic participation in Congressional District 23 in order to, because then, if you can make it look like you've created a majority-minority district, that you get out from the problem under Section 2. And again, the court rejected that argument. So

[1:04:50] the only thing that was left was the failure to change the lines for Districts 27 and 35 and the supplemental plan for the Texas Statehouse. And that was based

[1:05:02] on the finding I read to you at the very beginning of this discussion, right, which was to say, at the outset, we knew that the 2011 redistricting was probably designed to target minorities. And in all of those other cases, they made tweaks to the map. But in those two districts and at the Texas House level, they didn't make any tweaks to the map. And the court said, yeah, well, if you're going to keep the exact same lines that a district court

[1:05:34] said was probably discriminatory, we're going to hold that that's discriminatory. Yeah, easy. They did their work for him.

1:06:07 Andrew: Political advantage to the Democrats in the 2018 midterm elections, and that has been

[1:06:14] put on hold while the supreme court takes up the merits of the underlying challenge We have a pretty good preview on how the Supreme Court's going to rule on the merits, because in order to stay the effect of the judgment, you know, as, as you know, they've, they've got to conclude there's a substantial likelihood of success on the merits. So it's, it's bad news politically. It is bad news for the politics as usual, particularly in Texas. And it is bad news for racial gerrymandering, but it does not impact the larger argument on the Wisconsin case. So that's why I thought it was worth sort

[1:06:49] of going through this case. I mean, there've been a ton of stories. A lot of people sent us requests about it, but it's why I thought it was worth going through. Yeah. Interesting. Well, so gerrymandering isn't going to be solved by this case. Case, you don't think? No. Plus, we, this is all about racial

1:07:08 Thomas: Gerrymandering, which is not really, do you think that's even the majority of the problem? Isn't it far more just

[1:07:14] political gerrymandering? And which the courts, if I remember right, the court was like, yeah, that's fine. Yeah, and that's, and and that's

1:07:20 Andrew: Where the, I think, I think you're, you're, you're doing a nice job of kind of putting the impact out there. That was the defense that was raised in Cooper versus Harris, right? The racial gerrymandering case. African-Americans that, you know, six-two struck down various districts and said, no, no, no, look, like, you know, we're not in this case because of the record, we're not buying it. But, but, yes, it's a valid defense to say, no, I wasn't trying to dilute the voting strength of black people, I was trying to dilute the voting strength of Democrats. Yeah, right.

And that's why I say the main gerrymandering case, I guess, maybe there's a little bit of, of personal privilege in that, which I hadn't thought about before. But the ability for anybody outside of the protected classes that are listed in the Voting Rights Act to say, yeah, I live in a state that's 50-50 Democratic-Republican, and the Republicans—again, let's pick the opposite side because this happened in Maryland—and I'm a Republican, I'm in a state that's 50-50, and the Democrats are systematically trying to reduce the impact of my vote by creating these districts that are one Republican district and nine safe Democratic districts, including the one in which I happen to live. And, right, that's the, the ball game, in my view,

1:08:41 Andrew: Is, uh,

[1:08:42] you know, whether we have the opportunity to, to say, you know, the, the concept of one person, one vote means that the political party in power who happened to win cannot, uh, re nakedly politically redraw districts such as to disenfranchise

[1:09:02] you know, 49% of the population. Yeah, well, it's a good thing none of, of us voted for Jill Stein, we got Hillary

1:09:08 Thomas: In there, and we got that Supreme Court justice to, to be able to take care of this in the future. All right, moving on, I just wanted

[1:09:14] to throw that in at the end. Oh, thanks. Yeah, critical, critical justice, uh, I think it sounds like we, we, we could have used a different Supreme Court justice. Yeah, I wonder, that, that, that could have been, it would have been good. All right, well, it is our favorite time of the week, and that is when we've got to thank

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1:10:37 Thomas: Danny Rosari, Rebecca Smizer, Ronda, the sorry, smells, or smells, Rebecca

[1:10:44] smells her, Ronda the Dork, time Time Magazine's 2006 Person of the Year, Roger Medcalf, Sammy C6, Sarah, Greg Sullivan, Steve Sigmund, Torsten Peel, Patreon short in the name limit, Boo, Danny Baker at Combat Nonsense, unreadable symbols, thank you, unreadable symbols, Violet Page Hall, Frederick Alstromer, Michael Rops, Medicare for all will save 45,000 lives each year, Eric Johnson, stop breaking

[1:11:16] the law, they get thanked every show, Jessica Wilson, Mitchell Sakashita Fukasumi should listen to Reasonable Risk podcast, Thomas McCormick, Carl Zippel, Conrad Michaels, and Zabby, thank you guys so much for being our top, top to top top patrons, our Hall of Famers, you make the show happen, hope, hope you're enjoying the bonus content and all that stuff. And if you'd like to be among their ranks, go to patreon.com/law. We had that monthly turnover, so we're back below the 2000 goal for the live show, but it's in the works anyway. But if you wanted to pledge, put us over the top just to make it official, we'd appreciate that. But we're looking forward to that, and, uh, yeah, the q and a the Law'd Awful Movies, the early TTT, and

[1:12:05] the B, all that stuff, yeah, we have a, we have a special guest, uh, coming up on, uh, Law'd Awful Movies

1:12:11 Andrew: Number 11, we think you'll enjoy that, and uh, our our live video Q&A, we give you a lot of good stuff, we haven't chilled in a couple of weeks, so uh, we've had a little bit of a dip and a turnover, if you can, uh, if you can support the show

[1:12:24] if you listen to us on your commute to work, and we've given you joy and laughter and education, throw us a buck, you won't regret it. All right, now it's time for my co-favorite segment, Thomas Nails the Easy Bar Exam. Oh, no, associate this firm has ever failed the bar exam, no kidding, uh, no, yeah, you are, you're not a baseball fan, so if I say you're the Cleveland Indians of, uh, taking the bar exam, does that, yeah, okay, good, good, good, all right, I have a ways to go for that, I was gonna say, you know, you, at least you watch ESPN

[1:13:05] or something. So, okay. Ready to keep your streak going? Yeah. All right. Here we go. Criminal law question. Well, I'm not a criminal lawyer, just to clarify. Not my specialty, but okay. Not mine either. We're in the same boat. A detective found a footprint from a left foot shoe at a murder scene. The print was preserved appropriately as evidence. It had distinctive tread marks and an unusual wear pattern on the sole. It also had a V mark on the heel bottom that indicates the brand was a Victory shoe. I love those Victory shoes.

[1:13:42] The detective, armed with a proper search warrant, searched the suspect's apartment where he found a shoe to a right foot of the same size. He did it. With a similar wear pattern and the same V mark as the shoe print found at the scene. The shoe for the left foot was not found, but the shoe for the right foot was seized from the suspect's closet, that's a tougher sentence to say than you would think, and offered as evidence at trial. Is this admissible evidence? Okay? So tread, you get the print, it's distinctive, it's at the scene. They don't find the left foot shoe that made it, but they found a right foot shoe that looks awfully similar. Is

[1:14:19] that going to be admissible evidence? Your answers are A, yes, because it is direct evidence of guilt. B, yes, because it is appropriate circumstantial evidence of guilt. C, no, because the shoe is irrelevant and will have no residue or other probative evidence relating to it. Or D, no, because footprint evidence is highly speculative unless

[1:14:44] Both shoes and shoe prints are offered and authenticated. All right, well, I really would

1:14:51 Thomas: Hope this would be admissible. It, uh, man, this could be, you know, I am on on such a tear if I get one wrong. This, it could be this kind of question where it just seems so obvious to me that this should be a yes answer.

[1:15:03] It's so obvious that this should be a yes answer that I'm going to just for fun, just to just to play with fire a little bit. I'm going to eliminate the two no answers because it's got to be admissible when the the the footprint at the the scene is this very telltale V mark. And then the shoe, the other shoe is found. I mean, I know I, man, it's a little weird. Like maybe there's some technicality of, you know, it's the wrong shoe. So it doesn't necessarily, it wasn't at the scene. I don't know.

Maybe there's going to be some weird thing, but that strikes me as some law movie BS that you would say, nah, of course you can, of course you can include the shoe that matches exactly the thing. It's just the other their shoe. So I'm going to eliminate C and D. I'm going to say there's that it's got to be a yes answer. So is it yes? Is it A, yes, because it's direct evidence of guilt, or B, yes, because it is appropriate circumstantial evidence of guilt. I think I'm going to have to go with the one that sounds a little more technical. I don't think it's direct evidence of guilt. I think it's appropriate circumstantial evidence. I think B is going to be my answer. It's, uh, yeah, that seems to describe it well. It's circumstantially the person has the same shoes, same brand, um, you know, it seems like it's got

[1:16:18] to be admissible to me and that seems like the best description. So I'm going with B. All right, as always, if you'd like to play along with

1:16:25 Andrew: Thomas, you know how to do this by now, guys. We release the episode on Twitter and on Facebook. Uh, retweet

[1:16:31] or share out that post, include hashtag TTTBE, include your guests, include your reasons therefore, and we will pick a winner next week and, uh, and shower that person with fame, fortune,

[1:16:46] and monetary gifts. Monetary gifts not included. And, uh, there you go. Yeah, well,

1:16:52 Thomas: I hope I strapped on my victory shoes this week and and got this one right. I don't know. Yeah, it could be, it's going going to be some weird one, maybe that'll, that'll throw me out. This seems so obvious, but uh, those are sometimes the ones that get you. So tread, yeah, tread

[1:17:05] wisely to make it, oh God, I really think that's an Andrew level joke, right? No, you know what, it is tread lightly, tread like a dad joke. Oh, yeah, it is, that's true. And you are, can I, in my defense, I said tread before I thought of a joke. Like, I wasn't seeking to make a dad joke. I was going to say, I thought you were going to say Tread Lightly should be like the name of our hero lawyer in our movies that we're going to do. Like our realistic

[1:17:36] boss. Oh, I like that. I like that too. Tread Lightly. No.

1:17:39 Thomas: All right. So thank you so much for playing. Thank you so much for listening and pledging over at patreon.com/law. And we will have to see you on Tuesday. As usual, we'll get the answer to this and many

[1:17:52] other questions. Thanks Andrew and we'll see you then see you then STOP BREAKING THE LAW ASSHOLE

[1:18:03] 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 5 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.

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