OA559: Nirvana Baby Lawsuit Dismissed... Or Was It?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:16 Thomas: Hello and welcome to Opening Arguments, this is episode 559, I'm Thomas, and I'm a little more confused than normal, I think I'm normally pretty confused by today's segments in the spreadsheet, can't wait, how are you doing Andrew?, So, Andrew, meat question.

0:01:27 Andrew: I am fantastic, Yeah.

0:01:35 Thomas: Mark, what?

0:01:36 Andrew: So on January 3rd, the Biden White House announced its comprehensive plan with respect to the meat industry, and I know, uh, that doesn't seem super exciting, um, and the fact that that doesn't seem super exciting is kind of the segment that I wanted to do, right? Which is, I wanted to talk about the process of making executive branch regulations, right, promulgating them from the top down, the good and the bad that it can do, and how this is one of the crucial day-to-day functions of the White House, right. Like, one of the things that we've been sort engaged in a discussion back and forth is the gridlock, being screwed over by Joe Manchin, whether we're ever going to pass legislation again.

0:02:28 Andrew: Spearheading legislation is the most visible thing a president does, but maybe not the most consequential thing. And so I think it's important for our listeners that we walk through the process of passing, promulgating executive branch regulations. And we note up front, right, like the distinction between regulations and legislations. And there really are two critically important differences. The first is that can be easily overturned by the next administration that comes in. A plus and a minus. In fact, Newt Gingrich gave us a tool, the Congressional Review Act, that actually makes it easy to attack in multiple ways executive branch regulations.

0:03:20 Andrew: Populations. The fact that it's easy to undo, it's slightly harder to do, but again, you know, can be done unilaterally. So even when you let's hope we do not have a Republican-controlled Congress in 2023, but even when you have nominal control that's stuck at the whim of a conservative West Virginia Democrat or an enigmatic, inexplicable Arizona Democrat, can always pass regulations, that those are temporary. And then secondly, regulations are bounded by the authority delegated to that agency by Congress. And a right, good way to think about that of governing via executive branch agencies is the hard and the creative work done in the Obama administration when we had sort of an absolute legislative gridlock from Mitch McConnell on, said, that yeah, no, we're just not going to let you pass laws. And so we saw programs, executive branch programs, that really pushed the boundaries of what was delegated to that agency under Congress.

0:04:33 Thomas: Dreamers.

0:04:33 Andrew: And I'm thinking about, exactly right.

0:04:35 Thomas: DACA. Yeah, yeah.

0:04:36 Andrew: Yeah. When you create a brand new program, feels a little different, right? So we've always said stereotypical, you prototypical definition of exercising executive branch authority is Congress says we're going to ban assault weapons. Assault weapons are defined as these 30 guns plus whatever substantially similar guns that the secretary of the Bureau of Alcohol, Tobacco, and Firearms may from time to time so designate, And right? You understand the political pluses and minuses of that, right? You understand if you get a Democratic president, probably a lot of guns are going on that list. You get a Republican president, right, AR-50, it's like, you know, anything substantially similar to an AR-15, all of a sudden, the AR-15.1 comes out and, you a Republican secretary of BATF is like, nope, that's totally different, right. Wait, it just has a pink spot on the barrel. Well, that pink spot makes all the difference in the world. Are going to contribute to

0:05:34 Thomas: There's That. Much play in the joints there, there's nowhere that Congress or anybody could say, hey, wait a minute, we it did want you to ban the the ar 15.1 or whatever, as an example.

0:05:51 Andrew: Fights are sort of at the core of our continuing discussion over Chevron deference, right? Which is, to what extent do we credit the agency themselves with a good faith interpretation of the mandate given to them by Congress? And unsurprisingly, right, the original Chevron decision was about the Reagan-era EPA, which interpreted the mandate of, you remove pollutants from the air as, eh, remove, do nothing, it's all up to you. So right. Certainly is. I want to flag for you. It certainly is a gate that swings both ways. Right. And so when we're left on the left defending again, I believe I Rehnquist decision. Right. Like not not a crazy leftist opinion, but but an opinion that says, yeah, we we defer to the executive branch to the administrative agency's own findings.

0:05:57 Thomas: Chevron. Difference, yeah. That's

0:06:52 Andrew: The reason to do that is the rule that Trump-era judges are setting up is, oh, no, nobody gets any deference on everything. It all comes de novo to the courts who get to decide whether you, executive branch agency, are complying with the judicial instructions.

0:07:13 Thomas: Definitely not how it should work. I know that much.

0:07:14 Andrew: That's Of course.

0:07:15 Thomas: Did

0:07:15 Andrew: They're, okay, absolutely right. So, there is a question that says, um, Congress more tightly curtail its instructions, right, to say you have to do X, you have to do Y, you have to do Z, um, and in my view, right, that is, you know, if we ever get back into a position where we're writing legislation again, um, that that's the way in which you push back, uh, against agency.

Like, I would I would write codicils and examples into the law that say, like, you know, for example, right, you know, you should put anything substantially similar on this list, substantial similarity includes but is not limited to, you know, merely cosmetic changes in, uh, in the composition of the weapon or whatever. Like, so, right, you could put that in there, and then you would be left challenging the rulemaking in court that says Look, they didn't follow their own instructions, right, and that is a lawsuit under the Administrative Procedures Act. Again, significant deference due, uh, to the agency, uh, but, you you can prove, uh, that you did not engage in sufficient fact-finding. You can prove that you did not do the work. And in fact, this was the primary success that those of us on the left had in the Trump administration, was challenging Trump-era administrative decisions, executive branch decisions, under the APA as, right, not following basic procedures, right? Not having a notice and comment period, not doing the bare minimum of fact-finding. So that's sort of the balance that we have.

0:08:51 Andrew: At least until this Supreme Court upsets the apple cart. So what's the meet EO look like? Is a specific application of a larger executive order, 14036 that was promulgated last year, July of 2021, which was an executive order on promoting competition in the American economy. And now, you know, you hear "promoting competition," right? That means anything to anyone. Here's what it means to the Biden administration. It means a more robust, robust application of antitrust laws to prevent fields that are being dominated by one or a small group of monopolistic, oligopolistic competitors. So, specific fact finding on meat. I did not know any of this. I mean, I knew generally it's bad for family farms. Four large meatpacking companies control 85% of the beef market. In poultry, the top four control 54% of the market, and in pork, the top four control 70% of the market.

0:09:56 Andrew: The meat packers and processors buy from farmers and sell to retailers like grocery stores, making them a key bottleneck in the food supply chain. When dominant middlemen control so much of the supply chain, they can increase their own profits at the expense of both farmers, who make less for actually raising the animals, and consumers who now pay more for the goods. And that's exactly what's happened in the meat industry. Most farmers now have little or no choice of buyer for their product, so monopsony, and little leverage to negotiate, causing their share of every dollar spent on food to decline. Here's the stats. 50 years ago, ranchers got over 60 cents of every dollar that a consumer spent on beef. That seems to make sense, right? That's down to 39 cents today.

0:10:41 Andrew: Hog farmers got 40 to 60 cents on the dollar 50 years ago. That's downtime 19 cents today. Now, as farmers share of each dollar has dwindled, American consumers are paying more with meat and poultry prices. Now the single largest contributor to the rising cost of food that people consume at home. So the Biden administration says, too few companies control such a large portion of the market. Our food supply chains are susceptible to shocks. When COVID-19 or other disasters such as fires or cyber attacks shutter a plant, many ranchers have no other place to take their animals. Our over-reliance on just a handful of giant processors leaves us all vulnerable with any disruptions at these bottlenecks rippling throughout our food system. So what are they going to do about it?

0:11:27 Andrew: The first, like I said, uh, the groundwork was set through this EO 14036. Um, and I want to sidebar for a minute is a very, very long executive order. I'm not going to read it or talk about all of it.

0:11:40 Thomas: Biden sign It with his dumb signature and then display it to the audience like he's a kindergartner with a drawing, but

0:11:47 Andrew: As far as I know, Joe Biden has a normal signature. It's not a Sharpie. He

0:11:52 Thomas: How will I know he's doing anything if he doesn't show it to me, I can't post it on my fridge, Andrew, if he he doesn't show it to me like that.

0:11:59 Andrew: Look, we're losing this messaging war. So, as much as that's that, a joke. Right. The number the number of maybe he should be doing it.

0:12:04 Thomas: Actually, Maybe he Should Be Doing That, yeah. Oh.

0:12:07 Andrew: Right? The number of Democrats who are out there saying Joe Biden accomplished nothing because he didn't pack the past. The Build Back Better Act is a staggering number. And they're just wrong, right? And these are the kinds of things that are not nothing. And you might say, okay, well, if Trump gets back in office, he's going to undo all of them. He might. Sometimes it's hard to undo things because people come to rely on them. And sometimes, if it gets undone, it certainly matters for people in the interim. So rescinding the ban on you have to use the restroom of the gender you were assigned at birth, yeah, I can't stop people from electing monsters in the future who might put that back into place.

0:12:54 Andrew: But I can make the federal government a better place to work in the interim, and that matters. This is an example of a thing that matters. So let me talk just parenthetically about some of the things that were in 14.036. A call to the FTC to draft rulemaking that is underway, the fact-finding has begun, to ban or limit non-compete agreements and contracts. That's going to be a hard thing to unwind once that comes out. I know this as a lawyer who drafts contracts for businesses, right? Once that guidance comes out, I will tell my clients, And I already tell them, and this is not a surprise to me, but I already tell them that, you know, sort of the era of generalized broad non-competes is probably over, we'll have specific guidance and lots and lots of people will have their contracts written during the time period in which this in place.

0:13:48 Andrew: And that is, you unambiguously, I think it's a good thing for both, both, uh, employers and employees, but it's an unambiguously good thing for employees, right, to not you know, we saw, like, this hit kind of rock bottom with, uh, do you remember the big box store that was like, you that had its baggers, right, like, cashiers sign two-year non-competes.

0:14:07 Thomas: God.

0:14:07 Andrew: That they Couldn't work anybody bagging Anything

0:14:07 Thomas: Yeah. There's Important, you know, work product, techniques There that you can't take to other grocery Stores. Yeah. Question Mark, we

0:14:12 Andrew: Yeah. Right. Right. I mean, just, and all that is is Punitive. Because that's Not...

0:14:18 Thomas: Put The eggs On the bottom And we I don't know. I don't What that Would Would be

0:14:23 Andrew: I want it all in one bag, but I don't want the bag to be too heavy. But yeah, it preys on the worst off because that is not an enforceable agreement. But you don't know that. You're less likely... You know it if you're a lawyer. You know it if you have lawyers in your family. You don't know who's least likely to be a lawyer or have lawyers in their their family, someone working as a grocery store bagger, disproportionately on those who are not a member of the class that can just call up a lawyer and get advice on it. That's an example in labor. In healthcare and medicine, it directs the FDA to work with states and tribes to safely import prescription drugs from Canada under the Medicare Modernization Act of 2003. In transportation, I love this. This EO addresses issues unique to the transportation sector, resulting from the fact that air, rail, and shipping are now dominated by large corporations. So the EO directs the Department of Transportation to consider issuing clear rules requiring the refund of fees when baggage is delayed, when service is not actually provided, i.e.

0:14:28 Thomas: Yeah. Yeah.

0:15:28 Andrew: When the the plane's Wi-Fi or in-flight entertainment system is not in service, and directs the DOT to consider issuing rules that require baggage change and cancellation fees to be clearly disclosed to the customer. Maybe middle-class problems, but certainly would be welcome on my end as somebody who traveled over the Christmas holidays. What about in beef? Beef. There's more fact-finding. Domestic farmers are being threatened by the import of meat by foreign corporations that use labels that mislead customers about the origin of that meat. So the EO directs the U.S. Department of Agriculture to issue new rules under the Packers and Stockyards Act that make it easier for farmers to bring and win claims, stopping chicken processors from exploiting and underpaying chicken farmers, and adopting anti-retaliation protections for farmers who speak out against bad practices.

0:16:18 Andrew: Directs the USDA to consider issuing new rules defining when meat can bear "product of USA" labels, so that consumers have accurate, transparent labels that enable them to choose products that are made here, and directs USDA to develop a plan to increase opportunities for farmers to access markets and receive a fair return, including supporting alternative food distribution systems like farmers markets and developing standards and labels so the consumers can choose to buy products that treat farmers fairly.

So all of that July EO, American Rescue Plan directs $1 billion to the enforcement, for right, the expansion of independent processing capacity. So one of the things that a concrete action when you are promulgating rulemaking is the money that Congress So there's a, and again, I know a billion dollars is not a lot by, you know, Washington standards, That's real money that will really be spent in terms of into place systems that are designed to increase the amount of revenues that go to independent farmers and bring down costs to American consumers. So, what are they going to use that billion dollars on? There are four specific things that the USDA then promulgated as a result of its fact-finding and the 450 comments that it received in the notice and comment period. Expand independent processing capacity. So, to increase competition, create more options for producers and consumers by jump-starting independent processing projects that will increase

0:17:57 Andrew: Competition and enhance the resiliency of the food supply chain. This is the monopsony problem that is in Most Areas Yeah.

0:18:03 Thomas: I Was gonna ask earlier Define Monopsony for those Of us who didn't play that board game.

0:18:11 Andrew: So Monopsony is when you have few buyers in a supply chain, in a vertically integrated supply chain, right? So typically, right, monopoly is few sellers of goods and services, and the idea is that, uh, they can, uh, set monopolistic prices, uh, particularly where demands are relatively inelastic. When you have a chain and you have few buyers, they also can set artificially low prices for, yeah, absolutely.

0:18:40 Thomas: Yeah, we could make this Into a board game, okay. All the players already, they occupy all the tiles, and but then only one thing goes around and buys stuff, and so they can lowball everybody. Okay.

0:18:52 Andrew: Yeah, that's exactly right. That's And a situation that plagues farmers right now. We have farmers among our listeners. We need a bunch of them. Um and so uh if you are selling a particular crop uh and there is one regional purchaser uh they get to pretty much dictate what that price is, you can, I don't know, try and sell your corn door to door or whatever, but like they're the only purchasers in volume, uh, and so they artificially depress, uh, the price at which they buy it. So, um, the first step is to increase independent processors in the food chain. So the new processing capacity will build momentum in a currently concentrated market. For example, 50 beef slaughter plants owned by just a handful of companies currently process nearly all of the cattle in the United States.

0:18:53 Thomas: Yeah. Right. Geez. Yeah.

0:19:40 Andrew: USDA will provide gap financing grants totaling up to $375 million for independent food processing plant projects that fill a demonstrated need for a more diversified processing processing capacity. So think about that for a minute. What that's saying is, I want to start up a meat processing plant. They will loan money with grants attached to that so I don't have to pay back some or all of it to let me start up that plant in an area that has a demonstrated need for a diversified number of sellers. And this is a super win-win because, ideally, you're talking talking about areas where the price to farmers has been artificially low. So let's make this up, right? If the price has been driven down to one penny per ear of corn, right?

0:20:28 Andrew: And you turn around and you're able effectively to sell that up the chain for a dollar, that's a tremendous... Right now, all of that profit is being eaten up by four large companies that control that aspect of the the supply chain, that's a great kind of environment for an entrepreneur to get involved in, to be like, hey, I could offer to pay lots more per ear of corn and still make a good profit and still cover the fact that this is a pretty massive capital investment.

Oh, and I'm going to get a loan of which I may not have to pay back all of it in order to get into that process. So that's that first component. It also has strengthening the financing systems, working with lenders, right? So not just directly making loans available, but working with vendors to reimburse so that they liberalize their standards, right, private lending institutions liberalize their standards for getting money out to help bring in competition in areas that have have limited buyers in a vertically integrated market. The USDA has deployed $100 million in American Rescue Plan funds to make more than a billion dollars in guaranteed loans available immediately. Applications will be accepted. In fact, we can put the link in the show notes for, we

0:21:47 Andrew: Have, yeah.

0:21:47 Thomas: You want to Start a meat processing plant? Yeah. Oh.

0:21:49 Andrew: So, okay. All right. That is trying to stop the choke points in processing. Processing. Prong two, supporting workers and the independent processor industry. So this is building a pipeline of well-trained workers and supporting safe workplaces with fair wages. New and expanded meat and poultry processing facility capacity will create new job opportunities in rural communities. Building a well- trained workforce and ensuring that meat and poultry-processing jobs are safe requires dedicated attention and investment. USDA will dedicate $100 million to support development of a well trained workforce, safe work places, and good paying quality jobs by working closely with partner organizations, including labor unions with expertise in workforce development and worker health and safety. I could go through some of the specifics, right?

0:22:35 Andrew: $32 million in grants to 167 existing meat and poultry processing facilities to help them reach more customers by being federally inspected through the inspection readiness grants program. But again, notice that this is just like with legislation, real dollars being allocated to specific purposes, indistinguishable from if this had been passed by Congress. So supporting workers is prong two. Prong three, strengthen the rules that protect farmers, ranchers, and consumers. So that is following up on that stronger rules under the Packers and Stockyards Act. That law was systematically weakened by the Trump administration USDA.

0:23:14 Thomas: Surprise, surprise.

0:23:14 Andrew: Shocker, yeah. So the Biden USDA has already begun work on three proposed rules that will provide greater clarity and strengthen enforcement under the act and issue that product of USA labeling rules. Under current rules, meat can be labeled Product of USA if it is only processed here, including when meat is raised overseas and then cut up in the United States as part of the chain. We believe this could make it hard for American consumers to know what they're getting. USDA has already begun its top-to-bottom review of current labeling rules and current consumers' understanding of the labels with the goal of new rulemaking to clarify Product of USA standards. And then finally, increasing transparency in cattle markets so that ranchers can get a fair price for their work. So USDA is using its existing authorities to increase transparency to the extent possible.

0:23:14 Thomas: Yeah. So,

0:24:03 Andrew: Right now, meatpackers have outsized power in setting the prices for beef. The dominance of opaque contracts, contracts that are not publicly disclosed, and insufficient competition undermine price discovery and fairness in independent livestock markets, which ultimately lock producers into prices that aren't the product of free and fair negotiation. So starting in August, the USDA began issuing new market reports on what beef processors pay to provide additional insight into the formula cattle trades and help promote fair and competitive markets. Want to break that down a little bit so that we're clear on this. When you have limited numbers of buyers and when they keep the terms of the contract secret, you don't know what your product is worth. By publicizing that information, helps that drive that sort of competitive race to the top and at least gives farmers additional information about, oh, hey, here's like the fair market value of a head of cattle, Things right? That are very hard to develop under the existing framework. So meat.

0:25:11 Thomas: That's me, we've covered it all, I Can, uh, think about during when you're describing this is a several things. A, yes, once again, among the billion reasons to make sure to vote Democrats into office, regardless of whether or not, you know, the big major things are getting ruined by a couple of a-holes in Congress. It's still very important. And we all need to keep that in mind.

And B, how complex all this is and how Democrats have to be like that much more competent than the right, because Republicans get in there and there are some competent evil people. You know, we've seen them, they're the, they're the most threatening, but for the most part it's like, okay, Democrats get in there, utilize your your you your know elbow grease and know how and ingenuity to find ways to deliver good things to the citizens, work your asses off to find ways to deliver good results to citizens that, by the way, who don't appreciate you and, you know, won't notice any of this unless they listen to our show and that kind of thing, and find all these intricate systems to set up, and then the right is like, just kill that, just get there, you get to go and just be like, erase, erase, delete, it's so much easier, you know, like they have such an advantage to be able to just go in there and be like, eh, that's crap, get rid of that, get rid of it's one simple step, you know?

0:25:14 Andrew: Yeah.

0:26:29 Andrew: I I think it really, it helps put meat on the bones. I mean, when we say things like, you it's easier to knock down the the house of cards than build it, yeah, like that's true. But hopefully kind of going through this process and and you know, I made some references, but like, like, you can come in as the president and issue an executive order, like Joe Biden did on day one, that says, I hereby rescinded these hundred executive orders that the last guy did, right? And you can put that together in November and December while you're preparing your transition team. When it comes to rulemaking, when it comes to top-down directives from an executive branch department, there are those rules that you have to follow to be consistent with the congressional delegation of authority. You have to conduct fact-finding. You have to have a public notice and comment period.

0:26:36 Thomas: And

0:27:23 Andrew: You have to respond to those public comments, right, and so and and all of those things, right? Yeah, they're things that the last guy did not do very well, um, the things that that were better than, but but it illustrates, you know, and underscores your point of, right, this is what we mean by it's harder to to build than destroy. Yeah, yeah.

0:27:41 Thomas: I guess the maybe the positive, I don't know if it's positive message, but it might be positive to think there may be good reasons why it just seems like it's such an uphill battle for Democrats, and I think often people people want to go to the knee-jerk thing of like, well, it must be corruption, it must be, you know, they're just crappy leaders, they don't really, but I think it's also true that it's just more difficult to build things than to knock them down, and so, you we're at a structural disadvantage, so as much as we're all like, oh, if only we could have it as easy as the Republicans in terms of lining up behind the candidates and accomplishing all these these things, yeah, but it's the things they want to do are easier to do than the things we want to do.

0:28:23 Andrew: I I agree a hundred percent.

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0:32:18 Thomas: Let's talk about the Nirvana lawsuit. I'm curious, I saw the headlines that this was dismissed, and I thought this was such a silly lawsuit. I mean, we covered it, I, uh, thought it was such a silly lawsuit that this wouldn't merit show coverage for but I see a question mark here

0:32:32 Andrew: It here's why it's getting yeah Here's why it's getting show coverage, uh, because, yes, this is a frivolous lawsuit. We're going to talk about that. But it's now being reported as being dismissed. And that's misleading. This lawsuit is coming back. And I'm going to explain why and how. And the in event that it survives the next motion to dismiss, which I'm not sure that it will, we'll get Morgan Stringer on it for a pop law.

0:32:33 Thomas: Yeah, okay uh-huh oh I love when the media reports things terribly and we get to go fix it, it was

0:33:03 Andrew: Yep, That's what we're doing. So what's the lawsuit, I think, right? We made a joke about it because of my hatred of Nirvana. But year, in August of 2021, a guy named Spencer Eldon sued Nirvana, he sued Nirvana, David Geffen, Geffen Records, Warner Brothers, MCA Music, Kirk Weddle, put a pin in that, he's a photographer, Kurt Cobain, Courtney Love as the executor of Cobain's estate, Chris Novoselic, Chad Channing, David Grohl, Dave Grohl I should say, even I know who Dave Grohill is, and Robert Fisher, the band Nirvana, right? Why? Spencer Eldon is the little baby on the Nevermind cover, underwater, right, chasing after the dollar bill. Um, and uh, he, was paid, uh, for his mom, I mean, he was, he was a four-month-old baby.

0:33:52 Andrew: He You are correct, it says, uh, by their parents. His father sat down for the interview with Entertainment Weekly. Yeah, what happened in in 1991, uh, the band Nirvana was looking for photographs of babies in a swimming pool, and a bunch of parents, right, brought their, children down, threw them in the pool, took pictures, uh, and Eldon was the baby that was chosen. Uh, the little fish hook with the dollar bill was added in later, uh, was, right, paid a couple hundred bucks for the photograph, uh, which is, you, typical, uh, as the Nevermind album inexplicably sold 30 million copies, uh, became, uh, world, uh, you know, what one of those things that is, I mean, like, I know the album cover, right, like, it's, it is just instantly, iconically, um, an understandable, understandable, apprehendable, um, and if you're reading between the lines, um, and in fact,

0:33:52 Thomas: His dad was

0:34:47 Andrew: Not reading between lines, if you are looking at the demand for the uh ad damnum clause, the demand for money, uh, in, um, Spencer's lawsuit here, um, seems not fair that, you Nirvana got super popular using his image, uh, and he didn't get any of that sweet, sweet Nirvana money. What

0:35:05 Thomas: I think that is actually how it works, and it's fine a baby is interchangeable, like, you, it wasn't the baby that that earned all the money, it was the music that was on the, out, like, it's everybody who had a hand in designing some small part of an album doesn't necessarily get a percentage of the royalties, you know, I mean, there's certain elements of work that are interchangeable, and you, if if the dad of the baby was like, all right, I want on 10 of all albums, they just be like, okay, just find a different baby, like we're not, why would we possibly do that

0:35:08 Andrew: Do you mean well or, or they might, right, like, it so I, I 100 agree with you, this is called the works made for hire doctrine, right, and uh what it provides is, right, you will often hear, um, creative content providers complain about folks who say, oh yeah, well, we're just starting out, we can't afford to pay you, but, you know, we'll give you exposure for your stuff. And people will laugh and say, no, man, like, I'm a professional. Pay me for the work that I do, right.

And this is the flip side of that, yeah, well, that's what I'm saying is, is that Nirvana, no, that would be particularly amusing given the allegations of this lawsuit, soon, uh, but no, what I mean is that Nirvana, that at the time, totally could have said, we're not going to pay you for the photograph, uh, we are going to give you future proceeds, right, and, you know, for Nirvana that would have paid off rather handsomely, but there are a thousand other Seattle grunge bands for whom you would much rather have had four hundred dollars than, you, you know, 0.01% of their future earnings. It just so happens that, you know, Nirvana

0:36:05 Thomas: That's not that this is just the discussion between getting a flat fee versus a person like an actual percentage of nowhere in the conversation was the baby should have done it for exposure, I'm just clarifying, yeah exactly yeah and

0:36:53 Andrew: Did. Okay. So I agree with you, um, we'll get to the relief requested, but after filing a second amended complaint, Spencer is left with are two statutory claims. Okay. The first one is a claim for relief under 18 USC section 2255A. And that makes it a federal crime for any person to knowingly possess material that contains image of child pornography that has been mailed, shipped, or transported via interstate commerce. So count one is a child pornography count, and count two, 18 U.S.C. 1595, which makes it illegal to engage in sex trafficking.

0:37:40 Andrew: Those are the only claims that remain in this lawsuit. So initially, there was an allegation for negligence. There was a private distribution of sexually explicit explicit materials, intrusion into private affairs, and invasion of privacy in violation of the California Constitution. Those counts were dropped. So the only thing that's left are the two federal claims, one which relates to child pornography and the other, which relates to sex trafficking. If we're going to get to it, the damages that Spencer wants are liquidated damages of $150,000 from each plaintiff, punitive damages to punish and deter future conduct like this, attorney's fees, pre-, post-judgment interest, should say, and permanent injunctive relief to prevent defendants from, I guess, continuing to distribute the Nevermind album.

0:38:36 Andrew: I'm not sure that that's happening a lot. But my favorite, paragraph 176, restitution and disgorgement of all profits and unjust enrichment obtained as a result of defendants' unlawful conduct, conduct. Okay, and the allegations of the complaint make this clear, put this together, um, the idea is, uh, Nirvana was a band no one had ever heard of before the Nevermind album.

0:38:57 Thomas: Then that baby made that band

0:38:58 Andrew: The baby made the band, photographing the baby was child pornography, therefore all that ill-gotten child porn money should be disgorged, uh, and given to Spencer. Motion to dismiss is not kind to this complaint, uh, it begins with, uh, and again, you know, we've talked about, like, um, to draw the line on, uh, sarcasm on, um, and it's a tough one, um, but but in this case, I think they probably do get on the right side of it, which is it is difficult to take these allegations seriously. If true, it would mean that 30 million people in the United States are also guilty of possession of child pornography, right? Not me. I don't own a copy of the Nevermind album. Them, uh, That's

0:39:50 Thomas: You'll be the one person not in prison. It'll be like those those disaster movies where there's everybody's gone, nobody on the streets, just Andrew walking around. I was the one, and everybody born after a certain year, I suppose, it'd be you and a bunch of Gen Z-ers, I guess, or whatever.

0:39:52 Andrew: It Yeah, Yeah, Ah, I'm gonna, I'm gonna have so much fun. I'm the

0:40:09 Thomas: You'll have so many people to explain technology to you, actually.

0:40:09 Andrew: Uh, That'll be great. Well, at least, at least I will always have tech support for my iPhone. Um, uh, yeah, I'll be, you know, the uh, the the Ernest Borgnine of this disaster movie.

0:40:21 Thomas: I'll be right there with you. I don't know that I ever bought this album. I was a little young. I mean, I've listened to it on on Spotify. Does that count? Do we, are we all, if you include Spotify streams, there's gonna be even fewer people out on the streets with you.

0:40:32 Andrew: Yeah, yeah, I, I want, want to include that as part of the relief now, just so that I'm enjoying this, you know, patient zero world. So yeah, it begins with Eldon's claim that the photograph on the Nevermind album cover is child pornography is on its face, not serious. A brief examination of the photograph or Eldon own conduct, not to mention the photograph's presence in the homes of millions of Americans, who, on Eldon theory, are guilty of felony possession of child pornography, makes that clear. And then there's a citation to a Third Circuit case. This is a very common case, child porn and First Amendment cases, that says, no one seriously could think that a Renoir painting of a nude woman or an innocuous family snapshot of a naked child in the bathtub, of which I've posted, I think you've posted on Facebook,

0:40:36 Thomas: Yeah, We had this conversation last time,

0:41:22 Andrew: Violates the child pornography laws. Nudity must be coupled with other circumstances that make the visual description lascivious or sexually provocative in order to fall within the parameters of the child pornography statute. And that is true, is right? Not defined strictly as nudity. It is defined as coupling nudity with a prurient, that is, a sexual interest. Um, that led to some weird allegations in this complaint. So,

0:41:22 Thomas: Yeah, about the, yeah, the dollar, it's our prostitution thing, that stuff. That

0:41:54 Andrew: Yeah, um, so So for example, sick, paragraph 68 says Nirvana decided to use a dollar bill on a fish hook as a prop after an extensive debate between the use of a dollar bell, raw meat, a dog, or other other objects commonly associated with prurient interests. Yeah, I don't mean to be a special little snowflake here, and I'm not going to, you know, but raw meat?

0:42:26 Andrew: Doesn't seem to make a whole lot of sense to me.

0:42:24 Thomas: Doesn't make sense. There's our meat time, by the way. Maybe the whole episode should just be called meat.

0:42:30 Andrew: There you go, it's meat.

0:42:32 Thomas: I wonder

0:42:32 Andrew: Meat. Is a motion to dismiss based on the statute of limitations. And I'm going to talk about the merits of that in a second. But like any good lawyers, and I'm not surprised that Geffen Records hired good lawyers to write a quality motion to dismiss, when the facts are really, really on your side, you find a way to work those in even when they're not strictly relevant. So, for example, in talking about the statute of limitations, which begins to run from the moment you know or should have known that the allegedly wrongful conduct occurred, talks about how Eldon knew that he was the Nirvana baby from a very, very young age, right? Right?

Elden's father and Eldon himself publicly celebrated Eldon's identity as the baby on the album cover in a series of articles published beginning no later than 1992. Album came out in '91, right? For example, in '92, Eldan's father sat for an interview with Entertainment Weekly in which he confirmed that his son was the Nirvana baby. In 2003, Eldon, then 12 years old, gave his own interview in which he commented, every five years ago, somebody's going to call me up and ask me about Nevermind and I'm probably going to get some money from it. In 2008, Eldon, then 17 years old, joked on MTV about using Nevermind-inspired pickup lines on girls, such as, hey, you want to see my penis again?

0:44:00 Thomas: If you had success with that one, don't really imagine a potential date being like, oh, again, oh, interesting, tell me why. I would be seeing your penis again. Are you somebody whose penis I've seen? That doesn't, doesn't work, man. That's not a good. Okay, it's

0:44:01 Andrew: 2011, a 20-year-old Eldon shared in another interview, being the Nirvana baby was always a thing I grew up with and has helped get my foot in the door for a couple of situations, which is always handy. When asked, have you ever thought about how many people have seen you naked? Eldon responded, yeah, I've thought about that. It's like being a secret porn star, but not really. But it's not even porn. It's more like a Farrah Fawcett poster.

0:44:39 Thomas: Also not like a Fair Fuss, anyway, anyway.

0:44:39 Andrew: No, not, no, that's real weird. It should definitely not be of that way. I might have one of the most famous penises in the music industry, But no one would ever know that to look at me. In 2016, a 25-year-old Eldon told the New York Post that he voluntarily recreated the same photograph, including his proposal to do it naked. So my point on reciting that, in addition to it, lawyers knew that this would be something that people would find interesting. And indeed, we found it interesting, good illustration on how when you have facts that are that strong on your side, you look for a way to incorporate those facts, even where, you as here, they're not directly relevant to a motion to dismiss because the statute of limitations has run. And the statute of limitations has plainly run on both of these counts. But that's not why the motion to dismiss was granted. The motion to dismissed was granted because Spencer's lawyers failed to answer in time.

0:44:42 Thomas: Yeah. Boy, dude.

0:45:38 Andrew: It was filed on December 22nd, and on January 3rd, the court issued an order that says, you didn't file in time, so we're dismissing out the case. And as soon as I saw that, news articles that actually got into the merits of why this case was dismissed interviewed his lawyer and said, yeah, we screwed up on the timing. There's actually a good reason why they screwed up On the timing, and that is typically you have 14 days to respond to a motion, So 22 plus 14 is 36. You would think that you would have had at least until January 5th to file your opposition. So why did the court throw this out on January 3rd?

This is a really important illustration of why you get local counsel. Law. Their lawyer, his office is in New York. He's admitted in California, right? So nothing improper here. But the local rules of this particular court, the U.S. District Court for the Central District of California, it's Local Rule 7-9, says, "Each opposing party shall not later than 10 days after the service of the motion in the instance of a new trial motion." Okay. That's not this. "And not later than 21 days before the date designated for the hearing of the motion in all other instances shall serve upon all their parties and file with the clerk, their opposition." So although this was filed on December 22nd, it was set for oral argument on January 20th.

0:47:14 Andrew: And under that local rules, instead of adding to the date that it was filed, you have to subtract backwards from the oral argument. That gives you December 30th to file your opposition. And December 30th came and went. And the judge was like, oh, oh, well, you didn't file an opposition, so I'm going to default you. So the order grants the motion to dismiss. However, it is dismissed with leave to amend.

0:47:20 Thomas: Subtract. Okay. Can you plead oopsie daisies?

0:47:41 Andrew: Yeah, you can basically plead oopsie daisies. If plaintiff still wishes to pursue this action, he is granted until January 13th, 2022, that's a week from Thursday, a week for when we're recording this, to file a second Second amended complaint attempting to cure, to the extent he believes warranted by existing law, the alleged defects outlined in defendant's motion. And then it says, label it a second amended complaint, blah, blah. Your failure to timely file shall result in this action being dismissed.

0:47:41 Thomas: Ah, file a motion of oopsie-daisies, I think is more accurate. I only get one oopsie daisies. Fair.

0:48:13 Andrew: You only get one oopsie daisies. And it says, should take seriously the issues regarding the of limitations. Specifically, it says in preparing the second amended complaint, plaintiffs shall carefully evaluate the contentions set forth in defendant's motion, including defendants' assertions that the plaintiff's claims pursuant to 2255 and 18 U.S.C. 1595 are time-barred. The court expects that defendants will agree to any amendments that will cure the alleged defects. Yeah, that's a judge telling you, yeah,

0:48:32 Thomas: That's interesting. That is interesting. Yeah, that's like you go to turn in your assignment late to your teacher, and they're like, all right, I will accept it. And then they glance at it, and they are like, Like, eh, you're going to want to, I'll accept this late, but I'm already seeing this and it's not looking good.

0:48:54 Andrew: That is exactly what that means, right? So that's why I spent a little bit of time on the merits. It's um, the child porn carries a 10-year statute of limitations, uh, and the child trafficking has since been amended, um, but at the time carried a four-year statute of limitations it

0:49:14 Thomas: Yeah. That's kind of a short statute of limitations on child porn, right?

0:49:18 Andrew: It is and it's why if this goes forward we will do a show on it because I will will tell you that um, the interesting argument that I would push back on um, that their brief makes is um, look, it was the photographing and being on the cover and being the sensation and all of that occurred in 1991 and you're gonna say, you, the pleading really says this, it says, you know, you're going to say that that that continues every time they ship an album cover. But the real harm was done to you back in 1991. And I think it's really tempting to take that position with Spencer here because this isn't child porn. But when I insert actual child porn and an actual victim in that circumstance, a pedophile

0:49:19 Thomas: Yeah. Yeah. Oh, you

0:50:04 Andrew: Takes a picture of you as an infant and then distributes it. Every time that picture gets distributed is a new harm. Absolutely.

0:50:04 Thomas: Totally be on their side. Yeah. Mm-hmm. Absolutely. And if the court

0:50:14 Andrew: 100%. We'd

0:50:14 Thomas: Came and said like nothing we can do because the original harm was in 1991. Yeah. No, we totally all be on this.

0:50:19 Andrew: Be up in arms. Absolutely.

0:50:20 Thomas: Yeah. Yeah. Yeah. No, that's fair. It's just not child porn is the thing.

0:50:23 Andrew: Well, but this is the way in which you present your arguments when you're moving to dismiss, as opposed to, you know, if you've got to move for summary judgment, right, you, you do not want it to be a factual question of, on, there's no prurient interest here, right, because that Spencer is going to say, I will prove that it's pruriant interest, right, and And The court will be like, all right, there's a factual dispute on whether, uh, you know, baby in a swimming pool that's in 30 million homes, right. What you want to say is, yeah, even if it is, uh, this is time barred, get out.

And, and, and again, you know, you also see, right, this is a judge who, right, amended once, uh, then they missed a deadline, uh, uh, and the judge says, look, here's how I'm gonna bend over backwards to get you back into court, right, which illustrates kind of another OA argument, which is courts are very, very loath to take a technical rule and deny you access unless exceedingly clear, and there are good public policy reasons for proceeding on that technicality.

That's why, in addition to making a whole bunch of Nirvana jokes, I thought it was worth clarifying the misreporting over this. So, you know, yes, it was dismissed, but it was dismissed for a pretty understandable, I mean, you know, you shouldn't do it, but pretty a understandable misreading of the time deadlines.

0:50:46 Thomas: Right. Right. You know

0:51:48 Andrew: Know, their response was due in eight days over Christmas, and they didn't get it filed in those eight days. They're going to get a chance to file another complaint. The judge is pretty skeptical of that complaint, we'll see what happens. So, uh, there you go, there will still be Nirvana on Opening Arguments. Oh.

0:52:04 Thomas: Who's waiting with bated breath on this is, what's that product with the, where the dogs like tugging the baby's uh swimming suit, that's like a baby butt, what is that, yeah.

0:52:13 Andrew: Yeah, wasn't that, oh gosh, um, yeah, it was a, it was uh a suntan oil, right. Like Copper Copper, Copper Tone, there We Go

0:52:18 Thomas: That's What I thought, yeah, they're Copper Tone Yeah The Copper Tone folks are just really, if they still exist, really Stressing Out over This one

0:52:27 Andrew: Yeah Oh Yeah Yeah, you, do you think the industry of this will help you sunburn, more still exists, like, uh, probably not. Oh. Man

0:52:38 Thomas: Yeah Oh, I Didn't remember what the Copper Tone, so, yeah, it's Like It's Like buttering You to be to Be, uh Yeah Like

0:52:39 Andrew: Yeah No, it Was It was sun It Was It Was a Butter, right, it was like suntan Oil, like, yeah

0:52:47 Thomas: It's Like when Newman goes after Kramer when he's Got the butter on him and Opening Arguments is brought to you by Blinkist. Hey, in 2022, which I'm told is the current year, maybe one of your goals is to read more, or to be better, more knowledgeable, smarter, more informed. If, and so, listening to this podcast is a great start. But I got another one for you, Blinkest. I read a lot, actually. I listen to a lot of books. But there's always more books, is the thing. I this is mathematically provable. The number of books that you have time for is always going to be less than the number of books that are worth reading. That's just, that's just a fact. There are a lot of books in the world. And so one great way to squeeze in a few more, and maybe many more, is Blinkist. Blinkest is a great way to take a book that you want to get the key insights from and deliver those insights in a short dose.

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0:53:45 Thomas: That'll be basically as if you read the book, but without all the time. So again, this is a way to get more done. There's so many titles. Politics ones include What Happened, Fire and Fury, A Promised Land, Fear. I've You blinked Fire and Furry, for example, because I didn't need to read another Trump book, But I got the key insights from that. I got, example, the details about how much Trump's inner circle of advisors were at constant odds with one another, the battling going on there, the fact that Trump wasn't at all prepared to win the presidency, stuff like that. I, you know, I didn't need to read the whole book. I used Blinkist and and I suggest you do as well. Right now, Blinkest has a special offer just for our audience. Go to Blinkast.com slash opening to start your seven day trial and get 25% off a Blinkst premium membership.

0:54:36 Thomas: That's Blinkist spelled B-L-I-N-K-I S-T Blinkist.com slash opening to get 25% off and a seven-day free trial. Blinkist.com slash opening.

0:54:50 Clip: And thank you, Let's go!

0:54:52 Thomas: Now it's time to thank our Hall of Famers, our all-time greats. We're on to a fresh slate, we're on to, you know, January, we're in the uh quartile method, uh so that means four, I'm told, and I think we've might have new additions here because the billing is monthly, so we'll see. Uh, I'll go first, thanking our top patrons, our Hall of Famers, the first fourth of them. Thanks to The Coin, didn't get a chance to see if it agreed with removing The Coin, I love that, that's fantastic. Good, I'm glad, you, welcome aboard if that's a new uh Hall of Famous, uh what a way to enter into the uh the Hall of Fame there, a California legal apprentice who actually passed the first year law students students exam, congrats.

0:55:34 Thomas: Purple Couch, without an E, purplecouch.com, are you supporting a friend through a divorce or going through a diverse, listen to assembled experts at purplecouche.com. Interesting, Loaf of Orange, okay, Loaf of Orange, Indiana and Marion are the cutest corgis of this quintile, I wonder How many corgys are in our Hall of Fame, lots, I think, corgi owners, you know, are in all the fame. TolkienGeek, oh, awesome, I too am something of a scientist myself on Tolkien, Mark Tanner, trans trans, Vin Diesel stars in XXY, it's interesting, I am a potted plant and a better lawyer than Donald Campbell, a live show Mardi Gras 2022 in New Orleans, oh, that's, that's interesting, that would depend a lot on the state of the world, I think, but that's

0:55:34 Andrew: Oh Interesting My corgi's pretty cute, yeah.

0:56:26 Andrew: That

0:56:26 Thomas: Not not impossible. Star Trek is better than Star Wars. Vortexes, plural, is riveting story, like is a riveting history, like Andrew and Thomas but more of a butt clencher in suspense. I forgot to change my Patreon name after it got read the first time and I'm still deciding on a new one, no, well, better luck next month I guess, A Streetcar Named D's L T Yeah Our monthly Belly laugh there. LT, Salty Seattle Driver on YouTube, please can I be your private chauffeur for the Seattle live show? Nobody knows how to drive there. Oh, I love that. We're going to be fully outfitted with every kind of helper of any kind in Seattle when we finally can do a live show. And I'm here for it. That's so fun.

0:56:48 Andrew: Will never Not Be funny

0:57:13 Thomas: Around and around the rough and rugged rocks, the ragged rascal ran. Some say Legal Eagle is a discount John Krasinski, I say John Krasinski is a discount Legal Eagle, and I agree with that, I hope Legal Eagle-ist is listening because I think John Krisinski is wildly overrated and I think Legal Eagle is underrated, if anything, Matt Dunlop, I, I won't post it in Cyrillic to spare Andrew and Thomas from trying to pronounce it, but happy New Year from Kazakhstan, oh cool, wow, yeah, thanks for sparing us and happy New Year as well, Wood Duck, Wood Duck, a wooden duck, but wood, wood, duck, duck, a duck Duck, ducked by Duck Duck Goose, at Atomic Penguin Seven on Twitter, and and thank you too, Josef Vigiano, your turn Andrew.

0:57:07 Andrew: Oh Yeah Absolutely I Do Too, there You go Thank Thank you to Dr. Scoop, Little Doug and Heather, Mr. and Mrs. Pusher, comedian Aaron Trahan, at comedian AET, come to Madhouse Comedy Club in San Diego. Now here's something we hope you'll really like. Angels Camp live show this May at the Jumping Frog Jubilee.

0:58:18 Thomas: Oh, that's my hometown, and that's the Jumping Frog Jubilee, that, yeah, I'll tell you, that's not Opening Arguments country, that's Uh, that's that's Big lie territory, that's, yeah, I mean, any rural town anywhere, but, uh, yeah, no, that's Trump country, we're, we're not likely to do a live show in the middle of Trump country, what's the upside, holy

0:58:28 Andrew: No? Well, I'm not a lesbian, but I am fabulous, sure. Handwoven night-safe reflective scarves by kellywoveit.com. Check out kellywoveit.co. For a fun fantasy story, read The King's Own by W. Marshall, now on Amazon, that thing in the attic, liberals own guns to support root cause mitigation, not ineffective gun control, the fat Jedi eating cake and drinking Emperor's Brewery beer in the Death Star canteen, Sean McGovern, Zach Bloom, support Decarcerate working to end mass incarceration in Arkansas, that is Decarcerear, D-E-C-A-R-C-E-R-A-T-E-A-R dot O-H dot O-R-G, I took legal advice from podcast and all I got was this lousy mea culpa, tell Morgan Katam's son we did ray pizza school, the Corgi says happy New Year, his parents got engaged and bought him a house for Christmas, wow.

0:59:34 Andrew: That's That's A Lot For a corgi yeah Legal Eagle is so handsome, so that's two Legal Eagle shout outs, um, at least one of them is not legal Legal dude

0:59:34 Thomas: Moly That's A lot, that's allot of Stuff, congrats Yeah This Is almost A legal legal fan fan show, pretty Soon, quartile

0:59:44 Andrew: Yeah California Employment, work accident, or litigation questions? Call or text attorney David Nipka. That's 310-776-5879. Again, 310-776-5879. The Smiths do take DNS advice from our live streams. All right, and that's the end of the first quartile, the best quartile right? This, this week.

1:00:14 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:00:20 Thomas: Now it's time for T3BE, Thomas takes a bar exam answer time. Weird one, no idea what to expect here. How, how did I do, yeah.

1:00:28 Andrew: So Weird one, man, uh, gets divorced, divorced, uh, up the marital home in the divorce, um, rents apartment nearby, uh, wife also keeps the dog. The man sincerely believes that the dog belongs to him, he paid for the dog, it was his before they were married, uh, and so he, but the ex-wife refuses to give the dog back. A man goes over, one, he was looking at pictures of his dog, it's so, it's så sad, like this is the most emotionally Manipulative bar question ever. Um, goes over to the house, uh, knocks on the door, nobody answers, um, he hears the dog barking inside, uh,

1:00:53 Thomas: Which Gives him probable cause, pause Gives A probable pause

1:01:02 Andrew: Probable pause Oh That's so great, uh Then he opens the door and the wife's left the door unlocked, right, and the dog greets him, uh, but then thinks better of the whole thing and decides to leave without taking the dog. Um, he be, he's charged with burglary. What's his best argument that he did not commit burglaring?

1:01:07 Thomas: Oh You got the dog in the back, this is, uh, yeah cool, you're really going for all the sound effects. That wasn't Me that Was

1:01:28 Andrew: Yeah That Yeah That's art, artificially added a dog For realism Purposes

1:01:32 Thomas: Did I Need to add the foley Of like the footstep and The door, you know

1:01:34 Andrew: Yeah Thunk Thunk, yeah, um, so uh, we're gonna get to the chase. You eliminated A, did not have the requisite intent to commit burglary, B, was not armed with a dangerous weapon, uh, in going for C, he did not break into the dwelling. Um, sadly, I gotta tell you, you got wrong. Um, A, he did not have the requisite intent to commit burglary. Um, you were really, really close in, in, uh, breaking down, um, you, you correctly distinguished between, between burglary, which is breaking and entering, right, uh, and larceny, uh, which is carrying away someone else's property, um, so, uh, not larceny because he doesn't take anything, uh, then the question is, is it a breaking and entering, does opening an unlocked door to a place that you're not allowed to go, does that constitute, uh, the breaking part, uh, Of burglary, uh, you picked see See, he did not break into the drawing, but it turns out even if the door is unlocked, you opening it, just

1:02:31 Thomas: Just Opening The door and not taking Anything is Burglary What

1:02:33 Andrew: Opening it. Yep. Is burglary if you have the requisite intent to commit a crime? And usually that is larceny when you get inside. Side. So this poses a super interesting question, super interesting question to me, the answers say, you get to A by process of elimination, right? You sort of go through, you're like, all right, it doesn't matter whether you're armed with a dangerous weapon. That's not what breaking and entering is about.

1:02:49 Thomas: A weird question, uh Yeah Okay Got That One Good thing

1:03:03 Andrew: He did not break into the dwelling. Nope. Opening the door counts as breaking.

1:03:03 Thomas: I did In This question Okay That's That's where it got me

1:03:08 Andrew: Abandoning the crime, that's not a thing, right. You can abandon a conspiracy, right, And

1:03:09 Thomas: Yeah I Knew That I, by the time I got done with that, I was like, oh, I should have gone A and C, but by the way, but whatever, I didn't, I messed Up, yeah

1:03:13 Andrew: Yep That Well, that's okay, um, so you get to A by process of elimination, but uh, I, will tell you the, the answer key, um, says something that I would want to put to the test, and so I'm going to flag this for, you know, our lawyer listeners, and let's have a discussion. It says, um, definition, right, burglary is breaking and entering the dwelling of another, uh, at night with the intent to commit a felony or larceny they're in right, so I, come over planning to steal stuff, I break in, I change my mind, I don't steal stuff, that's still burglary, okay, you do break because opening an unlocked door, yep.

1:03:49 Thomas: That's the key, really, yeah.

1:03:51 Andrew: That's, that's what it's testing, right? But it says, note, this is not larcening as larceny is the trespassery, uh, taking and carrying away of the personal property of another with the intent to deprive him thereof. And so it then says, because he believed the dog belonged to him, it would not have been larceny even if he had taken the dog.

1:03:53 Thomas: But Then why would it have been burglary, because that's just the breaking into something.

1:04:19 Andrew: Where I Would sort of put this to the, the test. If it's not larceny to cart away the dog, then how can it be burglary, because his intent was to break in and take the dog. Since I can't ask it of the textbook, uh, I will ask it of our listeners now. It seems weird, um, this would not, you know, that, that you would have a situation where, if I honestly believe that something of mine is in your house, uh, that I Can Come over And right That seems weird To Me, yeah

1:04:22 Thomas: Yeah You Can't Be convicted Of burglaring, that Doesn't That's Why I did, yeah, that was my whole reasoning Of why that couldn't be right, I

1:04:57 Andrew: It's Very, very good reasoning, and I agree with you, so I, I want to throw this out as like a continuing discussion question.

1:05:05 Thomas: Look, I think every listener, I, I am convinced they all have something I own, I can break into any one of your houses and not be convicted of crime, Apparently, trespassing I guess

1:05:13 Andrew: Well Now you would still Be guilty Of Trespass, that's exactly Right I

1:05:16 Thomas: Yeah Yeah But You can't Get me for burglary, damn it, seems Weird I

1:05:20 Andrew: There's something that seems Off About that, so, uh, I am inviting, in addition to you know if you played along with T3B last or not, uh, write in or tweet or at us or whatever with respect to, uh, how you resolve, uh, this sort of burglary versus larceny thing. If you're a patron, you will see the full, uh, explanation from the textbook, uh, that's a, that's patron perk we're available, so

1:05:42 Thomas: Don't even Know about That, what a great Perk Patreon.com Slash law, don't

1:05:42 Andrew: Uh Yeah Post Post With the answers, yeah So, uh, yeah, I'm interested, I'm, because I think there may be something that, uh, isn't explicitly said here that I'm missing, because you know I don't practice criminal law, because, yeah, otherwise this seems like pretty great, like, break into people's houses free, um, you know, kind of, uh, uh, kind of a loophole, and, uh, And And Like, yeah

1:06:07 Thomas: Take Breaking Into People's houses advice From A podcast Thank

1:06:08 Andrew: Right Yeah Well That's upset, I think it's wrong, so, but either way, yeah, our advice would be do not break into people's houses even if you think they've got your dog. So, so there you go. Uh, sad that you got it wrong, uh, proud of you for getting both burglary, the distance, the distinction between Burglery And larceny correct, um, and it just is testing that, uh, it Counts as A breaking even if you don't break anything.

1:06:25 Thomas: You Yeah That, yeah, I I'm Upset That I, I meant, I should have gone with A and C, I almost, uh, changed my mind there at the, the end, because I was like, well, D is definitely wrong, but that's, that's my main regret, I should have Well

1:06:41 Andrew: You're Saying The coin is to being deprived of A potential victory here

1:06:43 Thomas: That Yeah That and, like, just my second chance bar exam should have been intact there, uh, that's definitely a mistake on my part, but, you know, that's a tough, if I had, I, but known that, uh, just opening a door I could have reasoned my way to that, just opening the door is apparently breaking in, opening an unlock door, not going in, that, I, guess it just seems a little hard. Like, like, what if you just accidentally walk up to the wrong house or something, and you're just like, you know, on autopilot, and you open the door, and then the minute you see it, you're like, oh, that's not my house. I know, you obviously, you know, there'd be a lot of discretion involved, but technically you've committed burglary.

1:06:44 Andrew: Yeah That, doesn't seem right.

1:07:21 Thomas: No.

1:07:21 Andrew: Right, in the sense of that, that would be, you would lack any kind of intent whatsoever. But, but I just wonder, like, how much the, no, I definitely thought that was my stuff off, you know, is a get out of jail free card, um, so Yeah, we'll find Out, yeah

1:07:26 Thomas: Yeah.

1:07:35 Thomas: Interesting. All right. Well, There you go. It's always fun. I always learn a lot with a T3B in any case. So really fun. On, let's find out if somebody uh outsmarted both me and the test here, who's our big winner this week, which leader of another atheist organization is gonna get, we'll see.

1:07:54 Andrew: Well, Thomas, this week's winner, and I love this, is EscapeFromCustody on Twitter, who says, Trying T3BE from a UK perspective, as I don't have knowledge of USA law, and hoping it works anyway, I'm going with A, no requisite intent, although trespass into her house, he believed it was his dog, and therefore had no intention to steal, at a time of entering, so burglary is incomplete. Complete, well, remember, uh, England and the United States share a common law heritage, these are the common law rules of burglary, and uh, you've gotten it exactly right, EscapeFromCustody, I love it, and uh, congratulations on being this week's winner. Everyone, let's give them a follow, that is at EscapeCustody, E-S-C-A-P-E-C, U-S-T-O-D-Y, on Twitter, and congratulations on being this week's winner.

1:08:45 Thomas: Right, thanks so much for listening, everybody, uh, great time as always, love the show, and we'll see you for Rapid Response Friday, no.

1:08:51 Andrew: And Q and a, oh.

1:08:53 Thomas: That already happened.

1:08:54 Andrew: No. Yeah.

1:08:54 Thomas: No.

1:08:54 Andrew: Sorry. And not a Q and A for at least a month.

1:08:57 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.

1:09:30 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.