OA514: I Love It When A Plan Comes Together

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 514, coming at you from beautiful New Jersey, a place I've been dying to see my whole life, how are you doing Andrew,

0:01:30 Andrew: I am fantastic, I want to point out, for those who did not attend the semi-spontaneous Q&A, we gave you about a 45 minutes warning, but that was a lot of fun, audio

0:01:42 Thomas: Yeah, what else are you doing, working, come on, be able to attend that, a

0:01:46 Andrew: For that is coming soon, yeah, Thomas and I are, like the Peaches and Herbs song, we are reunited, it feels so good, we Because Thomas cares so much about the audio quality, we are actually at opposite ends of a hallway with two doors in between us. So even though, you know, we have been together, we're, you Know, 30 feet apart right now. And I got to tell you, Tom, I'm missing you a little bit. So, yep.

0:02:13 Thomas: Little sad, but it's okay, we'll record a great episode and then we can hug, first thing,

0:02:16 Andrew: And then we'll be that. There we go. All right. I'm good now.

0:02:18 Thomas: Yeah, with that said, we also have so much exciting news to talk about today, so much that we had to push some stuff. Yeah, up Activision, oh boy, our audience loved that episode. Um, not that it was, you know, the cheeriest of topics, but it did involve a video game company, so as expected we got a lot of response so what's the updates here

0:02:35 Andrew: Yeah, there we go. We do. So a lot of different updates. First, let's talk about some feedback. And the first is an Andrew was wrong. And I really, I really appreciate this, guys. When I was describing the allegations in the complaint, as I often do reading from the complaint. I used archaic language. I said that an employee at Activision had committed suicide. And we gave him, we talked about the circumstances surrounding that. Several of you, and again, it like the most gentle way, and I just love this, wrote in to tell me that mental health professionals uniformly suggest that we reform that language to died by suicide. And that makes total sense, right? Like, this whole idea of like suicide being a, you know, a thing you've committed, like a crime, like that's terrible. So I, I never thought about it. The, the second that people wrote in, uh, I was like, well, that makes totally sense, um, I

0:02:42 Thomas: Yeah You outraged about the kids these days in the woke mafia and you've turned into a Trump supporter on the spot because it's everybody else's fault and you shouldn't ever have to change your opinion or your mind or your behavior ever, right? Is that what you did?

0:03:43 Andrew: It it I just I just don't understand that mindset right like I'm I'm not like nobody said Instead, Andrew, you're a horrible person because you're a lawyer and not a mental health professional, right? Like, everybody was like, well, you know, you know, hey, should know

0:03:55 Thomas: Yeah. Yeah. FYI. Yeah, well, that's what I didn't know. Yeah I'm sure I've heard that but it's also like sometimes we forget things like it's not a big deal and we really appreciate the people who take the time to send us those emails.

0:04:10 Andrew: That this is best practices. Yeah. Absolutely. Yeah, Especially, with that, I'm 100% wrong on that. Thank you for the corrections, a number of folks have written in with, uh, personal testimonies, people who have worked at Activision.

0:04:21 Thomas: Absolutely.

0:04:31 Thomas: It. I love it so much. My new favorite thing is whatever we talk about, I want to hear, seriously,

0:04:31 Andrew: We've got people on the ground yeah made a point I wanted to make, and you actually will see in the, uh, in the show notes, uh, from, from 513, uh, if you got those, um, they made the point that this is kind of an unbroken chain, right? Like, the these kinds of allegations go back to the founding of Atari, and what has changed is the culture around it right Right. So, for example, the Atari 400 and 800 computers went through a code name. Right. And this is a totally normal thing. Right. Like inside a company when you're getting ready to, you. It's like Project X or whatever. And they were Project Colleen and Project Candy. And those were the names of two secretaries at Atari. And it was often suggested that that

0:04:56 Thomas: Oh, geez.

0:05:27 Thomas: But like in a good way or not good way?

0:05:27 Andrew: Uh no it was suggested that they were the two largest breasted secretaries at atari Right, like that's super gross, and like, you know, that was told for a long time as like, I mean, like a lot of Atari owners know, you know that uh, Colleen and Candy were the pre-production names for the, for the Atari computers, um, and some people even know, like, the story. And it's like, "Oh, it's 1978, so that seems quaint." Appreciate that, and please continue to share your stories. But also public developments, right? So the most important is a couple of days ago, I think on Tuesday, the day our episode dropped, Blizzard's president, J. Allen Brack, resigned. Is a good development, right? All of these, the cubicle crawl, everything, as we pointed out in our episode, is alleged to have originated with the Blizzard division at Activision.

0:05:29 Thomas: No. Oh, God.

0:06:24 Andrew: Activision acquired Blizzard in 2008 and then got rid of its partner in 2013. So, you know, been no other parent company, but Activision owns, owns the Blizzard division. J. Allen Brack was the guy, uh, who was the executive producer of World of Warcraft, and so, um, that's Blizzard's most successful game ever, right? Um and the complaint alleges him, J. Allen Brack, by name, right, says numerous complaints were made to Activision's management, including Blizzard president J. Allen Brack, So right? Again, that's the state of California, the D-F-E-H, and they name him by name, so he's out. There have also been indications that the company is taking this very, very seriously. And it's, you know, we talk We so many times about legal matters that you have to wait, you know, the wheels of justice churn slowly and you sort of have to wait for a resolution. This is a really good illustration of the opposite of that, this right?

0:06:48 Thomas: I'd say.

0:07:35 Andrew: Is a case where, because it is an, an independent state entity, right, state agency, this has already provoked a social backlash, right? And that social backlash, I think, has been incredibly productive? So the day the complaint was filed, Activision did what huge companies always do, right. They rolled out Fran Townsend, who, by the way, Fran Townsend was the former Homeland Security Advisor to George W. Bush from 2004 to 2007, so, you know, a Republican political flack, uh, to, you write this, uh, letter, email that, uh, that contained a bunch of talking points and denied everything and said you, these allegations are, you know, decade old, and they don't reflect the, you know, the current environment at Blizzard, and you know, blah, blah, blah, and said we work at a company that truly values equality and fairness, right? That was sort of the bottom line. That did not go over real well with Activision's own employees, right, so 2,000 of them signed on to an open letter to Activision Blizzard in which they criticized the company's response.

0:08:26 Thomas: Right.

0:08:46 Thomas: How many employees do you think they have total? How big is the company?

0:08:47 Andrew: They have 10, I looked it up, they have 10 thousand, yeah, no, no it's great question, And it was instantly what I thought when I said that.

0:08:49 Thomas: Okay. Yeah, that's because that's a lot.

0:08:55 Andrew: Yeah, a fifth of your current employees Signed a letter that said, "Is terrible." Here's some of what the letter said? To put it clearly and unequivocally, "Our values as employees are not accurately reflected in the words and actions of our leadership. To claim this is a truly meritless and irresponsible lawsuit while seeing so many current and former employees speak out about their own experiences regarding harassment and abuse is simply unacceptable." And then that letter made three demands. Those demands were, first, that the company issue statements that acknowledge the severity of the allegations. Second, that they fire, or that Townsend resign from her role as the executive sponsor of the Activision Blizzard Employee Women's Network. And third, that Activision Blizzard's executive leadership collaborate with employees to ensure a safe workspace to speak out and come forward.

0:08:59 Thomas: Wow.

0:09:46 Andrew: That led Activision's president to issue his own letter, which actually went beyond those three demands made in the open letter. That was issued on July 27th. And so that letter says, has been a difficult and upsetting week. I want to recognize and thank all of those who have come forward in the past and in recent days. Every voice matters and we will do a better job of listening now and in the future. Our initial responses to the issues we face together and to your concerns were, quite frankly, tone deaf. It is imperative that we acknowledge all perspectives and experiences and respect the feelings of those those who've been mistreated in any way. I'm sorry that we did not provide the right empathy and understanding. Let me say, again, as a lawyer here, writing this letter is really, really hard, Activision's president, in order to author this letter, had to go through counsel, right, hadto get their sign-off.

0:10:36 Andrew: This is written directly by the CEO, Bobby Kotick, Okay. And it does really a masterful job, right? Because one of the things that you see so often in fake apologies, you know, of all stripes, whether prompted by law or not, is the like, right, yeah.

0:10:51 Thomas: We're very sorry that you complained about what's going on here.

0:10:55 Andrew: Yeah. If you were offended or hurt in any way, we apologize for your feelings, right? Yeah.

0:10:57 Thomas: For you doing that to us.

0:11:00 Andrew: Right. And this does not use mealy-mouthed language, It says, right. We did not provide the right empathy and understanding, and I am sorry for that. We are taking swift action to be the compassionate, caring company you came to work for and to ensure a safe environment. There's no place anywhere at our company for discrimination, harassment, or unequal treatment of any kind. We're hiring Wilmer Hale to conduct a review of our policies. Now, that was already in the hopper. And they describe and they say, you should speak directly to WilmerHale, which, by the way, is best practices, right? When you bring in a law firm to conduct an investigation, you want to say, yeah, talk to the lawyers directly, don't talk to us. And they will have set up protocols that prevent the company from interest if it's a truly third-party investigation.

0:11:49 Andrew: I've done these on a small scale. So you can do that as part of bringing in a legal team to put a wall in between you and these folks so that they can feel free to speak anonymously or on the record. Then it says, effective immediately, they'll be taking the following six actions, okay? And again, weigh in on, you know, what you think about these. One, employee support. We will continue to investigate each and every claim and will not hesitate to take decisive action to strengthen our capabilities in this area. We are adding additional senior staff and other resources to both the compliance team and the employee relations team,

0:12:08 Thomas: Okay.

0:12:22 Thomas: I don't know how to evaluate that. Or should I wait till the end? Okay.

0:12:22 Andrew: Yeah, well, that just says, right, yeah. I mean, I agree with you that says we are hiring more resources, spending more money on HR. Point two, listening sessions. We know many of you have inspired ideas on how to to improve our culture, we will be creating safe spaces moderated by third parties for you to speak out and share areas for improvement.

0:12:30 Thomas: Yeah.

0:12:44 Andrew: Number three, personnel changes. We are immediately evaluating managers and leaders across the company. Anyone found to have impeded the integrity of our processes for evaluating claims and appropriate consequences, right? So anyone found to Have Impeded, I wish it said in any way, but I think that's implicit, the definition of have impeded. The integrity of our processes for evaluating claims and imposing appropriate consequences will be terminated. Strong promise. Got to see that they follow through on that promise. Hiring practices. Earlier this year, I sent an email requiring all hiring managers to ensure that they have diverse candidate slates for all open positions. We will we'll be adding compliance resources to ensure that our hiring managers are in fact adhering to this directive.

0:12:44 Thomas: Again

0:13:30 Andrew: Number five, and again, this is not present in the letter, but I think present in sort of the larger discussion, in-game changes. We have heard the input from employee and player communities that some of our in- game content is inappropriate. We are removing that content. I wish that were framed stronger as well, right? Like I wish that said we were going to form, you know, communities, right? Like, there's some, there are some game developers that really really seem to get that right in terms of, you know, having diverse and inclusive communities, um, I don't know if you've played any of the like Assassin's Creed games, um but like they're super good at that right

0:13:48 Thomas: Yeah yeah no like is that like a multiplayer so oh

0:14:09 Andrew: No it's a it's just solo single player um

0:14:13 Thomas: But what community then are you talking about I guess oh

0:14:15 Andrew: So you have in terms of player options right like for example in assassin's creed odyssey like yeah

0:14:21 Thomas: Okay so you're talking inclusivity in terms of the character building Gotcha.

0:14:24 Andrew: The Default player is female, um, you get like the quote, the best gaming experience by starting from the female character, uh, and avoids like sort of all the tropes, um, it's super cool like out

0:14:36 Thomas: Well, we haven't haven't gone gone into any of these complaints much, right? Like in-game stuff that people, but so, right.

0:14:41 Andrew: Yep yeah because there isn't really a legal component to that right

0:14:46 Thomas: Okay. Just clarifying that wasn't part of the lawsuit or anything. It's just part ofthe broader complaining about, you know, and I mean that in a positive way. It's part ofthethe broader building over the problem with the company, right, ooh.

0:14:46 Andrew: Yeah exactly Right, exactly right. So, uh, then there was a massive employee walkout uh earlier this week, and that led to the formulation of four new demands. Number one, an end to mandatory arbitration clauses that protect abusers and limit the ability of victims to seek restitution. We've talked about that a little bit. Now, I want to tell you that particularly in California, your ability to require waivers, right, there are certain rights that cannot be waived in arbitration causes. And California is the best state in the country to challenge a substantive waiver. So of that is on the flip side. But I will tell you, as we have said, arbitration clauses are meant to discourage litigation. And so need to see kind of where this goes forward.

0:15:46 Thomas: I think you've also said, though, like, not evil by default, necessarily. Though, right?

0:15:51 Andrew: Right. Look, And there are many many cases where you would want, right, to discourage litigation. Not for a nefarious reason, but really simply for a, like, if all of the participants are sort of on a roughly equal footage, right? Then you wouldn't draw any kind of adverse inferences from that, right. So my my small business client, right? Like if you had an arbitration clause with your company, it comes by a Mosier law, it's, you know, hard to say that that's like super oppressive, right. It means, hey, if you hadn't, and I pull that example up because I had a dispute with my landscaping company like 10 years ago, we had a drought.

And right, like literally my lawn was brown and dry because it hadn't rained in three months and I had hoses sort of like stretched across it. But I couldn't turn it on because, you know, it was a drought. You were not allowed to use water. Right. You know, and and I got I got billed for three months worth of lawn mowing services. And I was like, I'm pretty sure you didn't run a lawnmower over the like the hoses I have stretched across my dead lawn. On. So anyway, that's

0:16:49 Thomas: Yeah.

0:17:04 Andrew: Why that came to mind.

0:17:04 Thomas: New podcast, new spinoff podcast, Andrew fights ordinary everyday legal battles that the rest of us would be like, okay, yeah, whatever.

0:17:09 Andrew: Andrew yells at cloud. Yeah. Yeah, no. Anyway, end of mandatory arbitration clauses. That's a big put a pin in that one, A right? Company-wide diversity, equity, and inclusion program.

0:17:23 Thomas: You know, sorry. Before we move on from that, I think that's an interesting thing for them to do. I mean, I think arbitration clauses have gotten a lot of negative, deserved negative press lately, and And maybe it could be a competitive advantage for a company to be like, hey, we're not going to do that to you guys. Like, actually, our company, we won't make you sign something like that. And who knows? Again, I don't know substantively what that does, but that could be interesting for that to be a way that companies compete for talent.

0:17:54 Andrew: Yeah absolutely right. I mean particularly we have a model for that. We have discussed it on the show at some length that California really paved the way for the employer side saying, we don't want to have broad-based non-competes that say you can't compete in the same industry. In fact, we want startups to be able to go raid key people at Google. That's what Airbnb did. They went to Google, they hired a whole bunch of of people who were in the middle of the salary structure and were like, how'd you like to come over and get a whole bunch of stock options, right? And you can't work for a similar competitor in the same field for two years, so right. Even though enforcing those kinds of non-competes was thought of as pro-business, business-friendly, California really turned that into a pro- business argument for not enforcing it. So that's a long-winded way of saying, I think that's really, really smart, Thomas, that you could develop a pro business reason to say, why we're not going to use this mandatory arbitration tool. So

0:18:26 Thomas: I can't believe I just thought of the idea of treating your employees better and then maybe people will come work for you. I just look, I'm not going to patent this idea or whatever trade market. Everybody use that feel free to use that one all employers

0:19:22 Andrew: I'm glad we're given that to the ether. Yeah, it has maybe some ramifications for those claiming a labor shortage right now. But we definitely have to put a pin in that one. All right. So point one, end mandatory arbitration clauses. Point two, develop a company-wide diversity, equity, and inclusion program. Yeah, if Activision doesn't have one of those, with 10,000 employees, you need to have one of those. Number three, and this is the point that they should agree to immediately, and we discussed it in the context of the lawsuit, that is transparency initiatives, right? To publish data on relative compensation among individuals with the same or similar jobs, right, the more the company controls that data, the easier it is for implicit biases to manifest themselves, let alone explicit ones.

0:19:31 Thomas: Yeah yeah yeah you know yeah

0:20:12 Andrew: Yeah, I yeah.

0:20:12 Thomas: How would you feel about either state or federal laws about this kind of thing you know what's the what is even the good like ostensible good argument for salary confidentiality why is this not, and, um, in California, for example, you can go to the Sacramento Bee. This is, again, because I worked for the state and went through all this. And you can see what every single state worker makes, because that's part of the, you know, what they decided for state workers in California, that they'd want that transparency, etc., etc. It seems to me, if we do that for something like state government, why not do that for a really big company? Well, everybody, you So that we can have the information to know better whether or not discrimination is happening.

0:21:01 Andrew: And look, that kind of information access gathering and sharing has been at the core of unionized activity right since the 20th century.

0:21:11 Thomas: But do you know what even the other side of that is? Is there something I'm missing? Or is it just like, well, I want to be able to make a lot more than my female co-workers and not have to tell you about it.

0:21:22 Andrew: No, I think it is. Do not think the lack of disclosure is designed intentionally to shield discrimination. Right. I think it is designed to maximize the employer's comparative advantage vis-a-vis the employee of, you know, being able to talk about like, you know, if the average person in there and, you know, you see this a lot in programming more generally. Right. In which we have a number of folks in the industry in this country on H-1A and other visas, right? Who, you may be coming from non-U.S. environments and literally have no idea, right, what the common salary structure is, right.

0:22:12 Andrew: And so, you know you say, oh our programmers usually make between x and y and you have somebody who this is their first job in the United States, right and you're like, oh well and we are pleased is to offer you one-seventh X, I right? See that all the time, in right, terms of the taking advantage of the lack of information. So I maybe I should edit the statement. We're obviously going to leave it in, but as I'm thinking, guess that steps up to the line of conscious discrimination. I think of it as exploiting an information advantage, which goes goes beyond protected classes

0:22:47 Thomas: But there's no... Okay, point is, there doesn't seem to be any genuine... That we know of, of course. Any genuinely like good pro-social, any, I don't know, reason for this other than, like, well, you know, it lets companies kind of maybe do a thing that, who cares if we let them do, like, I, you know, it doesn't, it's not helping me, it's not helping you, okay, got it all right

0:22:49 Andrew: Yeah yeah and then the last point is to have that diversity, equity, and inclusion program hire the third party to conduct the audit of Activision's procedures. And, and my guess is that that probably is something that they will push back on. And, uh, not, I have seen, we talked about this in in the last episode, I've seen some bad takes on, you know, well, well, Wilmer Hale represents blah, blah. And again, you're talking about, you a huge multinational, multi-billion dollar law firm, right? Like they do these kinds of activities.

I did this kind of activity on behalf of Adelphia Communications 15 years ago and, you know, was part of a team to independently gather data. And those were my instructions, right, to To go out to, oh, gosh, I'm trying to remember the tiny little town. It started with a C. It was like Coopersmith, Cowdersville, Pennsylvania. It's all coming back to me now, which is a town of like 500 people that the Reguses happen to live in. So, you know, it kind of has that like Back to the Future 2 sort of vibe to it of, you know, where Biff like puts the huge mega casino in the middle of Hill Valley, California, California population, 50.

0:24:25 Andrew: And that was very smart, very, very much what what countersport was was like. But all that is my way of saying will find bad folks, you know, that that Wilmer Hale has represented because they're a big law firm and like they'll be involved in some good litigation. It's a bad litigation and whatever. I I've seen those pieces. I was going to talk about it. But you guys, you know my position on this. I'm a shill for big law. But no, I mean, I think that they're perfectly capable. And Activision has already spent a ton of money having WilmerHale conduct the audit. And they're not going to just throw that away and start over because, you going to convince, they'RE to say, hey, here are the firewalls that we set up. Here are the procedures that we put into place.

0:25:12 Andrew: Here's how we're going going to make that transparent that we did nothing to put our thumb on the audit. So that would be my prediction. But look at, again, we're to keep following the story because I want to see what they do with the arbitration clauses, and I want to see What they do With respect to transparency, I think those two things would go a long way towards setting best practices in the industry. And maybe being able to reach, a compromise settlement with California that truly that, does make everybody happy. So we'll find out.

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0:29:48 Clip: Down the law, down the law.

0:30:06 Andrew: So we have been talking about, and all eyes have been on Michigan. But as we pointed out to you, there have been and remain a number of pending sanctions motions in other jurisdictions, right?

0:30:21 Thomas: Which is like, as we pointed out to you, there are many States in which these people are getting their asses handed to them. Is that, yeah.

0:30:22 Andrew: Right. Yeah. Well, and this is what I love about this. So, this—what dropped yesterday was a 70-page ruling in Colorado granting sanctions. And this is not even a Kraken lawsuit. This is a knockoff Kraken law suit. OK, this is we touched on this very, very briefly when it got filed. These two jokers are Gary Fielder and Ernest Walker. And if you've never heard of them, that's the point. They're the ones who went into Colorado, which is the home of Dominion voting systems. And they sued Dominion and they sued Facebook and they sued all of the secretaries of states in Pennsylvania and Michigan. They quoted at length in a footnote from a Molly Ball article in an op-ed in Time magazine, you know, describing how various parts of the Democratic Party came together in 2020 to, you know, elect Biden and oppose Trump. And without a shred of irony, quoted it as evidence for RICO claims of a conspiracy that they amended their complaint to add. It was right

0:31:37 Thomas: Hold on, hold on, hold on a conspiracy of people on the left trying to get rid of Trump, like just by voting like that's the every election is a rico level event I guess

0:31:42 Andrew: Yeah I it was here's here's the one sentence that will summarize their complaint it was a document Sidney Powell would not sign. Okay, so everybody involved moved to dismiss. Then they amended their complaint. That's when they added the RICO stuff from the Molly Ball article. Everybody moved to Dismiss again.

0:31:49 Thomas: Wow would she put lynn wood's name on it though that'sthe dumbest sentence you've ever said sorry I just that's incredible that'sincredible

0:32:18 Andrew: It's Fair. Everybody moved to Dissmiss again, and the court was like, yeah, of course we will grant grant that motion to dismiss. And then, by the way, everybody wound up moving for sanctions. Right. So Dominion, Facebook, a weird group. I don't even know what their connection is. That abbreviates to the CTCL. It's just organization, an Illinois non-profit company called the Center for Tech and Civic Life. Um, and if you want me to explain the role they had in hacking the election in Arizona to deliver, yeah, good for you. There's not a chance I can figure that one out.

0:33:05 Andrew: It's bonkers. So Facebook, Dominion, the Center for Tech and Civic Life, which they abbreviate as CTCL, I'm going to go back to doing that, all moved for Rule 11 sanctions. They all followed the process we talked about in Michigan. The governor of Michigan was also sued in this lawsuit because, like I told you, everyone was sued in this lawsuit, right? So Governor Gretchen Whitmer, Secretary of State Jocelyn Benson from Michigan, moved for Rule 11 sanctions. Also, Pennsylvania Governor Tom Wolf and Pennsylvania's former Secretary of the Commonwealth Kathy Buchvar, moved for inherent sanctions because they were were dismissed out earlier. But the point of all of it is, this is a nonsense lawsuit. You knew it was a nonsense law. And we are demanding that you pay our attorney's fees for us having to defend this nonsense lawsuit and also for us to have to seek sanctions against you.

0:33:58 Andrew: And I'm going to cut to the punchline. So the punch line is, in the Colorado case, nobody sought to disbar these these two joker attorneys. I don't know why somebody didn't throw that in. Um, they clearly should be, they're clearly bad faith actors. Um, they just said, we want you to pay our legal bills. Uh, and the court in Colorado is like, yep, you will pay in full the legal bills for filing and defending the motion to dismiss, uh, and for the sanctions motions and all the briefings in connection with that. So, so that's the end of the punchline, the relief that all of the defendants requested was awarded by the court. What makes this critical, and the reason that this then got cited yesterday in the Michigan proceedings, is that the court does an amazing job.

0:34:47 Andrew: There is no doubt this is a U.S. district court judge in for the District of Colorado, well aware that he is not writing on a blank slate, right, that that this opinion was going to be cited and used and looked at in all of the other pendings motions cases. Cases, because it addresses the kinds of arguments that were made explicitly in Michigan, and in fact probably made with greater emphasis. What do I mean by that? If you turn to page 52, this is section 10b of the order. And the fact that we're in 10b, and sometimes it goes like 10b little one, It lets you know this is a very comprehensive opinion.

0:35:37 Andrew: It says here, have argued that we cannot consider in any way the truth of the factual allegations because there hasn't been an evidentiary hearing. It, right? That sounds a little familiar, doesn't it? And the court says, you know what? We're going to give that one to you. The court need not draw conclusions about the truth of the factual allegations in the complaint, an amended complaint, to impose sanctions based on inadequate inquiry. At the oral argument on the motions for sanctions, I questioned all parties about my ability to draw definitive conclusions about the validity, or conversely, the frivolousness, of plaintiffs' factual allegations of a RICO conspiracy and widespread election fraud. And as the plaintiff's counsel pointed out, in this case, there have been no evidentiary hearing on the substance of the allegations and no witnesses testified.

0:36:27 Andrew: So as incredible as some of the allegations may be, including Mr. Fielder's assertions and oral argument that China and Italy were involved involved in manipulating the Dominion machine's voting results. Sidebar, wow. To say that stone facedly to a judge is pretty amazing. It would be difficult to make any definitive factual findings about the ultimate truth or falsity of plaintiff's claims. So this is saying, right, this is a clear message to the Campbell, Kleinhandler, Sidney Powell position of, well, you're going to say say, terpsichore is not a valid spider, isn't a good witness, like, let's bring them in for an evidentiary hearing. And you'll walk away impressed with, you know, how smart spider is.

0:37:14 Andrew: And the court is not going to grant them an evidentiary healing. The court's going to be like, fine. I'm highly dubious that the failed auto mechanic who lied about his service is going to be a great expert witness. But you know what? We don't have to determine that. Here's what we have to do. Quote, nevertheless, in assessing whether to award sanctions, I am entitled to assess and make findings about the scope and reasonableness of plaintiff counsel's inquiry and investigation to determine whether it was proper under the circumstances for a lawyer to have ever made the allegations in a public court filing in the first place. Rule 11 requires that the attorney personally certify, after an inquiry reasonable under the circumstance, that the factual Actual contentions have evidentiary support or, if specifically so identified, will likely have evidentuary support after reasonable opportunity for further investigation.

0:38:03 Andrew: This requires an attorney to investigate to determine whether the allegations in a complaint are well-grounded in fact. It is not a responsibility that can be delegated. And then we go into the specifics in Colorado. Plaintiffs make extensive citation of their complaint and proposed amended complaint to multiple sources and reports suggesting or concluding that there was fraud in the 2020 presidential election. These include citations to allegations and other lawsuits, plus affidavits and reports, with scare quotes, prepared by third parties submitted in those other lawsuits. Yet, there was substantial... Oh, no, I have to read this part. Sorry. I was going to skip it on. In oral argument, plaintiff's counsel defended the repetition of those allegations, saying some of them were made under oath, some were filed by members of the bar, referencing, among others, the owner of the MyPillow company, Mike Lindell.

0:39:02 Andrew: Mr. Fielder argued that these are serious people who are committed to disclosing the truth. Yet there was substantial public evidence that these were not serious people, and numerous courts' rejection of the lawyers' arguments and factual claims should have put plaintiffs' counsel on notice to be very cautious before repeating these damaging allegations via massive cut and paste job without additional strenuous verification efforts. So then, yes,

0:38:59 Thomas: Is that an official court designation you know serious versus

0:39:30 Andrew: Yeah, we have, that is right. We have, it is a matter

0:39:31 Thomas: Not serious don't tell me what I am don't I don't want to know I don't I'm not serious person either

0:39:35 Andrew: Of law that Mike Lindell is not a serious person. I love that. You may now cite chapter, you may cite to a case that says Mike Lindell is not a serious person. And since we know David Fink is listening to Opening Arguments, please do that. One of the traps that the judge led the plaintiff's lawyers down in this case that that mirrors the traps in the Michigan case was the judge said, you hey, ever talk to Sidney Powell? Did you ever talked to Lin Wood? And these lawyers were like, oh, no, no. We did this all on our own. We never did. Right. And then the court was like, well, that's weird. If you're going to quote their allegations from their lawsuits, maybe you should have talked to those lawyers. Right. They

0:39:39 Thomas: I Oh,

0:40:20 Andrew: Should have done the same with the experts whose affidavits or reports they were citing. Instead, plaintiff's counsel spoke to no one. Indeed, in oral argument, Mr. Fielder was quick to say he did not know Sidney Powell and had never spoken to her or to Lynn Wood, and yet Mr. Felder and Mr. Walker cited in their own complaint allegations from lawsuits from those two attorneys. Rather than hiring an expert pre-filing, they spoke to none. It appears that plaintiff counsel's process for formulating the factual allegations in this lawsuit was to compile pile all the allegations from all the lawsuits and media reports relating to alleged election fraud, and only the ones asserting fraud, not the ones refuting fraud. Put it in one massive complaint, file it, and see what happens. And if you think that I'm just paraphrasing there, no, no.

0:41:01 Thomas: God. Yeah.

0:41:05 Andrew: It directly says, then file it and, scare quote, see what happened, end scare quote. Them.

0:41:09 Thomas: Question from listener Thomas S. Do judges, courts, et cetera, do they tend to look favorably on putting a bunch of crap into a document and filing it and seeing what happens?

0:41:21 Andrew: They do not. And I'll end with not a great legal strategy. And what I'll end with was, from this portion of the brief, is lawyers' repeated citation to wild claims made by Donald Trump. And again, this is a process, we're going to get into it in 30 seconds, that Donald Campbell, on behalf of Sidney Powell and and Howard Kleinhandler, has emphasized in their filings, right? Like, look, we can't be sanctioned for this. Lots of people believe the election was stolen, so how

0:41:22 Thomas: Oh, okay. So not a good legal strategy. Okay.

0:41:55 Thomas: Oh, yeah.

0:41:55 Andrew: Can you hold that against us?

0:41:57 Thomas: Therefore, we get to do whatever we want. Yeah.

0:41:59 Andrew: Quoting from the court here, Mr. Fielder's only justification was that the source was the President of the United States. This allegation was included again in the proposed amended complaint. Close

0:42:08 Thomas: Oh, Hold on, are we about to get a legal designation of him not being a serious person? Because I would, I would love that. I would absolutely love that. Him and Mike Lindell both declared not serious people in a court filing. Oh, I'm

0:42:19 Andrew: What we get is under the circumstances of this case, with this election, with this insurrection, with the ongoing threats to election officials and company employees, including in a federal filing as if it were true such an inflammatory and damaging allegation without any attempt at verification merely because the outgoing president had said it was reckless and did not represent a reasonable inquiry under the circumstances.

0:42:48 Thomas: A fan of this court yeah

0:42:49 Andrew: So as you might imagine, there was a flurry of activity in the case we've been tracking directly, the Michigan case, right? And again, the reason we focused in on Michigan is because that's the first sanctions hearing, but I think far from the last, seeking to disbar these people, right. Super glad that these idiots in Colorado are going to have to pay six figures in legal fees to Dominion, to the state of Michigan, to the state of Pennsylvania, and to Facebook, okay? But what I really want is what David Fink wants, right? I want Sidney Powell to never be able to practice law again, right, I am embarrassed for my profession that I share it with her in some way, and I would like for that to stop. So briefs were due in Michigan yesterday.

As you might imagine, there was a flurry of activity. We're going to talk about the city of Detroit. We are to talk about Governor Gretchen Whitmer's reply. First, I put a semi-pin in Donald Campbell's reply brief, mentioned we were running out of time at the end of of episode 512, that there was this bizarre reference to fraud vitiates everything, and then a citation

0:43:05 Thomas: Yeah yeah

0:43:59 Andrew: By Howard Kleinhandler to that 1878 Supreme Court case, U.S. versus Throckmorton. And then I went and looked and found that this is just sovereign citizen bullshit, right? That it's total nonsense. And David Fink did the same thing. And so in his brief, he says, as quoted extensively, they're not practicing law. They're citing internet memes, right? The response back by Campbell is so unbelievably stupid that I have to read it, okay? Campbell says, first, Supreme Court opinions don't have expiration dates. Either they're overruled or they remain law. The city cites no precedent over ruling Throckmorton or the fraud vitiates everything maxim. Second, a Supreme Court opinion doesn't stop being law just because it's cited in social media.

0:44:47 Andrew: And third, the legal maxim cited in Throckmorton remains good law and the city's attorneys know that. They were counsel of record in a 2014 lawsuit in which Judge Lawson cited the fraud viciates everything it touches principle. And then there's a citation. The city's characterization of fraud vitiates everything is deeply unfair. That's their response. I want to go back to the original allegation and just you tell me, right? This is what David Fink said. So he does not. This is a reply brief. David Fick does not get another bite at the apple. He said this before Donald Campbell gave that sort of blithe reply. Lie. This court was, by the way, page 9 to 10 of their brief that we talked about in it says, first impression, plaintiff's citation to an obscure 143-year-old Supreme Court case that does not support their position is puzzling.

0:45:37 Andrew: Throckmorton was last cited by the Supreme Court 75 years ago. See Knauer versus United States, 328 U.S., 654, 1946. OK, that that is super important, right? Like this is to say Throckmorton is not right. There are plenty of cases that are, you cited over time, right, like the I've talked about the Caroline Products decision, right. Right. We're in the footnote. And that case is from the early 20th century. Right. Like it. Supreme Court decisions don't have expiration dates because, you lots of them get cited over time. This is not one of those.

0:46:10 Andrew: Right? This is a crazy, tiny case about, you wrinkle in real property, which, by the way, held against the parties seeking to invalidate the transfer on the basis of fraud. Right yeah it's not precedent

0:46:10 Thomas: Oh please are you gonna break this down for us at all I Know we're short on time, what is the, what is it, what is case, what happened?

0:46:27 Andrew: Yeah okay Right, I, I was, was going to spare you, but Thomas, you asked for it. In this case a bill in chancery is brought in the Circuit Court of the United States for the District of California. The object of the bill is to have a decree of the court setting aside and declaring to be null and void a confirmation of the claim of one W.A. Richardson under a Mexican grant to certain lands made by the board of commissioners of private land claims in California on the 27th day of December, 1853. That was not explicitly helpful, yeah, well, that's because we don't have actions in chancery anymore.

0:47:04 Thomas: Does not answer my question wow

0:47:10 Andrew: We don't have chancery courts anymore. California is now a state. Yeah. So basically this was set to this is this is that that is that is what I'm trying to get at. Yeah.

0:47:17 Thomas: This is gold fringe on the flag right okay But what are they even thinking? This says, like, essentially they repeat that maxim of "gold fringe of the flag" or "fraud vitiates" whatever, and it's like, if they think somebody committed fraud in this election, they get to do whatever they want. Is that the thrust of it?

0:47:40 Andrew: So here's the language they're quoting out of context. It appears in three portions, right? The argument was, you procured this land fraudulently. Therefore, we want an order that says you don't have a right to be on it anymore? And so here's the first instance. There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments, okay? The election, by the way, is not a contract, document, or judgment. Judgment. Next, fraud vitiates everything and a judgment equally with a contract, that is, a judgment obtained directly by fraud and not merely a judgment founded on a fraudulent instrument for, in general, the court will not go again into the merits of an action for the purpose of detecting and annulling the fraud. I don't know that helped you.

0:48:27 Andrew: That repeated the same thing. And then finally, at the end, we have maxim that fraud viciates every proceeding must be taken, like other general maxims, to apply to cases where proof of fraud is admissible. Then there's a but, but where the same matter has actually been tried, or so in issue that it might have been tried. It is not, again, admissible the parties to stop to set up such fraud because the judgment is the highest evidence and it cannot be contradicted. So in other words, even in the case that says fraud vitiates everything, they lost because they lost on and it had been previously determined. And you can't raise fraud again anew a second time when you already have a judgment on record with respect to that instrument. So the internet gold fringe on the flag is, see, the Supreme Court says fraud vitiates everything.

0:48:27 Thomas: No, didn't help. Doesn't help for

0:49:20 Andrew: That means if there's fraud in an election, it vitiated the election. That means there was no election, and so we can go into court and ask the court to do things it obviously cannot do because fraud vitiates everything. And I will point out, and I think you will recall this. I mean, we played this during Law and Awful Movies. Howard Kleinhandler gives that answer in court to Judge Parker, right? Judge Parker says, what's the basis for your relief? And he says, well, among other things, U.S. versus Throckmorton, 1878, fraud vitiates everything. And Judge Parker was like, got anything a little more recent than that? Yeah. And that's And that's what led to that colloquy.

0:49:54 Thomas: The love of God. Yeah. Just is like, oh, this is gonna be a long day. Okay.

0:50:03 Andrew: Yeah. Look, I am very careful not to say anything that might sound like it's adjacent to nonsense. If I were trying an admiralty case, right, I think in my head would, right. Because I'd have to be like, okay, your honor, I'm going to speak to you about admiralcy law. I want to be clear. That's because there's a boat here. Right. Like, I're not set. Right. Like, of course.

0:50:24 Thomas: I am dressed like Captain Crunch, because I want to make clear that this is actual admiralty law.

0:50:25 Andrew: Yeah. And the fact that Klein Handler, he knew 100 percent he was dog whistling for his asshole clients. Right. It absolutely. I'm so proud of David Fink for pointing that out. Campbell's right. So now I've read them back to back. Fink wrote the detailed deconstruction. Construction, right? Throckmorton was last cited by the Supreme Court 75 years ago. The source of this, quote, "lawyering," becomes apparent with a quick internet search. Throckmorton and the phrase "fraud vitiates everything" have become a meme on extremist social media accounts, where it is repeatedly parented as a basis for overturning the 2020 election.

And then there's an exhibit attached to Exhibit 7 of tweets citing to Throckmorton, right, and it's extensive. That Throckmorton has made the leap from uninformed social media commentary to citation by plaintiff's counsel as the legal basis for this far-reaching and unfounded lawsuit demonstrates that the suit has been driven by partisan political posturing entirely disconnected from the law. This lawsuit is the dangerous product of an online feedback loop, with these attorneys citing, quote, "legal precedent," derived not from a serious analysis of case law, but from the rantings of conspiracy theorists sharing amateur analysis and legal fantasy in their social media echo chamber.

0:51:48 Thomas: Yeah.

0:51:48 Andrew: You know, hallelujah.

0:51:48 Thomas: This is exactly the kind of crap that these people love, these right-wingers. It has to be something old-timey. It Has to appeal to like some, you know, and what I love about that is, correct me if I'm wrong, but like you went through the case and they just referred to the principle that fraud vitiates everything, right? But the case doesn't actually go the way they would even and needed to go.

0:51:52 Andrew: Yeah,

0:52:14 Thomas: So like, wouldn't they be better off just saying, well, we think fraud vitiates everything. Like what does even citing that case do? Because all that does is mention some sort of vague principle that again, didn't help them in that case.

0:52:13 Andrew: Yeah. Yeah, the case shows the limits to fraud vitiates everything because why

0:52:30 Thomas: It's just the last time it was written down in a decision.

0:52:29 Andrew: Do, you know, sovereign citizens cite to the uniform commercial code of the United States, right? Like, yeah, yeah.

0:52:37 Thomas: You know, I shouldn't ask. I shouldn't ask. You're right. Don't why don't yeah

0:52:44 Andrew: Because here's what happened, I right, think this happened in multiple ways, right. Right. Like I think the first five people kind of went on and did, a Travis Wester. Right. They were like, well, I'm real. Like, how can you say there's no standing? Right.Like if an election was fraudulent, of course, a court can order a new election. And they typed into Google, you fraud overturn. And it popped up the phrase "fraud vitiates everything." And they're like, oh that sounds good. Where does that come from? And when you type in "fraud vitiates everything," the last time it was cited in the Supreme Court it right was Throckmorton, or who knows, like I don't know why that case popped up to the top, but a bunch of people were like, see, the Supreme Courts says it. So, and then it just got this wild feedback loop

0:53:04 Thomas: Yeah I like when uh travis wester tried to cite cases that aren't good law anymore and if you want the yeah exactly I don'T WHO SHOULD BE MORE INSULTED IN THAT COMPARISON travis wester or these people I The one thing Travis Wster has going for him is that he's not a freaking lawyer. That's the one.

0:53:34 Andrew: The the dissent from another circuit yeah that was that was great let's let's let's say equally yeah right so

0:53:51 Thomas: It's like, yeah, okay, I'm terrible at the law, but I'm not a lawyer. So, okay. Anyway, all that aside

0:53:56 Andrew: So campbell's Response is just as tone deaf and as stupid as you can possibly get. Like, I had to say Throckmorton is to a good case, I. It's like saying the Uniform Commercial Code does in fact exist, right? Yeah. The argument wasn't that Throckmorton isn't good law. The argument is the reason that's the first phrase out of your mouth is not because you independently decided an irrelevant case that went the other way from a century and a half ago was your best argument. The reason was because you're dog whistling to your dumb online followers and you know it.

0:53:56 Thomas: Yeah. Yeah.

0:54:31 Thomas: Well and Throckmorton being good law for what like what would it actually be good law four like what kind of case

0:54:37 Andrew: Yeah, right. I mean, it would be for the interpretation of land instruments right like in in uh uh colonies that have passed right yeah Yeah, is it? It's also good law for the dicta of "fraud vitiates everything." And again, the dictive fraud viciates everything, right, in contracts or judgments. Like that, that is good law.

0:54:46 Thomas: Cool it's good law that Andrew Sure.

0:55:01 Andrew: Right, like, yeah, it is to say if, if you go to court and like your brother, uh, managed to get himself appointed... We did, a judge. And you're like, "hey, man, can you write out a judgment, you know, against Andrew Torrez for a million billion dollars?" And then I'm going to go enroll that judgment. Right. Like, I could go into court and be like, "Thomas Smith just had his brother write this," like, it's fraud.

0:55:00 Thomas: I

0:55:23 Andrew: Fraud vitiates everything. Strike down the judgment. You know?

0:55:22 Thomas: Don't really think yeah but I don't even know that the case adds anything and like that's just fraud does does the statement fraud vitiates everything add anything to like you committed fraud yeah

0:55:30 Andrew: Yeah. Yeah, well, that is in in the sense that it implies, again, hard to get inside the head of lunatics in the sense that het implies.

0:55:42 Thomas: We shouldn't have tried I'm so I'm so sorry but

0:55:45 Andrew: No, no, no. It's fine. That's what we do on this show sometimes, that it implies that there there's always a remedy when you allege fraud. Right. Like that's the most most charitable interpretation I can give to this insane argument.

0:55:45 Thomas: Okay okay yeah I suppose I see why they think that applies, I guess. I

0:56:03 Andrew: Yeah. So let me go super quickly through the rest of the filings. I know we're running late, that was worth a discussion on Throckmorton, definitely. Emily Newman filed a brief. Her new lawyer filed a brief. You probably will not see a motion to strike this because the brief is bad and doesn't help, uh, but these were reply briefs and she didn't file an opening one so, um, generally speaking you don't, you don't get to be like, uh, I'm not gonna file an opening brief but I am gonna file a reply, um, that's not the way any of this works, um, yep

0:56:34 Thomas: Feel like that one sentence pretty much sums all of this up

0:56:39 Andrew: Um again this repeats But nevertheless, Emily, gave you some hints in episode 512. I said if I represented Emily Newman, you would file an affidavit from Emily Newman as to the amount of time she spent on the case. You would attach her billing records. You you would attach her contemporaneous notes, right? You would prove via admissible evidence, that is, an affidavit sworn under oath that she only spent five hours on the case and that it's her first day. I guess it shouldn't surprise you that this reply brief does not contain such an affidavit. It just repeats the same argument. It's my first day, it's five hours, I don't even know these people? Who am I? Why am I here? Also, contains a flat-out false allegation.

0:57:24 Andrew: It says that the City of Detroit made no effort in its brief to address her role, and so therefore the court should presume that these arguments by counsel are evidence. Number one, that's not the way this works, right? Counsel's argumentation is not evidence regardless of what the other side does with it. But, right, it's also a flat-out lie.

On page 14 of the City of Detroit's initial brief, it says, Rule of Professional Conduct 8.5a states that a lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction, end of quote. And then it says this rule applies to each and every one of the lawyers in this case. Now, if I read that for free for the show, why can't Emily's lawyers read that? Me mad, right? Because I'm reading it and going, yeah, brief did indeed mention you, right, like, did they just control F for Newman. By the way, if you do that, you still get six references to Emily Newman. Now, those references are all to service of process. They're to whether she got the rule 11 motion. But man, counsel, read the whole brief.

0:58:29 Thomas: Boy this is some bad lawyering on top of bad lawyering like just stop digging emily stop digging all

0:58:37 Andrew: All right. Next up, we have a reply brief by Lin Wood. You might recall that my principal criticism of Lin Wood's opening brief was that while continuing to repeat the Powell, who would that person with whom I have appeared on Newsmax 500 times be, right? In addition to repeating those obviously preposterous arguments, failed to rebut the primary piece of evidence entered into evidence actually attached as an exhibit, to contrast with good lawyering, by David Fink in this case, and that is Lin Wood's own brief in the Delaware Supreme Court saying, I represent the plaintiffs in Michigan. So it will probably not surprise you that Lin Wood's reply brief, 22 pages long, does not mention his brief in the Delaware Supreme Court.

0:59:37 Andrew: It's just, it's bonkers. He also has, by the way, a delightful section. It is argument number one, right out of the gate. You can't construe, I didn't even read this part because I didn' think the argument was that great. But David Fink says, by the way, your co-counsel, Greg Roll, has said you spearheaded the litigation. So, you know, take that into account.

And the reason I didn't rely on that role affidavit is because, you know, quite frankly, I think the record gets muddied because of the Sidney Powell, right? Me and Howie did the whole thing and nobody else did anything. And so like trying to pick out which of the lawyers said they talked to Lin. You know, to me, your own words in a pleading that you filed, you you know, with the Supreme Court of Delaware, carries a lot more weight. Refuting the role affidavit, Lin Wood argues, and I need to read this to you word for word, that the role affidavit is hearsay, and, quote, that affidavits based on hearsay must be disregarded, end of quote.

I'm just going to let that one marinate out there for a little while. You might recall during the hearing that when the same argument was put to Donald Campbell of, you're quoting from people who say they heard from friends of friends that that Dominion voting machines could flip votes, you put that into evidence. And Donald Campbell said over and over again, yes, we are entitled to put affidavits based on hearsay into evidence, and the fact that Lin Wood does not recognize that contradiction is a pretty good indication of where he's going.

1:01:10 Thomas: Oh you guys aren't allowed to just us wow

1:01:15 Andrew: I will leave this if you read my show notes. We made fun of Stephanie Lambert-Gentilla's brief for failing to address the one question that was aimed at her during the entire six-hour sanctions hearing, Bezabov versus Allen. The section on Stephanie Juntilla in the City of Detroit's reply brief says, incredibly, "her brief makes no reference to that case. Instead, Ms. Lambert Juntila offers this court a strange collection of outdated, plagiarized quotations from uncited law review articles." And have to say, an illustration of the level of work and depth of analysis that he's done that. Remember, I told you about the string site of quotes of all the different cases and how they seemed like a grab bag to me.

1:02:02 Andrew: Turns out they're from directly the sentences supported by those string sites come from unrelated law reviews talking about the First Amendment that Ms. Gentilla did not cite in her brief. So and by the way, like that, that is that That is plagiarism, right? Like if that sounds like plagiarismo in the academic world, right, if there's a great law review article that begins with like a stirring summary of, you case law, all you have to do if you want to use those words is cite the law review. Article, right. Is to say, hey, yeah, this came from, you know, Thomas Smith, Harvard Law Review 2021. And then you say citing and you list the cases that it cites for me to lift that and pretend that Thomas's words are my words. Is just as much plagiarism in the law as it is in academia. So I wish I could go into the pretty strong evidence that two pieces of advocacy in Ms. Juntilla's very brief are directly plagiarized from law review articles, word for word and citation for citation.

1:02:23 Thomas: All

1:03:09 Andrew: You have to read the show notes, absolutely, but that's what they do. Those briefs, by the way, the City of Detroit's reply brief and Governor Whitmer's reply grief explicitly direct this court to the Colorado sanctions ruling that set this all off. So Judge Parker's got a pretty good roadmap in front of her. We've laid out all of the arguments now. Briefing is done. The only thing that makes me sad is that we may get a comprehensive opinion before Tuesday's show. Would be heroic, right? I would expect it's going to take a couple of weeks to write the opinion, we'll be on the lookout for it.

1:03:45 Thomas: Right I can't wait stay tuned you

1:03:47 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:03:54 Thomas: Now it's time for T3BE, Thomas takes the bar exam. Um, little bit of a bad streak. Now it's time to pork the streak. Previously I was, uh, in not porkage mode. Now I'm back to porkage mood. Here we go.

1:04:05 Andrew: Thomas, a wholesaler brought a federal diversity action against a large pharmaceutical company for breach of contract.

1:04:09 Thomas: Again is this like the best of federal diversity action all

1:04:14 Andrew: Hey, sometimes it's an attractive distractor. But during jury selection, one potential juror stated that five years earlier, he had been an employee of the company and still owned several hundred shares of stock of its stock. In response to questioning from the judge, the potential jurors stated that he could fairly consider the evidence in this case. The wholesaler's attorney has asked the judge to strike the potential jury for cause.

1:04:16 Thomas: Right yeah hmm

1:04:44 Andrew: Should the judge strike the potencial juror for cause? Was. A, no, because the potential juror said that he could fairly consider the evidence in the case. B, no because the wholesaler's attorney could use a peremptory challenge to strike the potential juror. C, yes, because other potential jurors still remain available for the jury panel. Or D, yes because the potential juror is presumed to be biased because of his relationship to the company so

1:04:44 Thomas: You would think so okay tricky Tricky, tricky. All right. Well, off the top of my head here, like, this seems like a no-brainer, dismiss the juror. Like, just get rid of them. Has to be. I mean, you own stock still. You worked for and you still own shares of stock of the company. That's way too much of a conflict of interest. Interest if I own a bunch of shares in a company and I get to help decide whether or not a, you know, a lawsuit will go through against them or whatever it is, I, that, that can't be okay. That just can't b, so I'm strong on a yes answer. However, the only reason I might not be is because this peremptory challenge thing, and that'll involve rules that I don't know. So which are the challenges in in voir dire, a term I do know, uh, which are, are the challenges that are like, or which are the things that you could just dismiss someone versus you have to use a peremptory challenge.

1:06:06 Thomas: And I think my instinct is that this shouldn't be a perempatory challenge one. This should be like, oh, okay, you, you know, you're the president of the company that we're suing. Yeah. Okay. You can't be a juror. You know, that doesn't, it's just too much of a relationship to me. So, but which will be the correct answer? Let's find out. A, no, because the potential juror said that he could fairly consider the evidence in the case. I um, certainly hope that's not the answer. I'm gonna eliminate A. I mean, I would put it at a tiny percentage that like somehow that's how it works, like as long as you say them, ask them and they say magic words. Like But I just, I, I know there have been cases or or things you've talked about where it's like, yeah, you ask them, can you fairly do it? And, you know, my, I know I'm related to a police officer, or I know, you know, and like, well, would you be able to fairly blah blah blah? And then they answer yes and that's fine.

1:06:53 Thomas: But this, this just feels too serious for that. Like I could be wrong, but it feels like this is too much of a conflict of interest. So I'm going say A, I'm gonna say no on A. B, no, because the wholesaler's attorney could use a peremptory challenge to strike the juror. That's, I mean, I still don't think so, but that could be how it works. Like I'd say there's a non-zero chance and a greater than A chance.

So, I want to leave B for now because, you know, maybe that's how the rules work. I don't know. C, yes, because other potential jurors still remain available for the jury panel. Gosh, I, I could imagine a world in which that's the correct answer, just again based on the kind of almost like the game rules of how this works, like I could, depending on the ordering of of things that's supposed to happen, um, I could imagine that being the answer.

Or D, yes, because the potential jurors presumed be biased because of his relationship to the company. I mean that D is the no-nonsense And I like the presumed, so that language is like, well, that's why you don't have to use the peremptory challenge. It's why you can strike them for cause. I am going to take a risk and say that this is a straightforward question. There's certainly, certainly a chance, a slight chance for shenanigans. It could be like, well, actually, the way the rules work, you know, you have to do such and such thing, and therefore it's C or therefore it is B. I feel pretty solid on not B, actually. I just don't think you have to use a peremptory challenge for something this significant. Know. So, I actually think I'm going to do a bold choice, cotton or whatever, and go with C or D as my final, and then I'm gonna choose D. You know, I've almost talked myself into C.

1:08:36 Thomas: Just because I could see the answer C being an item on the list of the rules of like, well, you first you have to check, are there any other potentials left? Okay, there aren't. Well, then no. And so like C could be an answer that's like first. But D, should the judge strike the potential juror? I'm still going to go with D, but I think there's a strong chance of shenanigans here. I've upgraded from a moderate chance, from a slight chance of Shenanigans to my forecast, my weather forecast. It's cloudy with a somewhat significant chance of Shenanigans and lightning or something. Not rain, in California at least. I'm going to go with C. I could see C being the thing just because it's like, yeah, if there are no other jurors, then you can't do that.

1:09:26 Thomas: But it still seems like that sidesteps the reasoning. You know, and so for that reason, I'm still going with D, with a strong chance of shenanigans for C. Let's see if the coin agrees with me. Coin, the coin disagrees. So this is serious stakes. I, I'm, I, I'll let you in on, uh, my thinking. I hoped the coin would just agree with me there because I, I, I's a little worried about the shenanigans. But, uh, coin pick C, I pick D. Let's find out who is right and who is a coin and Now

1:09:56 Andrew: Yeah, and If you want to play along, yeah, if you think Thomas has got it right, or if you think there's a chance for the coin maybe to make up some ground on Thomas, or perhaps you think they're both wrong, who knows, right? You know what to do. 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 winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:10:20 Thomas: It's time to thank our new patrons at patreon.com/law and Andrew, your turn to uh go first. Kate monster

1:10:27 Andrew: All right, thank you to M, to k8mnstr, so Kate Munster, I think, to Dan Turner, to Dan Caves. Hey, if you're a Dan, why not get in on this, right? Patreon.com/law. All Dans, 50% off But this that's a joke, by the way. I have no way of... susan if we we would if we could susan Harley-Mills, Jeremy Ashinghurst, Vince Oswalt, Micah Babcock, Peter Barron, Garrett Weinberg, Isaac Ng, and Lookdeepintomytermsofservice. And finally, thank you to Seth B. Thomas. Take it away. Well

1:10:34 Thomas: Yeah yeah the software doesn't let us do that and thank you, Theta. Just watched Lamb 42, I mean 48, and I'm not giving away my shot to make Thomas read some Hamilton. Okay, Jacob Baughman, GhostWolfe wants to hear eir name on the podcast. Uh, Reid Edwards, ChargeThatClownWithMansLaughter too. Too old for this ish, Jeanette H, EmpressMe, uh, Rick Heller, When there are 9, and Don, Don Forde, Voice of Fantasy and Adventure. Thanks, Don, appreciate it. That's our show. Thank you so much for listening. As we said, we made slight reference to lots of governor malfeasance, you know, kind of thing, or just governor related uh stuff to talk about on Tuesday's episode. It's very important, so make sure you check it out.

1:11:26 Andrew: Oh, until then

1:11:56 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.

1:12:30 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.