OA534: State and Federal Agencies Now Fighting EACH OTHER in Blizzard Activision Case

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 534. I'm Thomas and that is Andrew somewhere near a Kraken, as you would say. I think you're in the... How are you doing?

0:01:29 Andrew: I have seen my fair share of tentacles on this trip, my friend, let me tell you. Most of them I've eaten,

0:01:37 Thomas: All right, we've got quite a show for you. There is a major Activision versus Blizzard update that apparently our own Andrew Torrez, while on vacation, no less, has like broken news in this case. And gotten interviewed about it. We've gotten cited in an article. I'm pretty impressed. This is a vacation for you, huh?

0:01:58 Andrew: Yeah. You know, I consider curling up with court documents to be the height of of relaxation and vacation activities. So, yeah, let's talk about Activision because this may turn into, and Andrew was wrong, and it may turn into that because of an assumption that I made, right? So let's lay the background, right, if folks are new and are following this because, you know, particularly of this story. We talked about the initial California DFEH, DEFA investigation, that's the State Department of Fair Employment and Housing into Activision Blizzard in episode 513, right? That was the beginning of August. That was right after the public announcement was made and the lawsuit, the state lawsuit, was filed against Activision by DEFA.

0:02:51 Andrew: Two weeks ago, we discussed the parallel, but not yet disclosed, federal Equal Employment Opportunity Commission lawsuit that was filed on on September 27th, and then a proposed consent decree was filed that same day. And I walked you through the terms of that proposed settlement, and I said, based on an assumption that is always the case in these cases, or in every case that I've seen, which is that the federal and state agencies are working in concert, that right, they are probably sharing resources, that they are certainly sharing information, that they are working together towards the same goal. And so I said, look, based on that, here are the good things about this settlement.

0:03:40 Andrew: You may notice that I am taking some times to list that as an assumption, because what we learned at the end of the week last week is that that assumption may not be a a very good one. Um, the reason we're back here for for another bite at the apple, um, is that what I saw in the docket starting on October 7th, my birthday, the day that, you know, we recorded, uh, last Friday show, um, was some procedural geekery, right? There was a motion by the California Defa to shorten time to conduct subsequent proceedings, okay? And so I said, hmm, well, let's put a pin in that. And after we record, I'm going to go read it and figure out what that is.

0:04:27 Andrew: And then by the time I got to it on October 8th, there was an opposition filed by the EEOC, but the opposition was filed as a motion to file under seal. And the opposition was only one of the exhibits to... So I'm looking at this going, man, whenever there's this much sort of obscure procedural geekery, there's something somebody doesn't want us to find. Right. And in fact, that's what I found.

0:04:58 Thomas: So who is the someone who you're thinking doesn't want us to find something in that instance? I don't think I understand.

0:05:04 Andrew: As it turns out, I think both the EEOC, the Federal Equal Employment Opportunity Commission and California State Department of Fair Employment and Housing have dirty laundry. And I am going through all of it to try and figure out what's going on. On top of all of that, two days ago, that's the 12th, the Communication Workers of America, that that represents a lot of Activision Blizzard employees, employees, they sent a notice to Activision and a request to the court to have a hearing, a fairness hearing on the proposed settlement. Right.

0:05:19 Thomas: Whoa. Okay.

0:05:51 Andrew: And that letter has 31 specific paragraphs and requests. I'm not going to go through all 31. I will link it in the show notes, of course. Um, here are the two that that stood out the most to me. Right, three: "The settlement amount of 18 million dollars seems woefully inadequate. This would provide the maximum settlement for only 60 workers. If any significant number of workers receive the maximum under federal law, there would be little available for many other workers adversely affected. We are concerned about how the EEOC got to that number and how it believes that number will be fairly distributed." And you might recall, we talked about that number on our episode, right? And the idea was, my inference was, oh, well, this must indicate that as a good sign, I mean, it's never a good sign when you have a hostile work environment, but that there were relatively small number of employees affected.

0:06:26 Thomas: Yeah.

0:06:42 Thomas: In fact, you even talked about what happens when that there aren't enough people to even pay that money and how it goes to a charity and that kind of thing?

0:06:50 Andrew: That's exactly right. So, okay. So the first question that the union is is saying is, based on our representation and based on our knowledge, looks like your numbers are low. That's a pretty big red flag. Then paragraph four says, "This proposed consent decree seems to be an attempt to preempt the parallel suit brought by the Department of Fair Employment and Housing under California law." And again, we talked about that. And, again, this is why you presume that both state agencies are moving in parallel, because you do not want to have your state law claims preempted by a federal agency.

0:07:30 Thomas: Apologies, but pausing. Does that is that how it works in this kind of things? You can't both have like, well, the federal thingy is going to punish this company for being crappy and also the state thingy.

0:07:31 Andrew: Sure, And no, right? In some cases, a state law may be more extensive than a federal law. And so there might be valid, valid causes of action for the same employee that are not cognizable under Title VII that are cognizable unter the state statute, right? And you could bring both simultaneously. But in many cases, as we read you, right, Title VII and the California anti-discrimination law are prohibiting the same kinds of conduct. For example, discrimination in promotion due to pregnancy status, and right, so if you were an Activision employee and you got passed over for promotion because you got pregnant, you can get relief for being passed over from pregnancy under either Title VII or California state law, but you can't double dip.

0:08:37 Andrew: You can't get a reward for both under both statutes for your particular injuries, yeah.

0:08:42 Thomas: Is it double jeopardy esque or something else?

0:08:48 Andrew: Double jeopardy-esque is not a bad way to put it. The idea is you don't get, you don't get compensated twice for the same injury. Yeah.

0:08:57 Thomas: Gotcha. Because this isn't like a criminal Or whatever. It's just getting, it's, it's recompense to victims. Okay.

0:08:59 Andrew: Correct. Yeah. Then it says, "Please explain why this consent decree was entered into shortly after the DEFA complaint was filed and has become active. Do you plan to seek input from DEFA? Why was this not coordinated with DEFA?" So that is still outstanding. Like I said, that was filed two days ago, so we have no responses to any of that. But now let's look at the claimed relationship between the EEOC, that's the federal EEOC, and the state DEFA, because this is amazing, this is, um, we're going to walk through both sides' allegations, uh, which, and I'm going to tell you what I think it means. Okay, so what the EEOC says, the EEOC says, he says, "Object to DEFA intervening in this lawsuit to potentially challenge our settlement because DEFA's investigation was conducted by former attorneys who worked for the EEOC, left the EEOC, and didn't tell us that they were going to DEFA to continue to conduct that investigation." And when you do that, have an ethical obligation to disclose that prior representation, and you have to do one of two things.

0:10:36 Andrew: You either have to get the approval of the prior governmental agency, or if you don't get that approval, you have to wall off those lawyers from working on the cases that they worked on for the past governmental agency, right? That is rule 1.11a of the Model Rules of Professional Conduct and the California Rules of Professional Conduct, right? And so it says, "A lawyer who formerly served as a public official or employee of the government shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public official or employee, unless the appropriate agency gives its informed written consent to the representation." And here the EEOC is saying, we never gave that consent.

0:11:25 Thomas: This, is weird, because in some ways you'd be like, "Nothing wrong with this, I worked on a thing over here, I'm gonna bring that experience over here," that sounds great, I, it's weird that this is being set up the way you're setting all this up, like some sort of rivalry, like a, almost a destructive rivalry over, over trying to investigate this company, when really isn't, I mean, unless I'm misunderstanding, understanding this, is this, is two, this is a state level and a federal level of government trying to investigate and punish this company, why, why all the tension here, what's going, I don't understand.

0:11:57 Andrew: Have a hypothesis about where the tension is coming from, uh, but you are correct, right? Your, your reaction is exactly the reaction I was hoping to provoke, right? This is weird and it doesn't make sense, and as you point out, the right rules specifically say, yeah, like, if, we have, have somebody who is working for the EEOC and they leave and they go to a state agency that's doing the same thing, just tell us, oh, hey, yeah. We hired Joe. Joe's going to come in and work on this now. I assume you're cool with that, right? And, you know, look, really good example of that is, right. The coordination between the Department of Justice and the New York attorney general's office on the Trump investigations, right? Because everybody is working towards the same goal, which is finding and exposing, and in that case, prosecuting crimes of our past president. Here the idea would be correcting a workplace environment of a major employer in California. So yeah, that seems weird because, as you point out, the remedy is just get their sign off, right?

0:12:00 Thomas: Yeah yeah yeah I

0:13:11 Andrew: And then on the flip side, right, you can understand the purpose of the rule in the first place. And that is, if you are a substantive employee, right, if your if you were a relatively high level lawyer at a government agency, agency, the stuff that you leave with, the stuff that's in your head is not just your stuff, right? It is work product prepared on behalf of that federal agency, that government agency. And lawyers do that all the time, right? Like when my clients say, hey Andrew, I want you to write me an opinion letter on whether I can purchase this property, right, and I write it with that letter, the The contents of what I write are attorney work product.

0:13:58 Andrew: They are privileged and confidential, and they belong to my client. And so you can see why, if there's a case that there's a dispute, that the EEOC would be able to say, yeah, hey, like, you know, this isn't, Joe is leaving, but Joe's leaving with a head full of stuff that a whole bunch of other people worked on besides Joe, and that belongs to us and not Joe. And if you're not going to cooperate with us, then the other remedy is you got to wall Joe off,

0:14:18 Thomas: Totally.

0:14:28 Thomas: Get this in the private business sense, I, I'm having a harder time understanding it in the governmental agency sense, like if, if this was two different, different levels of policing, for example, like I, for some reason, you know, FBI and like the state police, you it'd be weird to be like, "Oh, we're borrowing, it we're hiring this guy over because he worked on this case," that would be almost something that makes sense to me, you know, like, "Ah, hey, have we seen how well you did with this casethat we kind of both worked on, come work for us," but then the part where it's like, "No, I'm gonna do that in secret," so they didn't tell them, apparently, and also, you why would you not want those two agencies sharing their information? It's not like a private company where you're sharing work secrets or something. I guess I'm, I'm having a hard time understanding this.

0:15:13 Andrew: Let me give you a couple of different answers there, okay? The first is, again, in an ideal world, you would want them to share information. This rule comes into play when there's a disagreement about who owns the information, And right. Why would you want to validate the rule that says attorney work product belongs to the client? Right. There are a bunch of reasons for that. Right. Like you could you could imagine situations. Right. Right. Like here's here's a classic example. Example, comes in to an investigation and you pursue a settlement and you feel like you've gotten all the way, you know, to the bottom line on a settlement. And everything that gets shared in connection with that proposed settlement is immune from discovery and is inadmissible under rule 408, federal rule 408. We've talked about that before. Right. So if I sit down with you and I say, all right, come on, let's settle this thing out.

0:15:23 Thomas: Yeah

0:16:11 Andrew: And you admit certain things about the strengths and weakness of your case to me. I can't then go, oh, well, not settling now. Now I'm going to litigate and I'm gonna use your statements about like, you know, how weak, you know your claim number three is right in in court against you. Would be stupid. Right? Right.

0:16:29 Thomas: But Again, that's like you're talking about two different sides there, you're taking about like someone going to work from the, okay.

0:16:35 Andrew: Well, you are. But so let me give you let me give you a clear example. And let's use Activision as an example. Suppose Activision and EEOC are having settlement discussions. That's not a stretch because they reached a settlement here. Right. Right. So we know that that's going on. And you are attorney Joe A. here and you are in on those discussions. And Activision's lawyer says, and Joe A., you believe them. Hey, based on all of these factors and our board, we will never we will fight tooth and nail to the death if the requested amount is above 20 million dollars. Right. Now, you learn that as Joe A. only in the context of settlement negotiations that Activision believes are going to be maintained by the EEOC. And if Joe A then leaves and goes somewhere else, right, it's easy to imagine, right?

0:16:41 Thomas: Okay. Oh,

0:17:39 Andrew: Right, goes to a private firm and then wants to sue Activision, right? That conflict is very easy to understand. But even if he goes to an agency, if the EEOC thinks that there's something Untoward going on, the EEOC can say, "Hey, man, like, you know, you can't use the stuff you've learned here, then go, you know, create a supercharged new investigation without our permission," and the reason we would want to maintain that is because otherwise we're never going to get, uh, companies to come in and talk to us in settlement, right? Because the companies will say, "Well, no, how do I know, I'm gonna have to, each and every one of your lawyers is gonna have to sign an NDA," and, you know, right, and all sorts of potentially unenforceable stuff.

0:18:23 Thomas: That's the missing piece. Because what I was about to ask next was this sounds like it protects Activision to a certain extent and they're negotiating. However, you already said that this is undone with a quick ask of permission. So you could just be like, oh, I'm going over to work for this other thing. So why, I was curious about why that even matters still, because all that was required to undo that kind of confidentiality you were talking about is just asking permission in the open, um, but I guess, would you not want to do that, or that's a reason going forward you would, you would want to not take that secret information, because then the next Activision won't negotiate with you at all.

0:18:25 Andrew: Yeah. Yeah. Exactly. Yeah, if a company feels like it goes in to resolve, and again, I don't want to come off as a corporate shill here, but I represent businesses, so I get this. And even a company like Activision, I suppose they went in with the very best of intentions. Right. And they said, look, we understand this is a real problem. We're going to work with you to do everything possible to make sure that that we're acting in good faith and that, you know, that we improve conditions and we fix it and we recompense everyone. And we really want to do that as much as possible. I'm not suggesting they did. I'M SAYING, YOU COULD Imagine a company being willing to do that. And then, all of a sudden, having somebody leave that room and then go to a state agency and bring another investigation down the line, right?

You could understand how Activision would be like, "Well, wait a minute, we thought we came here to make this go away, we understood it was going to be real bad for us, but we came in good faith to work with you, and now you're going to go off and send your minions out to various agencies and we're going to start all over again and expend money with our lawyers and PR and our stock taking a hit and all of that stuff. That's why we came here in the first place, us, what are you doing to us, right."

0:19:45 Thomas: I Okay, I get that, I just, so, so the way you've set this up, I thought it was, it, remind me which way it is, but I thought, was it was not Activision that was complaining about this, it was the state agency, or was it the federal agency, I can't remember.

0:20:44 Andrew: So Is now the federal EEOC. Is what's complaining about it. And and and now we're switching from the hypothetical to the real. Activision, right? Very, very smartly, has not said a word. Um. And uh, Activision has a battery of high-powered lawyers. They do not need free legal advice from a podcast. And you should not take legal advice from a podcaster. You understand that. But yeah, that is exactly the advice that I would give to Activision were they my client, right? When you have two rival investigatory bodies pointing fingers at each other and accusing each other of misconduct, you hide in the back corner and shrink down and make yourself as Small as possible.

And of course, right, that's what they're doing. Let's, so finish this out. Both attorneys A and B, and this comes from page 12 of the disqualification motion, also engaged in active supervision of subordinate trial attorneys and had authority to direct and approve their work. OK, so that is the necessary allegation to make to trigger everything that we've talked about under Rule 1.11. And essentially, the EEOC's argument in this opposition is, knew these guys left. We just assumed you walled them off. You never came to us and asked for permission. Commission, um, and then all of a sudden when we filed our consent decree on September 27th, we got uh

0:20:56 Thomas: Yeah. Sure. Huh.

0:22:07 Andrew: Communications from, from you guys, from California DEFA, and lo and behold they were from attorneys A and B. And and we were like, wait a minute, Joe, like, what the hell are you doing? You used to work here. You can't, you can't be representing DEFA in connection with this. And then DEFA turned around and hired outside counsel two days later, uh, but you, it doesn't matter, right? Like the damage has been done. There could be, this is from page 14, no claim that there was timely isolation of these lawyers from any participation, uh, because they, we had emails of of them sending us, hey, uh, you know, we want you not to oppose our intervention, uh, in this case. So that's the EEOC's position, was that that they were blindsided, and they included with that, um, an affidavit, a declaration from Rosa Viramontes, who is the district director of the Los Angeles district office of the EEOC.

0:23:02 Andrew: And I like this bit. I have been with the EEOC for 43 years with experience in systemic investigations since 1983. Wow, like 43 years is a long time to have been working for the EEOC. So she is the acting director of field management programs for the EEOC. She's been there, you know, since, like I said, since 1983, awful long time. The Viramontes Declaration says that we received, she says, as I received personally, an anonymous complaint from an employee at Blizzard, which was a subsidiary of Activision Blizzard, in February of 2018, arguing that there was a hostile work environment based on sex.

0:23:49 Andrew: We looked into it, and then on September 26th, we filed an internal investigation, what's called a commissioner's charge, right? This was former EEOC commissioner Chai Feldblum signed off on. Yeah, we've we've looked at this. There seems to be enough to begin an investigation. And then it says a little more than two weeks after that, on October 12th, 2018, heard from DEFA's director, Kevin Kish, who signed a director's complaint, the state equivalent to against Blizzard. Right. Which was then later amended to add Activision Blizzard and Activision Publishing. And so I reached out to them and I said, hey, know, we've got an open case.

0:24:35 Andrew: You've just filed an open case. Let's work together on this investigation. And Viramonte says, agreed, came to an agreement on how to, quote, avoid duplication of efforts and better serve our stakeholders. And essentially that the breakdown would be that EEOC would take the lead, that the EEOP would primarily take the lead on investigating would be claims related to sexual harassment, and that California's DEFA would take the lead with respect to the pay and promotion claims, okay? And so that's how they were going to break down and divvy up the work. And then it goes through, there's an Agreement that was memorialized, signed on 2020, and then all of a sudden the EEOC was blindsided when, in July, they looked up and California had filed a state complaint against Activision Blizzard and didn't tell them about it, seemed to have gone off and completely acted on their own, outside the scope of The cooperation agreement.

0:25:45 Thomas: Is This just a, like, chasing glory kind of thing, like personal, you know, professional ambition kind of, why, why do this? Why mess this up?

0:25:56 Andrew: I suspect. Disrespect here, here's, so, like I said, this is uh, you know, as Allison would say, super space beans, right? Like this is entirely conjecture, and I, I need to bracket it that way because I'm happy to engage in informed conjecture on the basis of practicing law for a long time, uh, but I, but I want to be very, very clear that I have no basis for uh, for thinking this other than it kind of make sense to me. If you thought that the EEOC, by the way, in 2018, being overseen by a Trump appointee, was about to go super soft On a company, you might do whatever the hell you think possible. Uh, now I cannot prove that in any way whatsoever, right? All I can say is, the allegations right now are, seems like this number is real, real small, and sure seems like, again, you, the union says, hey, the EEOC never contacted us and didn't try and collect information from our side, right? That's not a great fact, supporting what the EOC is doing. It

0:25:56 Thomas: Right. Right.

0:27:08 Thomas: Yeah. Sorry. So I guess I didn't understand the timeline. I thought you were talking about, you know, July and like this just happened. So you're saying this conflict between these agencies was happening in 2018.

0:27:19 Andrew: Began in 2018 when both the EEOC and DEFA, the state agency, opened up separate investigations into Activision Blizzard.

0:27:23 Thomas: OK.

0:27:33 Thomas: Gotcha.

0:27:34 Andrew: So a large part of the back and forth has been between staffers on in both agencies in 2020. Right. So, you know, it is is their pride of ownership. Is it right? I mean, is it possible that the EEOC did did the kind of work that it would have done had it been an Obama EEOG or a Biden EEOP? Those are all very, very possible things. It is why I wanted to set off a potential motive speculation from what we know and what we can prove. That's the EEOC side of the story. Would you like to know DEFA's side of the story? They haven't yet responded on the merits of attorneys one and two, right? The folks who left. I have done everything in my power to try and figure out who attorneys one one and two are, as you might imagine.

And I can tell you this, DFA lists 13 members as being on its executive staff, right? This is the director, the chief of dispute resolution, the Chief Information Officer, the Chief Deputy Director, the Assistant Deputy Director of Enforcement, who, by the way, it's her job to communicate with the EEOC, and it's kind of weird that she's not on any of these communications, I have been through the resumes. I have gone through LinkedIn on all 13 of these people and none of them fit the facts. Okay. So DEFA has investigative attorneys that don't show up on its executive director page, but. So as you're starting to kind of wind, the pieces of the story together, I just told you about lawyers in supervisory roles leaving the EEOC, going over to DEFA, and then kind of running things.

0:28:08 Thomas: Sure huh

0:29:28 Andrew: Well, I don't know how much they were – again, DEFA will file a reply, and they will explain – or they'll lose, right? But they will have to respond to these allegations in some way. But we do know that it cannot be any of the executive staff. There are hundreds of lawyers who work for DEFA.

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0:33:07 Andrew: So now you're starting to think, all right, well, the story looks a little different than it was initially told. Right. If you left the EEOC and then, and then came to California and became the director, right, or the deputy director, or the person who was in charge of the entire investigation, then you might have the basis for Activision coming along and filing in the state court and saying, hey, this entire investigation is nonsense and should be thrown out. Right. Like it's the result of prohibited illegal work by a, by an attorney who should have been walled off. The further down the food chain, the less likely it is you're going to get the possibility of that kind of relief, leaf? Because the more attenuated that contamination will be.

0:33:58 Andrew: So we're waiting to hear from DEFA on that. But instead, DEFA filed a one-and-a-half-page pleading on Monday, And that was a motion to strike the Viramontes affidavit that I just read to you at great length from. And on what basis they move to strike the Viramontes affidavit? Well, on the grounds that the information described in the Viramontes Appadavit was the result of privileged and confidential communications between the EEOC and DEFA as to the scope of the respective agency's investigation. And people like me ought not to be able to read about what two lawyers, each negotiating on behalf of government agencies, decided to come to an agreement about concerning a governmental investigation, two parallel governmental investigations. And they're exactly right. I should not have been able to read that document. And I can, and you still can do it. There's kind of an amusing bit because there was an error in how the documents were initially uploaded. And so the pleading not only says, objected to you publishing this declaration because it's based on attorney client privilege.

0:34:29 Thomas: Dude.

0:35:20 Andrew: And we ask that you take it down. And not only did you not take it down, you uploaded it again, which is true. Now let me ask you this. If I told you that all of that having taken place over the weekend and on Monday, if I told you that the judge issued an order on Tuesday, October 12th, um, your best guess, Judge Thomas Smith, take your, uh, swing at, at what you think the judge did.

0:35:44 Thomas: I don't even understand why these two agencies are fighting in this. I still don't understand the core thing. Like, this was about the review of the settlement, right, was the underlying thing that we're even arguing about? The So it's during the review of the settlement with agency, okay.

0:35:55 Andrew: Whether So So, the federal agency EEOC files its complaint and its motion to settle, that's we talked about that in episode 530. At the same time, um, and then DEFA wants to intervene, and all of this was based on crazy procedural stuff.

0:36:07 Thomas: Intervene. Okay. So Gotcha.

0:36:15 Andrew: Yeah. To

0:36:16 Thomas: So DEFA is intervening. Their motivation for intervening is they're going to get scooped, essentially, like, then Yeah.

0:36:22 Andrew: Oppose the settlement. Yeah.

0:36:23 Thomas: Because then they won't be able to do their settlement. Okay, and so that's what we're battling about, and then in within this, we got that testimony, we got, what do you call it, affidavit or whatever, from the person, and and then DEFA is trying to remove the declaration, and now you're asking me how does Judge Thomas Smith rule in this, uh,

0:36:24 Andrew: Yep. Yep. No.

0:36:43 Andrew: And The only, and it is understanding that this is a totally unfair question, but I think there's a 90% chance that you're going to get it right, especially if you leave in your initial reaction, which I strongly believe that you should.

0:36:45 Thomas: Um.

0:37:01 Thomas: The judge just, like, why are you, you wasting my time with any of this? I mean, is that going to be the, like, let's just do the settlement? Why are you fighting? Shouldn't you be teammates, you guys? Like, shouldn't you be, aren't we all friends here?

0:37:12 Andrew: The judge did here. So remember that all of this came about because DEFA didn't just move to intervene. They moved to shorten the time in which they could move to intervene, so that that would get ruled upon before the court approved the settlement, so that it wouldn't make their intervention move. The opposition was an opposition to shortening the time to let them intervene. So the judge looked at all of this and wrote a two-sentence order that says a motion to intervene may be filed as a regularly noticed motion. The EEOC and DFEH are ordered to meet and confer concerning an appropriate briefing schedule no shorter than the schedule provided in the local rules of the Central District of California. So ordered. So basically, the judge was like, I don't want to hear any of this. Like, I'm going to decide on whether they can intervene. And by the way, we're going to do that, and we're going to get all the parties on board before I'm going to rule on the pending propriety of the consent decree, because, again, that's my right as a judge.

0:37:39 Thomas: Oh,

0:38:25 Andrew: He doesn't even have to say that. Right. Like that is just clear from this ruling. So if I would say that the punch line at the end of all of this, right, we still have crazy amounts left to untangle, right? Right. We got to figure out who lawyers one and two are. We got to figure out what they knew, why they left the EEOC, why the EEOC thought that they were going to jump out in front on all of this, where the cooperation broke down, all that. But, but here's the good news, the unambiguously good news, the great resolution to all of this. If what the EEOC was trying to do was slip in the settlement and just get it approved and knock it out and have it be a done deal before anything else could happen, that's not going to happen now.

0:39:12 Andrew: The court is going to take its time, is going to look through all of these, and is going to—I've read the underlying case. It's procedurally very weird because everything about this is procedurally weird. It's going to take some time to probably hold a hearing on the fairness of the settlement, given the request by the union. I would point out, has the union moved to intervene in this case? No, of course not. Like, why would you do that, right? That's just the ordinary course of events. This whole thing is entirely messed up. Why not contribute contribute to the, you know, cluster bomb that this has become, and just, you know, file a piece of paper when you're not a party to it. It's crazy. It's a total mess. And again, the party over whom you should probably not have a lot of sympathy is Activision Blizzard,

0:39:11 Thomas: Okay. Well, that' good.

0:40:02 Thomas: Yeah.

0:40:02 Andrew: Where, you know, if these allegations are remotely true, know, was a terrible place for women to work. And they are going to bear the brunt of this. It's going to stay in the news. Both investigations are going to stay in the public and be a recurring topic of discussion. Whenever that's a topic of conversation, that drives down Activision's stock price, right? Like, if you were thinking that they're going to sneak through a settlement and kind of get this over and done with, this ensures that that's not going to happen. Now, you know, if you were rooting for that, then you're probably not listening to our show. You go. I am deep in the mire, in the weeds, trying to figure this out. But it is truly, truly fascinating. And believe me, once I know what's going on, tell everyone here.

0:40:52 Thomas: Yeah, wow. Yeah Yeah. Well, I can't believe you broke news on your vacation. Well done. I don't do anything nearly that important on vacations at all. So that's the kind of lawyer that Andrew is. I assume your vacation was to like the court document mecca of the world, like the first court. You just go examine the, I don't know, stone tablets or something. But yeah, so we'll, we'll keep an eye on that. But the main, I guess I want to ask you again, I think you've, you've helped me understand this very complex scenario. And I think I get it. The thing that was the news scoop was just the fact, and the thing that people are interviewing you about was justthefactthat, what, everybody assumed these agencies were working together and you were like, oh crap, they're not? Is that?

0:41:41 Andrew: Be working in concert. Yeah. And they are not. And the history is bad enough that they are now airing, you know, this level of of acrimony. Right. Of, accusing each other of what appears to be, youknow, kind of genuine legal misconduct. And so in a no-holds-barred kind of way, right?

0:41:43 Thomas: Yeah. Okay. Ooh, dirty laundry. Yeah. Yeah.

0:42:02 Thomas: Wow.

0:42:02 Andrew: Like, at every step in that process, if I had been involved, right, this is one of these, like, hey, man, are you sure you want to put that in a pleading, right. Are you sure You want to Put out there for public consumption an allegation that, you know, my attorneys violated the model rules of professional conduct, and then the response back, oh, yeah, well, are you Sure You want to put out there in public that, like Like, you just filled out an entire affidavit that is disclosing confidential attorney work product and attorney efforts to compromise.

0:42:35 Andrew: That's ugly, and that tells us that our assumption that this could proceed to an orderly resolution is – like I said, I am prepared to take the L on that one. Not that I could have known in advance But why I wanted to make sure we got out in front of it

0:42:53 Thomas: Right. Well, that's a pseudo Andrew was wrong. And, uh, now we're to transition to a real Andrew, a definite no, uh. No bones about it. Andrew was right. What were you wrong about?

0:43:03 Clip: Andrew Torrez is wrong, wrong, wrong.

0:43:08 Andrew: Okay, so, and there are, I am sure, other things about which I was wrong in our foray, episode 529, into the Law of Weird Al I want to say this, I'm very encouraged. We had multiple musicians who had been signed to record deals, wrote in and were like, yeah, this matches my experience. Right. Like you've you have gotten you have delivered the kind of episode that you promised to deliver, which was a survey on how all of these aspects of various intellectual property rights overlap with music, with the law of parody, with covers, with everything. Thing, thank you. Now here's an explicit thing that I, and and again, I also want to emphasize, if you're a law student looking for a student law review article, um, I, I said this the last time, get the show notes from 529, uh, the last comprehensive law review particle was written, written before the two Live Crew case, right?

0:43:18 Thomas: Oh God. Not again. All right.

0:44:15 Andrew: Campbell versus Rose Acuff, which was 1993. So we are way overdue for a comprehensive explainer on parody and the law, and particularly as it applies to the music, right. So this would be a fantastic opportunity. But Thomas, very near the end, as we went through all the different bundles of rights and compulsory licensing and whatever, you, you threw an off-the-cuff hypothetical at me, um, and this was a thing, and again, I don't, that doesn't excuse me for getting it wrong.

0:44:47 Thomas: I know. I feel like this wasn't so off the cuff. You, you, you. If you're talking about the concert thing, is that what you're talking about?

0:44:48 Andrew: Um. Am. I'm talking about the concert.

0:44:55 Thomas: I, I feel like you, you were like, I'm pretty confident of

0:44:58 Andrew: Okay. I did. So, look, uh, before I get to that, I want to say, okay, I get, I want to emphasize there are a lot of unexplored avenues, right? So a lot of people written in to say like, well, you didn't talk about like the difference between parody and satire.

0:45:08 Thomas: Course. Yeah. Yeah.

0:45:11 Andrew: Well, yeah. No, I didn't, because, right, because the show, the, I, I also didn't, there's some great stuff in the show notes where, you know, people wanted to talk about Alan Sherman, right? He's the guy who did the Hello Muda, Hello Fada, like song that slayed back in the Great Depression or whatever the hell that was, right? Like, yeah, uh,

0:45:11 Thomas: Yeah. Yeah. Yep. Exactly. Tried to submit that as evidence that the, the music videos weren't why Weird Al became popular, because that person appealed to the, as you say, a Victorian era comedy. And he didn't have a music video. I'm, I'm baffled by, by the kinds of, uh, by things like that. Like, Is that what you think is a good argument?

0:45:43 Andrew: The only thing that could make Alan Sherman funny would be living in the Dust Bowl. Like it's just, that is so painfully not something. Anyway. Yes. So all that stuff is, is, is there it's actually in my super lengthy show notes. If you're a $3 patron and up and you love this stuff, great stuff in the show.

0:45:53 Thomas: Yeah. Yeah. Each And every episode where I make the notes based on Andrew's notes, I see things that Andrew didn't get to. And I just want to echo that, like patrons get access to these notes and there's a lot of stuff in there that Andrew doesn't get get to talk about on the show. Cause, um, you know, you can blame me if you want, but honestly, Andrew just is really optimistic as a person. And he thinks that he can fit four hours worth of show into, you knows, 70 minutes or whatever. So, but that's, that's to your benefit. So there's all this stuff is in the notes if you're a, that level patron. So make sure to catch that.

0:46:38 Andrew: With that in mind, uh, you asked me a question on playing covers and I spoke imprecisely. I got it wrong, and here's how I got it wrong, okay? And that is the difference between playing a cover live at Wembley Stadium, which was, in fairness to your hypothetical, versus playing a cover on an album, right? So long

0:46:58 Thomas: Yep. Uh, I said, versus like, if I go into an open mic, but yeah.

0:47:05 Andrew: Story short, everything I said about compulsorily licensing under 17 U.S.C. 115, that applies if you put out an album of covers, Right, Thomas Smith plays the notes, right, you've got to pay for anything that's still a valid copyright, uh you know, the the Apple Records, or you know, what whatever, whomever owns the rights to Beatles, uh, uh royalty.

0:47:17 Thomas: Okay. Yeah.

0:47:32 Andrew: Now you have to pay them, uh, the the statutory, um, compulsory, compulsory license fee, right, every album, album you put out or CD or whatever, right? However, only in case of playing, and it's some other thing, but specifically in the case of plain covers, we had even talked about the correct section of the law, 17 U.S.C. 106, subsection six, right, that one of the exclusive rights you have as owning the copyright in songwriting and composition, as opposed to in the original recording, which can be compulsorily licensed, is, quote, "in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission," end of quote.

0:48:26 Andrew: So in other words, one of the special rights that you have, as the copyright holder, it's the right to perform it live. That is not superseded by the compulsorily licensing provisions, even though they do operate when you're talking about putting a cover on an album, them, so, uh, yeah, so I'm wrong, and as it turns out, uh when uh, you know, your favorite bands will will cover, uh, other songs, uh, when, when they play live performances.

My understanding now, uh, from having gone back and put the section of the law together, and also talking to a couple folks in the industry, is that they separately negotiate, and that those are much higher rates, um, and and Separately negotiate with the original artist holder. So, so, for there you go. Right. When you get, Jimmy Buffett playing Southern Cross, or Don Henley's fantastic cover of Tears for Fears, Everybody Wants to Rule the World, which he does live, that those are not compulsorily licensed. Those are negotiated separately with the rights holders. And I apologize for the error. I really, really do. This is super fascinating. And I just kind bring it back to a close that, you know,

0:49:10 Thomas: Higher rates.

0:49:40 Andrew: If you have a passion for that and you're in law school. Yep. Good luck. So thank you. No, seriously, we make some jokes, I love our listeners and the responses that we get that us be even more correct than we were before, even when that level of correct is sometimes high and sometimes zero.

0:49:40 Thomas: Well, Well, good luck with that.

0:50:01 Thomas: Yeah, I'm waiting for the next Andrew was wrong on this because I so again, you're just talking about playing a cover and not forget about like, you know, the live recording is released or sold of that. You're just saying in a venue playing acover that's going to be a higher rate than like releasing an album with covers?

0:50:16 Andrew: Yep. Yeah. Because the the rate is rate per dollar per impression per CD sold, right? So as opposed to what?

0:50:29 Thomas: Oh. Okay. Yeah, so like how does this, you know, informally though, because again, any number of small venue, whatever, you know, I played a million covers at a million coffee, you know, or whatever, like is this just uh, if it, if it's important enough for anybody to notice, they might try to make sure you pay some royalties, is that the practicality of the situation?

0:50:46 Andrew: I I think in in practical turn again, now we're getting into a supposition area, uh but I think that's the answer, right? That that you, yeah, if if Britney Spears at her, you know, residence in Vegas is playing a cover of Dirty Laundry every night, like probably somebody is going to figure that out and get that. Whereas if Thomas Smith, you knows, decides to go into a bar and, you now, bust out the boxer, you knows, the odds are not great that Paul Simon is going know about that one. Suspect that that's the case.

0:50:57 Thomas: Situation? Yeah.

0:51:23 Thomas: Man. Yeah. I want to say something too. I wasn't sure if it was I, enough to do on the show. But I, a couple of people did react a little negatively to my beginning rant of that episode. And so I do want to give a Thomas was wrong of like, I feel like that wasn't it wasn't a well done rant or it was too long or there's a number of of things I would have changed about it. So I want to apologize for that.

I did And want, I was thinking about, I was trying to reflect on that kind of thing. And that energy came from a place because Andrew, you haven't mentioned it, but we we actually got a number of pretty negative emails about my opinion about not Weird Al and you know, that, that I don't care about, like, whatever. If you like Weird Al, that's great. Don't care.

But we did get a number of like very weirdly insulting emails about My Opinion on Weird Al should have to pay royalties. They're pretty bad. And so like, I apologize for taking that negative energy and reacting with it to everybody because it just doesn't work.

0:52:17 Thomas: Like, I feel like, the whole audience doesn't have that context, and it comes across as like me being mad out of nowhere. Where, but they were, um, they were curiously mean, a couple of these, and what it was, so funny about it is, what, because they're along the lines of like, oh, Thomas, under your model, that all of music would collapse, you know, like, because people, yeah, for time immemorial, people borrowed from each other, and it's just so silly because it's like, it's obviously not true. One of them, one of them began, it was like a, you know, a screed on why my philosophy would ruin music and I should go F myself. But like, one of them began with saying, Weird Al pays royalties. And I thought it was so funny because the email was like, hey, first off, Weird Al plays royalties. Yet, second, if, if people had to pay royalties for parodies, they'd ruin all of music.

0:53:05 Thomas: And like, it Was really bizarre. It was like, well, you just acknowledge that he did and it didn't ruin all of music. So I don't like it was it's weird. People people are so that that was kind of some of the energy that was in in my mind to that. But I think I got to work on not bringing that in to everybody because it's you know, it's still in the grand scheme. It's it's dozen emails or whatever. So I just wanted to say that's a Thomas was wrong for for doing that.

0:53:29 Andrew: Well, I think that's big of you to say. I would say this, that underlying point, folks could quibble over the, like, it should be 50-50 or whatever. But I think the underlying point, something we illustrated perfectly well in that we are still talking about this, you know, after having done two episodes and two follow-ups, the current status of the law is confused, that it stems from a copyright act, which is based on phono recordings, right? Right. That is based on needle in groove on vinyl and and that a large part of right. Something that I found out in doing my research of the of the Weird Al licensing is has to do with the video stuff. Right.

0:54:01 Thomas: Well. Yeah. I.

0:54:12 Andrew: Which is, and it was like the light bulb went on. And, and so for all of it, you were like, oh, you know what would really make sense to have a copyright act that reflects the reality of the technologies today that people are using. Right?

0:54:27 Thomas: All that is true, but honestly, but we don't even have to go there to to make the point. Like, it seems as though a lot of people maybe don't even realize what royalties are, or maybe I'm wrong, Andrew, you could do another Thomas was wrong, people, a lot o f people responded as though what I'm saying would bankrupt some poor musicians or something. Honestly, that seems to be what their assumption is. Royalties mean, if you do a parody, let's say, or something, and then you don't, let's see, under the Andrew Torrez theory, you didn't pay anybody, you didn' get permission, which I think you' still standing by, you don' have to. And then that person sues you and is like, hey, you should have given me royalties. All you have to do then is pay, let' say, some amount like half, half, for example, of what of the money you made. Right?

0:55:12 Andrew: I.

0:55:14 Thomas: So you could get permission. That's like, I got to pay half the royalties and you could sell zero copies and then you don't pay anything. Right?

0:55:18 Andrew: There. The answer to your question about royalties. Is Yes, could you make a copyright argument on, you know, diminution of the original material, right? Like, there are some, some of the arguments that were made in some ofthe cases that we've discussed, right, the Katy Perry case and the Led Zeppelin case, right, has more nuance than that, right. Like, you could argue, hey, your. Parody caused substantial confusion that undermined, you people would call in to the station. And again, think of how ridiculous this argument would be, right? The argument would be people called into the station and said, hey, I want you to play Amish Paradise, meaning, thinking that they meant to play Coolio's, you know, Gangster's Paradise, right, just want to, I just want a head off the, it's definitely a zero. I think you are correct when you're talking about royalties.

0:55:49 Thomas: Well, yeah, Again, I think we're mixing up what's happening here. I think that people are worried, apparently, that my, my opinion, that if you are going to take someone's composed work and just change out the lyric, that you owe whoever composed the music some money, which I stand by firmly in that opinion, that that would collapse all of music is just silly to me. Like, I mean, for one, and I wanted to bring.

0:56:41 Andrew: Yeah, You. Could. Have a compulsory licensed model that follows that, right? It.

0:56:45 Thomas: Let me flip it the other way, because somebody brought this up in the Facebook comments that I thought was interesting, which is they said, yeah, people might change their mind and agree with Thomas more if they took a look at this gigantic collection of Christian artists that just takes popular songs and then changes the lyrics to Christian stuff.

0:57:03 Andrew: Love.

0:57:04 Thomas: And all of a sudden they can make tons of money on that. Does that maybe change anybody's mind about my opinion? Like if you just able, if some Christian artist or anybody, by the the way, is able to just take some some music, change just the lyrics to Christian crap, and then sell that and make a bunch of money off of someone else's work. Um, does that change your opinion at all? I mean, just to kind of recast the characters involved in this a little bit.

0:57:27 Andrew: It.

0:57:28 Thomas: I mean—and not only that, I I—I object to the bringing up the Katy Perry and all that crap is the bottom line there is that those just aren't derivative, like, those aren't, those are just decided wrong, like, or I can't remember if both of them went that way, but like, my opinion is that that just isn't the same thing as what we're talking about here. I'm talking about just taking, obviously, taking somebody's work and just changing the lyrics in an obvious, completely open and obvious way. I'm not talking about, oh, that has the same chord progression in this part, is that's a completely different thing. Everybody talking about how jazz borrowed from itself, you know, all that stuff that I got an email like, yeah, OK, I think that it's, it's pretty easy to reconcile all of that. That's a, that's very different thing. I think it's, know, as you, we've seen in actual cases, it's not easy to draw those lines. And I think the courts are currently doing a terrible job. But like, that aside, at least conceptually, hypothetically, I can see drawing easy distinctions between.

0:58:19 Thomas: You have, again, taken a work and unambiguously stolen the music and just change the lyrics to Christian evangelical stuff versus I've written a song that maybe sounds a little bit like this song in a part. I think that that's actually a pretty easy conceptual line to draw, that clears some of this stuff up. I stand by my opinion on the fact that I think you ought to, in my world, again, in Thomas's America, you ought not to just be able to steal somebody's music that they wrote and change the words and not have to pay anything. And all that is setting completely aside what what Weird Al's particular arrangements are. That's totally irrelevant to the point. So there you go.

0:58:42 Andrew: Yeah. Well.

0:59:00 Andrew: Let's, uh, let's cleanse that palette with a little Thomas Takes the Bar Exam, shall we?

0:59:05 Thomas: Great idea. Here's something we can all enjoy me being wrong about.

0:59:11 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:59:17 Andrew: Thomas, a recent deluge of rain in State A left the ground very unstable. In.

0:59:23 Thomas: Man I have to figure out what complex law concepts like rain mean. I don't know what that is in California. Do you learn that at law school?

0:59:31 Andrew: Congress passed a law imposing a strict weight for all shipping trucks attempting to enter State A on its toll highways. The weight was lower than the weight limit of any of the surrounding states. Companies that operated solely in State A were unburdened, as they did not need to pass through the laying checkpoints. However, companies that utilized shipping trucks that drove through State A were forced to either drive around State A or lessen their loads in order to pass through the state. A business in state B decided to challenge this law, which of the following arguments would be the business's best argument that the law is unconstitutional? So a little change Up there, right? Like, started off as rain law, but is actually just a constitutional law. A, the law imposes an unreasonable burden on interstate commerce. B, the law discriminates against out-of-state citizens in violation of Article 4. C, the law is not necessarily and narrowly tailored to serve a compelling government interest, or D, the law is not rationally related to. A legitimate government interest. Yeah.

1:00:19 Thomas: Yeah. Oh, wow. So this is U.S., this doesn't seem very plausible to me. This is, this is a problem happening in a state, and our U. S. Congress is so like, you know, up and at them, gonna go get it, let's fix problems, in this country. They're like, hey, we're going to pass something that just helps this state, you know, because we're so attuned to the needs of our people where that's how that's how focused we are. We're paying attention to the rain in state A. This is an alternate universe. To simplify things here, A and B seem more like, you know, A, you got interstate commerce, which, you Know, again, originally I thought I read this as the state Congress. And then I was, I thought it was going to be like a, whatever preemption kind of thing where it's like, can the state make a law like that? Or because it's interstate Congress does Congress need to, but if Congress did this, that then then that's not at all relevant, I guess.

1:01:36 Thomas: And then B is about whether or not, you know, this is discrimination against out-of-state. C and D are about like the basis for this. And that strikes me as not, good. I think I'm probably eliminating C and D. Let's just go. I'm going to skip to C real quick. C is the law is not necessary and narrowly tailored to serve a compelling government interest. I just don't like that at all. Like, Like it, it strikes me as a pretty relevant government interest to be like, we have these toll highways in this state and to protect them, we're going to enforce this limit. That seems, I don't know. I mean, it's pretty narrowly tailored. Like, I dunno what else, you know, how, how more narrow could you go there? I don'T really. So I think C is no good in my opinion.

1:02:22 Thomas: D, the law is not rationally related to a legitimate government interest. I mean, the only way I could see C and D being possible, if it's like doing a switcheroo of, of like, because this is about state a, therefore it can't be a rationalized, it can'T be related to like a, a United States, you know, like a federal government interest. That's the only way I Could see this being a tricky C or D answer. Um, I, I don't think I buy that. I, I think that the highways are federal. State A on, wait, ITS Toll Highways. Oh, I don't know which the ITs applies to there. State A on ITS toll highways. So I thought I took that as like, you know, so, oh, okay. So it's, well, it might be state highway. What? Oh, I'm so confused. I'm very, Oh, this is, I've gone through several layers of confusion on what this question was actually about, but I think I get it now.

1:03:12 Thomas: A, the law imposes an unreasonable burden on interstate commerce. Burden on interstate commerce. That's an interesting one. Is United States Congress forbidden from passing laws that impose an unreasonable burden on interstate commerce? I don't know. Is that true? I'm not sure. B, the law discriminates against out-of-state citizens in violation of Article 4. I think I'm leaning toward B because the fact that like, so it says says here, companies that operate solely in state A were unburdened as they did not pass through the weighing checkpoints. So, like, they're able to just drive around at the higher weight, which completely negates the basis of the law. So that strikes me as pretty solidly B, discriminates against out-of-state citizens.

1:04:01 Thomas: I will plead the fifth on whether or not I know if that's Article Four. I don't, I'll assume that's Article Four. I, I feel like the, the bar doesn't often go that level of difficulty where it, like, says the wrong, like, article in order to justify something. I, I don't think that's been a reason that I've gotten one wrong. So I'm pretty solidly B. I think I'm between, I think between B and D, because I think that D could, could be the, the answer if the, the reasoning is, hey, United States Congress, these are State A's own toll highways, you don't actually have a rational basis to do any of this. Um, I might, I, I honestly, that I'm almost talking myself into that answer. It's, I, so I think there's a good chance it's D, but I'm gonna go with B because I don't want to embarrass myself by switching from the correct answer at the last minute.

1:04:55 Thomas: However, I think D might actually be the correct answer for that weird reason that I'm saying, but I'm going to be final answer. See And I flipped a coin and the coin agrees with me. So at least we'll both be wrong together. B final answer, but probably D.

1:05:10 Andrew: Right, well, if you want to play against Thomas and the coin, uh, you know how to do that, just share out this episode on social media, include the hashtag T3BE, include your guests, your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortunate not guaranteed.

1:05:25 Clip: And thank you, Let's go!

1:05:26 Thomas: And now it's time to thank our new patrons at patreon.com/law. Enjoying all the goodies, ad free episodes each and every time, as well as if you're at a certain level, You get Andrew's notes, as we mentioned before. And once Andrew's off his eternal vacation, we'll get back to our regularly scheduled lambs and Q&As and all that. And a few to thank this time. I'll handle it. A Bad Man Chewing. And thank you to Mark Kohls and the Yankees are as worst as Alex Jones. Hashtag go Red Sox.

1:06:01 Thomas: And Ciarán Brennan. Something like that. That. Sorry, it comes through a little weird on the import there, but something like that. All right. Thank you so much, new patrons. We appreciate you so Much. Hope you enjoy the goodies. And that's our show.

1:06:13 Thomas: Andrew, breaking news while on vacation, I never cease to be impressed at your document reading abilities, your investigatory powers, your legal prowess. Great job. I hope you're enjoying being on a boat.

1:06:24 Andrew: I. Am. I am literate, so there we go.

1:06:28 Thomas: That's our Show. We'll see you on Tuesday for part two of our Griswold deep dive. The thrilling conclusion. You don't want to miss it.

1:06:35 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.

1:07:09 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.