OA595: Shareholders Sue Twitter, Alleged Facts Jeopardize Musk Deal

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 595, I'm Thomas, that's Andrew Torres Esquire, how ya doin'?

0:01:25 Andrew: I am tentatively fantastic. I understand, right? Every fantastic is going to be a tentative from here on out. There's a lot of work to do. We're going to talk about that. But personally, I'm feeling good. How are you doing, Thomas?

0:01:28 Thomas: Ooh, tentatively fintech.

0:01:39 Thomas: Good, is it, does that mean like you're waiting for some news, are we waiting for something, or is that just all the time?

0:01:44 Andrew: Oh, no, that's just, you know, the background of, you know, The World's on Fire. And we got a lot of rolling up our sleeves to do, but, you know, sometimes hard work feels fantastic. And that's where I think I am. How you doing?

0:01:46 Thomas: Oh, okay. Gotcha.

0:01:58 Thomas: That's great, I am doing great, coming off the really fun Q&A on Tuesday. Check it out on YouTube if you'd like the video, if you like the audio. Audio patrons, get that on the feed. I already, I put it up right away. Been on, been Johnny on the spot on that lately, even though in the past I've forgotten about it for like a week, but no more. Let's talk about you have some announcements, exciting news you want to talk about and

0:01:58 Andrew: Oh man oh yeah Yeah. So we are continuing to develop the infrastructure to build the Opening Arguments Charitable Foundation. I wanted to give a little bit of an update and some specifics. So some specifics. You and I are going to make substantial matching contributions to begin to fund the charity. We're going to talk more about that later. We've already had the generosity in the community is, of course, amazing. We have already had some folks hit us with a request to join in on that kind on of matching initial contributions. Distributions and, um, if if

0:02:53 Thomas: We turned them down, we said no, I'm just, no, time

0:02:55 Andrew: You want to be on that list. Well, what we said was, let's do the paperwork and and get the filing uh done first. Uh If you want to be on that list, shoot us an email, openarguments at gmail.com, we'll put you on the list. I also wanted to be very specific about the two main goals that you and I had with respect to the foundation. I love both of these.

We've already talked a little bit about the first, which is being able to direct funds to boots on the ground organizations in response to adverse decisions by the Supreme Court. I think the area where we can really make a difference, I and love this, this was your idea, is sponsoring initially a scholarship, hopefully ongoing scholarships for law students, for individuals who come from our community, who demonstrate that diversity, commitment to the rule of law, and who want to go into the law to further what we're doing, right? That is communicating the principles of the rule rule of law to the public, right, and basically fighting back against the Federalist Society and their, you know, disinformation campaign that says the way that we interpret the Constitution is by looking to, you know, what how many witches they burned in the 17th century. Um, there's never been a bigger need for us to start influencing the way in which people are talking about interpreting the the law, and in some

0:04:30 Andrew: Sense I view we're, you know, a couple of decades late to the fight, uh but let's pick it up now. Yeah,

0:04:36 Thomas: Like the present. Yeah, I'm super excited about this idea, I can't wait to get it going, so much more to work out, but it's gonna be really cool. And And it's amazing how many people have already contacted us to be like, hey, want to help. That's awesome. Keep it coming. Our inbox is open for people who want to Help.

0:04:37 Andrew: Yep. Yep. And folks who want to volunteer, right? We get it that not everybody is in a position financially um, this is, you know, a many hands make for light work kind of situation. Uh, we're going to need a lot of help, and uh it's a big lift, but but we are committed to to seeing it through and to to making a difference. I so just had to share that with everybody.

0:04:56 Thomas: Right.

0:05:10 Thomas: You're just too excited.

0:05:11 Andrew: Penny.

0:05:11 Thomas: I don't blame you. With that all said, let's get to the thing we do best. And by we, I mean Andrew does best, communicating the actual law. Here we go. So do we have a, Andrew was wrong here on Clarence Thomas.

0:05:19 Andrew: No, I stand by everything that I said, but I want to give voice to an argument that was put to me by a lawyer whom I respect. And that argument concerns the interpretation and application of the Code of Conduct for U.S. judges that we talked about as providing guidance in the Clarence Thomas segment. So let me summarize my argument really, really quickly. Number one, you, as a sitting Supreme Court justice, Clarence Thomas, take the oath of office. Number two, that oath of office puts you on notice that you get to hold that office only under quote, "good behavior."

Number three, yeah, right, you're unnoticed that good behavior is a flexible standard, right, that it includes not getting drunk on the bench, even though as far as I can tell there's no law that says Supreme Court justices can't, you know, show up to work having had five martini breakfast, right? It's a flexible standard, and specifically conduct that violates the judicial Code of Conduct is not good behavior, even though, as we were super clear to say on the the show, that code cannot be enforced against Supreme Court justices. So the pushback I got was that there is ambiguous language in the Code of Conduct. In particular, on page two of the introduction, it says, "This code applies to U.S.

0:06:04 Thomas: You haven't had very good behavior.

0:06:52 Andrew: Circuit Court judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges." And so the argument, and this is it, right, is because of that, because the code doesn't, quote, "apply to the Supreme Court," Clarence Thomas wasn't sufficiently on notice that he couldn't commit gross violations of the code and fail to recuse himself on obvious conflicts of interest. So you can see, I don't think the argument's a particularly good one. Um,

0:07:21 Thomas: Yeah. Love that this sounds a lot like, well, I didn't know the law. You can't put it as being applied to the person in charge of law knowing in the entire country.

0:07:31 Andrew: Yes, that's exactly right, um, and to make it more clear, I would like to turn to Chief Justice John Roberts. As you know, uh, the chief justice of the Supreme Court issues a year-end report on kind of the status of the law. And over the past decade, John Roberts's reports have involved judicial ethics because that's a growing concern. In 2011, his year-end report in the judiciary has two sections that I think make my argument for impeaching Clarence Thomas a knockdown argument. I'm going to start with the weaker one first, okay? The first is Roberts on when judges must recuse themselves.

Here's what he says, first, if you're not on the Supreme Court, there is a law, right, 28 U.S.C. Section 455, that states a judge shall recuse in any case in which the judge's impartiality might reasonably be questioned. That objective standard focuses the recusal inquiry on the perspective of a reasonable person who is knowledgeable about the legal process and familiar with the relevant facts, which is exactly what we applied in our previous episode on Tuesday. It says, in applying the Section 455 standard, the judge may consult precedent, consider treaties and scholarly publications, and seek advice from other publications, including colleagues and the Judicial Committee Code of Conduct. A trial judge's decision not to recuse is reviewable by the Court of Appeals. Court of Appeals judge's decision not to recuse

0:09:03 Andrew: Is reviewable by the Supreme Court. A court normally does not sit in judgment of its own member's recusal decision, right? Okay, and then it says the process within the Supreme Court is similar. Like lower court judges, the individual justices decide for themselves whether recusal is warranted under 455. They may consider recusal in response to a request from a party or on their own initiative. They may examine precedent, scholarly publications, seek advice from the court's legal office, colleagues, and even seek counsel from the Committee on Codes of Conduct. There is one major difference. There's no higher court to review a justice's decision. This is a consequence of the Constitution's command that there be only one Supreme Court. The justices serve on the nation's court of last resort.

0:09:49 Andrew: As in the case of lower courts, the Supreme Court does not sit in judgment of its own member's decision whether to recuse. Indeed, indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate. Good point. Really, right, really good point to me. That makes it very, very clear then that the remedy for these breaches is impeachment. Right. This is John Roberts saying, yeah, there's only one Supreme Court. We can't decide amongst ourselves. There's no higher court, so it would be a good application of separation of powers if the process by which we were governed is this really high standard of impeachment. Okay,

0:10:31 Thomas: Is there room in the Constitution for Congress to make some sort of, if not a higher court, because that seems not allowed, some sort of governing body in terms of ethics that would have any sort of power here.

0:10:44 Andrew: The answer, I think, is that that is ambiguous, right? Article 3 says the judiciary shall be vested in one Supreme Court and in such lower courts as Congress may from time to time ordain and establish. That's it, right? So does that say Congress can or can't create rules that govern how you serve on the Supreme Court? Um, in my view, it doesn't, right? Like the only restriction on those rules is that constitutional restriction, is that the judges serve for life, right? And so we've talked about that, and that and the judiciary is vested in one Supreme Court and the other courts are lower. And so we've talked about how, in my view, that would prevent some of the kind of popular imaginings, right, of term limits for Supreme Court justices or age limits for Supreme Court justices. It would, that's it, the only substantive review. View, uh, but could you define specifically, uh, through statute what counts as good behavior? I think absolutely you could do that.

0:11:15 Thomas: Right. Mm-hmm. And Yeah, in the same way that I assume if Clarence Thomas hits someone with his car, the police can arrest him and charge him. And it's not like, well, you just, this is a gross, you breach of the separation of powers. I, maybe a similar thing could could apply where it's like, look, we're not telling anyone what to do legally. We're not overruling any of your decisions. We're blah, blah, but like this governing body, this sort of like, you, ethics board, whatever it would be for the Supreme Court, does have the power to do something consequence wise that would give them actual power over this court when it comes to ethical questions.

0:12:23 Andrew: Think that's right.

0:12:23 Thomas: So let's just elect 10 more senators and make that happen.

0:12:24 Andrew: Given, Yeah, given that that is not the current law. And given that, in fairness, the recusal part that I just read says, seems to me right to say, the Supreme Court justices ethically, right, so for the question of what counts as being unnoticed for good behavior, go through the same thought process that all other federal judges do, right? And it is clear Clarence Thomas has either not gone through that thought process or has gone through it and said, I don't care, right.

0:12:53 Thomas: Hmm. Let me think about this. Don't care. Thought process done.

0:12:54 Andrew: Yeah. So now the question is, is there a stronger connection to violating the code of conduct? And the answer to that, in my view, is yes. Section A, that was section C governed recusal of the 2011 report. Section a is on the code of conduct. And here's what John Roberts, chief justice at the Supreme Court, says about the code of conduct, quote, Some observers have suggested that because the judicial conference's code of conduct applies only to the lower federal courts, the Supreme Court is exempt from the ethical principles that lower courts observe. That observation rests on misconceptions about both the Supreme Court and the code. OK, so nice of John Roberts 10 years ago to answer this question that was going to come up on our show, Travel right?

0:13:41 Andrew: Through a wormhole. All right, members of the court do, in fact, consult the code of conduct in assessing their ethical obligations. In this way, the code plays the same role for the justices as it does for other federal judges. Since, as the commentary accompanying canon one of the code explains, the code is designed to provide guidance to judges. It serves the same purpose as the 1924 Canons of Ethics. And justices today, that meaning Supreme Court justices, they're the only ones that are called justices, right, use the code for precisely that purpose. Each does so for the same compelling practical reason. Every justice, okay, this is kind of hard to read, but every justice seeks to follow, follow high ethical standards. And the Judicial Conference's Code of Conduct provides a current and uniform source of guidance designed with specific reference to the needs and obligations of the federal judiciary.

0:14:30 Andrew: And then there's a paragraph that says, you know, it's not the only source of ethical guidance, but it's the starting point. This is, again, a direct quote, the starting point and a key source of guidance for the justices as well as their lower court colleagues. To me, that's just a slam dunk, right? Is Clarence Thomas on sufficient notice that he should be guided by the ethical principles in the code of conduct, even though they are not enforced against the Supreme Court? The answer to that is an unambiguous yes. So no, not wrong and not backing down on that one.

0:15:03 Clip: Down the law, down the law.

0:15:07 Thomas: Time for our main story. Guess what? It's going to be about Roe, because this is a disaster and there's going be a lot of coverage about this disaster and what we can do about it and what we can't do about it. There So was a vote, and in my opinion, this was a good idea to put it to a vote, make senators go on record as to whether or not they will not protect reproductive rights on a national level. And it failed, getting only 49 votes. My question for you was, first question, Andrew, was the vote on this taking into account the filibuster? Like, if this would have passed, would that have also sidestepped the filibuster, or would that be a separate vote? I can't remember how that works.

0:15:43 Andrew: It would have been a separate vote close to debate for So this was not affecting the filibuster and anticipating your next question. This is Manchin, Joe Manchin of West Virginia, voting no on the merits. So again, keep in mind when you're talking about bemoaning what Joe Biden can do and saying, well, you know, you've got 50 Democrats that if you just did like on abortion, you have 49 Democrats right now. You do not have 50. We're going to talk about specifically what this bill would have done. But again, in terms of understanding the political climate, this is the first time I think to me, this Is the other virtue, Because Joe Manchin has been, we talked about this in previous episodes, weasley when it comes to abortion, And right, this pins down, where are you?

And the answer is Joe Manchin is now the most pro-life Democrat in the Senate, perhaps in the country, and more so than somebody who has been self-described as pro-Life for multiple decades, Bob Casey, senator from Pennsylvania. That Bob Casey's dad when he was governor was the Casey in Planned Parenthood versus Casey. So right? Longstanding pro-life family, longstanding pro-Life Democrat Bob Casey voted for the WHPA, the Women's Health Protection Act. Let me describe this a little bit and then kind of talk about the implication. This is a great bill. It has been introduced.

0:15:56 Thomas: Yeah, yeah.

0:17:19 Andrew: This is the sixth time that it has been produced since 2013. So again, if you're sitting there saying, I don't understand why Democrats, they've introduced it six times, OK, we haven't had the votes

0:17:30 Thomas: Well, and by the way, I was doing a little research into this because, you know, I'm in a personal hell of people making idiotic claims about what Democrats can and can't do constantly over and over, and this was already passed in the House in September of last year. So the idea that the House isn't doing anything, or Nancy Pelosi isn't doing anything, et cetera, et cetera, not true.

0:17:50 Andrew: Just It's Just false, it's just false. And let let me describe what the bill does. And let me talk in particular about the Casey vote, because Casey has, uh, voted against this each of the last five times that it's come up. It finally changed his mind. And again, I'm looking, this is, this is obviously a pessimistic part of the segment. We have a super optimistic part coming in the second half, sneak preview, uh, but you need to understand even where we're losing, where we make progress. So abbreviation, here's the WHPA, does it, begins with Section 3A, the general rule, a health care provider has a statutory right under this act to provide abortion services and may provide abortion services without any of the following limitations. And then there are 11 enumerated limitations and one catch-all provision.

0:18:40 Andrew: There's a section that provides guidance to the court for how to expansively interpret, that this is a really, really good law? So no prohibitions on abortion before fetal viability, right, that's Section eight. Can't require specific tests, like, like ultrasounds. You can't hand out pamphlets that are designed to terrify abortion patients, this is described in the act as providing inaccurate or medically unnecessary information. You cannot require multiple visits, again, described as medically unnecessary. You can't require that abortion clinics maintain stupid, bogus credentials, like you have to have a level 17 NICU and right

0:19:19 Thomas: Yeah. An entire hospital next door that nobody's in that is only ready for you, for your patients. Yeah.

0:19:23 Andrew: Yeah So that's the general rule, right, enforcing, I think, the the broadest possible application, uh of abortion rights. You pre-DOPs. And in some ways, back some of the restrictions that have been declared not undue restrictions on the right to an abortion under the Casey standard by our activist courts. So really, really great legislation. Legislation, yeah, and

0:19:34 Thomas: Yeah. Right. Right. Yeah, when I was reading, you know, it's, it it's often, this is talked about as codifying Roe. It's way better than that, right? I mean, this is going way beyond the protections you would have had nationally, certainly under Planned Planned ParenthOOD v. Casey, but do is you think it's right to say that it's even better than codifying Rowe?

0:20:12 Andrew: The answer to that is, I think, a qualified yes, right, fetal viability is now somewhat earlier than the third trimester in Roe, but remember that that Roe's breakdown was no restrictions in the first trimester, restrict but not prohibit in the second, and may prohibit in the third. This bill would say no prohibitions pre-viability, that is first and second, none, none of the restrictions that would substantially impair patients' right to an abortion again in those first two trimesters, and protection enshrined in the law, in, I, the third trimester for abortions where, where it would be crucial to the health or the life of the patient. And so, uh, yes, so it's, it's little bit different from Row, because it's not the strict kind of trimester approach, but in some ways that goes beyond, in some way that's not quite as as expansive, um, it is, I think, fair to say, codifies Row, kind of on balance, right yeah

0:20:21 Thomas: Oh, sure. Yeah. Okay. Wasn't sure. Okay, maybe I wasn'T sure, um, if Roe prevented the nonsense, like the the pamphlets and the, some of the other things that like, was that allowed under Roe?

0:21:21 Andrew: And It wasn't clear until Roe was superseded by Casey Right. And until that was replaced with the undue burden test that, let's be fair, Anthony Kennedy and Sandra Day O'Connor just made up.

0:21:26 Thomas: Right. Right. Yeah. And it sucks. Like it just allows them to do all this stuff that, and then it allows some justice to be like, that's not an undue burden, even though it definitely is.

0:21:33 Andrew: Right. Yeah. And it right. And so that began with things that were considered not affecting by courts, not affecting the right at all, which was a real stretch when it was things like if you were under the age of 16, for example, you had to go to a judge or otherwise get permission from your parents in order to obtain an abortion. Real hard to argue that that doesn't substantially affect your right to an abortion, but that was the judicial fiction we were living under for a while. So. So, yes, this would be clarifying. It would be great. And the way in which it is implemented is Section four, which says this act supersedes and applies to the law of the federal government and each state government and the implementation of such law, whether statutory common law or otherwise, whether adopted before or after the enactment of this act.

0:22:36 Andrew: And neither the federal government nor any other state government shall administer, implement or enforce any law, rule or regulation standard or other provision having the force and effect of law that conflicts with any provision of this act, notwithstanding any other provision of federal law, including RFRA. So as broad as possible, yes, this law is meant to supersede all of your state laws and any federal law that you can think of. And short of a constitutional protection, that's that's the very best that we can do. Now, I want to pause for just a moment to go back to the question. You and I have seen this. It is absolutely inaccurate. The argument that, well, you know, Obama could have done this in 2009 when he had, you you know, a filibuster proof majority in the Senate.

No, he could not. So how do I know that? Because among those 60 votes that Obama had in the senate included a number of pro-life Democrats, including Senator Casey, the very same Senator Casey that just voted for this one, but voted against it the previous five times. And when asked about it, we will include his letter, which he tweeted out in the show notes, quote, in the nearly three months since I last voted against this bill, the circumstances around the entire debate on abortion have changed in light of the leaked Supreme Court decision draft overturning Roe v. Wade and subsequent reports that Republicans in the U.S. House and Senate will introduce legislation to enact a nationwide six-week ban.

0:23:26 Thomas: Yeah. Right.

0:24:16 Andrew: The real question of the moment is, do you support a categorical ban on abortion during my time in office? I have never voted for, nor do I support such a ban. That's how Bob Casey is squaring his lifetime of pro-life votes with voting for this act, which is, OK, I get it. I'm pro-Life. But this is a dangerous time in our nation's history in which it's not just we're not just talking about, can I be pro-life and can I vote pro-Life in my state? We're talking about Republicans imposing it nationally on people who don't want that. And I'm not for that specific level of overreach. That that is clear and again we know because he's always voted against this exact same legislation that had this come up in 2009 Casey would have been a no vote.

Other question marks, again because this didn't come up, are two very conservative Democrats at the time from Arkansas, Bill Pryor and Blanche Lincoln, Mary Landrieu from Louisiana so you know looking through the numbers and going Oh, Obama had 60. He should have been, you know, a precog from the minority report and seen into the future and used his political capital to pass a federal law that would have been duplicative of a Supreme Court decision that nobody could have anticipated was going to be overturned is just the worst. Look, again, we've said this time and time again. I get the frustration, but this is the culmination of a 50-year plan by Republicans to strip individuals of their right to reproductive freedom. And if your first instinct is to figure out how to blame Democrats, you're probably doing this the wrong way.

0:25:27 Thomas: Yeah.

0:26:04 Thomas: Yeah, I mean, fair, I guess in fairness, so counter arguments would be, it is an indictment of Democrats at that time that we didn't have that many votes among Democrats, you know, like pro-choice Democrats, sure. So, like, we can be mad that, like, there weren't enough pro- choice Democrats at the time. Putting it all on Obama, I think, is really weird. I mean, it is true that if you track down, like initially going into the election, he did say that was, going like to be something he wanted to do. And then once elected, he kind of shifted it back. And I think the, honestly, what I would imagine the simple explanation for that would be is they did a whip count. We're like, okay, should I try to do a thing that is not going to pass? And as you say, duplicates what we at the time understood to be Supreme Court precedent that Should I waste a bunch of capital doing that? Or should I Try to pass a landmark, you healthcare reform bill that we do probably have the votes to pass, even though that got complicated. Like I understand the

0:26:26 Andrew: Yeah. Yeah. Did Not Have the Votes, yeah, yep.

0:27:08 Andrew: Yeah.

0:27:08 Thomas: Shift in priority.

0:27:09 Andrew: And keep and in mind that bringing such a such an act out right that would have been by everyone's admission worth, like, would do literally nothing for the next 12 years, 13 years, right, that act of calling up the senators would be be an aggressive act to those senators, Casey, right? And says, hey, I got a tough vote for you, Casey's going to be like, why you bringing this, man? Don't make me take this vote. I can't tell you how I'm going to do right now, but why are you putting me to a hard vote that could cost me re-election in my state? Let me take easy votes. So, yeah, it's just anybody who is saying Obama could have done this in 2009 is woefully ignorant of both the facts and the reality of politics.

0:27:58 Andrew: The even more laughable one I have seen is. And, know, the last time that the Democrats also had a 60 vote majority under Jimmy Carter's first term, Jimmy Carter was pro-life. Jimmy Carter supported the Hyde Amendment. The only thing he did not support at the time was the calls among the religious right for a constitutional amendment to prohibit abortion that that was where he drew his line, like I did, Carter would have vetoed that, so I just dumb, um.

0:28:29 Thomas: Not to mention how soon after Roe that was, like that's right at that time. You need to also pass a bill. I don't know.

0:28:32 Andrew: Yeah. Yeah, it was. Yeah. But to protect a right

0:28:37 Thomas: That was just guaranteed by the Supreme Court.

0:28:37 Andrew: That is. Yeah?

0:28:40 Thomas: It's like, I mean, it would have been like passing a national right to gay marriage right after that decision. Like, why would you think to do? It's just, I guess you. Should we start doing doing that? Now that we know that the Supreme Court sucks as much as it does, obviously, maybe that is something when we have power that we should consider doing, just pass all these no-nonsense, obvious laws. But we're still a couple senators short of being able to do the things we want to do.

0:29:04 Andrew: Yep. And that is a terrific Terrific transition to the second half of the segment, which is what things can we do right now, And right? The example I want to put up that you can do if you live in a blue state, you can do it if you Live in any kind of state, right, this is model legislation that just passed and was signed into law in Connecticut. It is House Bill 5414. Every blue state needs to follow suit. OK, right now, I get Right. It. Democratic legislature, Democratic governor, that's going to rule out states like Maryland, for example, that has a Republican governor. You should agitate to bring this up anyway, because really good way to remind folks in Maryland that, hey, there are downsides to voting for Republicans is to say, here's a thing that we could have if we didn't have a Republican government.

0:29:59 Andrew: So what is House Bill 5414 do? It has four major provisions and each one of these is really, really smart. The first one is the jujitsu superseding move against Texas House Bill 8. I love this. Again, Texas House Bill 8 and the various other vigilante laws may not be long for this world once the Supreme Court says you can just regulate abortion, outlaw it directly.

0:30:29 Thomas: And that was such a good prediction, Andrew, on cleanup. The Supreme Court's going to say, oh, obviously you can't do this bounty hunting formation of your law. Like, why would why would you ever be allowed to do that now that they've, struck you down Roe? Like, that'll be what they'll do, even though the whole time it's like, yeah, that's why you should should have honestly enjoined this law that was was clearly unconstitutional at the time.

0:30:29 Andrew: Right.

0:30:50 Thomas: Can't wait for that.

0:30:50 Andrew: Yeah, no, it'll be fun. But in the interim, here'swhat HB 5414 says. When any person has had a judgment entered in any state where liability, in whole or in part based on the alleged provision, receipt, assistance, material support, or any theory of vicarious joint, several, or conspiracy liability for reproductive health care services that are permitted under the laws of this state, such person may recover damages from any party that brought the action leading to that judgment or who has sought to enforce that judgment. So, again. So, say you got a Texas HB 8 lawsuit, $10,000 judgment against someone for procuring an abortion in Texas, say, flies back home to Connecticut, and then that person can sue you in court in Connecticut.

0:31:45 Andrew: It and recoverable damages shall include the damages created by the action, right, so they get the ten thousand dollars back, including but not limited to money damages of the judgment in that other state and costs, expenses, reasonable attorney's fees spent in defending the action that resulted in the entry of a judgment in another state, and cost, expenses, and reasonable attorney's fee is incurred in bringing this action under this section of the court yeah Yeah. Yeah. So it sits on top of it and says, hey, if if you are the victim of a Texas vigilante style action.

0:32:09 Thomas: And this, and this, and this. Have you been the victim of a test?

0:32:21 Andrew: I absolutely, deterrence, and should, with again, with respect to Connecticut residents, will will stop that dead in its tracks. If you're a state that borders Texas. Right. You need to enact this provision. Provision that's just part one of of House Bill 5414. Part two is an anti-extradition principle. So let's break this down really quickly. Suppose, uh, you live in Connecticut, and you and I both live in Connected, and we're planning to murder a Vermont citizen.

0:32:52 Thomas: Okay, sure. I don't know what Bernie did to us, but yeah, okay.

0:32:53 Andrew: Okay. Right. Right. We We agree to that conspiracy in Connecticut.

0:32:59 Thomas: The one person I know who lives in Vermont. That's literally the only one I can name is Bernie.

0:33:03 Andrew: Say. Then let's say we carry out the conspiracy in Vermont. And remember, to carry out the conspiracy doesn't mean we have to kill or attempt to kill that person. It means we have to take an overt act in furtherance of the conspiracy. So we drive into Vermont. We buy some firearms. We drive to this person's house, but they're not there. So we turn around and go home. OK, so So we have not committed a crime in the state of Vermont, right? We have committed the engagement of the conspiracy in Connecticut, and then we have the furtherance of the non-criminal behavior in Vermont. We go home to Connecticut, right, yep, so we go home to Connecticut. And now the idea is, again, steeped in the 18th century notion that like, well, why would would anyone in Connecticut care if you want to go on a murder spree in Vermont? All right. Things are a little different now, but the idea is that Vermont would have much more interest in trying us than Connecticut, The right? Vermont prosecutors, we were going to kill a Vermonter.

So the Vermont prosecutor should be able to bring us into Vermont to stand trial for the crime that we were carrying out in the state of Vermont now Vermont can't send its police to Connecticut right they need the cooperation of the Connecticut police and they need an order from a Connecticut authority right either from the governor from the courts and so that is an extradition order so under this scenario the way in which we get tried in Vermont is Vermont issues a request to Connecticut to to extradite you and I from Connecticut to Vermont and to tell, right, Connecticut police, hey, drag these guys to the border with Vermont and remand them to the custody of the Vermont police so that they can stand trial in Vermont.

0:33:29 Thomas: Hmm. Yeah, we're just driving around Vermont. We committed the Crime of driving. Is that a crime in the

0:34:55 Andrew: That's how it works. So tweak this just a little bit? And Missouri just passed a law that made it illegal to leave the state to go get an abortion. Other states are going to be flirting with this, so, uh, imagine then you just leave Missouri, you go to Connecticut, you never come back. Could Missouri extradite you from Connecticut back to stand trial in Missouri for the crimes of having an abortion and leaving the state's jurisdiction to get an abortion? The answer to that is maybe, right? Like, it's super complicated. Complicated.

This law says no. The answer to that is no. So section five, the governor of the state may surrender any person found in this state who is charged in such other state with committing an act in this State or in a third State intentionally resulting in a crime in the State whose executive authority is making the demand, right? That's the baseline rule we talked about. Even though the accused was not in that State at the time of the commission of the crime and has not fled there from. Okay, so again, I, we conspire to commit a crime in Vermont in Connecticut. That's the standard extradition language.

Here's what this bill would add to it. The acts for which extradition is sought would be punishable by the laws of this state if the consequences claimed to have resulted from those acts in the demanding state had taken effect in this state. So in other words, yeah, you You cannot extradite somebody for a crime that's only a crime in your state.

0:36:26 Thomas: One state.

0:36:26 Andrew: Yep.

0:36:26 Thomas: Okay, conspiracy.

0:36:27 Andrew: So not a problem when you want to extradite us for conspiracy to commit murder. Is a problem when you went to extradite us back to Missouri for conspiracy. To commit Yeah, exactly.

0:36:37 Thomas: To Commit health care. Yeah. Keeps

0:36:40 Andrew: So that's the second provision. No extradition. This law gets better. Third section it has is no subpoenas, no summonses, no witnesses, and it's the same thing, right? Because in addition to extraditing a defendant, you can also compel witnesses in other states. Yeah, we talked about this in the Alex Jones case, right? So this now says section three, a judge shall not issue a subpoena when such subpoena relates to reproductive health care services that are permitted under the laws of the state unless a similar claim would exist under the laws of the state. So in other words, you could have a subpoena about health care services if it's like, hey, they defrauded me, right? Like, I, I paid my money and they never. But you can't have, oh, hey, I got health care in this state and you want me as a witness for, know, to involuntarily testify against somebody in another state. Nope, we're not issuing a subpena for that. That, nor, this is section 4b. Yeah.

0:37:35 Thomas: Going nice.

0:37:36 Andrew: No judge shall issue a summons in a case where a prosecution is pending or where a grand jury investigation has commenced or is about to commence for a criminal violation of a law of such other state involving the provision or receipt of or assistance with reproductive health care services that are legal in this state, unless the acts forming the basis of the prosecution would also constitute an offense in this state. So those three sections together really nail down the, like, we're not going to allow other states to overreach and invade our citizens. And again, every state needs to pass these. Finally, the last section that kind of animates all of this is a general purpose section. I also love this because it's a really good illustration of how writing laws can use inclusive language.

0:38:24 Andrew: It strikes out the the words "pregnant women" and replaces it with "patient." It strikes out "her" and replaces it with "their" or "the patient's." Super easy, not hard, right? It's It, again, uh, want to be receptive to this is a change when you're writing the laws, but you know, it's actually shorter to write it this way, and everybody's trying to get lawyers to write shorter stuff. So it says, decision to terminate a pregnancy prior to the viability of the fetus shall be solely that of the patient in consultation with the patient's physician or pursuant to the provisions below, the patient's advanced practice registered nurse, nurse midwife, or physician assistant. No abortion may be performed upon a patient after viability the fetis, except where necessary to preserve the life or health of the patient. Patient.

C, a physician licensed pursuant to this chapter may perform an abortion, uh, and D, an advanced practice registered nurse licensed pursuent to this section, a nurse midwife licensed pursuance to the section, and a physician assistant licensed pursuit to this set section may perform medication and aspiration abortions under and in accordance with said chapters. So in other words, locking it down and saying, this is our general statement here. If you are pregnant, the decision

0:38:36 Thomas: Yeah Not Really hard. Yeah.

0:38:47 Thomas: Yeah.

0:39:40 Andrew: Yours in consultation with those whom you choose if it is pre-viability, that is within about the first 20 to 21 weeks of pregnancy, and post-viability, the standard is life or health of the patient. And again, every state needs to pass this law, but it probably will not, but you know, yep.

0:39:58 Thomas: No kidding, I mean, I feel like the ones that are banning abortion probably aren't, but every sane state needs to pass this law. So that's what we can do. Again, I think we said it the last one of the last million episodes I've edited, but this is again, state by state. It's not how it should be, but it's how it's going to be at the state level. And at the State level, we can have an effect, we can work, we can organize. Here's another goal, here is another thing we can do to protect people.

0:40:26 Andrew: Absolutely, right.

0:40:31 Thomas: This show is brought to you by Wondery and their Will Be Wild podcast. On January 6th, thousands stormed the U.S. Capitol on Trump's urging. Yeah, Ginny Thomas was possibly one of them. He had tweeted, "Be there, we'll be wild." From the critically acclaimed podcast studios Pineapple Street and Wondery comes series called We'll Be Wild. We'll be Wild shines a light on the human stories left out of the January 6 headlines and goes deep into the lives of people who took part in the day. The people who saw it coming and the people who fear that the insurrection was just the beginning. You'll hear from former U.S. intelligence members who warned about the incredible rise of extremists in America, a former soldier charged with seditious conspiracy, and a son who turned his father into the FBI.

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0:43:13 Thomas: All right. Updates on Musk buying Twitter. I am very curious about this. Look, I know you have your order of doing things, Andrew, but I can't help it. I'm going to ask you the question that's on my mind, a lot of people's mind, because Tesla stock is tanking. Is that, you going to just put a damper on all this? Is he not going to be able to afford it now that that the stock is tanking? It's going to get margin called?

0:43:26 Andrew: It It very well could. Right? Remember that this deal could be amended by the parties. Musk could find alternative financing, but we went through in our two-parter, 590, 591, it's hard to raise 20 odd billion dollars. And Musk's own contributions are coming from selling off more and more Tesla stock. And as we're going to talk about a shareholders lawsuit here, this opens up, it's possible one has already been filed, the possibility of a class action shareholders lawsuit against Elon Musk for tanking the value of Tesla stock, right? To say, look, you as the chairperson of the board of Tesla have an obligation, right?

We've talked about this before, the business judgment rule. It's a high bar to prove, but you have an obligation to maximize the value to our shareholders. And your actions have minimized the value of shareholders. They've cost Tesla stock 30% of its value in the month since saying, I'm going to use use my position to buy Twitter knowing that, A, the funds would be raised by selling off Tesla stock and bulk sales drive down the price of the stock. You're on historical notice of that. Every single time Elon Musk has needed to raise capital, he's known that. Look, that alone is probably not sufficient,

0:43:51 Thomas: Yeah. Wow. Yeah.

0:44:59 Andrew: Right?

0:45:00 Thomas: It's hard to imagine he's not allowed to sell a stock then. You know, like anytime he would sell in bulk, it might tank this price.

0:45:02 Andrew: Right. Right, but also pledging it as collateral for the bridge loan. You know, I don't, I don't want to suggest that this would be, again, again, corporate shareholder lawsuits are not my area of practice. I know they are for some who listen to the show. So feel free to weigh in. All I'm saying is that I think in addition to the direct consequences of Tesla stock continuing its free fall, there is the potential for Tesla shareholders to bring a non-obviously non-meritorious lawsuit, right, a lawsuit that facially at least uh seems to meet the standards of arguing that Elon Musk breached his fiduciary duty to shareholders.

You might say that's unlikely, to, you know, I can't evaluate that, I don't know if somebody has brought that lawsuit, but it strikes me if I were Tesla's general counsel, I would say, hey, we need to be worried about this. So that's where that's Where I think with respect to the secondary aspect, certainly the primary aspect, again, as Tesla stock continues to fall, that reduces the value of Elon Musk's holdings, it increases the amount that he has to sell in order to come up with the cash half. And it increases the likelihood of a margin call and refinancing among his lenders for for the bridge loans.

0:46:05 Thomas: Yeah. Can Can you remember? Can you this failed? Like, let's say, you know, because of the stock tanking, he can't raise the money. Does he owe the billion dollars?

0:46:40 Andrew: He owes the billion dollars. That is correct. Correct.

0:46:41 Thomas: Oh, wow. Wow. So it's not like when you're buying a house and the mortgage falls through, you're kind of like, well, it's all subject to financing. But here you're saying if it's not subject to finance and kind of thing, like if he can't come up with the money, he he has to pay that penalty.

0:46:57 Andrew: So. For purposes of that analogy, yes. Because the financing was disclosed and vetted at the time the party signed the deal. So in other words, if you think about it, are buying a house, the first question in terms of accepting the top line offer that the sellers are going to take is, okay, what contingencies come with this offer? And so you make that as a buyer. You say, yeah, I'm buying this house contingent to being able to secure financing. And Right. As you well know, if you're up against somebody who's going to buy the house in cash, the cash Offer is probably going to win, in, um, it's why, you know, some level of pre-clearance, right?

You're starting to see that come about so you can offer more protections, uh, to the seller. Here the the agreement was not contingent on Musk producing financing. Here they said, yeah, no, if if you are making an all-cash tender offer, which is what this is, you have to describe where you're going to come up with the cash, uh, and by closing you have to come up with that cash, and if you can't, that's a violation of a material breach of the of the merger agreement, and you, uh, owe us a billion bucks. That

0:47:09 Thomas: Right. Yeah. I feel like that's the best case scenario. I am

0:48:14 Andrew: Would be great me

0:48:14 Thomas: Rooting for him to not have the money. The deal doesn't go through any owes another billion. That is what I'm personally rooting for, because by the the way, he already announced he would bring back Donald Trump and he, with some of the worst, again, this guy is not, look, I'm sure he's smart in a lot of ways. Philosophy might not be a strong suit. His arguments about bringing Trump back are terrible. They're sophomoric. That's an insult to sophomoric, they're awful.

0:48:20 Andrew: Too Yeah.

0:48:39 Thomas: And he may be making them in bad faith. I don't know, maybe he's not that dumb. He just likes making bad faith arguments. And got a little pushback when I was initially predicting he would bringing back because he's he like, hasn't said Well, he said he would now. And also, you Trump said he wouldn't come back. He's going to come back if if Elon Musk undoes his ban, Trump will come back, even despite the fact that he has said he won't.

0:49:02 Thomas: Newsflash, you can't take what Donald Trump says at face value.

0:48:58 Andrew: Of course of Course I'm Yeah, See infra the last six years.

0:49:07 Thomas: Yeah, I know I'm teaching the listeners of this show is something they don't already know. So,

0:49:11 Andrew: Right. So there's another wrinkle in the works here, and I want to describe it, because this is not something we considered on those two episodes, and I'll tell you why. Right, like, it was something I initially thought about, but I'll I'll telling you why I didn't. So a stockholder class action complaint has been filed by the Orlando Police Pension Fund, uh, which has invested their pension in Twitter and on behalf of all similarly situated stockholders of Twitter, right? And the argument is that this deal, this is a declaratory judgment action, so again, read it backwards, uh, you go to the back of the complaint, the law firm's involved here, our Saxena White, uh, of out, out of their Florida, Delaware, and New York offices, and also Friedman, Oster, and Tejdal, those are both well-recognized boutique firms that do shareholder litigation, right? And have lawyers who do only this kind of law, on the complaint. So not Alina Haba, not some kind of crank, rank. These are high-end plaintiffs, shareholder lawsuits against big companies.

0:49:34 Thomas: Yeah, for

0:50:25 Andrew: The lawsuit has two causes of action, but really what it wants is, count one, a declaratory judgment. And it's a declaratory judgment that 8 Delaware Code Section 203 applies to this merger. Now

0:50:40 Thomas: Those of us who haven't memorized a Delaware code, whatever thing you just said, there's

0:50:42 Andrew: I I'm gonna get there, I'm gonna get their, yeah.

0:50:46 Thomas: Got to be at least, I don't know, 20% of the audience who doesn't already know what that is.

0:50:49 Andrew: So But first I want to, I want to explain, I asked the question in my head while preparing the 590, 591, if we needed to explain 8 Delaware Code 203, and the reason I came to it was, already a two-parter because we're gonna get a third part. The reason I didn't go there were two reasons. Number one, most companies opt out of Section 203. Section 204 is a default provision in the Delaware Code, but if you have a provision in your certificate of incorporation, which you can freely amend, that says this company will not be governed by Section 205, then you're not, right? So number one, most companies opt-out. Twitter has not opted out of Section 205. They have publicly continued to describe themselves as being bound by 203 in their 10-Ks.

0:51:38 Andrew: So it applies, it often but does not. And second, there is boilerplate disclosure in the merger agreement, section 5.8, regarding ownership of a company that says none of parent, right, that's Musk's company that he's creating, acquisition sub, that was the X Holdings 2, or any of their respective directors, officers, general partners, or affiliates has been an interested stockholder, as defined in Section 203, of the company in each case during the three years prior to the date of this agreement. So in other words, the merger document says we certify that Section 203 does not apply to this document. The lawsuit says otherwise.

And this is going To be really, really interesting. So now, what is Section 203? Three, that again, Section 203 governs what an interested stockholder can do with respect to the corporation in which that person is an interested, soccer, an interested stockholder is the owner of 15 or more of the outstanding stock of the corporation. So here immediately you would ask yourself, wait, a wait a second, this is, is what the 5-8 disclosure was meant to say, right? Musk owns 73 million shares at the time of the merger agreement, that's 9.6%, that's not 15. So what makes him potentially an interested stockholder? And here is the argument.

0:52:21 Thomas: I love the idea that you might own like 14.9%, so like $11 trillion of a thing, but you're not an interested stockholder. Not interested. Not

0:53:10 Andrew: Well, and there are multiple covenants in the agreement itself that say Musk will not acquire more than 14.9% of the company while the transaction is pending to avoid precisely the application of this section. I'm going to tell you what the section does once we talk about whether it applies. So, "owner" is defined in 203(c)(9). And it says owner means a person that individually or with or through any of its affiliates or associates owns such stock directly or indirectly. Okay, let's assume that doesn't apply to Musk. Task, or has the right to acquire such stock pursuant to any arrangement, agreement, or understanding, or the right to vote such stock pursuing any agreement, arrangement, or understanding, or has any agreement, arrangement, or understanding for the purpose of acquiring, holding, voting, or disposing of such stock with any

0:53:28 Thomas: Interesting.

0:54:04 Andrew: Other person that

0:54:05 Thomas: I'm just going to go to sleep until you finish this sentence and then tell me what it means in English.

0:54:07 Andrew: Owns the stock. Yeah. Yeah, so the word that that, I the phrase that I repeated a lot was "agreement, arrangement, or understanding." This term is abbreviated AAU in shareholder litigation because it's a super common term, right? And it is to say I am considered, for purposes of the Delaware law, to be the owner of not just the stock I own, but any stock that anybody else owns where we have a deal where you're going to vote that stock in any particular way. Makes sense, right?

0:54:41 Thomas: Interesting, yeah, yeah.

0:54:42 Andrew: So if I own 10% of the stock and you own five and a half percent of thestock, we have a deal that says you're going to vote for my proposed transaction, I now own 15 and a Half percent ofthe stock.

0:54:48 Thomas: Right, so that we can't get around this. Idea - we can be like, "All right, can't own 15, but if you and I agree," so we can do that, got

0:55:01 Andrew: That's exactly right. Now, the argument in this lawsuit, and again, this is a lawsuit. It's a complaint. It has just been filed. Is it possible that these agreements don't exist? It is possible, But right? Here's the argument, and it strikes me as, again, if true, a good one, and there are plausible indicia to believe that it would be true, is that Musk has those AAUs with at least two other significant shareholders, owners of Twitter. The first is with Morgan Stanley. Morgan Stanley is the chief bank that is - that is preparing the twenty two billion dollars in loans for the second half of the acquisition, right?

Morgan Stanley owns almost nine percent, it is the third largest shareholder in Twitter, so nine plus point six plus eight point eight is way bigger than 15. There was also is Big enough than 15. There was also an allegation, and again, it hinges on the Morgan Stanley stuff, that Musk has an AAU with Jack Dorsey, who owns 2.4%. Now, again, you can do the math. If the court were to hold that Musk and Dorsey had an agreement, but not Musk and Morgan Stanley, that would only be 12%.

0:55:12 Thomas: Uh-oh.

0:55:53 Thomas: Bigger group.

0:56:17 Andrew: That would not make him an interested stockholder. Idea that Morgan Stanley has agreed to vote its shares a particular way seems very, very plausible, given that Morgan Stanley is agreeing to finance the deal, so uh, me as a reasonable argument. Now, maybe there will be an argument that it, uh, is not a pro forma deal. Maybe it is subject to an independent review and they have walled it off, right? This could all go nowhere. I want to explain.

0:56:46 Thomas: But let's say it does go somewhere. What are we talking? What happens?

0:56:49 Andrew: Awesome question. What does Section 203 do? It says a corporation shall not engage in any business combination with any interested shareholder for a period of three years following the time that such stockholder became an interested stockholder, unless one of three things happens. So, it would put off the deal until at least April of 2025, which, if you happen to care about whether Donald Trump comes back onto Twitter, April of 2025 would be a really great time to push this deal back to. What are the three things that excuse that, could that allow the deal to go forward anyway? Number one, prior to such time, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder. Neither of those happened. Remember, this started with Elon Musk kind of headed towards a hostile tender offer, hostile takeover kind of situation. And

0:57:21 Thomas: Yeah. No kidding. That's huge.

0:57:54 Thomas: A

0:57:55 Andrew: Then they reversed course and decided to approve the merger. So there was no approval of the acquisition of Twitter stock by the board and no approval of this deal before Musk became the beneficial owner of 15%, again, assuming these allegations are true. So section one doesn't apply. Section two applies only if the interested stockholder owned 85% and then some other complicated stuff. So that clearly doesn't imply. And then exception number three, and this is the one that would potentially apply to this lawsuit, but consider, at or subsequent to such time, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, right? Process that we discussed in episode 590, by the affirmative vote of at least 66 and two-thirds percent of the outstanding voting stock, which is not owned by the interested stockholder. In other words, this goes from a simple majority of all the shareholders, which was going to happen, to all of a sudden the votes of

0:59:05 Thomas: Super majority of shareholders that aren't Elon or the people he has an agreement with. Wow. That's a whole different vote.

0:59:07 Andrew: Exactly right and that is a whole different vote that could very easily fail. And so this lawsuit seeks a declaratory judgment that Musk is an interested shareholder within the meaning of 203, and that the proposed takeover either may not lawfully close within three years of the time that Musk became, became an interested stockholder, unless it is approved by an affirmative vote of two-thirds of Twitter's voting stock not owned by Musk within the meaning of Section 203. So just one more thing to keep on the radar with respect to this deal.

0:59:43 Thomas: Yeah. What would that do to the agreement? Would he owe billion dollars yeah

0:59:49 Andrew: That's a great question, really. Let me, I need to dive into this a little bit. But the question is whether this, that would fall under the required, required representations and covenants of either party in here. So, so for example, if, as it's currently written, if the standard majority vote fails, then Twitter owes Elon Musk a billion dollars. However, there are sections, right, with respect to the vote that says, assuming the accuracy of the representation contained in Section 5.8, that's the one that says Section 203 doesn't apply because there's no 15% shareholder. So how does that interact? Yeah, and who would be responsible? Would Twitter say, yeah, no, you told us you had no AAUs, right?

1:00:12 Thomas: Right but it's still elon's fault that he is coordinating coordinating with these other shareholders, right?

1:00:41 Andrew: Yes that's what I'm saying is that twitter would say no we think you owe us the billion dollars because you failed to disclose or worse you lied to us and said you did not have any AAUs with others such that would bring you over 15 percent so the the real answer I guess I don't have to do any more research the real answer is it would instantly trigger a

1:00:46 Thomas: That's so interesting. Yeah.

1:01:03 Thomas: Very interesting. Lawyers would fight about this for 10 years.

1:01:09 Andrew: Lawsuit between Musk and Twitter that would continue for a long time and probably be detrimental to both companies which again kind of counts as a win in my book so uh so there you go uh again I want as the bottom line takeaway this is a complaint that was filed right there's a super easy way around this uh but so far this hasn't gotten a lot of traction in the press just like a lot of the other things we've talked about and I think that this provides yet more reason to think that this transaction is not the slam dunk that the people think it is.

1:01:19 Thomas: Fine. Yeah. Wow. Mm-hmm.

1:01:31 Thomas: Yeah. Yeah. I'm sort of betting against it at this point. Well, that's amazing. Great breakdown. A What loaded episode. Great stuff.

1:01:49 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:01:55 Thomas: And now it's time for T3BE. Uh, you know, got the last one right and we'll say it was 100% skill, and it's totally, totally skillfully got it right. Let's see if I can keep that streak alive

1:02:04 Andrew: I love it. All right, Thomas, a driver ran a stop sign and collided with a vehicle driven by a man. Not sure why that's important, but OK.

1:02:14 Thomas: Because men can't drive, I don't know

1:02:16 Andrew: The man was injured. The man sued the driver. And the city for negligence. The mayor alleged that the driver was negligent in not paying attention and that the city was negligent for not properly trimming the brush that partially covered the stop sign. The jury found that the amount of damages is one hundred thousand dollars. The jury found that the man was ten percent negligent Yeah It also found that the driver was 85% negligent and the city was 5% negligent

1:02:38 Thomas: Ah Geez 50 Should Just go over 100, just really mess with me

1:02:45 Andrew: Yeah I'm giving 110 this time. All right, how much can the man recover from the city? A, five thousand dollars. B, ninety thousand dollars. C, one hundred thousand dollars. Or D, nothing.

1:03:08 Thomas: So It does not tell us what, uh, negligence thingy we're in, contributory or the other thing, so it doesn't, it doesn't say. So I have to remember what the common law thing would be, and I feel like it's weird. Of the different thingies, there's one that's like the straight up percentages. There's one where I think it's contributory negligence, is where, I, if you contribute at all, then you get nothing. Nothing. I think you said Maryland was that, if I'm remembering right. But I don't know. I would have to remember what the standard is, like the default. And then there might be one where it's like whoever's just the majority negligent is liable for the whole thing. That might be another one. I can't remember. So, the man, it's asking how much the man can recover from the city.

1:03:56 Thomas: And so if the man is 10%, the driver, 85% city, 5%, I think the plausible answers then are going to be 5,000, given that that's, you know, 5% of a hundred thousand. I think another plausible answer would be under the logic that like, because under two logics, one, it would be since the driver was 85% negligent. That means they're like under one theory of like majority negligence, if that exists, which it might not, then, you the driver would be on the hook for everything. Or on another theory of contributory negligence. I think it's what it's called because the man was 10% negligent. That means They could get nothing from anyone under that theory. I believe I'm pretty sure that's, it sounds terrible, but I'm pretty sure That's one of them.

1:04:45 Thomas: So that might lean me toward nothing just because there's kind of two different ways of getting there. Maybe up my odds a little bit. 90,000, I'm not... Well, okay, I could even justify 90, 000. 90 000 would be if the driver and the city were joint and severally liable. Don't think that's the default though. Is it? Maybe. So that would mean since the man was 10%, the man can get 90, 00 from anybody else. Well, then again, amount of the damages was 100,000. Does the man pay himself 10,000 in damages? That doesn't make sense. How does that work? Oh, crap. Cool. So I can see basically any answer plus several other ones could also be the answer. I could come up with five more possible answers.

1:05:30 Thomas: You know, I think I'm to go with D, nothing. I have a feeling that the default is that crappy system of, I think it's called called contributory negligence, where if you're at all a part of the problem, you get nothing. I think I'm going to go with that. And under the theory that there's also the off chance that the driver's liable for all of it because they just have the bulk of the liability. So, I'm between, probably if I were to pick a second choice answer, I could see a hundred thousand under the joint and several. So, I think 90,000 is actually wrong because I don't think the man pays himself. Do you discount, the war, the jury awarded damages by the amount that the man was negligent? I don't have, man, I've never heard of that. I guess you could.

1:06:16 Thomas: That's weird. Maybe. Wow. I don't know. Go between A, B, C, or D. Uh, just scanning the answer again, there's nothing about what negligence thingy we're under and whether it's joint and several or any of that, um, so, it's all about what the default is, I think. So I'm between, between, C and D. Maybe joint and several is the default. I'm between C and D. M, going with D.

1:06:41 Andrew: All right, and if you want to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guess, your reasons therefore. We will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:06:54 Clip: And thank you, Let's go!

1:06:56 Thomas: Now it's time to thank our new patrons at patreon.com/law, enjoying all the goodies, the ad-free episodes, the early episodes, uh, Q&A question voting and asking privileges, all the great stuff. And I'll start us off. Thank you to Cole Warner, Logan, Wes Mills, Chloe, Erik Doucette, I'm not giving my name to a machine, David Huffman, vocalanesthesia, and Just A Nice Scalding Hot Bath. Oh, how nice. Your turn.

1:07:16 Andrew: Nice I could go for go

1:07:24 Thomas: All

1:07:24 Andrew: For one of those. Thank you to Meredith Goss, Mr. Tibbs, Wicked Fellow, Jamie Monroe, James Lakin, welcome back to Kirsa Moonwhisper, Aidan Casey, and Sean. Thank you all so much for supporting the show. You want a shout-out like this, just head on over to patreon.com/law, give us a buck an episode, and we will show our undying appreciation for you in a segment just like this.

1:07:48 Thomas: Right. That's our show. Thanks so much for listening. So much to think about. Can't wait to see if this Twitter deal fails. That is what I rooting for and for Elon to owe a billion. But, you know, we don't always get nice things in this world. So, we could get the opposite of that, which is deal goes through, Trump is back, he wins in 2020. Anyway, no, I not going to poison our thoughts with those negative possibilities. Thanks for listening and I see you next time.

1:08:11 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.

1:08:44 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.