OA506: Trump's Desperate, Harebrained Lawsuit Is Garbage and Deserves Sanctions

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 506. I'm Thomas. That's Andrew. How are you doing, my friend?

0:01:24 Andrew: I am fantastic, Thomas. How are you?

0:01:26 Thomas: I'm a little worried. You've titled the episode in the spreadsheet, Holding Bad Lawyers Accountable. And I'm, you know, so I'm wondering if I'm getting a tongue lashing or what's going on here.

0:01:38 Andrew: These are all lawyers that could not get hired at Thomas's Second Chance Law Firm.

0:01:44 Thomas: Oh, thank God. Okay. So not me. So I'm okay. I was going to say, I mean, I've been doing better on the bar lately.

0:01:46 Andrew: Not you. Not you, you're good. Yeah.

0:01:51 Thomas: I've tried trying real hard. Don't sanction me, bro. Okay.

0:01:57 Andrew: That's of all, we've got like two dozen shirt ideas going, but don't sanction me, bro, would be a good opening arguments t-shirt. OK,

0:02:02 Thomas: Hold on. Thank God it's not me, but I can't wait to talk about the real bad lawyers. The very, really, very bad, terrible. They're so bad, I don't even know if what they're doing could be called law. Like, could you, know, are they doing anything? Is anything that they do, does it resemble your job at all, Andrew?

0:02:11 Andrew: I will. It's it's getting further and further from anything that I recognize as what gets taught in law school. And we will we will break that down. Do need. OK, as always, something always breaks literally an hour before we record today. Today, it was the Purdue Pharma settlement. This is a huge story we've covered in great depth on the show. It's a four and a half billion dollar settlement. That's with a B. It's got a lot of additional terms in it. And I need to get a copy of the actual settlement and I need some time with it to sit down. So we won't be covering that today or on Tuesday, but probably next Thursday. Right. It's in the immediate

0:02:26 Thomas: Can't.

0:02:39 Thomas: Yeah.

0:03:11 Thomas: That's

0:03:11 Andrew: Hopper. This is a really important one to to make sure that we cover. Also, we will be covering on Tuesday. Several dozen of you sent us the comic book lawsuit. So if you want to know what a complaint in graphic novel form looks like, we will be talking about that on Tuesday's show. But it's not an example of bad lawyering per se. Say. So it doesn't go on today's show. Yeah, that

0:03:36 Thomas: Interesting. Let me, let me Get that straight. So I, I'm not familiar with the story, but somebody submitted essentially a comic, comic book, as a complaint. And that's not as bad as the lawyering that we're going to talk about today.

0:03:49 Andrew: That is that is 100 percent correct. That is an accurate summary of our show.

0:03:51 Thomas: Okay. Well, that will be a fantastic thing to look forward to on Tuesday. I can't wait. I know that hits square in the concentric Venn diagram of some of our audience, comic books and the law. But let's get to the terrible lawyers, shall we?

0:03:54 Andrew: Yes.

0:04:07 Andrew: Yes, let's do that.

0:04:09 Clip: So you did ask Ukraine to look into Joe Biden? Of course I did! You just said you didn't!

0:04:13 Thomas: So I, you know, know again, it's so rarely are there consequences, but it sounds like we get some consequences. Let's talk about what happened to Rudy.

0:04:21 Andrew: Yeah. So in episode 503, we talked about how Rudy Giuliani was suspended from the practice of law in New York. And as we broke down that, that order explained that it was essentially akin to a preliminary injunction, right? Not just, hey, this guy is suspended for a period of time, but rather this person is so dangerous to the integrity of the practice of law that we are suspending him while we evaluate the complaints against him. And as I opined on episode 503, that was as as clear a slam dunk sign that Rudy Giuliani is going to be disbarred in New York as I have ever seen.

0:05:02 Thomas: Even more Clear than the picture of his face melting, which Was a pretty Clear sign Honestly

0:05:06 Andrew: Yes. Yes, which is a good Which is good. Yeah. And, you know, as long as we're talking about bad lawyering, like had I it, it's on the whiteboard. I'm not even going to go through it. Alan Dershowitz, of course, of wrote a stupid op ed about how this was the greatest free speech crime of the century. That Put an asterisk in that because he's now up. There's now a greater free speech case that Alan Dershowitz thinks is the crime of century. But but a week ago, suspending Rudy Giuliani from the practice of law.

0:05:08 Thomas: No A Real, real Oceans 12 Situation With the greatest Crimes In the

0:05:36 Andrew: Yeah, right. Exactly. Yeah. Yeah, this was Ocean's Eleven was the fact that a totally reasonable procedure. To suspend Rudy Giuliani from the practice of law was entered into by the the New York appellate courts. By the way, lesson number eighty five thousand nine hundred and seven in our Why Originalism is Stupid series. This is all about due process, right? What's the process and how much of it are you do? Rudy Giuliani got notice. He got advanced opportunity to be heard. He got the opportunity to file a brief. He was represented by counsel. None of that is consistent with, you sort of wantonly violating your rights. So those are about as maximal due process rights as you ever get.

0:06:24 Andrew: They are in some cases more expansive than the rights that people get to, you know, contest child custody hearings and the like. So, you cry no crocodile tears for for Rudy Giuliani, unless you also wanted him to practice law in the District of Columbia, at which point maybe you should be sad because yesterday he has been suspended from the practice of law in in the District of Columbia as well.

0:06:32 Thomas: Right.

0:06:49 Thomas: He's Gonna be like that Guy in the Star Wars cantina pretty soon. I have My laws suspended, suspended in 12 systems, that guy. He'll be that guy. That's, sorry, I've been watching Star Wars with my kids A lot lately. They At this point, I mean, are there any states left that or he can still Practice law or Were those the only Ones?

0:06:49 Andrew: Um, yeah, right. No, no, no, it's, it's good. Nope. Nope, he is only admitted in New York and DC. And I want to talk about a particular provision of this D.C. order, which is just if you're a fan of consequences for lawyers who lie in public and get paid for it. Put an asterisk by that, because I don't know that any of Trump's checks to Rudy Giuliani have ever cleared, but have made a career out of this. Let's say that want to know this one. So what happened here? The D.C. bar and most state bars have an equivalent rule as a rule called Rule 11 that governs disciplinary proceedings. How right? You undertake actions against lawyers who've engaged in conduct detrimental to the welfare of the public and the standards of good conduct of the bar, are. Section 11 of that rule. So Rule 11, Section 11D says,

0:07:05 Thomas: Okay. At

0:07:54 Andrew: Upon receipt of a certified copy of an order demonstrating that an attorney subject to the disciplinary jurisdiction of this court has been suspended or disbarred by another court, the court shall enter an order, one, suspending the attorney from the practice of law in the District of Columbia pending final final disposition, and two, directing the attorney to show cause within 30 days of that final disposition why identical reciprocal discipline should not be imposed. So right? That's pretty straightforward. It says that if you are disbarred in another state, right, wants to know about it. They're going to suspend you from the practice of law. And then you get to write a memo that that either explains why they shouldn't also disbar you from D.C. or we're going to disbar you from DC as well.

0:08:41 Andrew: Makes right. Total sense. It's just reciprocity. It's a way of saying think that if you have, if, if another court subject to all of the procedural rights that we've talked about has determined that you're unfit to practice law in their state, that should be a rebuttable presumption, but a strong presumption that that you're not fit to practice law in D.C. either. So far, so good. But wait, there's more. And I love this. So the actual order, which I will link in the show notes, says, and I'm going to read this out. Right. Right. So it says, you know, it's ordered pursuant to Rule 11, Section 11D, that you're suspended from the practice of law until New York comes to a final determination. You have to file at minimum an annual report with us telling us the status of your disciplinary proceedings in New York.

0:09:30 Andrew: And then there's this paragraph, which says, it is further ordered that respondent, that's Rudy Giuliani, respondent's attention is drawn to the requirement of Rule 11, Section 14, relating to suspended attorneys, and to the provisions of Rule 11, section 16C, dealing with the timing of eligibility for reinstatement as related to Rule 14, including the filing of the required affidavit. Immediately you're like, what's section 14? Right.

0:10:04 Andrew: So section 14 says you have to notify all of your clients that you've been suspended. You have to return all of their documents.

0:10:01 Thomas: What's section 14, right? I

0:10:18 Andrew: You You have to notify opposing counsel. This is the Saul Goodman, right? Remember when he's got the long list and he's going to call everybody and say, well, I'm not going to be a lawyer for a little while. So yeah,

0:10:14 Thomas: Mean, that's almost like the, the sex offender registry. Like you got to go door to door and be like, I'm sorry. I'm not a lawyer anymore. I was so bad. I got to tell all my neighbors how bad a lawyer I was. Sorry.

0:10:39 Andrew: Not only do you have to do that, you have to do it. Within 10 days. That's the timing bit, right. And you have to file an affidavit with the court and that affidavat has to one, demonstrate with particularity and with supporting proof that you have fully complied with all the provisions of this order and the rule, okay? So you've got to show evidence that you've contacted each and every one of your clients. You have to, two, list all other state and federal jurisdictions and administrative agencies to which you are admitted to practice. And three, you have to certify that that copy has been sent to disciplinary counsel, right, to the grievance process in the District District of Columbia. You also have to provide your current residents, right? Yeah. You have to find ways for them to stay in touch with you. This order goes out of its way to tell Giuliani, hey, don't forget, you've got 10 days to comply with our Rule 14 and notify each and every one of your clients, regardless of where they are,

0:10:45 Thomas: Oh wow, I don't think Rudy can move that fast, huh?

0:11:47 Andrew: By registered or certified mail, return receipt requested. You got to return all their documents. You got to prove that to us in an affidavit. Now, Rudy Giuliani is used to representing Donald Trump, whose attitude on these things is, "Eh, but what if I don't do it?" That's what the Rule 16 part says. Rule 16 says you cannot be reinstated until you filed the affidavat and that you have to serve an equal, it has to be an equal amount of time since you filed the affidavit before you can be reinstated. OK, so in other words, if he just does nothing and then waits, sees if he's disbarred and then, you know, files the affidavit, like, yeah, D.C. will be like, yeah, no, even if you weren't disbarbed, we're not reinstating you in D.C. regardless of the consequences because you didn't comply with the affidavit requirement.

0:12:42 Thomas: I Just imagine Rudy calling his clients, being like, "Yeah, sorry, it turns out I'm a terrible lawyer and I don't what I'm doing." They're like, "Yeah, that's why we hired you, we know already." Yeah.

0:12:53 Andrew: So, yeah, we're going to check back here in two weeks to see if he's done it. I predict that he will not have done it, so we will be looking at. But, at some kind of garbage pleading that he will file into this case that says, you know, because I'm important and Alan Dershowitz says that this is the First Amendment, I don't have to comply, blah, blah. And so expect forthcoming punishment from the District of Columbia. Again, remember, this is an order by the Court of Appeals. That is the highest court in the equivalent of the D.C. state Supreme Court. And they, you know, they said, hey, do this. And by the way, make sure you comply with these rules.

0:13:03 Thomas: That sounds right. Yeah.

0:13:39 Thomas: Wow.

0:13:39 Andrew: And if you don't, I don't think the D.C. Supreme Court is going to be look is going to look too favorably on on. Yeah, I decided not to. There So you go. That is Rudy Giuliani facing even more discipline, this time in D.C. with real teeth for the kind of strategy he's likely to employ.

0:14:01 Thomas: I mean, that's, it's fantastic that it's finally happening, but for Dersh to say that this is like kind of out of nowhere, no due process. I mean, this guy had way too much process, like way too long. And I'm sure some of the other lawyers that were in the Kraken lawyers, way too long to be able to do this stuff and get away with it and not have any consequences. I think we've got enough process here. Don't you think?

0:14:21 Andrew: I think we do. And that's a fabulous transition. I need to say before we talk about this segment, mark your calendars, folks, because the oral argument for disciplining all of the Kraken lawyers in Michigan, and we're going to talk about what that means, is Monday, July 12th, 830 a.m. Central Time. Can you listen? You bet you can listen. You just have to go to link in the show notes. M.I.E.D. dot that's Michigan Eastern District dot U.S. courts dot gov. M-I-E-D dot U-S. Courts dot gov. And you can watch along with me. It's going to be glorious and delightful. What's going on here?

0:15:39 Andrew: The city of Detroit moved on January 5th of this year. So that was a little foreshadowing for sanctions against each and every person involved in this atrocity of a lawsuit, requiring not only sanctions, right? Monetary sanctions to pay everybody's attorney's fees, and also for disciplinary referral and disbarment referral to the state bar disciplinary bodies for each and every attorney who appeared on behalf of the plaintiffs. Right. Including Sidney Powell to the Michigan bar in the Texas bar, L. Lynn Wood to the Michigan bar and the Georgia bar, Greg Roll to the Michigan bar, Emily Newman to the Michigan bar, the Virginia bar, Julia Haller to the Michigan bar.

0:16:24 Andrew: And the Washington, D.C. bar, Brandon Johnson to the Michigan bar and the Washington D. C. bar, Scott Hagerstrom to the Michigan bar and Howard Klein Handler to the Michigan bar and the New York bar that there were that many Krakens, right?

0:16:34 Thomas: How many Krakens were there? I didn't know. That's Krakans.

0:16:38 Andrew: It's Kraken's got a lot of heads. It's a Hydra Kraken. It's it's a hybrid.

0:16:41 Thomas: We're going to have the Netflix movie, the trial of the Chicago crack, the Michigan Krakins.

0:16:46 Andrew: Was, you know, briefing back and forth on this motion for sanctions, a separate motion for sanctions filed by Governor Gretchen Whitmer. All of the stuff. If you're wondering how the court is tipping its hand as to whether it thinks these attorneys should be sanctioned, might perhaps be interested in that court's order, which says, hey, we're going to schedule a hearing to hear and adjudicate this hearing. And the order in its entirety says, each attorney whose name appears on any of plaintiff's pleadings or briefs shall be present at the motion hearing. End of quote. I will tell you that's not a usual thing that that a court does, you know, says each and every attorney who's ever appeared on any of your pleadings needs to be here.

0:17:40 Thomas: Yeah. I wonder if they're like, "We're gonna get an award for really good attorneying."

0:17:46 Andrew: Oh, yeah. Mr. Simpson, when have you ever known a siren to be a good thing? Yeah. So all of the Kraken lawyers, with the exception of Emily Newman, I don't know what's up with her, but Hagerstrom, Haller, Johnson, Kleinhandler, Roll, Sidney Powell and Linwood instead filed a motion and said, hey, court, we know you said you need us to appear. Here. We've all hired counsel now to defend us, counsel in this case, against the sanctions. So we'd like to appear via our counsel, right? That is just have the lawyers that we've hired to defend US from the charge of bad lawyer in this caserepresent us.

And the court was like, Like, did I stutter? Like the ruling says each attorney whose name appears. That means get your ass to the hearing. So, again, this is the the easiest slam dunk of a prediction ever. Each and every one of these people will be sanctioned. In fact, plaintiff's counsel has pointed out that after the filing of the sanctions motion in opposition, Lynn Wood filed a pleading in Michigan that said, I don't even know why I'm here. Like, yeah, I'm I'm listed way down on the pleadings here, but I've had almost nothing to do with it. You know, you should let me go home.

0:18:36 Thomas: Yeah.

0:19:15 Andrew: But at the same time, we have talked about Linwood's response to being, to having his pro hoc vice revoked in Delaware, he represents Carter Page. We've talked about that on the show on multiple occasions. In that case, in attempting to describe his practice, Linwood told the Delaware court, "Oh, yeah, I represent plaintiffs in their election litigation in the state of Michigan." So, you again, as Gretchen Whitmer's attorneys have pointed out, Linwood appears to represent the plaintiffs when he thinks it's to his benefit in Delaware, but has this, what, you know, "I hardly even know her" approach to to the plaintiff's, where he faces potential sanctions. Sanctions, that's a really strong indicator that as delusional as Lynn Wood and Sydney Powell and these Kraken lawyers are, uh, they're not delusional enough to think they're not getting sanctioned. They know what's coming, uh, so justice is coming.

0:20:11 Thomas: I'll believe it when I see it. No, I actually am starting to believe it. This seems pretty serious.

0:20:16 Thomas: They're gonna rue the day they ever crackened. Well, that's fantastic. That's consequences. But I think this was all just, just a warm-up for, yeah, yeah. A little Kraken seafood appetizer for what might be the, well, it's hard to make a claim like this, Andrew, in this era. But this might be one of the dumbest lawsuits you've ever seen in your life. Is this correct?

0:20:26 Andrew: It is. Appetizer, perhaps it that is 100 percent correct. That is exactly the right. And I wonder.

0:20:48 Thomas: I'll tell you this. You know what? I can say definitively, as Thomas Smith, lawyer of the show, not quite a lawyer, this is the worst lawsuit ever filed by a president of the United States. How about that? Ever by By 10 000 miles.

0:20:50 Andrew: Yes, absolutely. Absolutely. Yeah. And that includes the fact that Donald Trump has filed a lot of stupid lawsuits. Suits. I mean, they're all like this is.

0:21:02 Thomas: Yeah. True. He's Actually just the top 100 list. Is just anything he's ever done.

0:21:11 Andrew: Yeah. Yeah, it's like it's like looking at, you know, sort of the the all time, you know, baseball home run records. And you're like, man, there's a lot of Babe Ruth on this list. In case you've been living in a cave on Wednesday, Donald Trump, in his individual capacity and as representative of a class of plaintiffs, we will get there, I promise, sued Facebook, Twitter, and YouTube, and the CEOs I It's it's In It This is so bananas in pajamas. It is, it is just delightful. Has also sued the individual CEOs of each of these companies. Spoiler, there. There were zero coherent allegations. There's one paragraph I will read to you that makes no sense. There are zero coherent allegations as to why any of those individuals would be individually responsible any more so than, you know, any

0:21:13 Thomas: Yeah. Oh, Other Orange ex-presidents We'll Get There Sorry, we'll Yeah Extreme

0:22:06 Andrew: Any other. Right. Like when you sue a company. Right that you don't get the whole point of it being a company corporations are people, my friend, right, is that the acts undertaken by individuals on behalf of that company are attributable to the company and not to the individual, unless there is a specific reason, yeah, to pierce the corporate veil. There can be, sometimes there's a statutory reason to do that, right? It's written into the law. Sometimes, you know, the corporation is a shell or a fraud or an alter ego. So those are all fair allegations to make. Those allegations are nowhere in this complaint. Um, we are going to using the Facebook complaint, um, as the example here. Uh, but they're all the same. It's a, it's a cut and paste job across all three. Um, and I, I have to say I, never expected when I came up with the Opening Arguments method for reading a complaint, um, I feel like this must have fallen through a wormhole in space time because this is the perfect application of that method it

0:22:26 Thomas: Right. Yeah.

0:23:04 Thomas: It's The one you'd use In your class to like prove the point.

0:23:09 Andrew: Yeah, it so let's turn to the- let's read, read the complaint backwards. Let's turn to page 34. That's the signature block. And again, remember, the reason we do this.

0:23:20 Thomas: Find Out which Lawyers in the future are going to to be getting sanctioned like the Kraken lawyers?

0:23:24 Andrew: Exactly. Each and every one of these people will be sanctioned. There will be motions for sanctions, I should say. Slight sidebar. I want to emphasize just how radical a prediction it is when I tell you sanctions will be imposed against particular attorneys. Courts are super loath to do that. And one of the reasons is a really good reason, which is courts encourage zealous but fair advocacy on behalf of your clients. And they want you to explore every avenue. So normal practice of law. The court is going to say, you yeah, we get it. The defendant's motion is goingto say this is a clear application of X. And even if I disagree, I'm not going to ding them for, you

0:23:27 Thomas: Oh, yes. Okay. Yeah. As we've seen.

0:23:53 Thomas: Sure. Yeah,

0:24:10 Andrew: Know, their rhetoric or for strenuously arguing. So. Now let's sidebar aside. Let's take a look at page 34. First signature is Matthew Lee Baldwin. That's the Florida lawyer. He's local counsel. Now, if you look up Matthew Lee Baldwin of Vargas Gonzalez Baldwin de Lombard. He's a younger lawyer, but look like he's a trial lawyer. He's the member of the Federalist Society because of course he is. But he's trial lawyer, this is perfectly competent person to have as local counsel. Also, somebody who should know way better than to have attached his name to this nonsense of a complaint. He is responsible for moving everyone else we're about to talk, pro hac vice. With Well, one asterisk. To that. So So that's Baldwin, competent lawyer, local counsel in Florida because everybody else is not licensed to practice in Florida.

0:24:11 Thomas: So oh

0:25:00 Andrew: They're the ones who are likely going to be steering the ship, even though there's no way in hell you would want any of these folks to guide your litigation in Florida seeking constitutional, question mark, relief. We haven't gotten there, but we will. OK, so that's Baldwin. Next on the list is John Cole, John P. Cole, C-O-A-L-E. He is Greta Van Susteren's husband. He's an OT six level Scientologist and he has backed Hillary Clinton, Martin O'Malley, Sarah Palin and Herman Cain as presidential candidates. What do those people have in common? Your guess is as good as mine. So in in trying to configure this guy, Cole was one of the principal negotiators of the 400 billion dollar tobacco settlement, the multistate settlement back in the 90s. So, yeah, he's basically had like more money than God for 30 years and just kind of likes hanging out with people that he thinks are political celebrities.

That's as far as I can tell. I don't know. He also seems to be right friends with Trump because, of course, he is. And kind of the, the, if you're, if you're doing the push pins and string, like, I think Cole's face is at the center of the pushpins and string.

0:25:30 Thomas: Geez wow

0:26:20 Andrew: Right. He's the one who's lined up the rest of this elite strike force team of soon to be disciplined lawyers. Next up is Frank C., the dude, Duttenheffer, who is I have nicknamed him that for I've

0:26:25 Thomas: Wait what oh you did you add that oh okay hey I don't know at this point andrew I don'T KNOW THAT COULD HAVE BEEN IN THE BRIEF I DID

0:26:39 Andrew: Added that he he is. Well, you'll see why in a second. So he is a New Orleans, Louisiana based litigator. Now, there is a super interesting thread here that we could go down how you would never, ever want a Louisiana state practitioner on your non-Louisiana litigating team because Louisiana is the only state in the country that is a civil law state that has no common law jurisdiction because it was a French and then a Spanish possession, right? Right. You know, that's we got at the Louisiana Purchase. So Louisiana does not have 13th century Saxony English common law. It has the heritage left over primarily from French civil law. And so practicing in Louisiana is really neat, super interesting, 100 percent idiosyncratic, not replicable to practice in federal court in Florida. I'm not going to tell you any of that. Instead, what I'm going to tell you is that Dudenheffer misspells his own last name on the signature page.

0:26:46 Thomas: OKAY HUH WOW MAYBE THAT'S INTENTIONAL MAYBE IT'S LIKE WHEN WHEN THEY COME AFTER HIM LATER FOR SANCTION OH THAT'S NOT ME THAT'S A TOTALLY DIFFERENT DUDE AND OFFER

0:27:53 Andrew: He's So it's listed as the Dudenhoffer Law Firm. You know, because I leave consonants out of the middle of my name all the time. Oh, by the way, the dude and Cole both still use AOL. So, you know, just that's it. America Online, they've got the CD. They've got 100 free hours left. The last firm on this page are five lawyers from the firm of Ivey, Barnum, and O'Mara. Now, I could tell you that they are a personal injury firm located in Greenwich, Connecticut, and it would be super weird for them to be involved in this, again, constitutional constitutional question mark lawsuit. Instead, I'm going to tell you that Michael J. Jones has moved to be admitted pro hac vice in this court. So I am willing temporarily for purposes of this lawsuit to call him Vince.

0:28:43 Thomas: Jeez did eli write this lawsuit no offense eli but that

0:28:49 Andrew: This is this is paid. This isthe signature page. All right. So now we're going to scroll backwards and we scroll backwards past the relief, which is bonkers. You see a section. This should be labeled count three. It isn't because, again, everybody involved with this lawsuit is an idiot. That says class action allegations. And here I just have to read it to you. I swear to God, I am not making this up. This is page 30. You can find it if if you follow along on the complaint plaintiff. And remember, plaintiff is Donald John Trump in his individual capacity listed on the caption as the 45th president of the United States. So plaintiff and the class brings this lawsuit pursuant to Rule 23, which is the class certification rules. On behalf of the following proposed class, quote, all Twitter platform members who reside in the United States and between June 1, 2018 and today, had their access to their social media accounts wrongly restricted or curtailed by these defendants, meaning Twitter, and who were damaged thereby. By.

0:29:14 Thomas: Is not a class in the legal sense even thomas smith not lawyer can tell you that there are going to be way too many differences among every single person in that so like somebody who posted um indecent photos of, you know, God knows what, for example, they're also in this class along with Trump allegedly.

0:30:21 Andrew: If their accounts were, quote, wrongly restricted, how could you possibly determine whether their account was wrongly restrictive? I mean, you'd have to look at each and every person, which kind of defeats, which is not a class action. It defeats the whole typicality requirement. But so you have seized on a very, very good point, which is this class is nonsense. Sense. But another legal point, which is in addition to having a class that and the rule 23 requirements, right, are the numerosity, the existence and predominance of common questions of law. In fact, And that's to what you were just inferring, right? Like the idea that the claims of any one plaintiff within the class are typical of the claims of every member of the class, right. So super easy when it is an argument on price fixing, that right, the price of this got arbitrarily increased by a dollar. Okay, well, everybody paid a dollar too much. Super hard when you're talking about hurt feelings from

0:30:25 Thomas: Oh, okay. Yeah. Which is not a class action thing. Okay. Yeah.

0:30:45 Thomas: Yeah.

0:31:27 Andrew: Not using Twitter, right

0:31:29 Thomas: So Not only is it like, well, obviously these people are all going to be different, and who knows if they got banned for what. But let's, I mean, I guess, okay, not devil's advocate exactly, but just for the sake of understanding class actions perhaps better, um, what if it was something where it's like, okay, if they determine that nobody should have been allowed to be banned for X thing, just for example, just hypothetically, could it then be like, okay, okay, everybody who was banned for X thing is part of a class? Or is it because even still their damages are so vastly different? Like, if I, what if I create an account that had no followers, you know, and I got banned, and am I going to have the same kind of damages as the 45th president of the United States?

0:32:11 Andrew: I think you've answered your own question. You Right. Would have to go through that two step inquiry. Right? So the first thing is you would have to say, can the class be ascertained? Right. Can can we figure out who in the hell is a member of that? Right? And and sometimes you can. Right, but But typically, right, and it can be contingent on a prior thing, But right? Typically that's a thing that's easy to demonstrate, right. Everybody who bought, you XYZ widget between December 2018 and today, right like all the XYZ widgets are the best.

0:32:41 Thomas: It's my favorite widget. That's, that's me. I'm wearing it right now.

0:32:45 Andrew: The only problem is that XYZ Corp, you now, illegally colluded in order to increase the price of the widget. It. So now, right, if you get it, you get a you get $1 back, right? That's, that's typically how these class actions work.

0:32:46 Thomas: No, I don't. What? Sweet. More realistically, you get an email saying if you do something, you might get a dollar and then you ignore it. At least is what I do when I've gotten those emails.

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Having their relief be typical across the class would be impossible because as you point out, if right, I am just, you know, bro dude 69 with six followers and I get banned for retweeting Tucker Carlson and Alex Jones every single day, Like that I've done no damage to, you know, if you accept the theory, I've done about as minimal a damage as possible compared to if you ban, if you unfairly ban Alex Jones or the president or Tucker Carlson.

0:37:48 Andrew: Right. So, yeah, of all that addresses your first point that the class is nonsense and unworkable and stupid. There's also another problem, and that is that the that the named plaintiff as the class representative has to fairly represent the interests of the class, right? And here, this complaint repeatedly talks about how the plaintiff, in his capacity as president of the United States, was uniquely and individually harmed by the Twitter decisions. So by definition, if their complaint is true, he could, he's like, I would like to represent a a class of all presidents who have been kicked off of Twitter for being for.

0:38:20 Thomas: Oh, my God. Yeah. Carter, Clinton, George W. Bush. You know, we're a class of people that had a thing happen to us all.

0:38:38 Andrew: Yeah, no.

0:38:39 Thomas: Obama.

0:38:39 Andrew: Yeah. So it is just the allegations are internally contradictory. So those are the class claims. I could continue to go on. But we we got some backwards reading to do. So let's Let's page back to that was count three, although it's not called as such. Let's pageback two pages to page 28. This is count two, a declaratory judgment of the unconstitutionality of Section 230 of the Communications Decency Act. Now, I would point out this says of Section 230 and the Communications Decency Act, but, you know, I'm willing to give them a friendly amendment of that's not quite as ridiculous as being admitted pro hac vice. It requests, I'm just gonna say, okay, it says, "In censoring, flagging, shadow banning, etc., plaintiff and the class defendants" again, that's Twitter "relied and acted upon Section 230 of the Communications Decency Act." By the way, uh, we don't know that, but, uh, in

0:38:53 Thomas: Yeah. Yeah, I would

0:39:37 Andrew: Any event, defendants would not have deplatformed plaintiff or similarly situated punitive class members, but for the immunity opportunity purportedly offered by Section 230. Don't know that, but whatever. "Section 230 purports to immunize social media companies for liability or action taken by them to block, restrict, or refuse to carry objectionable speech, even if that speech is constitutionally protected." That is 100% correct. That may be the only correct statement in this entire lawsuit, no, that's right. So remember Remember the reason this is called the Telecommunications Decency Act of 1996 is that this was kind of the union between conservative Republicans and suburban, you know, soccer mom Democrats to say, we don't want little Billy to be able to access constitutionally protected pornography on the Internet. Right. That was the whole point of the Communications Decency Act. That's why it's called decency. Right. And they knew that they couldn't say we want to restrict obscenity because obscenity only refers to a very, very tiny subset of pornography and they didn't want little Johnny to be able to see boobs. So, so that is correct.

0:40:04 Thomas: Say besides the name field, but they failed that one.

0:40:54 Andrew: But again, not a great argument. Request that I could go through all of the ways in which this is defective. Simplest is no party. Nobody who is listed by the plaintiffs. Right? So that is Donald J. Trump, the 45th president of the United States, Linda Quadros and the American Conservative Union. OK. Or any of the class members. None of them have standing to challenge the constitutionality of Section 230. Right. Section 230, if you recall, our previous episodes applies to a provider of an interactive computer service. OK. And the safe harbor applies only right to that provider.

0:41:40 Andrew: Right, part that they don't challenge applies to providers or users. But "interactive computer service," even though that term is kind of out of date these days, is not the president of the United States or the American Conservative Union. Right. It includes large social media companies. It also includes your ISPs. But doesn't include these people. And so there is absolutely no grounds upon which you can say, I want to declare Section 230 unconstitutional because I don't like the effect that it, that it then induces those companies to have on me. Right. Like that would be like saying you and I can go file a lawsuit that challenges the Defense Authorization Act because the Defense Authorization Act encourages the military to sell hardware to police departments. And then those police departments use that to beat up ordinary citizens. Right.

0:42:39 Andrew: Like, like, it's a good reason to maybe expand standing. But once you know you don't have standing in that context. Right. You know that the president doesn't havestanding to challenge Section 230 safe harbor provisions. He just doesn't.

0:42:39 Thomas: Then again.

0:42:57 Thomas: Yeah.

0:42:58 Andrew: The many things that will show up, spoiler alert, by the way, I do not think that the defendants in these cases, and I would not recommend if I were their lawyer, which I'm not, although, you know, Jack Dorsey, if you want to give the firm a ring, you'd know how to get a hold of the law offices of P. Andrew Torrez. So this is not legal advice, but if it were legal advice I would say I would immediately send notice and say we're going to file Rule 11 sanctions striking this pleading and seeking damages against you. This does not meet the requirements, the minimum requirements for a lawyer signing their name to something because it is not based on a reading of the law or a good faith argument to change the law. It is based on complete and utter nonsense. So I don't even think there's going to be a motion to dismiss. I think they're just going to say, hey, man, we're going to give you 21 days to withdraw this complaint and apologize or we're

0:43:11 Thomas: Yeah. Get some of that corporate law money.

0:43:35 Thomas: Yeah. Yeah.

0:43:57 Thomas: This is this

0:43:58 Andrew: GOINNA FILE A MOTION FOR SANCTIONS.

0:43:59 Thomas: Is the Liam Neeson movie, of you know, like they, I'm, want to ransom and he's like, listen to me, I'm going give you a chance to have a certain set of skills, although I guess in this case it'd be like you lawyers don't have a certain set skills. I'm to give a chance, just back away, just walk away from this whole thing. Yeah.

0:43:59 Andrew: Yeah. Yeah. I view it as kind of like that scene from The Godfather, right? They like my final offer to you is this nothing, not even the cost of the license, which I imagine that the license application, which I imagine you will be paying for personally. It's crazy. And just to conclude on the craziness, we go we back up to count one, which is entitled Violation of the First Amendment to the United States Constitution. Again, a lawyer, this is not how you write law stuff. First Amendment says Congress shall make no law. Right. It does not like it does not say you can sue because of X. Right? Like one of the things you have to do in a lawsuit is explain the basis for why you're able to sue. Now, what happens if a state actor is violating the First Amendment to the Constitution?

0:44:22 Thomas: Yeah. No.

0:45:08 Andrew: Well, then you can sue them under Section 1983. Right. You would say, hey, there is an explicit cause of action here against state actors who take away our freedom of speech. So in real freedom of speech suppression cases, right, that is the police come down and drag you off the stage for saying something that is politically, you know, that is politically questionable. Right. They send in the cops. You've said Black Lives Matter and they haul you off the stage. You can 100 percent bring a civil lawsuit under Section 1983 that says, hey, these state actors interfered with my basic civil rights, which include the right to freedom of speech. The reason this is not pled as a 1983 action is because there's no state actor here. It's because they know they can't.

They can't even squeeze it into a document. So They're just like, uh, we have a bad Constitution thingy, right? So if you think I'm being uncharitable, um, consider for example, and again, these, these paragraphs are identical across all all the complaints. This is paragraph 132 in the YouTube complaint. Defendant censoring the plaintiff's YouTube channel, as well as those punitive class members, violates the First Amendment of the Constitution because it eliminates the plaintiff and class members' participation in a public forum and the right to communicate to others their content and point of view. If that were true, that still doesn't prove you get to sue. Right. You you have to have a cause of action. And they do not articulate a cause of action in any way whatsoever. It's crazy.

0:46:00 Thomas: But

0:46:47 Andrew: So I mentioned Section 1983. You could bring this as a Bivens action. Right. If there are federal agents who have violated your civil rights and they fit into a set of narrow categories, But they can't allege that it's Bivens action because they're no federal agents. There's just Twitter, a private company. And remember that pin I told you to put in about how?

0:47:07 Thomas: Yeah, sure, I always have one extra just ready for you. Yep, got the pen. Here it is, tell us

0:47:11 Andrew: OK, excellent. Well, that pin was about the fact that the CEOs of these companies are all named personally. And I said, yeah, that there's nothing that makes any sense out of that. In count one, right, this is paragraph 123 of the Twitter complaint. But again, it's similar. It just says defendant Dorsey is sued in his personal capacity and is liable in damages because he was personally responsible for Twitter's unconstitutional censorship of plaintiff and the putative class members, including Twitter's deplatforming of plaintiffs and other putative class members. And if you're thinking, well, that sounds like a claim, but not really an argument, you would be correct.

0:47:13 Thomas: Oh. Right, yeah. Yeah.

0:47:55 Andrew: As said, this is sanctionable under Rule 11. It is what I anticipate will happen because this does not remotely state. You could, and we're going to talk about this in a second. There is a way to have framed this complaint would have said, although the law currently does not recognize Twitter, YouTube and and Facebook as state actors. Here's our argument for why they should for why the law should be changed. And then we would be treating this very differently. Right. We would still say these are stupid and terrible and bad arguments. And I'm going to explain why they are in a second. But it would at least be it would at least not be sanctionable conduct.

0:48:36 Thomas: Yeah.

0:48:37 Andrew: Here, it just says from the outset, and I'm not kidding. Three, Twitter has increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 and willful participation in joint activity with federal actors. Defendant Twitter's status thus rises beyond that of a private company and to that of a state actor. And as such, defendant is constrained by the First Amendment right to free speech in the censorship decisions it makes. That is a nonsense claim and it is supported by no evidence. It is supported by

0:48:37 Thomas: How Does

0:49:11 Andrew: No cases. Who does?

0:49:11 Thomas: It rise to the level of the state

0:49:13 Andrew: Go F yourself, right? Like it just the complaint will not tell you.

0:49:16 Thomas: We just really hate it and we hate it so much that they're like a state. I mean, I guess you. You could have made some, like, well, Facebook's larger than us in many countries or something, I guess.

0:49:19 Andrew: Yes. Yes, that is exactly the argument. You could,

0:49:28 Thomas: But right

0:49:29 Andrew: And I'm going to tell you why that's wrong in a minute, but

0:49:32 Thomas: Now, I know it's still wrong.

0:49:33 Andrew: Let's talk about the two arguments. Can we get close to the end of the segment here? I want to talk about the two arguments that you are going to hear from your Uncle Frank about this and why both of these are terrible arguments. First is they're going to say, "Well, wait, there was a Second Circuit case. There was Knight First Amendment Foundation versus Trump, and that held that Twitter was a public forum. So if they're a public form, that means they're state actor. That means the First Amendment does apply." We talked about the Knight case extensively in multiple episodes, including most recently in episode 428. And here's what that case stands for. It stands for the proposition that Trump, as president, used Twitter as a public forum, analogous to a town hall meeting.

0:50:23 Andrew: Right. And so his actions on Twitter and other elected officials convert his account into a public forum, which means that he can't discriminate by banning Democrats, which is what he did. And again, think about that as analogous to a town hall. Right. Your senator decides to hold a town hall meeting at the local Starbucks. Right? Ordinarily, on any right, other given day, Starbucks can say, man, if you come in here with a MAGA hat, get out. That's Right, within their rights as a private company. But if the senator is using the Starbucks as a a town hall. Right. The senator can't kick out everybody with with a MAGA hat. Right? Like the senator's job is to represent her constituents. That means Democrats and Republicans. You can't hold a town wall and then kick out all the Republicans or all the Democrats or whatever.

0:51:12 Andrew: You got to talk to everybody. You cannot engage in viewpoint discrimination. Arguing that night. And by the way, Trump's lawyers do this. See page six. Right, that all of Twitter is now a state actor is kind of like arguing that means Starbucks is the government now. Right? It says Starbucks goes back to being a public forum when the senator leaves. Right, I should add, their position is actually worse than that. Because remember, they were on the other side of the Knight case. So Trump's lawyers have now argued in court the insane proposition that although Starbucks is the government, when the senator uses Starbucks for a town hall, he can do whatever he wants. And if that seems insane to you, welcome to Trump. Yeah, because they think that Donald Trump should be able to use Twitter however he wants. And that does not constitute state action because

0:51:38 Thomas: Yeah, because he's the government. But then Twitter can't do whatever it wants because they're the government is that what they're saying?

0:52:16 Andrew: They're the government. That is exactly that. That's right. And if it seems insane, now you know why I've been laughing. By the way, I want you to put a pin in the night decision because we're going to talk more about it.

0:52:21 Thomas: OK, yeah. Another pin. OK, I'm going remember this one.

0:52:28 Andrew: This one I want everybody to remember. We're going to talk much more about the night opinion on Tuesday. Everybody's going to be really, really excited about it now. Now, there was a second bad argument. This is a little bit more difficult to unpack because bad faith lawyers have endorsed this argument, but it is just as bad. And the most important thing is it is not the argument that is raised in this complaint. This is the argument. You could have raised without getting Rule 11 sanctions. It crawls under that minimum bar of maybe it's a good faith argument for extending the the law would be laughed out of any court in America. But was raised by Ted Cruz. So and it comes from a Wall Street Journal op-ed. And And if you're thinking, the Wall Street Journal op-ed page seems like a weird place to advance in-depth legal analysis of a cutting-edge new legal theory, you'd be correct.

0:52:29 Thomas: Now I want. OK,

0:53:28 Andrew: That's because the people making these arguments know that they would not stand up to publication in a law review and that they're They're garbage. But who are these people? These people are Vivek Ramaswamy. Vivek Ramaswamy is a Trumper. I'm not going to spend any more time. He's human garbage. And Jed Rubenfeld. And if you're wondering, Jed Rubenfeld, that name sounds kind of familiar. That's because Rubenfeld is the Yale law professor who has been suspended for two years after the university found uh that he had multiple credible accounts that he had sexually harassed students over decades um and he's the husband of Yale law professor Amy Chua, whom we've talked about on the show, she's the Tiger Mom, literally wrote the book, I'm a Tiger Mom, or whatever the hell it's called, uh, who wrote the Wall Street Journal op-ed about what a great guy Brett Kavanaugh was, uh, the quote was he is quote, "a mentor for young lawyers, particularly women."

That op-ed did not disclose, A, that she was at the same time writing the Yale op-eds in her capacity as a student advisor, advising female applicants for Kavanaugh clerkships to dress a certain way and describing his proclivities. And B, did not disclose that literally the second Brett Kavanaugh was appointed to the Supreme Court, he announced that her daughter, Sophia Chua Rubenfeld, would clerk for him on the Supreme Courts.

0:54:43 Thomas: Right. Right.

0:55:00 Thomas: Weird.

0:55:01 Andrew: Yeah, kind of weird and really seems like quid pro quo, like, hey, say what a good guy I am from the perspective of, you know, a liberal woman, an ostensible, I don't know how liberal she is, but somebody who tried to say, yeah, no, I would ordinarily, but blah, blah, block, right? Right. Sure looks like a payoff to me. Supreme A Court clerkship is unbelievably valuable. I know I applied for it and I didn't get it. So these are garbage people.

But but look, I'm poisoning the well here. Garbage people can be right. But in this case, they aren't. Their argument is and they say to four different cases. I'm not going to go through those cases. We don't have the time. But those cases stand for the proposition that when the government bestows powers upon a private entity in order to effectuate a particular end, that those private entities can nevertheless be transformed into state actors for purposes of the thing that they're doing. So, for example, Norwood versus Harrison, 1973 Supreme Court case says the government, quote, may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish. And if you're thinking, well, that doesn't seem like what Twitter is doing at all. Congratulations. But the argument here is, see, the Democrats passed Section 230. Again, with massive Republican support.

0:56:40 Andrew: And they anticipated in 1996 that they were going to use that to lean on content providers to censor Republicans in 2021. And they've been threatening Twitter with taking away Section 230 unless they punish only Republicans. And if that seems like asking for an awful lot of facts that are not in evidence, congratulations, you have read this correctly. Would also add that of the arguments and again, some of our listeners, I think, may even be sensitive to the idea that our favorite presidential candidate, Elizabeth Warren, talked about suing big tech to break up Google, Facebook and Twitter. Right. That there is the idea that these companies have a tremendous amount of influence because of their size and potential monopolistic power. Yeah, I agree with that.

0:57:35 Thomas: Yeah, totally.

0:57:35 Andrew: The remedy. Yeah. The remedy on that is antitrust litigation. Right. The remedy is to stop these mega companies from forming and dominating the market and craft remedies through the answer. That's what the antitrust law is meant to do. Not to say, oh, well, sorry, you got large enough. Now you're a state. That's insane. And by the way, that position is square. None of these people will argue that there is a 1974 Supreme Court decision, Miami Herald Publishing versus Tornillo, in which a candidate said, hey, you've got to let me you've Got to publish my rebuttal to your op ed page. Because the Miami Herald is a de facto monopoly here in Miami. You ran an op-ed that said, I'm a terrible candidate. I need to respond because of your monopolistic tendencies.

0:57:40 Thomas: Yeah,

0:58:28 Andrew: And the Supreme Court was like, no, the Miami Herald, is not the state, regardless of their, quote, undue concentration of power, end of quote. The fact that they might have been a de facto monopoly on news in Miami, not a reason why they're a state, might be a reason to apply antitrust laws to them, right, or some other principles, but did not convert them from a private entity into a public entity, nor should it, right? Yeah, monopolies can be bad without the remedy being the First Amendment. Think I could talk about this lawsuit for hours and hours. But, you know, I've gone way over time already. And and again, it's not a good one.

0:59:10 Thomas: It's not a good one, though. Suffice to say, not a good one. Sanctions are a coming.

0:59:16 Andrew: Sanctions are a-coming.

0:59:18 Thomas: Well that was delightful. Bad lawyers. Now we got to cover the sanctions of yesteryear and the sanctions of the future all in one show. The future sanctions coming. And I hear that there's kind of a tie in to Tuesday's episode that you already hinted at a little bit, right?

0:59:18 Andrew: Yep.

0:59:33 Andrew: That is the Night case, so, uh, homework for our listeners.

0:59:37 Thomas: Wait a minute. The night case is part of the shadow docket. A little too on the nose. All

0:59:38 Andrew: Yeah. Yeah. It is. So see if you can't figure it out. It's a little bit of advanced homework, and

0:59:47 Clip: And thank you, Let's go!

0:59:49 Thomas: And now it's time to thank our new patrons at patreon.com/law. Hope you enjoyed that Q&A. That was a ton of fun. And you get that high quality audio right in your feed. And I did it on time this time. Make sure to do that. And also, Lotawful Movies will be coming at you. Since the last one was late, you're going to get another one before you know it. Maybe in a little over a week, I think. So that's coming right at you, Andrew, us off and thank our new patrons who are going to be enjoying all that stuff at patreon.com slash law. And

1:00:08 Andrew: Oh. Yeah.

1:00:17 Andrew: I Thank you to Moorely, that's M-O-O-R-E-L-Y, to I Went to Prague and All I Got Was Vibe Checked by Czechoslovaks, um, hope you enjoyed Prague, uh, I've, I've never been. Would like to go. To Renee Hetter, to Julie Ross, to X Y V, and to either Evan or even it's Evin Rolens. Thank you all so much for supporting the show.

1:00:42 Thomas: Thank you to Wesley Moncrief, Atomic Penguin at AtomicPenguin7 on Twitter. Cool. You can use your patron pledge for a Twitter shout out. We'll shout out whatever you say in here. Gary Karch or Kark. Jay the Skunk, A Stitch Too Far. That's interesting. Kimberly and Jonathan Harrison. Thank you so much, folks, for pledging.

1:00:47 Andrew: Whoo!

1:01:02 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:01:09 Thomas: Right. And now it's time for T3BE. Thomas takes the bar exam. I'm on a ridiculous streak. It can't continue. Maybe Andrew's just giving me freebies, but I also feel like I'm, you know, analyzing them pretty well. So can I make it four in a row? No way. Can't be be done.

1:01:24 Andrew: Right. Thomas, an investor from State A filed an action against his State B stockbroker in federal court in State A. The summons and complaint were served at the stockbroker's office in State B, where the process server handed the documents to the stockbroker's administrative assistant. The stockbroker has answered the complaint, asserting the defense of improper service of process. Assume that both states' requirements for service of process are identical to the requirements of the federal rules of civil procedure.

1:01:27 Thomas: More of this oh god huh

1:01:59 Andrew: Is the court likely to dismiss the action for improper service of process? All A, no, because service was made on a person of suitable age found at the stockbrokers place of employment. Employment. B, no, because the stockbroker waived her claim for improper service of process by asserting it in her answer. C, Yes, because an individual defendant may not be served by delivering process to a third party found at the defendant's place of employment. Or D, yes, because the process of State A courts is not effective in State B.

1:02:16 Thomas: That's that's interesting okay Okay.

1:02:33 Thomas: So they kind of, they zigged and zagged. I thought, you know, they, they set it up like another federal court thingy with the State A and the State B, but it seems only loosely related to that. It's more about process. We did just do an episode on this, but I don't remember precisely this point being made. Okay, go over the facts again. State A. They filed an action against a State B stockbroker in federal court in State A. Okay. Summons and complaint were served at the stockbroker's office in State B, where the process server handed the documents to the stockbroker's administrative assistant. I feel like maybe that isn't what you're allowed to do. Like, I do think you have to, yeah, maybe handing it to just some assistant somewhere is not, would not fulfill the rules of having to serve process.

1:03:24 Thomas: Otherwise, I feel like we wouldn't have someone chasing down Mo Brooks's wife. Is that who it was? Whoever. Yeah. I mean, maybe, I don't know. I feel Like maybe that could be where we're going here. It says the stockbroker answered the complaint asserting the defense of improper service of process. All right, so let'S go through this. A, no, because service was made on a person of suitable age found at the stockbroker's place of employment. I actually don't think it's that. I don't, that logic seems way too loose. Like you can find anybody of a suitable age at their place of employment. Like what if it's somebody who's, you know, like what if it's somebody who has a client at the place and blah, are you going to see him? Okay. Give him this, you know, or something that doesn't, I think a can't be right. It sounds way too loosey goosey for the rules. I don't believe it. B no, because the stockbroker waived her claim for improper service of process by asserting it in her answer.

1:03:29 Andrew: Yeah. I'm

1:04:22 Thomas: That's a, oh man, that's tricky one. Cause it's sort of the, the idea is like, well, you clearly got the papers, you know, so like why you can't file a response and be like, they didn't give me the papers. Right, but you're like, well, you got the papers and you're replying, so that seems weird. I get the logic there. I'm not sure that's going to be the answer, but it's definitely, uh, it's definitely an attractive one in some ways. C, yes, because an individual defendant may not be served by delivering process to a third party found at the defendant's place of employment. I think C is is totally plausible. D, yes, because the process of State A courts is not effective in State B. I don't even understand how that could be right. We've assumed that both states are using the identical requirements of the federal rules of civil procedure.

1:05:12 Thomas: And state A, we're not even in state A court. We're in federal court in state. Assume the process, because the practice of state courts is effective in the state. What? That can't be right, could that be right hmm d seems like straight up nonsense to me but man, this is so hard because I don t, it, does n t seem like completely dissimising the action is appropriate relief for doing service of process badly. I, but but I don't know.

I guess what other relief would there be? Cause it feels like you do the process badly. Then therefore this person can get away with like, you know, ripping off their investor or whatever. It just, Oh, this is a tough one. Okay. So I was firmly not a and firmly not D. I just don't think a could be right.

Uh, so I'm between B no, because the stockbroker waived her claim for improper service and process by asserting it in her answer by assirting it in In her answer, In her. Or C, yes, because an individual defendant may not be served by delivering process to a third party found at the defendant's place of employment. I think the only problem with B is that like, you waived her claim for improper service of process by asserting it in her answer. I get the logic of like, if you're answering, therefore it wasn't bad service, but but that would seem to logically eliminate the possibility for any claim of improper service of process.

Like where is there some other place you could do that other than the answer. Like would you have to file it, I mean, maybe this is true, maybe this is what Andrew's going to tell me when I get this wrong, like you'd have to file it in another thing, like not in the answer to the complaint, I guess. Maybe that's the way B could be true and not eliminate the the entire. You know what?

1:06:57 Thomas: I think I want to go with C. Yes, because an individual defendant may not be served by delivering process to a third party found at the defendant's place of employment. I do think that's actually bad. I think there's a possibility of B. So I'm between B and C. I'm going with C Let's see if the coin agrees with me. The coin disagrees. So yeah, coin is going with B. I'm going with C, final answer.

1:07:19 Andrew: All Right. And if you'd like to play along with Thomas and the coin, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guests, your reasons therefore, we will pick a winner and shower that person with never-ending fame and fortune. Fame.

1:07:36 Thomas: And that's our show. Cannot wait for Tuesday when we get the thrilling tie into this whole Shadow Docket, Night Court, whatever that thing was. I'll find out then.

1:07:47 Thomas: And comic book law. You guys don't want to miss it. So listen on Tuesday. We'll see you then.

1:07:52 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:08:26 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.