OA628: Sarah Palin LOSES! A Win for Ranked Choice?

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 628. I'm Thomas. That's Andrew Torres. How you doing?

0:01:25 Andrew: I am fantastic, Thomas. How are you?

0:01:27 Thomas: Doing great. Ah, it's just been good news after good news episode. And now I'm told we've got a fun Better Call Saul tie-in, which I am dying to hear.

0:01:36 Andrew: I am dying to share it with you. It's going to be a lot of fun.

0:01:39 Thomas: And. Oh, and Andrew, before we get started, I wanted to announce, we've set the date for our normal monthly Q&A here. It's September 9th. That's this Friday. And that is at 4 p.m. Pacific, 7 p.m. Eastern. And as always, you go on Patreon, you look for the question thread that Andrew has already posted, you pose the questions you want to hear, and even more importantly, perhaps, vote on the questions you want your answer to, because I use that as a loose guide for which questions people want. Because you know what? But Andrew has so many bits of information we want to get out of him that there's infinite questions every week And we can't get to All of them.

0:02:12 Andrew: Squeeze Me Like An orange, Thomas. Yeah, and remember, anybody can attend the Q&A. You don't have to Be a Patron to attend the Q&A. Patrons get to ask the questions, so you know, if you want us to fawn all over what a smart questioner you are, then, you you know how to do that. But, but anybody can come, anybody can listen. We've had great, uh, interaction and really high levels of turnout last, uh, last couple q and a's so, uh, let's keep that going. I think there may be two or three things that people might want, might, might be curious About, so, uh, that is again, as you said, Friday, uh, this coming Friday, September the 9th, at 4 p.m. Pacific, 7 p.m. Eastern. Can't wait.

0:02:14 Thomas: Yeah. Anybody can attend.

0:02:54 Thomas: On YouTube, you'll get the links from us.

0:02:56 Clip: When it comes down to second and third place votes, that's gonna decide who's gonna win? I mean, really?

0:03:03 Thomas: A quick news alert. Sarah Palin, not quite the political darling of the right that she might have once been. She is lost.

0:03:12 Andrew: Yeah, thought I might start off with that news. Obviously, that's the top line story. Sarah Palin defeated by a Democrat for the at-large congressional seat in Alaska. That's always Always good news. But Alaska is also a state that has recently implemented a ranked choice voting statute. And, yeah, This is a story of how ranked choice might operate, right? I find it really, really interesting. Of course, you Republicans instantly now that they lost are decrying the ranked choice vote existing in Alaska, even though, but for an incredibly bizarre situation, it would probably have been the reverse, right? In other words, ranked choice voting almost certainly would have elevated a Republican over the lone Democrat in the race, in the event that, um,

0:03:30 Thomas: Is this a victory story for rank choice?

0:04:04 Thomas: Sarah Palin didn't suck so bad.

0:04:06 Andrew: Palin didn't suck so bad. That's right.

0:04:07 Thomas: Wow. Yeah, I didn't even think about that because there's two Republicans, right?

0:04:11 Andrew: Yeah, so let's talk about what happened there, because it was, it's a really, really interesting situation. So in 2020, there was an omnibus ballot measure. It was Alaska Ballot Measure 2, 19 AKBE. I'll link it in the show notes. It actually does three things, but we're going to only talk about two of them right now. So put a pin in the third one. So the first thing that it did was get rid of the party-based primary system in Alaska, and it replaced that with a top four non-partisan open primary. Second, it, and that was amending Alaska statutes 15.15, right. Then it amended a bunch of different things, including that the most operative section, 15.15.350, which added, uh, the following, said C, A and B were already part of of statute, right?

0:04:58 Andrew: C, all general elections shall be conducted by ranked choice voting. And yes, that means the 2024 presidential election. Absolutely. Statewide, national office, doesn't matter. All general elections in Alaska use ranked choice vote. How does ranked choice voting work? It's super easy. You have the candidates listed on your ballot as rows, and then you have columns, and they are, and you can bubble them in, choice one, choice two, choice three, choice four. What if you leave a bubble blank? Well, the, the law provides for that. What if you leave a couple of bubbles blank? Law, the provides for that. What if you rank candidates tied, shocker, the law provides for that.

0:05:07 Thomas: Wow.

0:05:36 Thomas: You can rank them. You put like number one, number one. Oh, it doesn't count. Okay.

0:05:39 Andrew: If you don't want your ballot account. But so Uh, important definitional change, because, uh, this is not otherwise a term that was used in Alaska law. Defeated candidate is now defined as the last place candidate on the ballot when there is no winner. Okay, so what you do is you go through multiple cycles, and here's what the statute says. D, when counting ballots in a general election, the election board shall initially, initially tabulate each validly cast ballot as one vote for the highest ranked continuing candidate on that ballot, or as an inactive ballot. Okay, so that's what they do. They segregate it. They go, is this an inactivate ballot or is this a valid ballot? I'll tell you what makes a ballot inactive in a second. If the candidate is highest ranked on more than one half of the active ballots, that candidate is elected, and the tabulation is complete.

0:05:42 Thomas: Hmm.

0:06:29 Andrew: Otherwise, tabulation proceeds in sequential rounds as follows. If two or fewer continuing candidates remain, the candidate with the greatest number of votes is elected, and the, the tabulation is complete. Otherwise, the tablation continues. Candidate with the fewest votes is defeated. Votes cast for the defeated candidate shall cease counting for the defeated candidate and shall be added to the totals of each ballot's next highest ranked continuing candidate or considered an inactive ballot. We're going to get to that one. And then a new round begins. Just as a side note, this is not covered in the, the law, but it seems to me plausible that I could rank candidates two, three, four on my ballot, right, not rank anybody first, and that would still be a valid Ballot.

0:07:12 Thomas: It be three. It become one, two, three.

0:07:14 Andrew: It Would be effectively the same As one, two, three, that But, I Think I could do that under this, because what it does is the counting mechanism looks to your highest ranked vote Among candidates that, that are still eligible, and defeated candidates are ineligible, and the, you highest ranked vote is second choice in the first round, there's nothing that says we throw that out. Here's what we do throw out. Okay, throw out a ballot containing an overvote. And an over vote is if you have multiple candidates listed as your first or second choice or anything like that, right.

0:07:15 Thomas: Interesting. Interesting. Right. Okay. Oh.

0:07:48 Andrew: You tie the candidates, it doesn't matter, you don't go to any of the and rounds, by, and the, the way, this is important. Suppose you say, and this is why there needs to be some education done, right? Suppose you say, I rank the candidates as follows, the Democrat, the Republican, that's not Sarah Palin, and then let's say there's a Libertarian and Sarah Palin running together, and you're like, and I tie those for fourth, right, And you could imagine somebody saying that the fact that you have an overvote means your first two Two do not count. That is an inactive ballot.

0:08:11 Thomas: Yeah. Won't Even count your First ones, oh, Wow.

0:08:20 Andrew: OK, so it gets thrown out. Don't don't do dumb stuff with your ballots, Alaskans.

0:08:21 Thomas: I Mean it's not that dumb, but so like if you, you, If, know, we're like, all right, I'm ranking Sarah Palin and whoever else nine, nine, nine, ninety nine, each of them would be like, well, you just killed your ballot, wow,

0:08:33 Andrew: Exactly right. You can leave it blank you can rank them dead last.

0:08:34 Thomas: Yeah. It But it sounds like if you hate a candidate, you should not put them on there. Cause otherwise it'll, well, I guess if you put every candidate on there, it wouldn't matter, but I could conceive of a scenario where the fact that you put one on, even if you wanted to say like 9 million, you know, like it could still count for a vote for them in certain scenarios.

0:08:41 Andrew: That's right.

0:08:55 Andrew: Well, remember that this is our CV after a top four primary. So there will only ever be four candidates on the ballot.

0:09:00 Thomas: Right. Good point. Goodpoint.

0:09:02 Andrew: Yeah? So you can skip a ranking, right? It says if a ballot skips a ranking then the election board shall count the next ranking. So, you can say one, three, four, one, two, four. But if the next ranking is another skipped ranking, the ballot shall be considered an inactive ballot once the second skipped ranking is encountered. Okay. So in other words, you vote for the top two candidates and then you don't care as between the third and the fourth, leave them off. Your ballot is valid for candidates one and two, and then gets thrown away once you get to the second skip. Other words, you can skip a rank and your ballot is just processed in that order? So if you vote one, two, four, the four is really counted as your third choice, okay, But if you just vote one, two, and you've skipped twice, right? Then when we get to the second skip, that means your ballot is declared invalid at that point. So, in other words, it would still be operative for your first choice and for your second choice, but it would, it would then be thrown away after that. Yeah.

0:09:20 Thomas: Hmm. Right. Yeah. Yeah, well, Yeah.

0:10:04 Thomas: Because you didn't, if

0:10:05 Andrew: Because you didn't have preferences, that's right.

0:10:05 Thomas: You didn't Okay, I I think I was getting thrown off because it just sounded like a more complicated way of saying you didn T do anything for those candidates. The second skip, precisely. The second and a half skip, yeah, I don t know.

0:10:07 Andrew: Yeah. The Number of the counting shall be three.

0:10:18 Thomas: The third. Sunday on the second, skip. So it s just, you didn, but, but, is there a word for numbers pedantry, like, just liking the numbers stuff of this? Some some language pedant, tell me what the numbers pedant term, uh, is, but what I was, I guess the point I was making earlier, and it's not a huge deal, but, let's say there's four candidates, you kind of care about two of them, you super-duper hate one of them, and you kind of don't care about another one, and so you go, I want number one, number two, and then you kind forget the other one, and then you say, and this fourth one I want to put nine zillionth, that would actually be bad, because, the, the one you put that you hate would actually possibly get a vote in certain scenarios, and the one that you forgot about wouldn't, so you'd be ranking that

0:10:26 Andrew: And I I am sure there is a, our numbers petent among our listenership. Well, that is.

0:11:00 Thomas: One you hate above that one. Okay, that

0:11:01 Andrew: That is correct. Leaving blank is the equivalent of voting last, that's The other important part is, remember, if you tie two voters for third, occurred, your ballot gets tossed out at the beginning, right? It is segregated out as an invalid ballot. So, I wanted to point out, can you tie candidates for last, effectively, by not ranking either one of them, and your ballot is still valid until it gets to that point. So that's how it works. There were some legal challenges, they're not super interesting, because the legal challenges looked at really collateral issues and not sort of the underlying question of, can you implement ranked choice voting in Alaska, that

0:11:03 Thomas: Yeah. Okay. Yeah, yeah, that makes sense.

0:11:16 Thomas: You're gone. Okay. By not putting them Right. Gotcha. Yeah.

0:11:42 Andrew: They seem to concede that. Right. The question was, could you mix in? There was a third issue on the ballot initiative that had to deal with corporate disclosures. And so there was a lawsuit about, you have to confine this to one subject matter. And the Alaska Supreme Court was like, nope, no, you don't.

0:11:58 Thomas: I Did have one, one more question, just because you said they, as of now, would be doing ranked choice voting, for the presidential election 2024, right? Is that what you said? Is it still, though, a winner-takes-all electoral vote state, though?

0:11:59 Andrew: Sure. Yep. Absolutely, yes. It is still, yeah, they certainly could do a percentage of, rounding up to the nearest one, and that would be really interesting in Alaska. It would represent a two electoral vote shift to the Democrats, because Alaska typically awards all three of its votes to the Republican. But the Democratic candidate gets more than a third of the vote. And so, yeah, so that would they're

0:12:12 Thomas: Okay.

0:12:26 Thomas: So they're not going to do that for that reason, yeah.

0:12:32 Andrew: Not going to do that for that reason. They may repeal the statute because, God forbid you elected a Democrat. Here's the weird thing that happened. OK, so what happened? Alaskans, Alaska's congressman at large, Don Young, died. And as listeners of the show know, when a senator dies, the state can appoint an interim senator to fill out the term. When a member of Congress dies, you have to elect somebody to fill that seat. So this was a special election to fill that seat. There was a top four primary, 49 different people ran. And the top five finishers, I know, trust me, there's a reason why I'm naming the top 5. The top five finishers in that top four primary were Sarah Palin, number one, 27 percent, 43000 votes. Nick Begich, also a Republican, second, 19 percent, 31000 votes, Al Gross, a moderate independent centrist, 12.6 percent, 20000 votes.

0:12:33 Thomas: So

0:13:33 Andrew: Votes and Democrat Mary Peltola, 10 percent, 16,265 votes.

0:13:40 Thomas: Sarah Palin won an open primary and then lost? What? Oh, what a story, interesting.

0:13:42 Andrew: Yeah yep yep Then fifth place finisher, Tara Sweeney, also a Republican, uh, just under six percent, 9,500 votes. Why am I listing the fifth place finishers? Because almost immediately, as soon as the primary results came in, Al Gross, third place finisher, beat out the Democrat, uh, decided he was going to drop out of the race. I will link his dropout statement on the show notes, it's weird, it says, it is with great hope for Alaska's future that I have decided to end my campaign to become Alaska's next congressman. There are two outstanding Alaska Native women in this race who would both serve our state well, and I encourage my supporters to stay engaged and consider giving their first place vote to whichever of them matches their own values. That can only refer to Sarah Palin and Mary Peltola.

0:14:12 Thomas: Okay.

0:14:33 Thomas: Yeah, this reads like this politician is about to have an article by Ronan Farrow written about him. It's kind of, doesn't it? He's like, I'm stepping out.

0:14:40 Andrew: I like I like women, uh,

0:14:43 Thomas: Yeah, I hear there's two women in this election.

0:14:43 Andrew: Uh, What?

0:14:48 Thomas: One's a Republican, one's a Democrat. What a weird, right? I mean, what a weird statement. Yeah, just vote.

0:14:50 Andrew: A crazy random happenstance yeah Yeah.

0:14:53 Thomas: I support women. There's got to be, there must be some scandal brewing, right? Nothing

0:14:58 Andrew: That is amazing, uh, insight, and, and I would now put my chips on that possibility, because nobody else I've read I've I've read a dozen political articles about this, trying to figure out, and, and no, it doesn't make any sense, so check out.

0:15:05 Thomas: Else makes sense, Ronan, If you're working on the article, hit us up Yeah.

0:15:15 Andrew: We are not saying Al Gross, former

0:15:15 Thomas: I'm not saying anything, maybe he's writing a nice profile on him, I don't know, I'm just saying he's working on an article about it.

0:15:25 Andrew: So Gross drops out, and now there's a lawsuit, uh, by, and including, the Tara Sweeney people, that's like, well, hey, this says top four primary, are are we gonna go with, uh, five, you I was fifth, I, I should be next up. Um, and the Alaska Supreme Court, there there was a trial court, decision that said, nope, it's going to be three candidates and a blank line, and the Alaska Supreme Court affirmed that ruling. So that's what happened, three candidates and a black line.

0:15:25 Thomas: Right.

0:15:34 Thomas: Interesting Oh.

0:15:52 Andrew: Literally, Blank.

0:15:49 Thomas: Okay, blank Box, literally blank boxman? Sorry.

0:15:54 Andrew: Boxman. Uh, so there are a bunch of write-in candidates that all got thrown out, reallocated, among the top three candidates.

0:16:01 Thomas: Are write-ins allowed? Uh, you said blank line, so, I guess

0:16:05 Andrew: So, so what happened was, that fourth box had a, at a, box that you could write in a candidate's name, and then there's a column next to it, so you could rank that as

0:16:11 Thomas: Uh-huh. Okay. I guess, sorry, what I'm asking is, was that just because of the candidate dropping out, or would there have been a write-in line regardless?

0:16:22 Andrew: No, excellent question. There would not have been a write-in line regardless, to rank. So, yeah, super interesting. That is truly the definition of a wasted vote, because they took all those first choice votes for all those righted candidates and then reassigned them to the next highest actual candidate on the ballot.

0:16:22 Thomas: Oh. Interesting. Once had there been an actual, like, just for fun, a winner of the right, like, said enough people written in, a winner, that would have counted though, right? Oh,

0:16:45 Andrew: I think under the statute, it would have counted. There's nothing that says it doesn't. So, after that first round of results, you were left with, and I really, really think this is telling, 40% of the vote, 74,807 votes. Now, remember, she had 10% of the vote before. Sarah Palin, 31.4% of the vote and 58,328 votes. Remember, she had 27 percent of the field before the open primary, and, you know, with the increased turnout, so Mary Patola goes from 10 to 40 and adds 60,000 votes to her total. That's pretty much everybody else in the race, even though almost all of those candidates were Republicans, Libertarians, Independents, that sort of thing, they all voted Mary Peltola number one. Sarah Palin took her 43,000 votes and went to 58,000 votes.

0:16:48 Thomas: Okay. Interesting right

0:17:40 Andrew: 27% share went to 31%. So basically, Sarah Palin's voters were all priced in in the primary. Nick Begich went from 19% to 28%. And again, I know the math people are going to say it's a different, know, I know, just giving you a quick comparison. This is a politics and law podcast, not a math podcast. 30,000 Votes to 52,504 Votes. Votes.

0:17:54 Thomas: Yeah, when you say vote, is that first choice votes? Okay.

0:18:04 Andrew: Is first choice votes once the write-ins were eliminated. So first choice plus second choice of anybody who wrote for any write- ins, 52,504. So Begich is the loser. He's the defeated candidate. And we go to round two. What happens? BegICH loses 52, 504 votes. So he drops to zero. Palin gets 27,659. That is a majority of his voters. Paltola gets 16,399. 30% of his votes. And 8,446 ballots were disqualified. That's 16%. Those are people who bullet voted for Begich and they were like, I Like, don't know, man, like I'm a Republican, so I'm not going to vote for a Democrat, but I'm definitely not voting for Sarah Palin. I'm leaving the rest of the ballot blank. Of his fifty two thousand five hundred and four votes, forty-four thousand got reallocated, and they got reallocated twenty-seven six to Palin, sixteen three to Peltola. That's a pretty big swing to the Democrat.

0:18:09 Thomas: Yeah. Right.

0:19:08 Andrew: In terms of Republican candidates, so Palin picked up, another, and she netted, uh, about 10,000 votes on that, um, but she was 16,000 votes behind. So that is how Mary Peltola, uh, went from fourth place, behind two Republicans and a moderate, and a centrist independent, right, being the the most liberal candidate in the primary with 10 percent of the vote, managed to get over 50 percent of the vote in the at-large, and is right now a sitting member of Congress. She's got to run again in the fall. It's going to be fun. But hey, it's better to be the sitting member of Congress than it is to be a defeated candidate. You know, if you want to talk about, uh, kind of the two issues that we have talked about before, which is, um, how can RCV, ranked choice voting, influence the way in which people run their campaigns. Well, Mary Patola had to run a campaign that made her reasonably attractive to the Republican baggage voters, right? They, had to team up and say, uh, not, you're not voting for that, right? Like, we've been through the Sarah Palin experience already.

0:19:47 Thomas: Yeah.

0:20:17 Andrew: Right.

0:20:15 Thomas: This is so weird.

0:20:18 Andrew: Yeah. Um, had Gross stayed in the race, it would have been a very, very different outcome. But very likely the last ranked candidate would have been Peltola, right? Then you would have eliminated her votes, allocated them to Al Gross, right? You could have had an a third party candidate, win this congressional race outright. So

0:20:18 Thomas: Well, that I'm trying to think conceptually about what this means. I mean, it's just that the case that, like, when you have candidate that is, you supported by some hardcore people but loathed by a lot of other people, here's my hypothetical, forget, yeah, we're all happy about with this result, obviously, I'm just thinking in terms of election voting reform.

0:20:56 Andrew: Yep.

0:20:56 Thomas: Whatever, what if this was reversed? I'm trying to think of the similar situation, would this is AOC and this is, you know, whatever, like, is this good, like, did this, did the system end up doing a good thing here? I think so.

0:21:06 Andrew: I, so I think it did, right, the reason I believe the ballot initiatives passed are has to do with the kind of fundamental dynamics in Alaska. Sixty percent of Alaskans are Republicans, but Alaskan's tend to be Republicans because they get a negative income tax rebate from the oil companies. And so, you outside of Alaska, safely you run Democrat or Republican on I hate ExxonMobil. That's not a great stance to take when you're campaigning throughout Alaska. And so I, I'm total spitballing here, but I think that the idea was, hey, if we're 60 percent Republican and we are staring down the barrel of a fratricidal fight right now of crazy, you bug nuts, Trump Republicans and economic conservative Republicans, then let's have RCV.

0:21:10 Thomas: Yeah.

0:22:02 Andrew: Because then we can fight out amongst the bug nuttery folks and still elect Republicans at the end of the day. Because Right. If people say, oh, I'm going to vote for, Republican you number one first, Republican member to second, then that will enable us to continue to, you pull away. And I, total speculation, but I think the thought process behind the groups that pushed, uh, ballot two and and the people who voted for it was to get somebody like Nick Begich into office, right, was to say, oh, okay, well, let's figure out, uh, how we can continue to concentrate our mostly conservative votes in such a way that's going to enable us to maybe move past the, the Trump situation. I don't know, that's a little spitball.

0:22:16 Thomas: Yeah. Yeah.

0:22:46 Thomas: That makes so had he stayed in after that, because he was the one who left after the primary, or, no, who

0:22:47 Andrew: But no That's Al Gross is the, is the independent who dropped out. Yeah, is the second Republican, he just finished last there.

0:22:57 Thomas: Okay so right.

0:22:58 Andrew: Was now no fourth person. Remember, right, 74,000, 58,000, 52,000. In a normal race, there would have been the top four finishers from the primary. And so there would have been somebody who finished under him who then presumably would have gotten enough votes. He only needs 6,000 to pass Sarah Palin. So it would have elevated him ahead of Palin if he had netted 6,00 more votes from the fourth place finisher dropping out. Who knows, right? Of

0:23:30 Thomas: Yeah, that's so interesting. But for, I, my first thought is, because we're dealing with a lot of election denying Republicans all the time now, this feels like just fuel for the fire. You already mentioned they're Yeah.

0:23:38 Andrew: Course. It's a different rule. Yeah.

0:23:40 Thomas: You already mention they're going to hate it, but, like, I, I don't even, I'm having a hard time understanding what happened here, and I'm not, like, an election big lie person, you know, like, I'm genuinely trying to figure out what happened. It's, how, like, how did a Republican state, the Democrat end up winning after losing the primary, this this strikes me as very confusing, and could perhaps turn people off to this kind of election reform. But I guess, bottom line statement, had the voting populace ranked a Republican first and a Republican second, a Republican would be sitting in that seat, right?

0:23:41 Andrew: Yep.

0:24:11 Andrew: Because look, the ad hoc objections that are being raised now, and again, they're super easy to understand, is, um, Patola got 40 percent and the two Republicans combined got 60 percent, that's 60 percent of votes for Republicanism, why are we now going to be represented by a Democrat, right? And the answer back to that is right. A substantial minority of those, of one of the Republican voters, is actually not wanting to be lumped in with Sarah Palin. Right. You're lumping them together and saying, well, they're both Republicans. And this is a way to ask voters, what do you want?

0:24:29 Thomas: Yeah, right. Forget about their party affiliation. And then all of a sudden, it's not so crazy. If you just had no, If you just were, there were no parties, you'd be be like, "Well there's one person, uh, you know, who got this vote, one person who got this vote, and combined that's more than the other one." Sure, but like you didn't have that majority that wanted either of them as the top two, and so the result is the result.

0:24:49 Andrew: Yeah. Exactly right.

0:25:08 Thomas: Yeah, could have

0:25:07 Andrew: Yeah. You could have if if all The baggage voters really wanted to be represented by Sarah Palen, they could have voted her second, second that so that's That's your answer back if you've got an uncle Frank who was saying, "I don't understand how, you know, 60 of the votes can go Republicans and then a Democrat, like, isn't that election fraud?" Like, no.

0:25:09 Thomas: Right. Right, how interesting, yeah. Oh, Man.

0:25:25 Andrew: No.

0:25:26 Thomas: You know what I can't understand is how we win the popular vote in the country by millions and millions of votes every time, and then somehow we don't get represented by the, the Supreme Court is somehow a wow.

0:25:37 Andrew: And and They voted along party lines in every single one. How weird, weird.

0:25:38 Thomas: Yeah. Yeah. Weird.

0:25:42 Andrew: What a crazy random happenstance. So All right, there you go.

0:25:42 Thomas: All right. Cool, thanks for the breakdown. This show is brought to you by Talkspace. When it comes therapy and psychiatric, has getting not been so easy. Access your provider from the comfort of your your device. It means mental healthcare can be on your schedule. And alleviating the wait times to get an appointment or the travel time to an office can free up time for the rest of your life. Talkspace is so convenient and accessible, it helps me feel supported around the clock.

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0:28:28 Clip: I believe that until proven guilty, every man, woman, and child in this country is innocent, and that's why I fight for you, Albuquerque! Better call Saul.

0:28:37 Thomas: And now it's time for, uh, one of the best shows, uh, in my opinion, the tie-in to Better Call Saul, truly loved this show. What's the tie in here? Though I've

0:28:40 Andrew: Me too yeah and have Okay, now have you seen, you've seen all of it, right? So

0:28:49 Thomas: Seen all of it. Y'all are we spoiling stuff for people? Yeah.

0:28:52 Andrew: I would, this is, I'm gonna say this is where the spoiler warning is, if you have watched the first five seasons and you are like waiting to binge season six, then go ahead and skip to the end of the episode, okay, because I don't want, want to spoil a really really fun and hilarious episode. On the other hand, if you've never seen Better Call Saul, you'll enjoy this segment. Don't you right, don't need to have seen it to enjoy the breakdown of the legal questions. If you're like on season two or season three, this will not, this is a minor, minor spoiler if you are past season six episode two, okay, that is Sweet Liberty Tax Services, okay, to cue you in. For the folks who have, who maybe have seen, there's no spoilers here, it spoils a little bit from that episode, uh, so I'm going to build in even a little bet more time here so people can furiously run over to their phone and, uh, you know, hit the stop button, but, but really, unless you were saving up season six to binge, this isn't gonna ruin anything. Okay, we good? All

0:29:07 Thomas: Yeah yeah

0:29:53 Andrew: Right yeah There you go.

0:29:52 Thomas: We're good, I'm not listening because, no, if I hadn't watched it, I would just not record this with you, I'm so anti-spoilers but no I've, of course, finished it, everybody should go finish the, the show.

0:29:56 Andrew: Yeah No, that's right, I mean, we would yeah yeah right so

0:30:03 Thomas: It's all out, yeah, do

0:30:05 Andrew: Of the funniest episodes of season six that I think was crucial for the, like, whipsaw in emotions that, Better You Call Saul and and Breaking Bad did to you, uh, was episode two, uh, in which we revisit the Kettlemans, and they are in a trailer, uh, operating Sweet Liberty Tax Services, and that's, we get to see, somehow it's a little bit of foreshadowing again, because the show is great, they don't explicitly have, uh, Saw walk off with the inflatable statue of liberty, but, but, they've got the big statue of liberty out in front of their tax services.

0:30:41 Thomas: Great.

0:30:41 Andrew: It's in a trailer and, shocker, they're stealing people's tax refunds because, right, it's the Kettlebell, they're so great, it's such a good like one-off episode.

0:30:49 Thomas: Characters yeah The the wife just it's, it's, uh, yeah, it's so funny, she's just the, like, worst, like, keeps making this poor guy do all this stuff, but also he sucks because he does go along with it, uh, so good, because

0:30:53 Andrew: Yeah right And and when so Goodman walks in, it, he's like, "Hey, Jimmy, how, how are you?" It's like he held us at gunpoint. It's so funny. So they are operating a little shop called Sweet Liberty Tax Services in a trailer in the middle of the desert. And I want to frame kind the question of this lawsuit this way, which is intuitively you can understand why why Gus Fring owns Los Pollos Hermanos right and not a bunch of Burger Kings right because would nice because

0:31:32 Thomas: He's Latino, I genuinely don't know where you're going with this, oh, okay, okay.

0:31:37 Andrew: Burger King is a real outfit and Los Pollios Hermanos is not right the idea is you would not want in a show that is going to depict Los Pollhos Hermanos as as a front for drugs for anybody to say like, yeah, we actually think Burger King is laundering crystal meth, So you invent something that is evocative of the business that you want to parody, but not directly infringing on it. Here, the plaintiff, JTX Tax Services, doing business as Liberty Tax, uh thinks that maybe, uh, Better Call Saul got a little too close to the line.

0:31:49 Thomas: Yeah, it's, Wendy's or something, you're, Like, uh, Yeah. Oh.

0:32:17 Thomas: Please tell me this is someone telling on themselves.

0:32:19 Andrew: Let's talk about, their, their allegations. So their allegations begin with "This case arises out of the defendants," that is AMC, right, the company that is distributing Better Call Saul, "intentional misuse of Liberty Tax's famous trademarks and trade dress in episode two of season six, Carrot and Stick," which ironically premiered on Tax Day, April 18th, 2022. I did not know that. That has to have been planned. In That's that episode, the eponymous Saul Goodman, a.k.a. Jimmy McGill, goes to Sweet Liberty Tax Services, which is operated by convicted felon and his wife, the Kettlemans. "The show depicts Sweet Liberty Tax Services as an actual Liberty Tax location by copying Liberty Tax's registered trademarks and its Statue of Liberty themed trade dress at," quote, "Sweet Liberty Tax Service, which is housed in a trailer in the New Mexico desert. There is an inflatable Statue of Liberty outside, in addition to the office itself, which is a moniker of the American flag and signage, Sweet Liberty

0:32:28 Thomas: Trade

0:33:15 Andrew: Tax Service, on the inside there's a statute of liberty" -- and this is a hard thing for lawyers to say, the word "statue," because we say "statute" all the time. So, leave that feel free to leave that error in there "On the outside there is a Statue of Liberty mural on the wall, along with numerous Lady Liberty's -- I will point out they pluralize using the apostrophe, which is exactly what you would want from a discount tax service "numerous Lady Liberties throughout the location." As fans of the series know, the Kettlemans are not running a legitimate tax prep business, but instead are fraudulently stealing customer refunds, as revealed when Saul's wife, Kim Wexler, threatens to call the IRS to shut them down. So this complaint alleges defamation, trademark infringement, and trade dress infringement.

It It seeks injunctive as well as economic relief. And so, injunective, what do they want to do? They want to have AMC air, quote, corrective advertising that Liberty Tax Services approves of. What is trade dress? Trade dress, broadly speaking, is the packaging, or as more precisely legally defined, the elements of all of the various elements that are used to promote a product or a service, including packaging, displays, decor, environment, configuration of the product itself. So, we give you a really, really good example of that when I say TGI Fridays, right, you might think of the logo, you might thinking of the name, but you probably think like, oh yeah, a whole bunch of crazy crap on the wall, pieces, right, of flair, and a little, right, like that's sort of the distinctive trade dress of a TGI Friday's. You,

0:33:23 Thomas: Yeah. Yeah.

0:34:57 Thomas: I have to imagine this comes from, like, not wanting people to have the ability to sort of copy all of, you Apple's aesthetic in their packaging and whatnot. Yeah.

0:34:58 Andrew: Apple is a perfect is an even better example that

0:35:09 Thomas: Sell Something that's like, you, an Apple ripoff, but it doesn't, like, it technically use the logo, but it's like all the same, so it must be designed to protect that kind of thing, right?

0:35:17 Andrew: Is exactly right. The criteria that the courts use are that the trade dress must be inherently, inherently distinctive, right, and a and part of that is not attributable to the functionality of the marketing of the product. So, right, for example, if your phone is shaped like a pentagon, don't ask me why, then you would not be able to say like, "with its iconic pentagonal box," because the court would be like, "No, no, no, it's it's just the shape of the thing that you're selling." Like, the phone may be the Pentagon, but like, you can't claim that your package is distinctive. On the other hand, the fact that iPhones are shipped in, that stark, the white, black on white, Apple stores have that look that, like, you can identify it a moment's at notice. And you don't have to sell a phone that way. In fact, most people do not sell phones that way.

0:35:29 Thomas: Right. Well.

0:36:08 Thomas: Just because We'll get the emails every I phone I've ever bought has virtually that same packaging. Actually, yeah.

0:36:12 Andrew: Does It I've only ever bought Apple products, so they're very interesting.

0:36:13 Thomas: No. Android They copy They it, quite, it's not exactly the same, but it's pretty much the same. Yeah. Confusion

0:36:19 Andrew: So the criteria are, it must be inherently distinctive, and I think that it is, and the misuse of the similar trade dress must cause consumer confusion. Confusion. That's exactly right. So, um, what are the aspects of the Sweet Liberty trade dress and their trademark that are, uh, potentially the subject of of confusion here, and what are the specific allegations? Um, I said, my unadulterated show notes we give to everybody at the three dollar and up level I I think I'm going to to publish these for everybody because I want you to see these photographs from the complaint because every Liberty Tax Center, so they're all in, like, these strip malls in remote places, they have the, like, huge, you know, banner signs in front of them, and every single one has a Statue of Liberty on the roof. It it looks like the Sweet Liberty Tax Services for Call Saul. One of the pictures is like really, really close to the, like, you know, Liberty mural that's on the wall inside, that the Better the Call Saw episode it's, it's really, really close.

0:36:30 Thomas: Yeah. Oh.

0:37:24 Andrew: It's really funny. After you through go all of the pictures and the complaints of inflatable Statues of Liberty that are atop all of these Liberty Tax locations, they show you the Liberty Tax Service logo, which is the crown's of the Statue of Liberty with "Liberty Tax Service" written to the right, kind of boxed, squared off, and then they show you a screen cap of the Sweet Liberty Tax Services from the check that prints, right? The logo in the show is an almost identical statue Of liberty head, uh, above now, again, there's a little stars there, it says "Sweet Liberty" underneath you're, the, it's not the exact same,

0:38:07 Thomas: Wow. Well. Now I'm wondering what went on here. Do you think this was intentional by the show?

0:38:10 Andrew: So here's what I do know. Paragraph 57, Liberty Tax sent a cease and desist letter to AMC dated April 27th, 2022, as soon as the episode aired, and thereafter engaged in follow-up communications with AMC and Sony, in which it put defendants on notice that the show infringed on and tarnished Liberty liberty taxes, trademarks and trade dress, and that liberty objected such depiction. To Paragraph 58. Defendants continued to engage in the unauthorized use of disparagement by distributing episode two on multiple media outlets, including on AMC's channel, AMC Plus and Google TV. Yeah. So, you know, if if they really wanted to put a stop to it, right,

0:38:46 Thomas: They could have edited out that Starbucks cup that's

0:38:48 Andrew: They could have edited out the Game of Thrones Starbucks cup up. They they could have put a pause on the episode, right? Like, that that's that's a big step, but you not, it's not an impossible step to take. So I picked today to cover this because September 1st, was as the deadline for AMC to answer this complaint, but they got a 30-day extension to October. So have to see what their their answer is. A lot of these cases, again, as probably you as suspect, defamation, trademark infringement cases are very, very difficult to resolve on summary judgment, right? They tend to be highly fact intensive. I'm curious to see what the show's argument is going to be. Here are allegations the that are made. So the first is trademark infringement, the key allegation here is likelihood of causing confusion, mistake, or deception as to the affiliation, connection, association with, or sponsorship and approval by Liberty Tax.

Okay. And I think for that me, and this is going to be true for the trade dress as well, and also for the trade dilution claims, it is that sponsorship or approval that is really the key aspect of that. I would want to dig into the case law to see how, you know, how many cases are yeah, you put our product on there, that that makes the the viewing public think that we support your show, and your show depicted you trailer park tax return services as likely to be run by cheats, so no, we don't support that. And that, I think, is kind of the real claim, because I you're going to to have a pretty good parody defense on the trademark use, right? I don't think anybody

0:38:49 Thomas: Yeah. Oh. Yeah. Yeah, okay,

0:40:27 Andrew: Is going to say, oh, they intended for you to think that that Sweet Liberty Tax Services was Liberty Tax Relief. They're just making fun of the industry.

0:40:36 Thomas: How much are you allowed to do that, just let's say you did have malicious intent, and you're I like, mean, hate Burger King, so we're going to put a Schmergerschming in there, and that person's, you now, vile, whatever, like are what's the line there,

0:40:36 Andrew: Yeah. That So typically the line is, are you identifying, identifying one particular person or entity, or are you identifying a a business, a a category of industries, right? For example, right, let's let's go back to Los Pollos Hermanos. Los Pollas Hermanos does not implicate anyone, like, I, I think if you took a Family Feud style, you, what is Los Pollos Hermanos parodying, I, I don't know that you would get any one answer would exceed, you 20, right?

0:41:21 Thomas: Am not sure it's parodying anything really

0:41:23 Andrew: But it suggests fast food, right? So it does not. So Burger King, and you say, hey, this is casting aspersions on the fast food industry and here are three things at Los Pollos Hermanos that seem to be very similar to what a Burger King does, then you'd have a losing case, right? You'd have a losing case on likelihood of confusion because they would say, right, but taken together, all of the other elements make it clear that we're not singling you out. Now, I don't know, among tax relief services, particularly ones that are run out of strip malls, run out of trailers, like Liberty Tax Relief, I don't know what that market looks like. Right.

0:41:26 Thomas: It's entirely dirt bags who rip off uh native american people

0:42:11 Andrew: I would think that that's a possibility. Right. And so suppose his competitors are, Patriot tax services and Then you would say, OK, this is parodying an enterprise. Right, in the same way that you might take more elements from the, what's that, one of the people with the song that have the, like, the cash for gold people, right, the, you know, I want a structured settlement, I want cash.

0:42:18 Thomas: Hey

0:42:33 Andrew: Now, JG. Wentworth, I knew as soon as I started saying it. So if you were parodying that industry, you might lean the most heavily on the JG Wentworth ads because they are the most notable, including our buddy Ben Young, was it, was in one of them, but yep, have a decent defense of, like, no, I'm not singling out JG Wentworth, I'm saying your entire industry of people who buy back structured settlements is, you gross and borderline fraudulent and terrible, and which, by the way, is my, is opinion of those entities, um,

0:42:33 Thomas: Jg wentworth yeah yeah but I want cash now andrew I've got a structured settlement

0:43:06 Andrew: I So yeah, so that's part of why I am not passing judgment on the likelihood of success and the merits of this case. I want to see what their response is from AMC. They, they certainly seemed rather unconcerned. And again, I think it's going to come down to the identification of a specific, specific company, right, of identifying just Liberty Tax, and whether that negative associational really carries through, or whether they're able to argue, no, like, nobody would think, that you were actually approving of our depiction of these services in this episode, even if you could get around that, you do still have, uh, defamation, disparagement, injuries, falsehoods, and if there is a serious likelihood of confusion, right, let's go back to your Smurger King, right, like, if you could easily imagine a show having a Smurger King and, you know, having people look into the camera and go, every time I eat at Smurger, Burger King, it makes me sick.

And and people would walk away from that and go, they're OK, trying to tell us not to eat at Burger King and that would be defamation. Right. Would be potentially injurious falsehoods if there were false statements. So I'm curious. I am definitely going to be following this. And I thought it was a great way to take some legal questions with, uh, pretty funny, uh, packaging that, tied into a show that you and I both love.

0:44:09 Thomas: Yeah yeah you give us any predictions because I don't I mean I didn't know there's a company that's so much like this I I feel like if it's similar enough just going being the you know thomas uh the non-lawyer just what's reasonable person it I don't know it feels pretty rough as much as I love the show to depict a company and that's like really identifiable and to just have them be total tax cheats and and you know scammers interesting

0:44:55 Andrew: Does to me too, I will, I will tell you that it, I think that this is not, uh, a frivolous complaint by any means, and I was surprised to see that, the you allegations. Now, maybe, you know, their demands are unreasonable, and AMC tried their best, you know, to reach an accommodation, and, they will have to engage in some creative pleading if that's the case. But I've done that before, because when you send letters back and forth, that privileged by Rule 408, they, right, are not admissible to prove the contents of the letter they're in when you offer to settle.

0:44:58 Thomas: Now yeah I I remember that right

0:45:29 Andrew: Yeah. So oftentimes you will have this situation where the party will say, you we sent a demand letter and then they did nothing. And you have to come back in your answer and say, we exchanged 12 drafts that attempted to reach a resolution on this point, point, obviously I can't attach those drafts because the contents thereof are excluded by Rule 408. as conversations, as in an effort to settle a bona fide dispute, so, you know, we'll see, we'll get to know, but you can still tell the court to, like, the extent that they're trying to say we just blew them off and didn't listen, that's not true, so we will hear what AMC actually did in response to that cease and desist. In their reply.

0:45:52 Thomas: Right right yeah OKAY NOW HERE'S HERE'S A QUESTION I WANT TO ASK WOULD COULD THIS COME DOWN TO AMC YOU KNOW VINCE GILLIGAN GETTING ON THERE AND BEING LIKE YEAH BUT LIKE EVERY SINGLE ONE OF THESE THINGS IS THIS BECAUSE AT FIRST IT STRUCK ME AS OH OKAY IT'S LIKE SAYING AAA PLUMBING OR WHATEVER IT'S Like YEAH THEY THEY'RE ARE ALL THAT can AND they introduce this evidence and if it was there, would it help of like, yeah, here's a statue of Liberty One. Here's a Statue of Liberty One, they're all different, you know, America tax, a Liberty tax, you now, HillaryForPrison.net tax, like if they show that like, all right, there's a million of these things and this is just a parody of kind of that whole thing, is that a good defense?

0:46:44 Andrew: Hundred percent, that's a great defense, right? And that was my, uh, maybe, I, I think you spun it out, uh, in much better detail than I did, that was my Patriot Tax argument, if that's the industry, so yeah, if it is if it is mocking an industry and not one identiable business, then, yeah, there's no likelihood of confusion. Right. What you're saying is. Everybody in this industry are dirtbags, well, that's fine. That's your opinion. That is not the same as saying uniquely among tax preparers, Liberty Tax engages in crime, fraud, theft, and other deceptive business practices, as they plead in the in the complaint. So we'll be interesting to see what the state of trailer park tax return services are. But I I suspect that you are correct that, you know, one of the ways to kind of plead around identifying somebody. Right. There's not a likelihood of confusion if we already can't tell the difference between liberty tax and patriot tax.

0:46:47 Thomas: Oh, okay. Right, right, right. Okay. Yeah.

0:47:43 Thomas: Will they bother arguing like, yeah, this isn't really inherent to the industry. It's just these two characters happen to be sucky and work at this place. Is there any argument there? I mean, in drama and movies and shows or whatever, like you're going to have bad characters. Can they not work at a place?

0:47:58 Andrew: Yeah, they can. But that's the question of the sponsorship or affiliation. And again, Right. To make that feel right. Imagine if Gus Fring operated a McDonald's or a Taco Bell. There's a reason he does not.

0:48:05 Thomas: Hmm. Right. So it has it's close enough that their argument would be it's close enough that someone would think they're endorsing it, okay. Interesting. Will

0:48:17 Andrew: Yeah. That's right. So, yeah, we'll have to keep our eyes open.

0:48:21 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:48:30 Thomas: Do. And now it's time to thank our Hall of Famers, our all-time greats on patreon.com/law. We're back. We've reset the new month, a new quintile. And because, Andrew, why don't you go ahead and start us off with our uh first quintile, or first uh decile even, huh?

0:48:47 Andrew: Right. First decile. Thank you to Annette Ballgord to hair. Dr. Professor Soldering Iron thinks you should support the Electronic Frontier front Foundation. I'm with you on that, also install an ad blocker, with you on that too, Jason Young, Tom Paris did nothing wrong except turn into a salamander.

0:49:04 Thomas: What the, oh?

0:49:05 Andrew: That's a, that's a Star Trek Voyager reference. Hunter Kinsey, yeah, crap, I gotta think of something clever, yeah, praise be to Lamb Chop, Trojan Horse News, a funny meme to share with Uncle Frank with real news stuck in the comments on Facebook as Trojan Horse News, I'll give you a look, Ringo Star wrote the nursery rhyme Old McDonald, LC Voodoo Magic Swamp Lawyer, I wonder how many people at the Capitol on January 6th were also at Woodstock 99, I have seen bits of it, so yeah, uh, I continue to be a patron for the, shout out to Kelly, hi Kelly, high Kelly, Alex Boyer, Len Bogan, Laurel Starling, love me some Harry, C word, everything important, and uh, one of my uh new favorites, you gotta fight for your right to ex parte, take

0:49:07 Thomas: Okay, I don't uh yeah, did you watch that, oh, yeah,

0:49:55 Andrew: It away, Thomas, that

0:49:56 Thomas: All right, thank you to a new AG, new AG, the CDC says take legal advice from a podcast guest, Jeremy Ashinghurst, I'm fast at sex, and finally got a chance to show my big juicy legal brain off at jury duty, oh wow, so they, so they uh eliminated you, huh, you got voir dire right out of there, I'm guessing, upped my pledge for two, votes for a New Orleans live show, Mardi Gras 2023, Michael Gross Neclos, Heather Peak, Tucson live show, best damn tacos in the nation and delicious smoky mezcal to relax into, uh, how are the crunch wraps there, I will, I'll try those and see, purple couch dot com, going through a divorce, listen to Assembled Experts to shift your mindset from failed marriage to fresh start, loaf of orange, Marion the corgi, Jamie comedian, Aaron Trahan at comedian AET, come to Madhouse Comedy Club in San Diego, objection, Barry Mason has no relevance to this case, overruled, politics from a different

0:50:06 Andrew: Is that is the all-time best oh

0:50:54 Thomas: But enlightening angle, the novel Vortexes is being considered for an option in screenplay, yay, the three second rule also applies to treason, a streetcar named these nuts, it's always funny, yeah, yeah these these these uh lower uh quartiles, shouldn't even put a a loaded word like lower on it, you know, this is every quartile matters, hashtag all quintiles and quartiles matter, but this is a a great one, inspired zombie supports the Arlo Flying Circus fund, huh, I'm not sure what that is, that my Arlo or a different thing, I don't know if it's yeah, I don't, fine, we'll make our own Supreme Court with hookers and flapjacks and precious little cinnamon buns, um, cinnamon buns, thank you so much, top patrons, we love you, we'll

0:51:07 Andrew: These core, you have the, the maybe the best quartile so far are no could be Arlo Guthrie, who knows, lots okay,

0:51:43 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:51:49 Thomas: Now it's time for T3BE answer time, uh, let's see how this went, uh, who knows, are, did we tricked again, or are we back to straightforward, or some other option, yeah, I

0:52:00 Andrew: Yeah, so this was local resident arrived at his favorite fast food restaurant to purchase lunch. When the resident entered the building, he accidentally bumped into another patron, causing some of the patrons drink to spill on the floor. The collision was not observed by any of the restaurant employees. The resident proceeded to order his food. A minute later, another customer entered, slipped on the wet floor, sustained a broken wrist, which necessitated a surgical operation, restaurant was negligent in protecting patrons from dangers. The customer sued the restaurant in tort. Will the customer succeed? You narrowed this down to the two best answers. A, yes, because the restaurant breached its duty to inspect the premises and warn of the dangerous condition or make it safe. And did not breach any duty owed to the customer.

0:52:46 Andrew: I want to pause because I think you did a really smart elimination on, for example, B said, yes, because the restaurant is vicariously liable for the torts of its patrons. That is misstating a principle that is true, which is the restaurant is vicariously liable for the torts of its employees committed on, you know, while in the furtherance of their duties, uh, but not patrons, right, how could, how could that possibly be the case?

0:53:11 Thomas: What? What? If You're a bank and a bank robber comes in and robs you and also hurt somebody in the process, you're like, sorry, they uh, they bank here, so they also have a checking account, so the bank is uh, in trouble for that.

0:53:13 Andrew: Right. Right? Right. Yeah. Yeah. Exactly. Right, and then you also eliminated C, no, because the customer's true claim is against the resident that caused the drink to spill. That wouldn't matter in many cases, right, like we've talked about where you can have joint and several liability, right? Like I don't, that... know what the idea of a quote true claim would be, but

0:53:40 Thomas: Oh, that's a good point, I should have picked out that, language is like not very, lawy, yeah,

0:53:47 Andrew: Yeah. Yeah, so now the question is, is this a strict liability offense? Right. Right. At which point a would be corrected, because remember, when you're thinking and you kind of work through this, you're like, yeah, I get it. Nobody from the restaurant saw this. It only took a minute. But who else are you going to sue? And when the operative question is, who else are you going to sue? That, right, says our number one criterion is rendering the plaintiff whole. And so even if it's not a great fit, we're going to find a way to make sure the plaintiff gets recompensed for her injuries, because that's the most important thing. And if that were the case, you would have strict liability on the offenses and A would be correct. Negligence is not a strict liability offense. And so it turns out that the answer is D. So a point for the second chance law firm. And think I he did a nice job of analyzing it. But you have, at this point, the customer is an invitee. The business is required to engage in reasonable efforts to protect invitees. There are no facts in the

0:54:08 Thomas: No, one

0:54:55 Andrew: Fact pattern that indicate that the business operated unreasonably, they they like didn't know about the drink spill, it happened literally the minute beforehand, uh, and so it would not be unreasonable, you to have not known at that point, now if it sat for six hours, hundred percent, that's a breach, that's of negligence, because you gotta come out and come around and mop the floors and look at the premises and there

0:55:15 Thomas: Knows when it sits for six hours, then you get even more grip on the floor, you wouldn't slip. You'd just be like, you twist an ankle because your foot is so nice and stuck to it.

0:55:20 Andrew: You go, yep.

0:55:25 Thomas: So that was going to be my question is there is a unit of time, 10 you minutes, 20 minutes where it would have been like, all right, yeah, this wasn't reasonable that you didn't clean it up. Yeah, that's fair.

0:55:35 Andrew: The duty is to inspect the premises and to behave reasonably, and you know, the fact pattern is goes as far to say that that that's not going to be an issue here, you know, when, when it says in the very next minute and it explicitly says no employees observe this, how do I know what to do?

0:55:47 Thomas: Yeah. Yeah? Yeah. Well, they could have had a policy that employees have, have to observe it faster, all right.

0:55:57 Andrew: They sure could have, yeah.

0:56:01 Thomas: Well, second chance law firm, god, I'm, I, that, that's good, at least I feel like this was not a trick question, I think this was this was a reasonable question, and uh, didn't quite get it, but let's find out who did get the question right, who is this week's big winner?

0:56:14 Andrew: And I want to tell you, a lot of people played and A, B, C, and D answers, so I am gonna try and go with uh the earliest D answer, but this is Mason at Flagrantly Nerdy on on Twitter, who writes, I chose D, the staff did not see the spill and the spill was not there long enough for the staff to be expected to notice, staff are busy sternly wording crunch wraps, plaintiff can take his tort folded around taco ingredients and file it in the District Court of My Face. So I love it, uh, congratulations Mason on uh giving a big shout out to Taco Bell and making us hungry, and also, of course, on being this week's winner, so everyone, let's give Mason a follow, that is at Flagrantly Nerdy on Twitter.

0:57:01 Andrew: F-L-A-G-R-A N-T-L Y-N-E-R D-Y. And congratulations on being this week's winner.

0:57:08 Thomas: Infinite fame and crunch wraps guarantee, and and another reminder, top, to go check out the Q&A thread on patreon.com that all patrons have access to and vote on the questions you love and want to hear answered, or pose your own, of course, it is a popularity contest and those will be answered, as I've already mentioned, on September 9th, Friday, September ninth, at 4 p.m. Pacific time, 7 p.m. Eastern, come hang out, it's Friday, maybe you get off work, you pour a tall glass of whatever, milk, or you know, beer, or anything, and a White Russian, yeah, something, and join us on YouTube, all the links will go out on all the social media, all that stuff, of course. So, one more reminder, Friday the 9th at 4 p.m. Pacific, that's our show. Thanks so much for listening. We'll, we'll see you Forth Rapid Response Friday and the Q&A after.

0:57:44 Andrew: Is milk and beer I call it mirror oh

0:58:02 Thomas: That all

0:58:02 Andrew: Can't wait

0:58:03 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.

0:58:36 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.

0:59:14 Andrew: Squeeze me like an orange thomas