OA531: Pop-law! Nirvana Sued by the Nevermind Baby; and a #FreeBritney Update!

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 531. I'm Thomas and that's Andrew. How you doing, Andrew? Oh, okay. No Andrew. Is anybody else there that I could possibly record with?

0:01:29 Guest: I'm here.

0:01:30 Thomas: How's it going, Morgan Stringer, Ace Associate?

0:01:32 Guest: It's going. Like I was telling you, Alabama absolutely destroyed my team yesterday after I thought we were going to win. So, you know, I'm making it.

0:01:40 Thomas: And like I was telling you, I don't know what any of that means, but I'm sorry. That sounds bad. Is it bad? Bad.

0:01:46 Guest: Yeah, it was. I basically was like, what if I just stopped watching and went and drank in my bathtub with all my clothes on? So, it was a time.

0:01:47 Thomas: Okay. Okay. That sounds real bad then. He didn't tell me what level of bad. So you're not signature fantastic. What's going to be your signature line? That your team is always losing? That doesn't work.

0:02:03 Guest: I Don't No, no, no, god, no, not don't curse us. Um, no, I, I'm, I'll have to think about that one. What my signature will be, um, I don't know, I think it's just gonna be being too extra and too southern. As always, my brand.

0:02:19 Thomas: Okay. That sounds right. I'm so excited to have you. We've got two very in-demand stories to talk about, that we heard from all kinds of listeners. It's always fun. We actually love that. We get emails where it's like, hey, can you cover this? Can you cover this? Can you cover this? And that means that people really want to hear it. So I can't wait for both of those. We've got not only a Britney update, I think a pretty significant Britney update based on what I've seen, but We'll wait to hear from the expert here, Morgan Stringer. And then also the Nirvana lawsuit that everybody and their mother emailed us about. And I'm so glad you did, because I am interested in it too. And sometimes I do that too. I'll be like, hey, can we cover this? Listener Thomas asks. And works. Not always. I don't have the most poll. But anyway, why don't we get to it with the thing we still haven't named yet, but it's something like Morgan Stringer's Pop-Lop blah blah blah pop law.

0:02:22 Guest: Yes. Yes. Yes.

0:03:14 Thomas: Morgan? Yeah.

0:03:15 Guest: Arrested development sues us for that. That? Yes, scofflaw.

0:03:16 Thomas: Could We work scofflaw into, isn't that a term, are you, scofflaw, is that a term? I imagine that scofflaw

0:03:23 Guest: I haven't heard that one. I don't know. Maybe. Hmm.

0:03:25 Thomas: I think it means you're like a ne'er-do-well, right? A person who flouts the law. Okay, but that's not really gonna work. Dang.

0:03:26 Guest: Hmm. No, I don't want to be that. That's not my brand. Yeah.

0:03:34 Thomas: So We can't be like Morgan the Scofflaw's Loblog. Pop Loblog. No,

0:03:40 Guest: I think the bar association would have some questions for me if that ended up happening. All

0:03:43 Thomas: Dang. Well, we're open to suggestions as to what to call this, but at any rate, we better get to it.

0:03:49 Clip: Of course, the Bob LaBla Law Blog. Wow. You, sir, are a mouthful.

0:03:54 Thomas: So, first up, it looks like, to the non-expert here, that Britney's dad is no longer in the conservatorship, but does that mean the whole thing's gone? It seems like Britney Spears is posting a lot of, you stuff that seems like she's free, kind of, but not really. Where are we with that? Give us the whole update.

0:04:11 Guest: So yes, Jamie is gone, so we can all cheer about that. Um, Jamie's gone, and actually the reason that this happened was, so I talked about last time how everybody was reporting that, you know, oh, Jamie Spears has moved to terminate, um, you know, asked to step down, and then I said, you know, hold on, let's actually look at what he actually said, and then he filed another pleading saying that the whole conservatorship should end now.

0:04:41 Guest: But Matthew Rosengart, who is Britney's attorney, that is, this is the attorney that she has chosen, called Jamie's bluff on this, because the reasoning why Matthew, this is Britney's attorney again, believes that Jamie did that was because he wants to avoid the court from looking at how he was managing that conservatorship over the past 13 years, because then if it's terminated, it's like, okay, everybody pack up your bags, everyone go home, you know, like, get out of here, no need to look at these, you know, documents too closely, or anything that has come out about, um, from the New York Times reporting and these various, um, documentaries that have come out.

0:04:40 Thomas: Yeah, that doesn't inspire a lot of confidence in your conservatorship management skill. Because like, which is it? You know, either she needs to be in this thing that you've managed her so tightly for years, or you're just like, you know, yeah, no, it's cool. Let's get rid of it. Actually, I'm feeling like a no conservatorship day today. Let's get rid of the a conservatorship. Doesn't inspire a lot of, know, you confidence in the whole process.

0:05:41 Guest: Exactly, and it's so wildly opposite from, you know, what he was saying before, where he was saying, oh, well, if you know, they terminate the conservatorship, then, you know, I'll have no choice but, you know, if this is for her own good, and all of a sudden now he's saying, oh, let's end the whole thing. You know, essentially, it's to me saying, you know, I'm going to take my ball and I'm going to go home. You know, literally, it's kind of wild.

So Rosengart has actually made public statements saying that he is calling for a full investigation into how the conservatorship was handled. And he even said in his last court hearing that, quote, "What Jamie is afraid of is the revelation of his own corruption." So he said that in this, uh, past court hearing, which happened, um, this past Wednesday, I believe that was the 27th.

So, and also during Britney's own testimony in June that we talked about, where she was, you know, talking about how she felt about the conservatorship, where she said, "My dad and anyone involved in this conservatorship in my management who played a huge role in punishing me when I said no, ma'am, they should be in jail," and she was, is addressing Judge Penny there, who is, you know, has not been the judge during the entire proceeding, as we've discussed also, but she is the judge now through these latest proceedings.

So what's happened here is Rosengart is obviously calling for an investigation. It looks like he's going to be probably filing a lawsuit over, for conservatorship abuse, and probably also he may even get the police involved from, you know, these latest allegations that

0:07:10 Thomas: Wow.

0:07:10 Guest: Have come I'm out that I'm going to get into. So Jamie is removed. And now there is actually a CPA who is now the temporary conservator. And this is a CPA that Matthew Rosengart asked to be appointed. So this is somebody that Britney is, you know, until the conservatorship can end, obviously she wants out of it, but it's fine with acting as a conservator for now. And the next hearing for Britney will actually not be until November 12th. But from what people have said, Britney's very very happy. Like you said, she's been posting pictures. She's been on vacation in Hawaii with her fiance, uh, posting some censored nudes, which I was like, you know, I know that's right.

0:07:47 Thomas: Yeah.

0:07:47 Guest: Um, I guess I need to start doing that after court victories.

0:07:48 Thomas: Hey, yeah, that's how I might celebrate if conservatorship ending or I guess not necessarily ending, but you know, yeah. Okay. Freedom. Well, so what is your impression of how much this changes her life? Like, you know, we, we know the conservatorship, so it's not ended yet. Maybe who knows if it will, like we'll get your thoughts on that later, but in terms of just not having her dad in charge day to day, do you get the impression that that makes a big difference in how she's being managed?

0:08:16 Guest: Yes, immediately. And that's apparent from like, you know, the fact that it looks like her Instagram is not being as managed as it once was, right? Like she's able to post these, you know, she's able, she's posting more frequently, which I mean, maybe just be because she's in a better mood, obviously. Cause you know, know her dad's no longer managing her money controlling her life. But so I want to talk about these uh documentaries that I have watched. Uh, so there were, there were actually three that came out. CNN just did a special report on it, and they were just kind of talking about, you know, things that we have discussed in the past, really, with, the reports about how her dad was controlling her and things like that. And so CNN did a special report on that, but then there was also Controlling Britney. So this was the part two to the New York Times Hulu documentary that came out.

0:08:46 Thomas: Oh, there's a part two. Okay. I watched part one. I'll have to catch that.

0:08:59 Guest: Yes. But it's called something different. It's uh, it's, but it's on Hulu, it's called Controlling Britney, and then there is Britney versus Spears, which is on Netflix. And so the Controlling Britney kind of goes into more of how she was managed under the conservatorship, and the Britney versus Spears was, um, the reporter who, uh, had done all these pieces on her for Rolling Stone, talking about how, you know, she kind of was involved in how, you know, they were given various, you know, court documents from a source, and they've been working to sort of more independently verify.

But obviously, with, you know, sealed court documents, is kind of hard because obviously everybody's going to say no comment, right? But they are talking to people who are experts on conservatorships a little bit more, you know, kind of doing a more recap kind of thing. But the biggest revelations I think that are from these documentaries is in Britney versus Spears, they they found out why she was given a conservatorship. Like the reasoning, the box was checked next to dementia diagnosis when she was initially, they granted the conservatorship. So keep in mind, Brittany is 27

0:09:02 Thomas: Oh, okay. Right. Oh, wow. Yeah.

0:10:02 Guest: Years old at that point, and then they have her immediately, at the same time as that's basically going on, they have her immediately doing a Vegas residency, which,

0:10:13 Thomas: I what's going on there? I mean, how could anyone believe that she had dementia at that time? That's

0:10:17 Guest: Well, exactly. No, I mean, who would believe that? Because, I mean, my grandmother, who has dementia, certainly is not doing any Vegas residencies anytime soon, right? So, yeah, I know. I wish she was. That'd be awesome. But she's not. So, yeah, no, people with dementia are not going around doing Vegas residencies. And she's an incredible dancer. It's not like she was up there, you know, just, you know, dragged out there.

0:10:26 Thomas: Too bad. Yeah.

0:10:40 Guest: Britney's lawyer's sort of pushing for this conservatorship to be, you know, examined a little closer, like, how did this happen and what happened during that period. And also, court documents revealed where Brittany also has been implying that her father Jamie was drinking again. It's, um, as I've talked about before, he was in rehab for alcohol addiction, and things of that nature.

0:10:40 Thomas: Oh, maybe he needs a conservatorship This was a movie, I think the judge would like turn the tables and be like, all right, Britney, you're now in charge of Jamie. And then it'd be like, that would be the revenge. We should get that movie.

0:11:00 Guest: Yeah.

0:11:10 Guest: And that's kind of even what she was sort of saying, was I have to be randomly drug tested all the time, and if I fail, I lose any kind of visitation rights with, with my kids. Meanwhile, this guy is managing my entire life and my finances. And, and then the response of course was that, you know, oh well, he has scheduled, you know, alcohol testing or whatever, and then she was like, do it randomly. If you know you're gonna be drug tested in advance, kind sort of defeats the whole point in a lot of ways, but also, it talks, they talked about the degree of control, troll, that Jamie had. So for instance, she would have to wait 20 minutes and sometimes longer to find out, for instance, if she was allowed to go to a local restaurant with her boyfriend. She also was told, she wanted, she saw a pair of shoes that somebody was wearing and said, oh, I want those shoes, can somebody get me those? It was literally a pair of Skechers, and she was told, you don't have money to buy Skechers.

0:11:16 Thomas: Yeah. Wow. Yeah.

0:12:05 Guest: Skechers.

0:12:06 Thomas: She could probably buy the brand Skechers. Like she could probably she probably actually afford to buy the company that makes them.

0:12:07 Guest: Yes. Yeah. She would even be controlled as to like what she could eat, so they'd say things like, oh, you can't get sushi today, you had sushi yesterday, you can't afford sushi. And again, like I said last time, Britney got an eight thousand dollar a month allowance, meanwhile everybody around her is making, you know, millions and millions of dollars. And also, her father is kind of being incentivized to force her to perform because he's getting a cut from that, and there were court records that came out that said, you know, we don't think that the circus tour, which is a tour she immediately went on after, you, the conservatorship happened, there were doctors saying, we don't think that this is good for her health right now. And basically the management said, oh well, if she can't perform, and that shows that she's not doing well.

And, and so they kind of bullied, strong-armed her medical team into agreeing to it with some concessions, but yeah, she basically was forced to perform. Which, know, she's doing the Vegas residency, and well, she had a second Vegas residency immediately after. That was not the plan. The plan was, after the first residency, you know, everybody, the crew and everyone, they take a break because it's exhausting, she's been doing this for years, and then, you know, maybe eventually she gets back into it.

But as soon as that second Vegas residency got canceled, and this is according to, this is on the Hulu documentary, they talked to a guy named Alex Vlasov, who worked for Black Box Security.

0:12:35 Thomas: Hmm.

0:13:31 Guest: And Black Box Security was the security company that Jamie hired. And it was founded by this guy named Idan Yemeni. He is actually a former IDF, Israeli Special Forces guy. So he's, you know, a pretty serious dude. So Jamie hired them. And basically what Alex said happened was Brittany got whisked away to that mental health facility facility, where they had designed this rehab program for her, as soon as, you know, she said, I'm not doing the second Vegas residency. And they took her off of meds that she had been on for five years and instead put her on lithium. Under a conservatorship, again, the law is you cannot force somebody who is in a conservatorship to go to a mental health facility against their will. So, you know, there's been a lot of finger pointing and saying, oh, well, well, she agreed to it. Oh, she didn't, you know, who knows at this point, but it's pretty clear from the evidence that she did not want to be there. I

0:14:23 Thomas: Well, this is my overall question that I, you know, again, I feel like it's very unclear through all these episodes is what exactly is a conservatorship? Like, what are they allowed to make her do and where? So like if conservatorships were a nice, consistent, logical thing, it would seem like in a perfect world, it wouldn't really matter that her dad was a conservator or some CPA is a conservator. But it seems like in in the real world that makes a huge difference. So is it that a conservatorship is something that's sort of discretionary in terms of if you are the conservator, you have a ton of discretion as to what level of detail you are managing this person's life and making these decisions? What do you think accounts for the huge difference there?

0:15:13 Guest: Think that what accounts for it is, you know, under the first judge, I think maybe it was a matter of like, they had not managed a conservatorship of this size. Know, because most conservatorships, there was a, you know, an attorney they were talking to who does this, you know, for a living. That's what he does. He does conservatorships. And he said, nobody that of a conservatorship that he had had managed had ever held a job. And so it's, you know, the standard is so different.

And it's, you know, it's one thing to say, oh, this person needs to be in a conservatorship to protect themselves versus, you know, in the level of, oh, are they able to work, but maybe they need a little bit more help, or, oh, they're not able to work, they need, you know, 24-7 care kind of thing.

And the standard really should be, you know, they need the 24-7 care, because in California, as I said, the standard is, you know, you're not able to shelter, feed yourself or take care of yourself, essentially. And it's clear that, you know, she was capable of earning money and doing that. So did she need help? Absolutely. But this was, you know, I think a step way too far. And I think that the law needs to be reformed to, you know, address these abuses, because if it's happening to Britney Spears, you know,

0:16:02 Thomas: Yeah. Yeah.

0:16:20 Guest: God knows who it's happening to. And also, they don't know how much of this control the court even approved, because also, What this guy Alex said, um, who worked for Black Box, and he came forward and said, you know, yeah, I, I was told to delete this USB drive, all these audio recordings. Apparently her dad had Eat on the guy from Black Box Security bug her room and had all kinds of audio from, you know, Britney talking to her children, Britney, talking to her boyfriend, all this stuff, which wiretapping, by the way, is illegal. So, um, there's a crime, but again, it's not known, you know, did the court even approve this. But apparently, I think probably not, if her lawyer is saying, hey, this needs to be investigated. You know, it seems like he would be clued in if the court was like, yeah, you can go ahead and wiretap her. Basically, um, thing. And also, they mirrored her phone.

So this was an idea of her business manager, um, this was, you know, Lou Taylor's company, Tri Star. It was a woman that worked for them, you'll hear her name come up over and over, Robin Greenhill. So she had the idea that, okay, so Britney wants an iPhone, you know, because she's seeing everybody around her has iPhones, and so she wants one. And they get her an iPhone, but what they do is they mirror her iCloud account on a separate iPad, so then they are able to monitor

0:16:26 Thomas: Yeah. Yikes.

0:17:35 Guest: Every activity she does. They have access to her Notes app, every photo she takes on her iPhone, every message she sends, and including. And this is when Alex sort of said, like, I knew something was up with, you know, something wasn't adding up right. They were apparently, her lawyer, her court appointed lawyer, Sam Ingram the third, he sent an email over to Jamie saying, hey, just so you know, you are not supposed to be monitoring communications between me and my client. You are not to access texts between us, emails, voicemails, phone calls, FaceTimes, any of that.

0:18:10 Thomas: Yeah.

0:18:11 Guest: That's, you know, this is my client. This is, you know, it goes to the heart of attorney-client privilege. And Jamie's rep said, oh, he's not doing that. And then Alex over at Black Box Security, when he saw that email come across, said, I know for a fact that they're monitoring her and her lawyer's communications, but he was just told, oh, it's fine. The judge said it's okay. And then he started realizing, oh, maybe the judge didn't say that. And then that's when he came forward with all this information saying that, oh, they were mirroring her text messages. They were monitoring all of her communications. Explanations, and, you know, basically trying to cut out.

0:18:42 Thomas: How is this such a mess? Yes. What's your impression of, I get that it's, it's hard for us, you know, like you and I and the public, because these are, you mainly closed door things. And I guess maybe they should be in most instances. Um, but like, what's your impression of why this is such a cluster F like, is it just a really bad bad system? Was there a bad lawyer somewhere? I know this is a broad question, but how did this get so absolutely screwed? And it's seemingly impossible to fix it until maybe, maybe it might get made better, you know, in the next year or so.

0:18:49 Guest: Yes, I think that there's a few things going on. I think that this is what happens when something like I said, when a full conservatorship should not be granted, but is anyway. And that's when you get this kind of these kinds of issues. And also, there's an incentive for all these people to lie and to monitor, you know, that not in I'm not saying in every case, and you know, other people that talk better, are, you know, people that actually practice in conservatorship law will say this, you know, it's not to say that never should a family member be a conservator, because oftentimes, you know, there is a disabled family member, and that parent, you know, may know, you know, like, these are the needs that my child has, these are, you know, but usually, they're not like a multimillion dollar person making, you know, doing a Vegas residency, as I said. So, you know,

0:19:46 Thomas: Right. Yeah. So you think it's a case of like, these rules are obviously not designed for somebody who's in this condition. Like, you know, I recently when my dad passed away, he was totally losing it toward the end. And I imagine so many of these questions just wouldn't come up. There wouldn't be the case of like, well, can I monitor his phone like he can't use a phone, you know? So is it that kind of thing? Like these rules just were don't fit this situation and therefore it's easy to abuse in this case, do you think?

0:20:29 Guest: Yes, I think that is exactly the case. And I think that you have a lot of people with a lot lot of bad incentives. Now, I'm not saying Sam Ingram III, you know, was doing anything unethical or anything. I don't know what the situation is. Again, you know, a lot of these court records are still sealed, but there was an incentive for him to get along with the conservators because the conservators are the ones who were essentially paying his salary. You know, you don't want to buck them too much. And there's a lot of people, there have been, there was another attorney that did say, I think Sam Ingram was, you know, going to ride this conservatorship till the end because because he made $3 million. I mean, that's, you know, I wouldn't mind $3 million either. But, you know, I certainly wouldn't do all this to get it. But, you know, maybe that's the difference between him and me. And why I don't have $3 million.

0:21:06 Thomas: Yeah. Yeah. And it also sounds like the kind of thing, is there a parallel to the great John Ronson book, The Psychopath Test, where it's like once that first ruling comes in, you know, and once somebody is deemed to be a certain thing in our society, like you're, you know, you're crazy or you have dementia or whatever these labels that we put on people. People. Um, like in that John Ronson book, the, the, the funny part of it was if you, if you haven't read it, um, and I say funny in a, in a very, obviously like a darkly funny way. Uh, this guy, I think it was in the UK did the classic thing that you see in TV shows or movies, which is like, Oh, I'll plead insanity. So that I'll get off of a thingy. And in reality, that doesn't really work out that well. And what happened was he acted acted like he was, you insane, uh, for lack of a better word. And then once he was given that label, he could not get out of the system.

Now this is a different system, different, you know, I'm not saying it's the same thing at all, but like, is there a similar theme going on where it's like, once our system has designated you as as incompetent or something, then it's just so impossible to get out of that designation.

0:21:41 Guest: Yeah.

0:22:18 Guest: Yes, I think so. Especially with how a conservatorship is usually set up, right? It's somebody that is to the point where they can't feed themselves, you know, again, shelter themselves, take care of themselves, earn money, any of that. So the likelihood that, that, you know, they're going to wake up one day and be fine. You know, we don't, it's not designed for that.

0:22:34 Thomas: Yeah. It's not really built for that. Yeah.

0:22:37 Guest: No, it's not. It's not built for that. And so that's where I think you do get a lot of a system that kind of breaks down here. Like there's a lot of, you know, bad motivations involved. There's a lot of bad actors that are involved that have bad motivations, especially when you are take, you are incentivized to keep this person, you know, doing things like residencies and business deals and, you know, doing things again, you know, that they may not want to do and being able to leverage particularly what I, what seems to me, what is also very heavily implied is that Brittany's children were used a lot by, um, Jamie and her, basically his team as sort of these bargaining chips, you know, like, oh, well, if you don't want to act right, um, you know, I'm going to take your phone away.

And also, you know, that's going to turn into, oh, you're not going to be able to see your kids. And so, you know, yeah, it's just awful, awful and whereas you know somebody who is you CPA or somebody you know a neutral party is not like this guy is not going to be doing

0:22:37 Thomas: Okay. Yeah. Hmm.

0:23:33 Thomas: Well, that's why it sounds, that's why I said earlier, it sounds like maybe there's a lot of discretion involved in that system where it's like on what it's, it's sort of like in a, in a, in a weird way. It's like when you're in a job and you know, your manager leaves and you get a new manager and all of a sudden your life is hell or, or vice versa where it's like, oh shoot. You know, like, shoot, I guess this person does have the discretion to really nail micromanage every single decision, or maybe the CPA comes in and he's like, all right, well, yeah, I'll look at the, you know, each week I'll kind of look at the what's happening and see if anything, you know, like you can take, there's the discretion within the system to take a very hands-off approach versus I, I guess if you're evil or Jamie Spears or both, uh, you can just micromanage down to the every detail of what every cent that could be spent.

0:23:35 Guest: That exactly And then, also again, we don't know how much of this, because it's supposed to be approved by the court, these actions that Jamie were Jamie was taken, but you know, I don't know, we don't know how much of this is approved by the court.

0:24:27 Thomas: So maybe this wasn't even legit. Okay. So it also could be.

0:24:34 Guest: Yeah. Maybe it's possible that it's not even legit, but again, how does something that is this, this illegitimate go unnoticed by the court? And it's You know, that brings up a whole new box of questions, you know, like, who was incentivized to do what here? You know, how close of attention were they paying, you know, to to this and how well it was managed? Because I do know that conservatorships, you know, and especially in the court system, they don't typically take a lot of the court's time. They don't want it to, because it's a lot of stuff going on, so you know, the judge doesn't have time, time to babysit everybody.

0:24:37 Thomas: Yeah. Okay. I right. That's, that's my question. Yeah. Yeah. Yeah.

0:25:02 Thomas: Yeah. They're not going to to review every transaction. So final question, I hope before we want to get over to our other story, But did you come across anything? I don't know if you've done this research. Is there any hope of consequences here? It strikes me as obviously something that's a bit unprecedented, at least in the public attention. So is there anything that you know of where it's like someone gets out of one of these things or even if they don't get out of it, I could imagine imagine a situation where there's a run-of-the-mill conservatorship where there's still disagreement over the treatment or what's happening. Are there ever consequences for anybody that you know of? Is there recourse for Brittany to go after her dad for these years of abuse?

0:25:14 Guest: Yes.

0:25:51 Guest: There absolutely is, um, her attorney has even has even said that he is likely, um, once, you know, he's asked the court to do a further investigation of everything that's been done the past few years, and I think as we find out more information, he's able to verify a few more things, I think it is likely that we will see a lawsuit against Jamie Spears.

Probably now, her attorney has said that he will petition to end the conservatorship, but he's going to do this probably later in the fall, and I expect that might be what this November hearing will eventually be about. Has not, he has not moved for that to my knowledge, again, like it's kind of hard to tell what's been done because, you know, versus, you know, what's sealed and whatnot, but um, he would probably make a statement that he had, um, made that, um, decision and filed that petition, but, um, right now his, his biggest thing was to get Jamie out of the way and I think that he wanted to do that so that that they could then sort of investigate and look into, okay, what's been going on here? And that way they can come back and they can sue for abuse of a conservatorship. That is something absolutely that can be sued for.

0:26:28 Thomas: Mm-hmm. Yeah.

0:26:54 Guest: And I don't, yes, it is.

0:26:54 Thomas: Is it a special tort in and of itself? Or, like, what? Okay.

0:26:58 Guest: And then there would also be, you know, your traditional torts of things like fraud and, you know, things like that that go into that. But then also there could be criminal charges, you know, if they do look into this and find out that, that, you know, people were illegally wiretapping Britney Spears. Absolutely. That is a thing that, you know, the LAPD or LA County Sheriff's Department absolutely can look into. So yeah, we'll see.

0:27:02 Thomas: Mm-hmm. Mm. Right. Right. So do you have any idea what the the burdens will be there? I could imagine, you know, if I'm taking my my my learned cynicism from years of doing the show and how people bad people get away with everything. Could there be the kind of thing where the burden is like, well, you have to show that it was was like over and above what someone would have done? And because, you know, is there going to be an excuse or a defense of this is what I thought was best in the conservatorship? And perhaps some like deference will be given to that excuse. What do you think about that?

0:27:52 Guest: Yes. So absolutely. That will be, of course, Jamie's defense. Is it going to be, oh, I was acting in the best interest of my daughter, which is the standard for conservator. You act in the best interest of the conservatee. But I think with the showing of, you know, know, things like wiretapping, you know, hiring like shady IDF people, you know, you start getting into, yeah, yeah,

0:28:08 Thomas: Yeah. Which I can only hope if we live in a just world, that'll end up having been a Sacha Baron Cohen character and we'll get like his his angle. That's what I'm hoping. It's a weird world out there. So there's a possibility, I'm saying.

0:28:22 Guest: There's a possibility Jamie Spears might have his own Rudy Giuliani moment. So, you know, it is possible. Absolutely. But, you know, we'll, we'll just have to see what happens here. And again, yeah, it will be an uphill battle. But I really like Britney's attorney, Matthew Rosengart, he has a great reputation, he is, um, I've talked about this on the last time, I talked about this, he is a great entertainment lawyer, he is there, and he is not, you know, he's not taking it laying down, he's, he's fighting these people all the way, and he seems to be very determined to do that, so we'll have to see what moves he makes, probably towards, I'm thinking later in the fall, I'm expecting something around October or November, closer to when we get to that hearing date, um, what his next moves will be. But you know, Jamie's out of the way, so he's more free to look at those books.

0:28:59 Thomas: All right.

0:29:11 Thomas: Fantastic. Thanks so much for the Britney update. We uh will keep an eye on it as always Talkspace. Space. I know some of you out there listening, maybe a little hesitant to seek help for your mental health, but I want to encourage you to take that step. And I think a good way to do that is with talk space, because, because meeting with a therapist to work on your mental health is just as helpful as hiring a personal trainer to work on your physical health. And And the positive impact can be just as life-changing.

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0:33:46 Thomas: Another story, a much requested story, uh, baby has filed a lawsuit, is this correct? Look

0:33:52 Guest: Baby has, well, a baby that is now a grown adult man has filed a lawsuit, yes, but, um, regarding the time when he was a baby. So yeah, no, and also I'm on your side in the Nirvana debate, I was literally born in the grunge era, I used to live in Seattle, so grunge and 90s alternative is consistently a top genre, oh

0:34:12 Thomas: Not this is not important, but just for the sake of clarifying, it is not that I think grunge is like great or anything. It's that Andrew has no foot to stand on it. Whenever somebody's like, I agree with Andrew. I just want to let you know that the thing you're agreeing on is that hair metal is like good and grunge is bad. Like, I'm, it's either they both suck or they're both good. You know, like there's not that much difference in between them. It's like a couple years difference. And they went a little lo-fi instead of, you know, fancy production. And that's, I think, is mainly what Andrew hates, or the sound of someone's voice. So look, it's not that I'm a huge Nirvana fan. It's just that Andrew has no leg to stand on in this debate. He likes crap music. So, you know, let's keep focused here.

0:34:57 Thomas: But you can't deny Nirvana's sincerity and Kurt Cobain, I'm sure anyone whose career took place 30 years ago, I have no idea if everything holds up. But at the time, at least, he was a very progressive person and a good advocate for a lot of causes. That Kurt Cobain, anyway, why is a baby Suing Kurt Cobain, yeah

0:35:16 Guest: Okay Why is a baby so in Kurt Cobain, yeah. So, um, as we, as listeners are probably very familiar with, I mean, it is an iconic album cover, so this is the cover of never mind so I'm not going to go into the whole history of Nirvana, they're members, we don't have time for that, this is not a music podcast, but they're, um, the never mind cover is their second album, so that's really their breakthrough album, right? That's one, but you, we have, you know, Smells Like Teen Spirit, you know, which is their laid-off single, and They blow Up

0:35:41 Thomas: It's Got most The hits That people Would know, yeah, well

0:35:45 Guest: Yeah Exactly, so on the cover there is a naked baby, who is, you know, the plaintiff, of course, you know, now in his 30s, but at the time, naked baby underwater in a pool, he's got his arms outstretched, he's swimming towards a dollar bill on a fish hook, and you can technically see the genitalia, but which will be important later But

0:36:03 Thomas: I Actually remember as a kid, I wasn't there, weren't there two versions? I remember there was like the censored, because they also used to put out, I think, like the censored album, you know, like the lyrics and stuff, and I thought that, that one, um, I think I remember there was a censored version that, like, you know, it wouldn't be Photoshop, but whatever it was, whatever medieval photo editing technology in 1991 or 2 or whatever, and they edited out the the baby penis, and that was like the clean version of the album. I, I think I remember two different versions, which, which is hilarious in this day and age.

0:36:36 Guest: Very funny, because no, and I do remember that era of, you know, they would sell, because I know Walmart, whenever, you know, because I was in the latter era of CDs, right, right before, you know, iPod came out and everything, they Walmart would only sell the clean version. And of course, there was, you know, yeah, So there, there may have very well been, but it's funny you mentioned that because they even say this in their own lawsuit, which I thought, which I cannot believe, so Cobain did get pushback on the naked baby stuff from basically the suit, the corporate suits at the record label, um, because they were just like, you know, I'm worried that this, you know, naked baby is going to offend

0:36:44 Thomas: Right, yeah. Mm-hmm. Right, yeah, yeah, yeah. I think they made it specifically for Walmart, yeah, or something.

0:37:19 Thomas: Oh,

0:37:19 Guest: People because you know there's weirdos. So Cobain said, okay, fine, we'll redact it and we'll release an album that has a sticker over the genitals that that say, if you're offended by this, you must be a closet pedophile. And the plaintiff put that in their suit. And I was like, he was talking about you. You know, he was not talking about the people who were purchasing the album, you know, he's talking about the people that would be, you know, offended by this and assume that it was, you know, for some kind of, perverted reason, which is exactly what these plaintiffs are alleging. So just to go over what, you know, Obviously, the listeners have probably seen, you know, because the headline, of course, was, you the guy who was the naked baby on Nirvana, he is now suing because he's saying this is child porn.

0:37:29 Thomas: Yeah. That's funny.

0:37:49 Thomas: Mm-hmm. Mm-hmm, yeah.

0:38:08 Guest: So people who are victims of child porn do have a right to civil recourse, right? Because in the criminal system, of course, you know, the hope is that, you know, people who are guilty of those awful crimes, they go to prison. But, right? You know, that doesn't leave really any kind of recourse other than they've been taken off the street to the victim. So victims are actually able to sue for damages and you, you go to civil court and do a civil lawsuit, that'd be a, that's a tort that you can, you can do. So, first I kind of want to go over the law that way listeners can kind of be holding this kind of in their mind as we kind of talk about the facts. Um, so what you do is you go through, and this has been filed in the Southern District of California, so they follow the Dos factors.

So that comes from United States vdos that is 636 Federal Supplement 828, Southern District of California, 1986, and that was reaffirmed by the, and upheld by the Ninth Circuit, so it is still good law. So basically they go through factors, because they don't want to make a bright line rule that says this is what child pornography

0:38:27 Thomas: Mm-hmm. Yeah.

0:39:08 Guest: Is, right? You know, it's kind of, like it's not, it's a little bit more complicated than, and, you know, the, I know it when I see it standard, but basically it kind of is that. So for six factors, so, um, whether the focal point is on the child's genitalia or pubic area, whether the setting is sexually suggestive, um, such as in a place or pose associated with sexual activity, three, whether the child is in an unnatural pose or an inappropriate attire, considering the age of a child, four, whether the child is partially clothed or nude, five, whether the child's conduct suggests sexual coyness or willingness to engage in sexual activity, and six, whether the conduct is intended or designed to elicit a sexual response in the viewer. So those are the factors, that way, because you don't want people going to prison for, like, taking pictures of, you know, their kids doing silly stuff in the bathtub, right? Like that's obviously not, yeah,

0:39:56 Thomas: Yeah, you know, as a parent of young kids, this is a weird thing to think about, you know? Cause like there are times when you're just like, Oh, I'll share this picture. And you know, I think in this day and age, I'm not putting any pictures of my kid's genitalia on the, on the internet, even though like, honestly, like you, when you have a baby or you have a toddler, like, it's just, they're all, you know, you're constantly changing diapers. They're constantly running around naked. It's not, it's kind of not a thing, you know? And in a way it is kind of depressing that because there are creeps in the world, like like it becomes a thing where you're like, oh, someone's going to interpret this.

But even stuff like, if oh, Phoebe runs around without a shirt, she's four, it's you the same as a boy at four, you know, there's nothing. And yet because of the internet and crappy humanity, I got to be like, is this, am I going to, am I in trouble for posting this or something like, and so it is a very real to think about. And I think those factors actually sound pretty reasonable to me, as a you framework to try and interpret like, okay, was this something, you because if an actual pedophile or somebody is trying to produce content for pedophiles produced a similar photo, but with a certain intent behind it, then it is a weird thing that I would hope we had a way to prosecute. So So I kind of see all ends of that.

0:40:13 Guest: Yes, yeah, creeps, yeah, yeah, exactly, and that's why they came up with that factor test, right? That way, because, you know, kids are like naked all the time, like they're running and around, and that way, like, you don't prosecute some poor mom who was just sharing, like, oh, my, this was, you know, my baby in the bubble bath or whatever, and like throw her in prison the same as an absolute creep, you know, because they're not the same, and we need to not treat them the same.

So, yeah, and, of, and, you know, I'm not a parent, but I you did grow up with little brothers and stuff, and yeah, I do know, like, kids run around naked constantly, like, that's just like something that can't be avoided, so, so everybody's, I'm sure, seeing that headline which, you know, he's suing about child porn, and that is exactly right, because I know that sometimes, especially entertainment law, you know, we'll see a headline again, going back to the Britney Spears stuff, and people will run with it, and it's, you know, once you get into the documents, you're like, oh, that's not what he's saying at all, so I thought maybe it was a case of this, like,

0:41:21 Thomas: Yeah. Mm-hmm. Mm-hmm. Mm-hmm.

0:41:43 Thomas: It's nonstop.

0:41:52 Thomas: Mm-hmm. Right.

0:42:03 Guest: Maybe, you know, the media kind of, like, turned it into some ridiculous thing, and he didn't say any of that, but, you know, it was to get clicks, but no, that is exactly what this lawsuit is about, he's saying that the people who, um, he is suing Nirvana, he's suing basically everybody that can be sued, he is suing Courtney Love as the executor of the Kurt Cobain estate, he also named Kurt Cobain, deceased, as one of the parties, which um was and I've never seen that, I have never seen that, I have always, if I am, um, you know, I used to work at a firm that did a lot of personal injury stuff, and usually if there was somebody that was dead, it was always the estate of, um,

0:42:12 Thomas: All right. Oh, okay. Are you allowed to do that? Hmm.

0:42:41 Thomas: Yeah.

0:42:41 Guest: So I've never seen that, but I guess they sued, um, him for good measure in case he's chilling on the island of Tupac somewhere,

0:42:46 Thomas: Right. I mean, it does strike me as maybe that is more of an attention-grabby thing to do. Like, if that's not the norm, it feels a little bit like you're literally suing a dead body because that's the most famous person involved here, oh,

0:43:00 Guest: Yeah, and they're also even suing the old drummer of Nirvana, um, who was not even on that album, uh, that was when Dave Growl was actually uh became their drummer, so we're suing everyone

0:43:07 Thomas: Yeah Dave Grohl, right, okay, yeah, so he sued the drummer of the first album, oh, that's weird, huh?

0:43:12 Guest: Yes they're suing everybody, they're suing the record label, they're suing the distributor, they are suing, which, I mean, is a common approach, because, as I was taught in torts at Ole Miss Law, I was taught sue as many people as you can for as much money as you can if you're a plaintiff, right, it's their job to get knocked out of a lawsuit, but I did think that was a little bit weird, and, um, just some interesting stuff going on with the parties

0:43:17 Thomas: Right yeah right makes sense yeah like if you're suing the old drummer, I mean, where the hell do you draw the line? I mean that there's got to be some point where you're like, okay, you can't, I didn't, your professor's like, I didn't mean literally everybody, like, you just, you gotta sue like yeah, like the guy who set up the audio equipment in the studio, you're like, god, gotta be a line somewhere

0:43:37 Guest: Yeah exactly yeah exactly, within reason yeah yeah no I'm honestly surprised, it's like, you know, the guy that hooked up the mics, but yeah yes

0:43:53 Thomas: Yeah did and did you say, sorry, did you say they sued the label, the record label as well? Okay that actually kind of makes sense, like, if you're gonna do this lawsuit, you know, sue who might have signed off on it yeah

0:44:01 Guest: They did, they did sue the record label, yes that does yes and also the photographer, and um, and which, yeah, so we'll get, we'll get into that. So basically, here's what the lawsuit alleges, know, sometime in 1990, DGC Records hired Robert Fisher to design album cover work. And that's absolutely true. So, you know, he's talking with the band about what they want. So Kurt Cobain said that he wanted images, and this is according to the lawsuit, wanted images of nude babies for production of their Nevermind cover.

And the complaint makes it appear as if they wanted to do that for basically shock value and for, again, these bad reasons, reasons, but when you look into this claim even a little bit, I looked into old, um, I found several old articles, such as, you know, Rolling Stone and CNN, from years ago, about, you know, how did this Nevermind album kind of come together, because, of course, it was a huge success, so they did a lot of interviews, um, so those are plentifully available for anybody who wants to fact check this complaint even slightly. So evidently Kurt Cobain was, um, watching some water births one day, actually Dave Grohl was over, and he was actually really inspired by water births, and he wanted the cover to actually be a woman giving birth, giving a

0:44:10 Thomas: Sure, sure, hmm yeah geez yeah

0:45:13 Guest: Water birth, but the label said, uh, that's a bit much, Kurt, like, love you, but that is a bit much. So he he liked the image of, you know, just a baby being underwater, and I think just something about that movement. So if a suit is right about, he did want, you know, um, but he wanted it to be more than just, oh, it's an underwater baby, you he wanted to be something, you know, that that said something, essentially, that was more of a just like, oh, cool. So the lawsuit claims that Kirk Weddle, who is the photographer, took explicit photos of Spencer. So Spencer Eldon, the guy who is the infamous baby, who was then a four-month-old baby in a pool at the Pasadena Aquatic Center in Pasadena, California, and he took, quote, series of sexually graphic nude photographs of Spencer. But when I looked into the background, like, how did this baby happen to be, be there?

0:45:17 Thomas: Yeah Yeah.

0:46:02 Thomas: That's gonna be my next question, like, why? Hey, baby, talk, talk to whoever signed off on this. Yeah.

0:46:03 Guest: Yeah. So artist and designer Rick Eldon had actually, who this would be Spencer Eldon's father, he who was also an artist and a designer, he actually brought Spencer as a four-month-old to the shoot for the photographer to photograph. And actually, Eldon and Weddle, the photographer, had done a lot of photo shoots together over the years. They had done photo shoots for bands like The Temptations. They had done a huge amount of work together. And actually, over a dozen infants were scheduled to do the shoot, but on that day only Eldon's son Spencer was in the water with Weddle.

So it goes into like, okay, he didn't just happen to be there, and then also, like, his dad signed off on this, right, which going back through the lawsuit, you know, there's all kinds of like weird claims here, but but one of them that really stuck out to me was they made a claim that said, to quote, ensure the album cover would trigger a visceral sexual response. Reviewer, again, keep those factors in mind, that's one of the factors, Weddle activated Spencer's gag reflex before throwing him underwater in poses that highlighted and emphasized his exposed genitals. And I thought, oh my gosh, that sounds horrible.

Like, did this happened, like, even if it wasn't a child porn thing, like, did they just throw a baby into this water and like gag it, like, what, what's going on? So I looked into it, and it completely misrepresents what happened. So I found a Rolling Stone article that actually says that they were, they actually seemed like they took a lot of care for, you know,

0:46:46 Thomas: I mean

0:47:32 Guest: Some, a baby that's being that's being Yeah.

0:47:33 Thomas: I would hope so it's someone's baby. That's

0:47:34 Guest: Exactly.

0:47:34 Thomas: There, yeah.

0:47:35 Guest: And it's like his friend's baby, right? So it's even more than that Yeah.

0:47:37 Thomas: And the guy's there, right. Yeah.

0:47:39 Guest: So they actually used a fake baby to frame the photo and get the lighting right before the kid was even in the pool. So it seems like there was a lot of care taken there, and they were actually talking about how the baby was a naturally good swimmer. And I found an interview from Weddle that said, yeah, if you don't pull the baby up, then they will drown, he joked. There's tricks to it. You actually blow in the kid's face and it creates a gag reflex. Infants have a gag reflex, as we all do. You hold him up really close, close to your face, you blow into him really hard, they gasp, and then into the water they go. And then he says, yes,

0:47:39 Thomas: Oh, yeah that sounds

0:48:12 Guest: Yes, yeah, yes, Exactly. So Weddle then shot only 18 frames, according, this is according to Eldon, the guy's, the guy's father. We only had a half of a second before the shoot was over, and little Spencer was plugged from the water. Boom, boom, boom, end of story, he said. We got paid 200 bucks. And I did confirm this. So several swimming instructors will actually do this. They will blow in a baby's face and they gulp air and close their eyes. And that's actually called a diving reflex. So

0:48:13 Thomas: More like a gasp reflex, not necessarily a gag reflex.

0:48:43 Thomas: Oh,

0:48:44 Guest: There was actually an experiment that was done, and many babies they found actually enjoyed it and were then excited and very eager to go underwater. This also happens whenever a baby dunks its face in cold water. And this is a response that happens for a baby to hold its breath, right, because, of course, you know, they don't know how to swim, so, um, yeah, it's actually a natural response. And so a lot of swimming instructors, to encourage, you know, because a lot of parents will, you know, drowning is obviously a very big concern for parents of small children. So, you know, a lot of swimming instructors are like, yeah, I'll blow in the baby's face all the time, and it causes this sort of, as you said, sort of this gasp reflex. Yeah.

0:48:44 Thomas: Yeah.

0:49:21 Thomas: That's so funny. That's one of the funnest things to do with a baby. They love it. They smile afterwards every time. But I've never used this for swimming. It's actually not a bad idea because it's really hard to try to explain to a baby or an infant or a toddler or whatever. Try to explain holding your breath. I've tried it with my kids and they don't get what I'm saying. I'm like, yeah, you got to breathe in and hold it. It and they don't, they have no understanding of it. So it sounds like this is a good technique to try.

0:49:47 Guest: It actually is. And yeah. Yeah, there's actually a very interesting, I believe it was from Popular Science or Popular Mechanics that I read that article. And I was like, oh, that actually makes sense. And again, it's like, if you look into any of these claims of these lawsuits, they just fall apart. And that's just another example of that.

Another thing that they claim, which this was a quote I know that a lot of people shared, was that claiming that Cobain chose the image depicting Spencer like a sex, sex worker grabbing for a dollar bill that is positioned dangling from a fish hook in front of his nude body with his penis displayed, and you're reading a little bit too much into this, man.

You know, again, it's like, how is that, like, no one is looking at this album cover who is a, you know, quote unquote, normal person and saying, oh, this is, yeah, just like a sex worker chasing a dollar on a fish hook. You know, and it's obvious that this, this is an artistic thing, again, that you can look into by saying, oh, it's, you know, obviously symbolic of, like, how we chase money and material things as soon as we're born. But, you know,

0:49:58 Thomas: Yeah. Yeah.

0:50:47 Guest: It's on a fishhook. So it's just out of reach. You know, it could be a commentary on capitalism. It could, you know, there's a million ways to interpret it. But that interpretation to me just seemed bonkers. And again, there's like very little support for this. They just say it. And that's a lot of this lawsuit is them just saying things. And they do give away the plot though, in their own lawsuit, so this is again a conversation that they could have had, but because they decided to label everybody, though, you know, like the band and the distributor and record label is like literal pedophiles, you know, it makes me have no sympathy for a plaintiff.

So they say, quote, defendants commercialized Spencer's image and received and continue to receive value for the ongoing distribution of music and paraphernalia featuring this image, including licensing the image for use in Nirvana branded items like Snapchat filters, t-shirts and posters. You know, they talk about how they sold and profited from over 30 million copies, and they say it's one of the most recognized album covers, which, understands, you have to establish damages, but they, they say this, they say, quote, neither Spencer nor his guardians ever signed a release authorizing the use of images of Spencer or his likeness, and certainly not of commercial child pornography depicting him, which again, they kind of push that in there. And they also say, quote, Spencer's image created massive commercial success for Nirvana, for which Spencer never received any compensation. That's what this is about. This, they gave away the plot here, right? It's that he

0:51:01 Thomas: Yeah. Sure. Yeah. Yeah. Yeah.

0:52:18 Guest: Did not, like, he's seeing every, and I know that this was a big conversation too, because people were saying, oh well, Spencer Eldon is, re, you know, he would recreate, create the album cover every few years, right? That was a big thing. Like, he did it once at 20, and then again at 25, and I think he did it even as, as recently as I want to say 2018. So fairly recently. You know, some people were saying, oh, well, maybe he's traumatized and this is how he copes. But then again, you're saying, no, the issue actually is that everybody made money off of his image, except for him. His dad got paid 200 bucks.

0:52:52 Thomas: Yeah.

0:52:52 Guest: And I imagine that does kind of suck. It's like, oh, I kind of peaked in my life as a four month old, you know what I'm saying, Like, so that does suck, and then you're seeing everybody, you know, like, oh, that's my face, it's being sold, like, that does have to be a weird feeling, and I think that we can have a conversation about that, like, you know, the fact that you know, it, you know, legally it's like, okay, well, his dad was paid 200 bucks, you know, you saw, you know, you may not have signed off on anything, thing, but that's a different conversation, and you know, what's done is done.

0:52:57 Thomas: Yeah. Yeah. Yeah.

0:53:20 Thomas: It strikes me, me, as there's several different issues on one hand. Yeah, I mean, you could imagine a lawsuit, forget all the ludicrous child porn accusations, um, which strike me as clearly not accurate, um, but you, you could imagine a suit that's like, hey, you used my image and profited off of, and we weren't properly compensated, um, but I, I imagine that would all come down to who signed what and what was in the thing that they signed. It's Oh, is there statute of limitations on that kind of claim, right?

0:53:43 Guest: Also, statute limitations. I mean, I mean, yeah, because he's like, he's in his 30s now, because usually, usually, they'll let you, you know, pursue claims that you know, um, had been, you know, like, because obviously when you're five years old, you're not going to go run to the courthouse, right? You're five, so, um, so

0:53:54 Thomas: So yeah, is that why they're going for the child porn angle, because that doesn't have the same statute of limitations, maybe.

0:54:06 Guest: Well, Well, because, they're claiming, they're also trying to claim that because every time that basically a Nirvana album or something of Nirvana is sold, that it's, you know, basically continuation.

0:54:07 Thomas: Uh, oh, well, I guess that would also apply to the, wouldn't that also apply to the other thing

0:54:19 Guest: Yes. But I imagine even, it would be even harder for you to make the case that, oh, I wasn't compensated. You understand what I'm saying? As opposed to child porn, which again, and the firm, I've looked into the law firm that's representing him, and that's kind of what they do, is a lot of, sex, um, trafficking kind of stuff, and they say they're instrumental in pushing a lot of these laws in Congress, which, again, all different topic of, you know, a lot of how those laws have been used to target sex workers, actually, um, not actually help people, and you I'm sure they do, they probably do some good work, but yeah, I am very confused views about why they took on this suit. I imagine what they were hoping for is that, you know, oh, if we put child porn in there, that's going to create a lot of bad press for you guys, especially in this day and age, and y'all are just going to write us a check to go away, and they called their bluff.

0:54:26 Thomas: Right, right, yeah.

0:55:04 Thomas: As so much as, on one hand, someone might feel like, oh, man, only 200 and that album sold zillions of copies, on the other, other hand, I mean, I think that's kind of how these things go. I mean, if you were a major corporation and you use, like, a stock photo that you buy, you know, from somebody, or that's an image of somebody, for 20 bucks, I mean, that's kind of how that goes. It doesn't really matter that that gets used in a national campaign.

That's a zillion dollar campaign. On one hand, you might feel like, oh, but my, my image might be everywhere. But I don't know, that's kind of, that's kind of how those things go. I mean, you sign the whatever it is, the agreement is for that photo, and the language, I imagine, is the language, like, if, if they authorized it, if that's in what they signed away, I feel like you're kind of out of luck, right? I mean, even if, forget the statute of limitations, what's your impression of that claim in and of itself, forget all the child porn stuff, of just, like, not being properly compensated for that photo? Yeah.

0:55:53 Guest: Yeah, Well, I think that's also a bad claim too, because his dad was compensated for it, that's the 200, like, the end the deal was done.

0:56:07 Thomas: Yeah, it doesn't really matter What happened

0:56:10 Guest: The end, it was done, like, and you don't, need that's one of those things that you don't really need a written agreement for, but again, my stance as the lawyers always get everything in writing, right? But again, it's like, you know, Nirvana did sign on to this bigger label, and they were expected to be, they were expecting to be, you know, like, you know, up and coming in the rock charts, but they weren't expecting them to, you know, blow up, like they did,

0:56:10 Thomas: After that? Yeah, exactly.

0:56:30 Thomas: Well, and you, and, and here's the thing. Imagine that Spencer or, uh, whoever's yeah. Spencer's dad. Imagine that he's like, all right, you can have my baby. Yeah. $10 million. They're going to be like, oh, we'll just use someone else's baby. Well, who will actually do this for, you know, and that's honestly kind of the free market. They're not going to give away points on the album for, like, the generic picture of a baby. So, again, in the waning minutes here, I guess the other separate issue, like talking about the child porn angle, I guess my main question for you would be, sounds ridiculous to me, it sounds like you kind of agree. However, is this the kind of thing that gets to discovery?

Because that always tends to be the thing. Are they able to say, I know you looked into these interviews and stuff, but are the plaintiffs able to say, oh, no, if you, you know, we have evidence or on belief or whatever Andrew always says, on reason, something and belief, that there's actually a sinister motivation here, if we, you know, are able to discover it in the following ways. Do you think this gets to discovery? So,

0:56:41 Guest: Exactly. I Do not, I think that the claim is, um, I mean, again, like, even the fact section falls apart under very basic research. Very, like, it, the whole lawsuit falls apart. And And of course, any judge looking at this would say, you know, I think is going to dismiss it.

0:57:44 Thomas: It's on its face, it's so ridiculous that you don't think it, they, you don't even think they're allowed to say, like, well, maybe there's a letter from Kurt Cobain to somebody saying, I want, you know, it's a lewd photo of a child on this album, they don't even get to, like, get to that, okay, yeah,

0:57:48 Guest: No, no, I don't think they do. I don't think they do. And if they and if they were to, I mean, again, it's like, this you happened in the 90s. So you would have a very uphill battle to, you know, try to do that.

0:58:06 Thomas: Well, and I guess my final question would be, even pretending that that claim were meritorious for a moment, would be, who is actually liable for this? Because, in some sense, I know, again, the theory is sue everybody and let them sort it out, but, like, if your parent signed, you signed off on this and authorized this, isn't it almost like, okay, we'll take it up with your parent, like, you can't really, you know, like, if someone's if my parents, yeah, sign, sign off on something for Kurt Cobain. I mean, I don't really see how that would, you know, they were my guardian and they made that decision. I don't know if there's going to be some special rules in the child porn laws or something, but doesn't that strike me as something I needed to take up with my parent or guardian who made that arrangement?

0:58:15 Guest: Mm hmm.

0:58:33 Guest: I mean, yeah, exactly. Exactly. And also anybody would be held liable who, again, and this is why they are suing so many people, anybody who distributed it, basically made money off of it, you know, it runs a gamut. Because you want to be able to get anybody.

0:59:00 Thomas: Okay. Okay. So it's like, because the child porn laws, Yeah, I imagine they're broad for that purpose. Okay. So they they probably would be able to, if, if this were a real meritorious case, they probably would be able to get some money from somebody involved at least.

0:59:06 Guest: Yes. Yes. Oh, yeah, absolutely. And then also they do ask for liquidated damages of, you know, because sometimes it's hard to say, okay, well, what are your damages, especially in context of, you know, how big this album is. So he asked for liquid damages of $150,000 per defendant. And as I've said, there is quite a few, there's a big number of defendants going on here. So, you know, that equals to, you know, a pretty good sum of money. So I imagine that's probably close to the amount of what they were trying to settle for, because you I imagine they probably went to the record, he probably went to the record label and said, Hey, pay me this check or I'm going to sue you. Right.

0:59:17 Thomas: Okay. Yeah. Yeah. Yeah.

0:59:49 Guest: And the record label told him basically, you know, okay, good. We'll see you at the courthouse. Um, yeah, and I imagine this child porn angle was probably done to try, um, to leverage that record label into settling, because again, the idea that this would cause bad press for them, right, is if, you know, you don't want DCJ, DCJ records, you know, publishes child porn, you as a bunch of headlines. But instead, this kind of backfired and blew up in their face, face.

0:59:52 Thomas: Yeah. Right.

1:00:11 Thomas: So Right. All right, well, I guess final question, prediction time, you predict a, uh, dismissal here, it

1:00:19 Guest: I do, I predicted dismissal, or, um, they may just decide to give them a nuisance amount to settle, but I doubt it, I don't think the record label really wants to enter Yeah.

1:00:26 Thomas: Sort of sounds Sounds like we're past that, right?

1:00:28 Guest: I think the record label really does not want to entertain these kind of lawsuits where people come out of a woodwork saying, oh, well, I was on the cover of this album in 1975, so, you know, you need to, you need to pay me, you know, like the kids on the Smashing Pumpkins albums and stuff like that, on Siamese Dream, might come forward and be like, oh, you need to pay me, yeah, it's one of my faves but yeah, you don't want that, so I think this gets dismissed.

1:00:28 Thomas: Yeah. Yeah. Mm-hmm. Yeah. Oh, such a good album. God, that album rules. So good. All right, Morgan Stringer, Ace Associate, that's an absolute pleasure. Thank you for both the update and the brand new coverage on that, on a baby suing Nirvana. Really fascinating stuff. Can't wait to do it again sometime.

1:01:04 Guest: Right, I can't wait either, thanks for having me.

1:01:06 Clip: And thank you!

1:01:08 Thomas: Now it's time for the Hall of Fame patron shout out recently amended to be everybody per month. I already messed up because it didn't factor in how early we record. And so I don't have the fresh October names and yet we have to start doing the October shout outs. So here is the first fifth of the names and I'll start us off. Thank you to Amy Stevens, your friendly neighborhood letter carrier. Salty Seattle driver on YouTube debunks the stupid idea that hazard lights mean you can park literally wherever you want.

1:01:47 Thomas: LT, Liberals Own Guns, to support root cause mitigation, not ineffective private insurance. Insurance, two, oh, this is hilarious, two W, two, so it's two white, two blue, two black, two red, two green, 10-10 Hydra avatar, protection from everything, if this card would be put into a graveyard from anywhere, reveal it, oh, it's cut off, I think it's reveal it and put it back in your library, yeah, that's, oh, man, what's that called, I actually know what that's called, but, uh, oh, remember, so I'm blanking on that's been a minute, but that's a card I see in cube a lot, it's a, it's a fun one, can try to get that onto the battlefield somehow, uh, I don't remember the name because I'm proper noun challenged. He thrusts his fists against the posts and still insists he sees the ghosts. Interesting. Oink oink, I just got moinked. Market tested, much better than their first slogan, Logan.

1:02:38 Thomas: Cluck, cluck. I just got, and it just, it cuts off there. Nice. Matt Dunlap. Don't listen to Borat. Kazakhstan is great. Just one of a flock of at least eight other Atomic Penguins at AtomicPenguins7 on Twitter. Joseph Vigiano. Statehood for DC and Puerto Rico Now. Dr. Scoop Little. Heather T. Now 50. Still fantastic. Oh, congrats. Now here's something we hope you'll really like. Just waiting for my university's census date so they can kick us all back online. Comedian Aaron Trahan at Comedian AET, formerly AKA at Game Jumper X. Hand-woven night-safe reflective scarves by Kelly Wovett.com. For a fun fantasy story, read The King's Own by W. Marshall, now on Amazon. And your turn, Andrew.

1:02:45 Andrew: Here here yeah Thank you to that thing in the attic, to the fat Jedi eating cake and drinking drinking Emperor's Brewery beer in the Death Star canteen. To Liberals Own Guns, to Support Root Cause Mitigation, Not Ineffective Gun Control. To I'm Matt, and I get no welcome on Cog Dis. Well, see, you know, that's why we... I'm not saying we love you more than Cog Dis loves you, but I am saying that. Do you think Lou Bega knocked it out of the park with Mambo No. 1? No, but he kept at it. Agnew the ancillary and pernicious, a theist to support Decarcerate, working to end mass incarceration in Arkansas, that is decarcerateAR.org. Oh, a live show in Townsville, Australia, please. I, I really, I mean, if you're gonna invent a fake city, Townsville, all right. I was vaccinated in July, thank you, Australian government. Social Justice Alchemy. Learn from BLM, mansion and cinema aren't just bad. Bad apples.

1:04:29 Andrew: I'm not sure I understand what that means, but we will read it. How can we get out of this timeline? Well, you know, it's going to require a DeLorean and 1.21 gigawatts. Tell Morgan, get Tom's son. Already have. Zach Bloom. Ray. Pizza school asks, what do you call clarified butter made by short-legged herding dogs? Corgi. Which is fantastic. Live. Baseballscorecards.com. Great site. Legal Eagle is so handsome. Yes, he is. California Employment Work Accident or Litigation Questions. Call or text Attorney David Nitka, 310-776-5879. That's 310-776-5879. Attorney David Nitka, John Strange, and the Smiths. So congratulations, you guys, on being our one-fifth of our Hall of Famers, and thanks, as always, for your support.

1:05:18 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:05:23 Thomas: And now it's time for T3B answer time. Let's find out how I did with what I thought was a straightforward question, but who knows? Could have gotten porked.

1:05:34 Andrew: You never know. So Thomas, this was a breach of contract question, which meant that, of course, it involved paint. A Man entered into a valid contract with Painter A to touch up the paint on his house. Man agreed to pay $400 for the job as well as supply the paint, which would have cost him $50. But before he bought the paint, the painter breached the contract, said, I'm not painting your house. Man had to go out and engage with another painter to paint the house. That painter supplied her own paint, but charged him $600. And so the question is, what was the appropriate measure of damages?

And you picked A, $150. Dollars, and your reason therefore was, uh, the question of, uh, how do we put the person who had the contract breached in the position they would have been in had the contract not been breached. And you're like, yeah, that seems like the right thing. So, um, he should have had to have paid 450 dollars, all in all, done, to get the house painted and gotten the house painted. And, uh, and And that is, in fact, what he got, the house painted. But it cost him $600 to do so. The difference between those two conditions is $150. And so you went with A. And Thomas, I'm pleased to tell you A is the correct answer.

1:05:42 Thomas: Yeah. Ah, thank God. Okay.

1:06:55 Andrew: Sometimes the bar just asks straightforward questions. They want to know, you the basic principle that breach of contract, right, is not a windfall, right? Right. So, you know, you don't get like the paint thrown in for free. You don't get the difference of all of that. You get put in the position you would have been in, but for the breach of the contract. That is the baseline rule. Now, you there are times when that's not the case. Right. Like if this happens a lot in building construction. So you could imagine if you have reasonable reliance expenses that required the other party, you know, that were undertaken expecting that the other party would complete the contract and the other party breaches the contract, then, you know, you may wind up recovering far more than just your expectation damages. You may also get, back for the stuff you spent on that project that had to be scrapped, But right?

1:06:58 Thomas: Math questions. Yeah. Yeah. Right.

1:07:56 Andrew: Those are exceptions to the rule. This was testing just the good old straightforward rule, and you got it exactly right. So good job, my friend.

1:08:03 Thomas: And good job to the coin. I like big buttfors and I cannot lie. That's just how I answer this one. One. You know, I think that this test seems reasonable. The first few questions were quite tricky, but we've gotten a few that are, you know, pretty rational, pretty reasonable. So seems like a solid test source. I'm looking forward to seeing how I can do at it. So here's to above 50 percent maybe in the future.

1:08:07 Andrew: Yeah, there you go.

1:08:30 Thomas: Well, now it'll be time for future Thomas to tell us who's this week's big big winner and future Andrew to probably be sipping wine on a boat or at an amazing, beautiful vista somewhere. And this week's big winner of T3BE, new owner of vast fame and fortune, the likes of which have never been seen, is at Tom Pandolfo, T-O-M-P-A-N-D-O-L-F-O on Twitter, who says, the answer is A, the question is exactly as easy as Thomas made it sound, it's only on the bar exam because lawyers are notoriously bad at math.

1:08:29 Andrew: All right. Right

1:09:12 Thomas: I'm not sure if that's necessarily true but I thought it was really funny and you're the winner, Tom, congratulations. Keep playing everybody, this is a lot of fun getting to pick the winner. I'm definitely going to let the power go to my head and we'll see, uh, as the next weeks go by what that means and That's our show, thanks so much for listening, we will see you next time.

1:09:29 Andrew: Your support.

1:09:33 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-talkin' guy.

1:09:43 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it would be a big help if you leave us a five-star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to 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 And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.