OA513: California v. Activision Blizzard, Inc

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 513. I'm Thomas. That's Andrew. How you doing?

0:01:23 Andrew: I am fantastic, Thomas. How are you?

0:01:25 Thomas: Well, I gotta say, I'm a little sad already just going into this episode because I haven't delved into the details, but just the few things I've seen about this Activision stuff. It seems really gross, terrible, something I would rather just not exist in the world, so we'll see how that goes. Uh, but you know, excited to be doing the show. I know that, as always, I'm going to understand the story uh much better than I ever would on any other source, from your breakdown. So I'm excited about that part Before we get to that, uh, we have to talk about an incredible email we received. So why don't we do just that, Andrew?

0:01:28 Andrew: Oh, me too.

0:02:03 Andrew: Yeah,

0:02:03 Thomas: Did. So We got an email, and this is Andrew again. I know I say this all the time, but this is one of the, maybe the coolest thing about doing the show, is the people we hear from. And you're just like, this person heard our show somehow, and there's so many of you out there that are doing amazing stuff, or you're involved in these stories, or, you know, whatever it may be, you're in the Texas House of Representatives, or who, who knows, stuff like this is, is why we do the show. It's so cool. Here's an email we got. Uh, "Hi, I'm Doe number 12." So already caught our attention in, in inbox. And this is, of course, referring to the Liberty University lawsuit. "So I'm Doe number 12. Hi, you guys. Thanks for your excellent legal analysis of the case against Liberty University. I am only writing in to say that I support, and I affirm, everything I affirm, everything that Gil Harrington, Morgan Harrington's mother, is saying.

0:02:04 Andrew: Yeah.

0:02:54 Thomas: "To the press, it was my intent in reporting to the police that day that what happened in my attack would not happen to any other woman. I am extraordinarily frustrated that not only did the Liberty Police not take my account seriously on the day I was assaulted, they also failed to call me back when Jesse began attacking Liberty University college students. I use the plural students on purpose, purpose.

I also believe there ought to be a limit to the number of violent crimes by the same assailant which can be reported to a university police department without that PD being in a documented email consultation with a prosecutor. When my grandmother arrived at Liberty University to pick me up at the close of debate camp, I compelled the chief of police to promise me, in her presence, that I would be called on my mother's landline telephone, which Liberty had had in their possession, and which has never changed since that time, if my assailant ever attacked anyone else, so for corroboration, and also for emotional support to the new victim. I believe that we, as citizens of the world, must find legal ways for survivors of the same assailants to meet one another via mutual consent.

If I had been put in touch with a subsequent victim of Jesse's, I promise you I would have called everyone in the phone book in an effort to put him behind bars. Many things frustrate me about the conduct of Liberty University Police. Nothing hurts me more than the fact that Morgan Harrington and Hannah Graham are no longer with us. Anyone currently inside the university who chooses to speak out is a hero, and I will do everything in my power Liberty to

0:04:32 Thomas: Who are committing to exposing the institutional rot so that we can make positive changes. Sincerely, Doe number 12."

0:04:39 Andrew: Wow. I I just want to say it other-mindedness, right? The spirit of giving, of community, of solidarity. You are a hero to us, Doe 12. And thank you so much for writing. Like, it's just Thomas, you noticed it first and you messaged me and you were like, man, you have to check our open arguments email.

0:04:52 Thomas: Yeah, it just feels like an honor to be trusted to receive that email, Do 12. And really, We truly are honored that, that you would, you would send that to us and let us read it on the show. Because there's... so many heartbreaking elements to this story. But among them, is the idea that she expressed here is, is how traumatic it would be, a, obviously the whatever the original assault was would be traumatic as hell, but also the idea that you're like, okay, I want to stop this from happening and trusting an institution to help you do that. You know, having trust in the police, the university police, the institution itself, to help you stop this from happening to somebody else, and have them completely fail you. And not just you, fail these other victims. I don't know that that's a, that's a level of trauma that, that I can't imagine. And I'm so sorry. Um, and I, geez, I don't know what, even what to say with it.

0:04:59 Andrew: Yeah. That. I

0:05:52 Thomas: I think it just really drives home how awful this was and how this just cannot happen anymore. AndI really hope that the law, the court, however this goes, I hope this has an effect because this cannot happen.

0:06:05 Andrew: I couldn't agree more, and I really love the, the way you frame that as, um, as saying thank you to, to Doe number 12, for, for her trust in us and for sharing her story with us, and hopefully us reading it on the air, you helps in, in some way.

0:06:20 Thomas: Absolutely. All right. Unfortunately, I think there's a bit of a theme to this show, Andrew, when we talk about the Activision lawsuit.

0:06:26 Andrew: Is. So let's, let's dive into it.

0:06:29 Thomas: Let's do it.

0:06:31 Clip: Down the law, down the law.

0:06:35 Andrew: I want to start with, um, kind of some, some background here that goes all the way back to, you know, my favorite decade, the 1970s, right? And Well,

0:06:43 Thomas: That's your favorite decade, not the 80s. Hold on. Huge if true.

0:06:45 Andrew: Yeah. It's It's tough, you know, it's, that's, I, it's The Least.

0:06:49 Thomas: 70s is my least favorite decade. Oh, yeah.

0:06:51 Andrew: Favorite. Oh, man. For

0:06:52 Thomas: I take the 80th over the 70th.

0:06:53 Andrew: For nostalgia. Nostalgia, so, for identity purposes, the 80s, but for nostalgia, right, like, because, you know, I didn't really experience much of them, and, you know, it, yeah, there

0:06:59 Thomas: Gotcha. I hear you. That's like me with the 60s.

0:07:07 Andrew: You go, that's right, yeah, exactly. The company about which I have more nostalgia than any other thing on, on earth, Atari, right? So Atari, uh, Nolan Bushnell, uh, invented, uh, first he did Computer Space, we're not going to talk about, he invented a video game called Pong in 1972, play tested at a bar called Andy Capp's, uh, uh, they had to send out a service technician because the coin box was so overflowing with quarters, uh, that it caused a short end on the motherboard. Um, so, you know, you can imagine, I guess, there was not a lot to do in the bar in 1972. Pong had everybody transfixed, and produced first cabinets that were sent to bars, and then developed a Home Pong.

And at the same time, they were still making stand-up video arcade machines, right? 19, it took a couple of years. So by 1975, Nolan Bushnell went to a toy industry show. It was the first time that Atari had ever out something that it was going to be a consumer product, right, Home Pong. They sold 150,000 Home Pong units. In connection with that, that they also sold a whole bunch of video games and some pinball machines to bars. Uh, so, 1975, Atari, 40 million dollars in sales. That's not bad, right. And

0:07:40 Thomas: Yeah. Yeah,

0:08:26 Andrew: Atari looked at the very first, put maybe an asterisk on it, we'll get some feedback from no illusions, I'm sure, home video console, which was called the Fairchild Channel F, um, that's an, an entirely separate rabbit trail, and, you know, maybe we'll do it someday. Fairchild Channel F was terrible, right? And Nolan Bushnell was like, well, I can make a better machine than that. And he had the idea that would become the Atari 2600. But Bushnell knew that he could not create, now, even you with all of the success, he was going to need a massive infusion of cash in order to create the 2600. So he sold Atari to Warner Communications, Warner Brothers, for $28 million. It, part of the agreement, he would be chairman of the board, but Warner Brothers would have a tremendous amount of say in terms of their stock ownership.

0:09:20 Andrew: And so Warner, Warner then invested another $100 million into Atari to develop, and I'm using the 2600, which is what it's called today. Back then, it was called the Video Computer System, or VCS, And right? Lots of fun stuff happened with the Atari 2600 or VCs, including very, very real story in which Atari hired Steve Jobs of Apple Computer to create the breakout game. Steve Jobs then asked his partner, Steve Wozniak, to basically write the whole thing. Wozniak wrote it in three days or five days, accounts differ. Jobs was paid $5,000 for Breakout and paid, accounts differ again, either $250 or $350 to Steve Wozniak. Which seems to be the typical relationship between Jobs and Wozniak over the years.

0:10:08 Thomas: Fun fact, but not really. I was at a Sharks game and Wozniak was right in front of me and didn't realize it. My brother actually I think he noticed people kept trying to talk to him. He's just this little guy. And then my brother put together that he was wearing a Sharks jersey that said The Woz on the back of it. And he was like, that's Steve Wozniak or whatever. I was like huh, right in front of me. Interesting.

0:10:28 Andrew: There you go. Steve Wozniak, yeah. So an alternate universe in which Atari owned Apple early on. So that's the 2600. Then sales of the initial 2600 were a little below expected in 1977. Brothers, you know, having invested nine figures into this company, said, we are exercising, we're going to hold a stockholders meeting, and we want to elect somebody different, somebody who's not you as president. And they elected a guy named Ray Kassar, a guy whose nickname inside Warner Communications was The Czar. And I was going to say put a pin in him, but don't. Like, I'm just going to talk about it now. He was a real jerk, right? Like, he was nasty and abusive to the programmers at Atari.

0:11:19 Andrew: He would later be convicted of insider trading in selling off his Atari stock minutes before announcing that, you know, in 1983, their sales were far below projections in the aftermath of the E.T. debacle. Garbage guy. Where this story begins, with Ray Kassar having taken over Atari. And one of the things that Ray Kassar did was forbade programmers from taking credit for their games. Right, now again, think about this. Warner Communication, Warner Brothers, right, like they are a movie studio, they are a, uh, a music company, right? And could you imagine, right, not being able to put "by Thomas Smith" on the label of your, your record, right? That would be insane. Um game designers were told that they had to be anonymous, and so in 1980, um, they designed it was

0:12:05 Thomas: That's kind of weird. Does that mean entire studios? So it's not like Konami or like the... I guess maybe it was different back then.

0:12:18 Andrew: Very different back then. Because, uh, the, the games had to fit for the Atari, uh, 2600, they had to fit in 8K of memory, and so games were designed start to finish by one guy, right? Yeah. Really was and I know that seems crazy today the

0:12:19 Thomas: Okay. Okay. Gotcha. So they just wanted it to be like, the game is by Atari, essentially. Okay.

0:12:35 Andrew: Game is by Atari, right.

0:12:36 Thomas: Gotcha.

0:12:36 Andrew: Yeah, we don't, you don't know, like, you know, you don's get like, "The lunchbox is by so and so," right? Like, it, and and that was Ray Casser's view. Video, video game designers had a different view. And so, for example, Warren Robinette wrote the game Adventure for the Atari 2600. And if you go into the right secret room, it will show up in delightfully blocky pixels, "by Warren Robinett," in the middle of the game. It's literally the first Easter egg ever programmed into a computer game cartridge, and almost got him fired too, by the way. They're serious. So now, context, it's 1979 to 1980, Atari is selling hundreds of thousands of 2600s, their gross income goes from 200 million dollars in 1979 to four over 400 million dollars in 1980, which makes them the fastest growing company in the history of America, okay? They're making money hand over fist.

0:12:42 Thomas: Yeah. Yeah, yeah.

0:13:34 Andrew: Half of it is 2,600 sales and half of it is cartridge sales. So there's your dynamic, right? Massively growing company, half its revenue in game sales, and the CEO is treating the programmers like, their dog, you do, right.

So, part of a way to continue to ratchet up their profits, Atari issued a memo in 1979 to the programming staff, and it listed all of the games by sales from the, the previous year, right, and the reason that Atari did this was they wanted to say, "Hey, you guys, like, these are the ones that are really selling well for us, get together, collaborate, and let's make more games like the onesthat are on this list." You might imagine it had a slightly different effect.

To the programmers at Atari, Atari had about 35 programmers at the time, um, and four of them got together, uh, and and looked at it and said, "looks like the four of us are responsible for 60 percent of Atari's sales" from 1979, um, those were Bob Crane, Larry Kaplan, Alan Miller, and Bob Whitehead. I'm gonna include the, uh, the article here, um, but Crane says, "I remember looking at the memo, and we realized we'd been responsible for 60% of Atari sales the previous year, the four of us. There were 35 people in the department, but the four of us did 60% of the sales. Then we found another announcement that Atari had done $100 million in cartridge sales the previous year. So, you know, that 60% translated into $60 million." So,

0:14:27 Thomas: Interesting. Jeez.

0:14:55 Andrew: These four men may have produced $60 million in profit, but they were making $20,000 a year, yeah, right, so, uh, they then went into Ray Kassar's office and they said, um, "Hey, uh, you're making a ton of money on our back, um, why don't you, you let us, yeah, let us share, well, why don't let us share in the royalties of the games, right, and also, treat, treat us more like, the music industry, right? Treat us as the authors, as content creators. That wasn't a phrase back then, rather than, you know, anonymous little, you know, goblins down here. Ray Kassar called them towel designers. This is, again, quoting from Crane, "towel designers,"

0:14:54 Thomas: Oh my gosh.

0:15:11 Thomas: Pay us $23,000. Yeah towel.

0:15:36 Thomas: Huh?

0:15:36 Andrew: Right. He said, "I've dealt with your kind before. You're a dime a dozen. You're not unique. Anybody can do a cartridge. You're no more important to these projects than the person on the assembly line who put them together. Without them, your games wouldn't have sold anything." So, so that didn't go well, and, uh, those four people left Atari and they started the first third-party developer in the history of humanity, Activision. And literally the best games for the 2600 came, came from Activision, right? So everybody, when you say Atari 2600, what game you're thinking, Pitfall, Pitfall was an Activision game, River Raid, Megamania, Kaboom, like, the Activision games were better than the Atari games because the best designers left Atari, went and founded Activision.

0:16:24 Andrew: I could go on and on about the history of Activision, right? It's incredibly, they were the first third party developer for game, they invented that market, um, and they survived the ups and downs, right, like the, the video game market crashed in 1983, right, like that was Atari's E.T. And, by the way, you could, you could pull that pin out, um, thanks to the negotiations, uh, of the developers who left for Activision, uh, eventually Atari did cut its programmers in, uh, and gave them royalties. Howard Scott Warshaw got a dollar for every E.T. cartridge, uh, and wound up well

0:17:05 Thomas: Now, for everyone buried in a landfill, or for everyone actually sold and played?

0:17:08 Andrew: Well that's the thing, as far as we can tell, um, they earned their royalties on cartridges sold. The big issue with E.T. was they were returned to Atari, and there did not appear to have been a clawback provision. So, you know, if so, that means Mr. Warshaw got a nice, cool 8 mil, which was an awful lot of money back in 1983. But yeah, so look, the video game market crashed in '83. The home computer market crashed into the late '80s. And Activision not only survived all of that, but went on to create, you know, some of the groundbreaking games of the 90s. And since then, right, they've been very active buying up studios. They are, you know, today a major, major powerhouse.

0:17:12 Thomas: Now

0:17:59 Andrew: They bought Blizzard Entertainment, right? Which was how we led off this entire discussion and which appears to be the subject of this complaint. So now that we are all the way to, yeah, let's talk about what this complaint is. Okay. So again, we read it backwards, right? This is a complaint brought by the California Department of Fair Employment and Housing. And you're thinking, well, it seems a little weird for a company to be sued by the state. So not a crank filing, obviously. They are entitled to bring those claims under section 12940 of the government code, which is, you and I have talked about this before. This is your standard equal protection statute, It right? Tracks almost exactly the language of Title VII of the Civil Rights Act of 1964, So okay? California 12940 says, it is an unlawful employment practice for an employer because of, and then I'm omitting a lot of stuff, but because of sex, gender, gender identity, gender expression, sexual orientation, to refuse to hire or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

0:18:14 Thomas: That we're done with the good, positive, fun stuff...

0:19:15 Andrew: So slightly broader than Title VII in light of the court's decision in Bostock versus Clayton County, probably coterminous now with Title VII, a standard, right? A standard equal protection statute. And the first four counts of this complaint are utterly straightforward. They are not the ones that are garnering all the attention, as you might imagine, but they are very likely to be the bulk of the lawsuit. And there's some things that are really interesting about it, right? So count one is discrimination in compensation, right? It says, at Activision, women are paid less than men, right, page 17, paragraph 56. Defendants offered women lower compensation at hire, assigned women to be lower paid, lower opportunity levels and roles, and afforded them less incentive and or equity pay opportunities than their male counterparts.

0:20:08 Andrew: That's an allegation, but it's very, very common one that we see. And if true, would absolutely entitle the state of California to relief. And that relief can include fines and injunctive relief against Activision, but also an order, right, requiring them, you know, when we get into the constructive discharge, requiring them to rehire women programmers who were forced out at Activision, requiring back pay, requiring back equalization of wages. Right. So there's a lot of different options here that are that are available to the state. Um, is kind of an ironic twist, as I followed, uh, some of the media coverage here, um, there was a Kotaku article, uh, and again, right, that this is everywhere on the internet because Activision is such a huge player, um, it describes, uh, the gravamen of the complaint, uh, of count one here is saying, women are generally brought in at a lower rate of pay than their male counterparts with the same experience levels.

0:21:06 Andrew: Often this is because the men that join Blizzard have friends on the inside pulling for them. It also happens because women coming in are usually paid less at their previous job and will accept lower offers without knowing the pay band that they're being brought in on. That's endemic, but it's a good reminder that sometimes you can have things that seem to be neutral, but snowballing effects of privilege to disparate outcomes. But here was the part that really struck me.

Part of the problem, they say, is that many details surrounding compensation at the company, including perks like stock options, are shrouded in secrecy. Even if you become aware that there's an imbalance, there's not a defined pathway to correct it. It just struck me how much that was sort of coming full circle from the experience of those young programmers at Atari 40 years ago, where they are today. Day. You read the complaint, now I'm going to kind of skip back to some of the factual sections just for count one as we go through. Paragraph three notes that Activision's employees are only 20% women and the leadership role is overwhelmingly white and male. The directors Rectors have all been white men. You know, this seems, I guess what I'm saying is this seems like a pretty plausible allegation on the face of it.

0:22:27 Thomas: Right, but I mean, it's kind of my understanding that this is the unequal background of basically everything. What brings it over into being tortious or something, or to the point where California is suing them?

0:22:40 Andrew: Crosses that line, right, is a question of what they call disparate impact, right? And you can demonstrate that disparate effect without demonstrating an intent to discriminate. Now, we're going to get to the counts that demonstrate, you know, an intent to discriminate. But yeah, the fact that happens to women in a lot of places is not really an affirmative defense available to Activision here, right? And again, yeah, and the difference, right, the difference is threshold. Yeah, courts, when they are adjudicating a disparate impact claim, require reasonably good statistical evidence that matches up the effect on a particular protected class with certain policies or practices undertaken by the employer. And so here's how that can break down. And this is really sort of the paradigmatic case. That you had a company that did a lot of fulfillment and logistics. They did a lot of, you packing and shipping in the warehouse.

0:23:08 Thomas: Mean my point was more Like, if this is happening everywhere, why isn't everything being sued, I guess? Like, what's the difference is what I was, yeah. As

0:24:01 Andrew: And time, what you saw was that, you women would be assigned the desk and the dispatcher jobs, and men would be assigned the stacking the boxes in the warehouse jobs. And even, and sometimes, you know, you would see a disparity in salary between those two positions, right? But But even when you don't see a disparity in salary between those two positions, if you look deeper and they say, well, obviously, you know, when it comes time to hire the warehouse manager, we want somebody who's really been on the floor. And they never take warehouse managers from the dispatcher job, and women are disproportionately steered into the dispatchor job out of a view of, we want the stronger men lifting boxes on the floor.

0:24:52 Andrew: You can see how, and this is, and I'm paraphrasing, not just a real case, but cases that have happened sort of throughout history and beginning in the 1970s, where you could go into court and go, yeah, well, Your Honor, of course, we don't let the women folks stack the boxes. Um, you know, and you could see how there might not have been any malicious intent at any point in time, but it wound up with a system where, you know, women were sort of pushed into women's work at that company, uh, and then, um, a subsequent set of decisions compounded on that, uh, that really locked them out of opportunities to advance into management. So, so that's a long-winded way of saying that what you have to do is not just show the disparate impact, but you have to connect that impact back to certain policies or practices that were put into place by the company.

0:25:45 Andrew: And they've alleged that, and we'll have to see what happens in discovery. The allegations here are not, want to say, are typical of what you see in a complaint, right? Right. Like I flag for you when a complaint is, you particularly detailed, right, like the, the indictment against the, exactly.

0:26:02 Thomas: Last one we just covered so

0:26:05 Andrew: You have, you a super detailed complaint, it's like, oh, okay, well, then they clearly have a document that says X. you will see that. This is right in the middle, right? It is not bare bones. There are sufficient detailed allegations that we're going to talk about, and there are other areas that say, you on information and belief, we think that Activision systematically paid less money to its women employees and offered them less opportunities for advancement. That is the kind of allegation that courts are very, very well equipped to handle. And, you Know, and again, obviously, we'll survive a motion to dismiss, right? You get to discovery, and you get to prove that. Okay, that's count one. Count two, and I'm to go quickly through two, three, and four, because they all follow the same pattern. Count two is discrimination in promotion, right? So this is, that allegation begins on page 18.

0:26:52 Andrew: The key ones are paragraph 67 and 68, and it said, I was alluding to this, that women were assigned to lower paid and lower opportunity levels and roles. Roles, there is a reference to the quota system at Activision, and nobody is talking about that, and I can't figure out what that is yet. So I guess that's a podcast why I'd put a pin in that. I'm going to try and figure out What the Activision Quota System Is. Nobody is talking And it is, know, sort of front and center in allegations of the complaint. Let me read. It's paragraph 68. The first sentence says, says, defendant's policies, practices, and procedures have resulted in unlawful disparate impact discrimination against women with respect to promotion opportunities. Among other practices, defendant's quota system, lack of application process for promotional opportunities, as well as its informal and opaque decision-making process, resulted in female employees being promoted at slower rates than their male counterparts.

0:27:50 Andrew: So rest of that all makes sense. I don't know what their quota system was, so we're going to try and figure that out. Yeah. There is, in the preceding paragraph, an allegation that they refused to promote women that might get pregnant, even when women performed higher level work for extended period of time. Again, very, very common stuff. So Okay. That was count two. Count three is termination. It's exactly what you would think. This is page 19, paragraph 77 to 78. They say, and these are the most bare bones of the allegations. They said that Activision intentionally discriminated against women in terminations, their procedures have resulted in unlawful disparate impact discrimination against women in determination. That means women get fired more often. Again, can you prove that? We'll see.

And then count four is constructive termination, and that is in there to garner the relief of rehiring, But essentially it says because of the policies we talked about in counts one, two, and three, women were induced to come work for Activision only to realize, and this is the language in the complaint, that those promises were empty, which effectively forced them to leave the company, right? So whenever you see a constructive, right, like a constructive eviction is if the landlord shuts off the electricity and, you know, heat to your property, right. They haven't kicked you out, but they've effectively kicked you out. And that's the allegation here. The one that's garnering all the attention is count five, and that is an allegation of sexual harassment. This is subsection J of section 12940.

0:29:25 Andrew: And here, California law is more robust than its federal counterpart. And I'm going to read you the relevant provision, right? J1, for an employer, because of sex, gender, gender identity, gender expression, sexual orientation, to harass an employee, okay, that becomes a prohibited conduct. And it says, harassment shall be unlawful if the entity knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of non-employees with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace. If the employer or its agents or supervisors knows or should have known of the conduct and fails to take immediate and appropriate corrective action, and then finally, an entity shall take all reasonable steps to prevent harassment from occurring.

0:30:20 Andrew: Loss of tangible job benefits shall not be necessary in order to establish harassment. So that is a much more robust protection against harassment on the basis of a protected characteristic in the workplace than federal law. You heard the standard multiple times, right? Immediate and appropriate corrective action. That's a stronger standard, a heightened requirement under California law. And here is where, and I should give a mild content warning here. I'm not going to get into the descriptions of sexual assault, is beginning with paragraph 46 on page 14. And there are a couple of paragraphs. So paragraph 46, this has been quoted in a bunch of places, alleges that, and this is even for a video game company, quote, cube crawls in defendant's offices were common and male employees proudly came into work hungover.

0:31:19 Andrew: Now, I interpret cube crawls as, right, like pub crawl, right? You go from cube to cube drinking. It doesn't quite say that, right. Like, no place in the complaint. And it mentions the cube crawles a couple of times. No point does it say that the employees were drunk at work, right, which is, I think you would say on information, right, like if that happened, you would put it in there. Here's how it's described in paragraph five, which is in the introductory paragraphs, and this is sort of the more, I don't want to say the more salacious, but the more evocative. At the beginning, it says, defendants fostered have a pervasive frat boy workplace culture that continues to thrive. In the office, women are subjected to cube crawls in which male employees drink copious amounts of alcohol as they crawl their way through various cubicles in the office and often engage in inappropriate behavior towards female employees.

0:32:13 Andrew: OK, so that suggests the drinking is occurring at work. But then it says male employees proudly came into work, hung over, play video games for long periods of time during work while delegating their responsibilities to female employees, engage in banter about their sexual encounters, talk openly about female bodies and joke about rape, which is pretty gross. The description of the environment. Then there are some allegations about individuals. Individuals, there is a truly sad paragraph, I'm not going to read it on the air because we don't need to, that involved a female employee who committed suicide while on a company trip. Yeah. And then it discusses sort of the incipient behavior in the office before her death. And again, if true, that's that the kind of thing you don't ever, ever want to go before a jury. Yeah, go ahead.

0:33:07 Thomas: Yeah. Is it alleging a connection between those two things? That, that, shoot, geez.

0:33:11 Andrew: Yeah. I, I will say, so again, skip ahead 30 seconds if you don't want the detail, um, the paragraph says that before the trip, at a holiday party before her death, male co-workers were alleged to have been passing around a picture of her vagina. Yeah. Then she goes on the trip, uh, she was having a sexual relationship with a supervisor. Again, again, you, typically frowned upon in the sense of the power dynamic there. The male supervisor was found to have brought a butt plug and lubricant along on the trip. Then she committed suicide while on that trip. So, yeah.

0:33:27 Thomas: Geez.

0:33:48 Thomas: Seem like people should be personally liable for revenge porn in that case, too. That'll be another, another separate kind of suit. Okay, well, that's horrible, right?

0:33:51 Andrew: It absolutely. And California has a very robust revenge porn law. Yeah. Yeah, would think so. Yeah it is it absolutely is horrible. Last kind of fact that goes into this is that apparently Activision conducted its own internal investigation into their human resources department. This is paragraph 50. And it says, female employees had raised further complaints to various HR personnel about the discrimination they faced, including but not limited to complaints about unfair parent assignments, male co-workers belittling them or minimizing their contributions, and male counterparts being promoted quickly despite their lack of seniority. Similarly, female employees complained of the harassment they suffered, including that male co-workers groped them, that male supervisor asked them on dates, and of other unwarranted harassment. Defendants failed to take reasonable action in response to these complaints. And again, remember that the standard here is failed to make immediate and appropriate corrective action.

0:34:50 Andrew: Such lack of effective remedial measures was not surprising given defendants' own internal investigation into their human resources unit noted that there was, quote, a big lack of trust and that, quote HR not held in high regard, end of quote. Multiple employees also noted that their complaints were not kept confidential. That's, yeah, about as bad as it possibly gets. So again, this is a complaint, right? These are allegations. But there's a fair amount of meat on the bones. There's a fair amount of detail here. The quotation of HR not held in high regard, given the grammatical construction there, you have to believe, they haven't attached the document, they don't have to, but you have to believe that the investigatory unit has a copy of that email, of that report.

0:35:36 Andrew: There are whistleblowers that have given them the copy of, of that investigation. So whether would ultimately be admissible, an interesting question. There is a doctrine that prevents you from introducing subsequent remedial measures as proof of the underlying. And the justification is always given this way. It is, I go into the ice cream store, I slip and fall, and the next day, they put up a sign that says, danger, be cautious. Well, on the one hand, that seems like an admission, but on the other hand, we want to incentivize them to do that. We don't want to say, okay, well, you know how to fix this, but you're not going to fix it because it will make you look bad in litigation. So it's an area where they carve that out.

0:36:03 Thomas: Right, right. Right, is that analogous here, does that apply, really? We'll so so

0:36:29 Andrew: You'd have to make the argument, but I certainly would. Would say, cannot yeah, introduce this to the extent that we thought that there was a problem, you know, we tried to fix it. And you do not want to disincentivize companies from, you conducting an evaluation of their HR department.

0:36:45 Thomas: Opening Arguments is brought to you by ZipRecruiter, folks! According to Forbes, gyms, nail salons, hotels, mom and pop stores, and more are set to go on an epic hiring spree in the coming months to meet the pent-up demand for all of these services. Think about it. Think about how many things are coming back on and are going to need to hire people fast. Movie theaters, comedy shows, the gym, all that stuff. Stuff. All these businesses reopening means that millions of jobs will need to be filled. So where do these businesses turn to fill these roles fast? ZipRecruiter. And right now, you can try for free at ziprecruiter dot com slash OA. When you post a job on Zip Recruiter, they send your job to over 100 top job sites, giving you access to their network of millions of job seekers.

0:37:33 Thomas: ZipRecruiter's matching technology scans resumes to find qualified candidates for your open in roles and proactively presents them to you. This is so important because when you're trying to fill a job, you don't want a bunch of people who are not actually right for your job. They're not really qualified, but they're just spamming their resume places. I used to deal with this back when I used have to hire. It's real frustrating because you have to filter through all that. It takes time. Well, that's why ZipRecruiter will help you, because ZipRecruiter will do all that work for you, and their technology is so effective that four out of five employers who post on ZipRecruiter get a quality candidate within the first day. And that means that spot that you need to fill, that hat that you've been probably putting on yourself, and that extra work you've been doing, that'll be filled that much faster.

0:38:21 Thomas: So right now you can try Zip Recruiter for free at this exclusive web address, ziprecruiter.com slash OA. That's ziprecruiter.com slash OA. One more time, go to ZipRecruiter.com. Zip Recruiter, the smartest way to hire. Opening Arguments is brought to you by Talkspace. We've all had a year, everybody. That was a tough year, or more, and getting back to normal is going to be tough. It's going to take time. I know it's taken me some getting used to, and I've had some mental health challenges myself. And as much as we'd all like to lean on our friends or family, and we should, but often they're maxed out, too, and sometimes for me, it feels like kind of an additional burden.

0:39:07 Thomas: I don't want to put any more burden on friends or families. And I think that's why therapy is so key. If you're struggling, by the way, you're not alone. Over 50% of Americans struggle with their mental health. I'm going to go ahead and say that number's low. I'm gonna guess that a lot of people aren't talking about it. But if that's you, you should use Talkspace. I think you're gonna love it. They make it easy to match with a licensed therapist and schedule live video sessions all from the comfort of your device. You can start messaging your therapist the same day you sign up. And that's my favorite part of Talkspace is just the ability to send a quick message. Sometimes that's all you need, sometimes that's all you can handle at that moment, and having that flexibility is really cool. Not to mention, being able to shop for therapists, that's a hard thing to do in real life.

0:39:52 Thomas: You need to find the right one, and Talkspace makes that easy. So whether you're experiencing depression, anxiety, or other problems, Talkspace is the number one online therapy platform to help you sort through any issue. There are thousands of licensed therapists available for for you to match with right now. And Talkspace therapists are experts in dozens of specialties, including anxiety, depression, relationships, and more. They'll help you start feeling better. So start feeling good with a single message. Match with a licensed therapist when you go to Talkspace.com and get $100 off your first month with the promo code OPENING. That's $100 off when you use code OPENING at Talkspace dot com. This, a lot of this sounds like a lot of very different compliance, I get that they're all united under the like equal protection and kind of stuff, but what kind of relief are we looking at and for whom here, because this is California versus Activision, so who do these victims get anything, what's what, assuming that these allegations prove true, what would happen, so

0:40:56 Andrew: Great question. And as I alluded to earlier in the prayer for relief, it says the Department of Fair Employment and Housing seeks judgment, ordering the defendants, one, to pay compensatory and punitive damages, two, to play a role unpaid wages, liquidated damages, and other remedies and penalties available under the Equal Pay Act. And that goes directly to the employees. Three, that they issue injunctive relief, Right. Prohibiting the particular policies and practices that are outlined in this complaint for that, the issue declaratory relief. Right. Five. And this, I think, is is the most relevant that the issue equitable relief, including but not limited to reinstatement and or front pay, pay adjustments, back pay, lost wages, benefits, including base pay, incentive pay, pension benefits and awards in an amount to be proven at trial. And then the other stuff. So, yes, absolutely.

0:41:47 Thomas: I guess what I'm asking is there an opportunity for other women to be like, hey, also, I didn't get such and such thing, or people, you know, because if it's California okay, so do they do like a, almost, they put a call out for this, guy, and it's not a, um, class action, right, um, and also that's why I was confused, it's non-class action, and it's Californian, reactivision, so it's not even like there's named plaintiffs exactly who are like, I lost out on this raise and I lost on this. So is there some, within the trial, or before the trial, after the trial, what's that process of people being like, well, I work at a different company right now, but when I was there, like I got screwed out of such and such. Oh.

0:41:55 Andrew: Yeah, Is absolutely that right. What they will have to prove at trial, what they will gather during the discovery phase, is they will gathered affidavits from women who worked at Activision, and the extent that they are able to prove that Activision's policies resulted in a hostile work environment, and, for example, led to constructive termination, the remedy you get from that is reinstatement plus back pay. You heard me read that whole long list. So if they forced you out in 2017, or, I, the three-year statute of limitations is 2018, but if they made working conditions such that it constructively forced you up, made you feel so unwelcome that you quit, and the court says, yeah, DFA has proven that, then they can order that you reinstate, right?

0:43:15 Andrew: And they can list down every single person. And the proof, again, is proof, right? Is a civil burden of proof, right? 50.1 to 49.9.

0:43:24 Thomas: Man, another, we're running out of time to have a bunch more questions. But as we've seen, you know, who knows, but we tend to, you have a listener who is, oh, I actually worked there from such and such. What if you, just hypothetically, if you are a woman who worked at Activision in this time period and you're listening to this, you're like, holy crap, you know? Like, you weren't involved in the lawsuit. What do you do? Do you try to call somebody? Do you try to, like, I want to tell my story, you know. File an affidavit? What do you do?

0:43:26 Andrew: So Don't take legal advice from a podcast, uh, go To, Yeah, well, no, no, but, but, but, you can evaluate this for yourself. Go to, it's dfeh.ca.gov, right? That is the Department of Fair Employment and Housing, and um, that is how you file a complaint, uh, on the basis of discrimination, on the basis of sex, race, national origin. And it's a really easy and straightforward process. They investigate your claim before then raising it. And the California Equal Pay Act specifically says that the labor commissioner's office will keep your name, claim confidential until it establishes the validity of the claim, um, only if there is a valid claim is there a possibility that your name, you

0:43:53 Thomas: Oh, just talk to a lawyer.

0:44:41 Thomas: Sure.

0:44:41 Andrew: Know, gets revealed. So, yeah. So

0:44:43 Thomas: My other question was going to be, when the court is evaluating all these things, does it help that there's a broader case about, you know, like, because I imagine, what if there's a case that's a little bit ambiguous, say, what if somebody didn't get a raise, didn't get a promotion, and you can't really prove it, you know, or something like that, but maybe the fact that there is this whole case that shows this pattern in practice, or whatever, ever shows this atmosphere, is that taken into account, does that help, or is it going to be like each claim on its own has to be crystal clear on the merits, just

0:45:15 Andrew: Again, remember, remember that at the end of the day, the burden here is preponderance of the evidence, 50.1 to 49.9. So if it is ever so slightly more likely that the company engaged in X behavior than not, yes, then can they be adjudicated liable for that. And what you will have, the crucial thing here is that will either get, facts are what are anywhere near what this complaint seems to allege, would be insane to let this go to trial. Right. You know, and so I would think there will be a comprehensive settlement, you know, with with the with the labor commissioner.

0:45:55 Thomas: The reason I ask though is like often in these things, each individual, and this is why it's so pernicious and tough to deal with, whether we're talking about gender equality, racism, or whatever, for a given case, you can always have some story that makes sense. Well, I just didn't like her experience, or I just didn't like her, she had experience but I didn't like her education level, and for any given decision there can always be some story of like, well, yeah, resume didn't make this part of the resume, and then, lo and behold, when you look at the sum total, no women are at the top, no, you know, women aren't being hired, and it's, that's why I'm wondering, if of, if it, if they're able to evaluate all of that together and say, well, okay, sure, this one decision, maybe it could have been just that you didn't like the school the girl went to, and it was kind of, you know, whatever, might have been a normal hiring decision, but given the weight of all this other evidence, it, know, like, you've lost the benefit of the doubt.

0:45:57 Andrew: Yeah, no. And A, that is an excellent point. And B, because the California Department of Fair Employment and Housing has placed at issue the question of whether there was systematic discrimination, the court will have to weigh in on that. So there will be a determination, a factual determination, as a matter of law as to whether there was systematic discrimination against women in employment at Activision. And that absolutely 100% will be—the rule is then res judicata? That is, it has been settled, and once a court has determined that there was systematic discrimination against women at Activision taking place, you can't relitigate that fact, right.

0:47:35 Andrew: That fact has been determined. And so long as it meets the requirement, it's a court of competent jurisdiction with a question squarely placed before it, and Activision had an opportunity to rebut it, that becomes settled law. And that's why you see, when you have these kinds of consumer complaints, will then see private lawsuits sort of piggyback on the back of it. And it's for precisely that reason, because the common defenses that are otherwise available to you, you'll be able to say like, nope, they cannot litigate, you don't get two bites at the apple, uh, a court has already determined, uh, that you failed to take immediate corrective action to inappropriate sexual harassment in the workplace. So, uh, yeah, so that's, it's it's a big thing and a big deal, um, and and as I, I think I mentioned this at the beginning, but but it's worth emphasizing again, um, has demanded a jury trial in this case, um, not a surprise, uh, and and I do Not think You

0:48:36 Thomas: They did it in the complaint which is what I should have known from, I had it, I almost had it, like the other week, um, did Well my final question on this, Andrew, and I guess I'm glad we haven't talked about it yet, depending, is the big headline that you mentioned, so I don't know if this is part of the suit or not, but there seems to be a big headline about, you know, inside Blizzard developer's infamous Bill Cosby suite, is that anything that's in the complaint, is this just a headline, is this a Kataku headline, so it's, people are talking about it, um, where does that come from? Oh,

0:48:38 Andrew: Almost had it So So It is, um, it is rather unfortunately spelled, the Bill Crosby suite, in this, in the complaint.

0:49:19 Thomas: In the complaint, oh, I was gonna say, in the headline I'm looking at it's not, but okay, in the complainant, yeah, right

0:49:20 Andrew: Yeah. No. And so this is paragraph 47. So reason that I didn't mention it, I mean, I alluded to it. I said there are complaints about particular Individuals, because to me, this is a much less persuasive piece of evidence than the systematic discussion of cube crawls, the game playing, the joking about rape, that, I mean, to me, that's sort of your classic hostile work environment, um, paragraph 47, right, talks about, uh, the former senior creative director of World of Warcraft at Blizzard, um, that the company put on a convention called BlizzCon, um, and that this person, uh, got drunk and hit on all the female employees, uh, crossed the line, you know, attempted to kiss them, putting his arms around them in plain view of other male employees, including supervisors who had to intervene and pull them off, and then, uh, his his suite was nicknamed, and again, it's a typo, so it

0:49:32 Thomas: Right, right, interesting

0:50:22 Andrew: Says the Crosby suite, but uh, it says the Crosby sweet, and it's twice in there, so apparently the lawyer who wrote this must have been like 24 or something, like, you know, after after alleged rapist Bill Crosby.

0:50:32 Thomas: There Okay, so, so it's under that, that broad heading, sounds gross to say the least, yeah, well, it makes me happy, I was always a Final Fantasy 11 fan, but now that I say that I'm sure that Square, what, or whatever studio that is, probably has problems too, okay, so, I, what are we keeping an eye on in terms of going forward, I assume they answer it, or or will we just go into settlement mode like right away?

0:50:39 Andrew: It sure does, there You Go There It is possible that Activision will file a motion to dismiss, I mean, again, and you, that is typically what you do as a big corporation. Just, you know, yeah, it is going to be really, really hard on these fact specific complaints, to garner a dismissal. They will have to answer them. There are a couple of things out here that have not yet sort of penetrated into the, you, Kotaku, uh, you know, kind of gaming news, um, and and one of them that I, I find really interesting from the legal geekery standpoint is Count 10, um, which is a separate provision of the labor code, it's Labor Code 432.6, which says a person shall not, as a condition of employment, uh, continued employment, or the receipt of any employment related benefit, uh, require any applicant or employee to waive any right, forum, or procedure under the California Fair Employment and Housing Act or this code. And so that suggests that there were people who were bullied into signing a document that says they would not sue Activision, a condition of continuing to work there.

0:51:08 Thomas: A stab at it, at least, um,

0:52:09 Andrew: Now, that allegation is made, right? And again, as we know, it's valid to do this in a complaint. That allegation is made quote, on information and belief. So they're entitled to take discovery and they are entitled to prove it. But it says that defendants required female employees to waive rights, forms, and procedures as a condition of continued employment. So I'm very, very interested. But if that happened, right, those documents will start to surface and we will start to see the news of that.

And again, that's, you know, we've seen that happen in other litigation, like as things develop, you Know, with non-compete clauses and the like. And so I'm keeping my eye on that. And I'm also trying to figure out what the Activision Blizzard quota system was. Was. But, yeah, so those are, those are the developments that I would look for kind of on the near horizon. Then at some point, Activision is going to have to file an answer and there will be discovery, but Activision's lawyers will do everything in their power to make sure that, this is not fought in the public eye. I suppose I should also say, I've seen some things going around, the fact that Activision has hired WilmerHale to defend it in this litigation.

And WilmerHale is just their mega firm, right? They're a huge Covington Burling coat factory. There are a couple of inflammatory pieces that say they're known for union busting or whatever, and, well, WilmerHale has like done a lot of Activision work, right, over the years and they have of their lawyers, right, they have an employment, uh, an employment law group. And so you, I certainly wouldn't read anything into, you mega firm defends, you Fortune 500 you know, company like, yeah, of course they do. Like, that's that. Now if you want to argue, you, that's one of the major reasons, or perhaps the major reason, our legal system is broken, is then with you, I'm gonna

0:53:58 Thomas: Yeah but it's

0:54:11 Andrew: Line up there

0:54:11 Thomas: Not as though they're doing anything, like, specially, you sinister in hiring this firm. No, more sinister than your typical, wealth, you know, rich company defending fending itself, which, you know, obviously might be sinister, but, but not like any more so than you would expect for this company. Alright well, we will keep an eye on that, and I'm sure our listeners will as well, and absolutely feel free to always email us those questions and updates, but we'll keep an eye on that suit going forward

0:54:14 Andrew: There is no. Right, like Wilford Brimley is not yeah yes yeah although if you worked at Activision Blizzard, let us know.

0:54:42 Clip: And thank you, Let's go!

0:54:43 Thomas: Now it's time to thank our Hall of Famers, our all-time greats on patreon.com/law. Hope you're enjoying all the goodies and the great stuff, and the q and a's and all that stuff. Let's start with, now here's something we hope you'll really like, Alex. Well, it says Alex, I think they, they had the, a good sense to say Alex instead of someone else.

Drop Table patron underscore shout outs comedian Aaron Trahan, aka Game Jumper X, hand woven, machine washable, natural fibers, kellyrovet.com, no railway pun this time, just thanks to Thomas, Andrew, the Puzzle and Thunderstorm Team, and our audio uncles for helping us, helping me through one of the, I don't know what that thing in the attic, the fat Jedi, eating cake and drinking Epers Brewery beer in the Death Star Cantina, Potato Face, If Thomas can't poke the streak, he can at least streak the pork, Liberals own guns too, support root cause mitigation, not ineffective gun control That Guy Check out Gems of Truth and Beauty A creative guided journal for personal growth by Hope Wallace Swarthy Synth Studio S 100% Thomas deserves way more credit For his role in making the left wing Non-shitty atheist podcastosphere Thank you Social Justice Alchemy contains 5% butts Ateo

0:55:56 Thomas: Tell morgan gattam son january 20 baby new employer is religious org so be extra atheist with my money okay andrew and thomas can read your name in 15 minutes or less while supplies last zach bloom ray pizza school demands more pictures of morgan's adorable corgi tucker seconded live baseball scorecards.com legal ego so handsome california employment work accident or litigation questions, call or text Attorney David Mitka 310-776-5879 Again, 310776 5879 The Smiths, my glam rock band is on tour

0:56:05 Andrew: All right. We can do that.

0:56:35 Thomas: tinyurls.com slash attractive distractors official Praise be unto Hamilton That mention was vote 50 is our fault, not his is, so let's get at it. Crazy Dog Horse Goat Chicken Lady loves the shoutouts and hopes you keep them. I upgraded to Hall of Fame for this. All right, cool. One vote. We can assume there's more than one. Rest in peace, Brandon Bernard. We must abolish the death penalty. I get a raise, you get a rise. Budget Botanist on Fiverr Plan of the Week is the cucumber, which is a berry unlike strawberries. Oh, that's a repeat Plan of The Week, but that's okay. Still interesting. Sparkle Donkey Tequila is too busy obfuscating obfuscuscatory obfuscation to come up with a better patron name this week. PSA, the official OA Patreon stock of the week is GameStop. Do not take financial advice from a podcast. The new book, Grace Gift of All,

0:56:38 Andrew: Per band.

0:57:26 Thomas: A Logical Path from Religion to Humanism by Mark McLean, out now. One fabulous lesbian taking forever to play a game of chess.

0:57:34 Thomas: Sorry for making y'all try to say my friend's cat's name. I was proving to her that I'm a patron. You nailed this cycle of World Wake rares. Give me the text on tar pit and uh celestial colonnade and we'll move on to a new cycle. Well, tar pit is three two uh unblockable and the activation cost is like one blue, black. One of the best cards ever. I love that one. Celestial Colonade is five uh four four vigilance flying, I think, and uh costs five, I believe, Brie, and a white and a blue to activate. Uh, love that one, fantastic card. I've used both of those so much. Great control deck cards for that era and and I love me some control decks. Adam Borchoff, legal services for this podcast are provided by the law office of Smith & Coyne. Well, law office hasn't been doing well lately.

0:58:20 Thomas: I missed y'all this month. Brian K., I like my pork streaks, paired with at Casa Agria and at Emperor's Brewery Beer. 75% of Tulare County's DAs have less than two years' experience, and they're doing felonies. Some are only provisionally licensed. Help, I'm trapped in this Patreon server and can only change one username a year.

0:58:39 Thomas: Lee Sharp, Judy T, David Fink, David Fank, he'll make you laugh, he'll makes you think, he likes the law and then the thing with the Kraken. Thomas Kleberg, buddy freaking Guyerson, followed Morgan on Twitter, now seeing a different side of the platform, Ben Gazi and the buttery males, Supreme Court justices should have 18 year term limits and so should Conrad Michaels, no coin at this firm has ever failed the bar exam, two fabulous lesbians, by the way, we both agree, this list is getting too long, we plan to up the rate to 20 bucks an episode to reach your name, Edgy Veggie, Bob Newhouse, sassy early tours, can't wait for Europe to be open again, les deux les bien fabuleux, Jennifer Tchaikovsky, Dnd minus cameo question mark, we have legal advice if you have coin, do not take legal advice from a coin.

This patron will soon be a former big law associate switching to legal aid criminal defense after three years defending corporations. Wow, that's an awesome decision. I have to imagine it means you might not have as much for patron, but that's okay. You know, like, that's a better use of your time and money. That's really cool. Mike Hall, Evie Huntington, Harvard alumno hood, two, e takes d5, queen takes d5, how many moves till this makes the wiki?

Well, I don't think there ever is ever going to be another move again. I think we've quit the game. That's okay. I enjoy mocking people who mispronounce adopted French words that mean a peculiar ability. I guess I'm fort teaser. Oh, so fluffy. Torsten Peel of the Satanic Temple elect. Thomas Smith, president, American

1:00:03 Thomas: Honky tonk bar association. Support your local Peruvian restaurant. Angry Mac Face. Penelope is glad Sydney got sanctioned for tripsickery. The Looks of Burn podcast, reviewing fictional depictions of trauma since 2019. This is not the greatest patron name in the world. No, this is just a tribute. Support Africa Partners Medical.org, providing volunteer US MDs and RNs to bring the latest science-based practice to African MDs in RN. Super cool. Oh, Wayne. Anyone, anyone who ever lost at poker knows better than to try bluffing a Texas bankruptcy judge. There's goat. Why is there a goat? Murray Gregerson, if you see K, tell her hi. Love, Barry McCocken.

1:00:03 Andrew: Jointing several liabilities.

1:00:42 Thomas: Minneapolis live show. Come for the subpar baseball. Stay for the super football, hockey, and men's basketball. That hockey team should be good, but they just couldn't do it this year. Hey, Wood. Yeah, blow me.

1:00:55 Thomas: Actually, we can stop reading patron names anytime we want. It's not a contract, and consideration is ongoing. Going, I wish our newborn would exercise his right to remain silent at 4 a.m. Society for the Protection of the Third Amendment, celebrating a perfect record since 1792. Put your boss on a performance improvement plan. Pass the PRO Act. Since they have the Kraken lawsuits, can we have the Godzilla sanctions? Kaiju court battles. Crime or no crime in Jake. Seattle Pete. Guardian Adeline and Godot and the Justice League. Christopher uh Brown. Philly live show 2022. I bring the scotch and cheesesteaks. Who's bringing gritty gritty canned streaks? Really go this long on pork. I feel the looming pork shadow. Laugh-O-Copter says Andrew Thomas, from the bottom of my heart, thank you for everything you guys do. Your turn, Andrew.

1:01:37 Andrew: With Thomas thank and you the to objection coin, there's a chance strangling if you're uncle keeping frank your I'm own stats gonna to allow it maybe mr gain ground on oh both a of live them, show or, in Sydney you Australia know, maybe they please both I got won't it right be vaccinated and there's till nothing October you at can earliest do. Thanks Yeah, government who uh knows? Yeah That again we'd is not a hint, love you yeah. You have You an Australian know how to play around with organization this? Just wants share out to this episode bring Bring on down social opening media. Arguments. Include the hashtag T3BE. We are all ears. Include Odin's your bar answer, exam pro your tip. Reasons, Do therefore not we piss will off pick a your winner and wife shower a that week person before with the never exam. Ending fame Really, and fortune or ever. Fame But, and fortune you know, not that's guaranteed good advice. Thank Robert M. Nothing topical this week. Stormy Decisis is off the grid. Oh, bye, Stormy. Lou.

If Republicans can pretend tax cuts pay for themselves, why why not argue ameliorated climate change costs pay for infrastructure oa brand howler monkey voodoo dolls put a pin in that another minneapolitan waiting for our live show in minneapolis now that andrew has mentioned scrums and rugby oa is my favorite rugby analysis podcast yeah uh go all blacks that's all I have to say marble distillery live show nicomo casca famed soldier of fortune at your service polly hernandez these are just simple farmers people of the land the common clay of the new west you know morons metacon 7 has a pot for pins and a pot for beans emily rainbow spence the best cardboard crack dealer in the maritimes the deck box halifax.com jason copas ian hamilton strict suing me hey arizona support aaron lieberman for governor.

1:03:00 Andrew: Spent my charity budget for the year. Help. Need everyone to roast the coin on vulgarity for charity. You know folks will do that. Stop calling him Uncle Frank. Nate Drex has to call him Dad. Who is Conrad Michaels and how can we dethrone him? What did Conrad Michael's ever do for me? Other than roads, infrastructure, aqueducts. Take burger restaurant naming advice from a podcast my fully stocked basement bar is your fully stock basement bar for a philly live show platinum event you pick what's on tap my pay bump is your pledge bump now about that raleigh live show I I love the durham area the whole greater area in north carolina I I'm ready to advocate for that jennifer cratch chicago sounds okay but you I talked to tom to said robin we will be restarting doherty our caitlin tour in cincinnati buzz uh bomb jessica adams maybe not uh civil politics radio.com fridays at 7 BME Eastern on Valley Free Radio.

Laughing my ass off because Thomas knows more about the law than a coin does. That's still true. John Bilderbeck. Give to modestneeds.org. Give to modestdeeds.com. My. My friends cousin mixed Coke with cop rocks and he died. Stephen Balticate Sandoval. Reading this name is a violation of my vessels hippo rights. Not that Chris Wallace. Philip Kizer. Andrea the Arbitrarian Capricious.

COVID showed me I am that kind of guy that wants it's a little prick sometimes patron names don't end the way you potato abscion dude pain strumpet sorry for making you use the last one for so long it was dumb anyway jonathan lord kimbote no your honor I am not a cat nor am I a potted plant but I am a karaoke legend if that helps uncle frank is just pissed because auntie pha left him milo meat

1:03:46 Thomas: Oh

1:04:32 Andrew: Song wishes all stephen briars a happy retire now alfred wallace join your labor union together we bargain alone we beg never tell all the team to put a pin in it if you're going to a large family reunion in north dakota make a clown horn reference wherever I go whenever I go to wash myself the shower gets turned on I feel targeted because my fellow patron keeps rejecting my patreon names out of hand false anonymous word origins.org your source for word and phrase origins my witty names aren't original my original names aren'T witty a series of bar suspensions each more suspendy than the the last. R.I.P. Notorious RBG. Nerdgnostic sells art on Society6. They said I could be anything, so I became two fabulous lesbians. Derek, former undisclosed red state senior executive branch official now figuring out next gig.

1:05:20 Andrew: Oh, wow. Please be kind to your veterinarian. We are overwhelmed and doing the best we can. Well, always be kind. To your veterinarian. Big easy blasphemy. It's kind of nice having a competent federal government And again, that's summitshuffleboard.com A string of unpronounceable characters RhondaTheDork.com I did go there and read some stuff Malika Chandler They said I could be anything So I became two princes who adore you Soggy Pants Fewer Cars More Bikes Sakashite Fukasumi Asking me to select all the squares with traffic lights in them Is a HIPAA violation This S has got to stop Adopt a Homeless Pet Oppose Declogging and Ear Docking Day Jury Belly At Packy Set Last Baby Heather L Matthew Vernon Adam Costa Jeremiah's fancy microwave emporium in an alley jay alden walt danny rosari eli bosnick apologies to david and brooklyn and theresa gomez that scotch comment was aimed at eli Bosnick happy birthday thomas yeah I should have done a shout out on friday where we record on a thursday and it's not we're recording this it's now your birthday yet but by the time people are listening it will have already passed but uh happy birthday my friend

1:06:12 Thomas: Shit old

1:06:22 Andrew: You sure are david and brookelyn sam to now mitchell I'm sympathetic to this patron name the asso defense is just throwing yourself on the mercy of the court and saying I effed up um by the way underrated uh tactic I agree with that 100 natasha crunch rap wants you to support the justice policy institute sam buck and of course the apex of the pyramid he who shall never be dethroned conrad michaels

1:06:22 Thomas: Years old thank you and

1:06:47 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:06:53 Thomas: And now it's time for t3be impossible uh streak porking question and you wanted to make extra sure I didn't get too confident after answering several of them correct in a row uh let's find out what's going on with this question and

1:07:07 Andrew: You you were feeling pretty good here so uh I I threw you a hard one um this is uh this question involves uh consumer from state a files a hundred thousand dollar products liability action in federal court against a manufacturer incorporated and with its principal place of business in state b um that just tells you as As you sussed out that that federal court jurisdiction over a state law claim would be appropriate here. Right.

Consumer claimed a flaw in the manufacturer's product had resulted in severe injuries to the consumer. In the answer, the manufacturer asserted a third party complaint against the product designer and also incorporated and with its principal place of business in state B. believing that the consumer had sued the wrong defendant the manufacturer claimed both that the designer was solely responsible for the flaw that had led to the consumer's injuries and that the manufacturer was not at fault and so then the question was oh and oh and the designer is aware that the manufacturer did not follow all of the designer's specifications when making the products which of the following arguments is most likely to achieve the designer school of dismissal of of the third-party complaint. And I want to say from the outset, you keyed on, again, like a lawyer, you Keyed on the correct way to parse this question, right?

Which is how do you win on a motion to dismiss? And so you eliminated, right, the only answer you were comfortable eliminating was C, the manufacturer's failure to follow the designer's specifications caused the flaw that resulted in the consumer's injuries. And you correctly realized that that goes to the merits of the claim, right?

1:08:42 Andrew: That might be a reason why they would win, but they are definitely not going to get a motion to dismiss based on that.

1:08:48 Thomas: Well I did something right that's

1:08:50 Andrew: Absolutely, you did something

1:08:50 Thomas: Good you know five years ago thomas might not have probably gotten that there's

1:08:51 Andrew: Right. Yeah, that it is, by the way, friends who just took the bar last week, right? Like you have to make certain time trade-offs. And if you are reading quickly and you're not keyed in on dismissal, you might right, say the best argument here, you'd be wrong for the technical reason that I'm about to come up to. You might say the best argument is that lack of causation argument, but you'd be wrong because this is a question about what's most likely to achieve dismissal, and that is 0% likely to achieve dismissal. So you narrowed it down to A and B went with A, as did the coin. I want to tell you, is also incorrect, so that was good. You do not need leave of court to file a third-party complaint.

1:09:39 Andrew: You only need leave of court to file a third party complaint if you do so, if you're seeking to add a claim to that complaint more than 14 days after serving your original answer, right? So in other words, if with your answer you have a third party complaint, that's totally fine. You don't need leave of court. You just file it. So then the question is, is it A, the court does not have subject matter jurisdiction over the third party complaint because there's no diversity between the the manufacturer and the designer, They're both right? Citizens of state B. Or is it D, the manufacturer's third-party complaint failed to state a proper third-party claim? And as you probably guessed from my lengthy setup, it is D and not A. Yep. You were close. So here's,

1:10:19 Thomas: Was close this is hard there are too many possibilities I definitely thought of D, but I just, there's too much else going on in this question for a non-lawyer.

1:10:26 Andrew: There's a lot going on. Here's the principle, and I don't think we've ever talked about this before. The principle is called supplemental jurisdiction, right? And the way to understand that is you were sort of struggling through, hey, if there's a complaint by the manufacturer against the designer, then would they go to state court? And remember that a lot lot of these kinds of rules are designed, Here right? You have two different legal principles sort of butting up against each other. On the one hand, you have the idea of which you are well aware that federal courts are courts of limited jurisdiction. They get only the cases that specifically come before them, right, they've got to fall, you've got either have a federal question cause of action, or you have to have diversity, or have to some of, you know, a very limited number number of cases that are spelled out in the Constitution.

1:10:37 Thomas: Yeah.

1:11:23 Andrew: You don't just have general jurisdiction in the federal courts. So federal courts are courts of limited jurisdiction. That's on the one hand. On the other hand is the notion of conserving scarce judicial resources, right? The idea that if there's a car accident, right, and 11 people are in the car accident you want to have one lawsuit, right? You don'T want to HAVE 11 lawsuits. The same thing is is true in kind of this product liability complaint here, and that is you don't want to incentivize having the manufacturer have to sue the designer in some other forum while you're litigating over the same product to the person who was hurt in one forum. So that federal court can have supplemental jurisdiction over the third party complaint.

1:12:11 Andrew: However, and this is truly, you said this was one of the hardest questions. This is a truly diabolical question for the purposes of T3BE because it involves behavior that a party would never do in real life. Okay. So let me give you the rule first.

1:12:27 Thomas: Those ones always get me. I feel like a lot of times when I don't get it, you're like, well, problem here is this would never happen, but I don't know that, so I have to like try to evaluate. But I almost, ah man, you heard me. You heard me say like, gosh, maybe it's D because of this reason, but it's just didn't see enough in the paragraph to evaluate exactly why, to stay with proper third-party claims, so you'll have to tell me, why did it fail to stay with proper Third-Party Claims?

1:12:29 Andrew: Yeah. You were so close. It could be D. Yeah?

1:12:52 Andrew: So here's the rule. And once you think about this, it will make sense. But again, there's no reason for you to have been thinking about this. So, Federal Rule 14A1 says that a defendant may serve a third-party claim on a non-party, on somebody the plaintiffs didn't sue, quote, who is or may be liable to it, that is the defendant, for all or part of the claim against it, right?

1:13:20 Andrew: And that makes total sense, right, like, so if I sold you the chainsaw you know, the chainslaw backfires and collapses, causes injury, you sue me, and I say, oh, yeah, but the manufacturer owes me for that because then I can serve a third-party complaint on the manufacturer and bring them into the lawsuit, even if you didn't know and even ifyou didn't think about it. However, this reversed the facts, right? This was the manufacturer was sued and then sought to bring bring in the designer, and the argument was, it says in there, that the designer was solely responsible for the flaw and that the consumer had, quote, sued the wrong defendant? So in other words, you parse it out, there is no allegation that the design owed anything to the manufacturer, right?

1:13:19 Thomas: So far, so good, right? Yeah. Are

1:14:13 Andrew: Was no claim for derivative liability, right, that is, contributed to the response, right? It was just, you sued the wrong person. And the way in which you would raise this in an actual answer is you would just say, someone else is responsible. Yeah, you wouldn't, that's

1:14:20 Thomas: You kidding me? Instead of, yeah, yeah, so instead of a third-party claim, you just skip straight to, like, nope, got the wrong guy, here you go. Not, let's bring them in.

1:14:35 Andrew: Exactly right. And it would be up to the plaintiff to amend their complaint to sue the right person. And you have no incentive to say, oh, I want to help the plaintiffs recover cover from you know X party, right, because that doesn't help you in any way whatsoever, so yeah, it, it, it's super tricky, and I, you know, you almost stumbled into it, yeah.

1:14:40 Thomas: Yeah, oh man, yeah. Oh boy, yeah! I don't feel so bad, You know, and I guess we can't even count this against the coin's percentage because I didn't give the coin the opportunity to get the right answer. I really should have gone between A and D. I was close to doing that, and then maybe at least the coin could have won, had the had the luck gone another way.

1:15:11 Andrew: I like I like how you're you're like, well, if I can't win, I hope at least the coin wins. Like It was a tough one. It was not fair.

1:15:16 Thomas: Well, you know, yeah this roll boy. That was that was Incredibly hard. I think I got a lot of it, but, but not quite that, you know, for this for totally riffing on second chance. This was a very close one for riffing that second chance. You know, I've lived on second chance where I just was not close. I was almost there, but I just didn't have the confidence to dump B for D, and I should have, and then, you know, it just was hard for me to figure out why it failed to state a proper third-party claim, but now that you lay it out, I get it. Wow, I learned a lot. I'll probably forget 90% of it, but maybe a little bit of this will stay in my brain for next time. That was a, wow, there was a lot to that question. Why don't we find out who our big winner is, who I'm, I've, whoever got this right probably knew their stuff, or maybe they guessed, I don't know, either way, can't wait to hear about it.

1:15:22 Andrew: Yeah. Yeah.

1:16:07 Andrew: And Right, Thomas, well, this week's winner is Craig on Twitter, and this has some real Thomas vibes here. This is going to be the first T3BE winner to not actually pick an answer. He forgot to write it in. His answer, but he says, T3B, I think the manufacturer failed to state a claim. Liability falls on the manufacturer lecturer whether the design specs were followed or not won't change that. Don't need leave to file early if you do it early, and a third-party complaint is not a new action, so there's no jurisdiction problem. Totally analyze the question completely correctly, forgot to fill in the answer space, but I love it, and we're going to give you credit. Everyone give, that is at Craig K Bryant, C-R-A-I-G-K-B-R-Y-A-N-T, everyone tweak Craig a little bit, but, uh, give him follow on Twitter and congratulations, Craig, on being perhaps the most unique winner in T3BE history.

1:16:57 Thomas: That's our show. Thanks so much for listening. Tune in to the YouTube Q&A that may have already happened, or keep an eye out for it, either way, you can watch it on YouTube, or if you're a patron, you'll get that high-quality audio in your feed, as always. Thanks so much for listening. We'll see you on Friday.

1:17:02 Andrew: Or not yeah

1:17:13 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.

1:17:47 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.