OA654: The E. Jean Carroll Suit Has Not Gone Away. In Fact, It Just Got Much Worse For Trump

Transcript

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

0:01:21 Thomas: How's going, Andrew? Andrew, I'm

0:01:22 Andrew: Fantastic, Thomas, how are you?

0:01:24 Thomas: Doing great. I loving love so much when we have Liz Dye on, because she's so good At Explaining things and She's going to explain us about the E. Jean Carroll news, and I'm excited to hear it. I think maybe this might be good news, I'm hoping.

0:01:27 Andrew: Too Uh Hi Let's hope so.

0:01:44 Thomas: And welcome back to the show, Liz Dye, how you doing today, Liz, oh, doing great, We're doing a lot, actually. We won't get into it. So many recordings, so many episodes. But I saw the headline that E. Jean Carroll is suing under like a new law or something. I'm very curious to hear what this is about.

0:01:47 Liz: Hey guys, how are you?

0:01:52 Andrew: Yeah Yeah

0:02:07 Liz: Okay. Well, so let's give a little background on what this is, in case not everybody is paying attention to every permutation of Donald Trump's litigation life, which is complicated. So in 2019, longtime Elle Magazine columnist, or vice columnist, E. Jean Carroll published her memoir, "What Do We Need Men For? A Modest Proposal," which, fair question. In this, she described being raped by Donald Trump in a dressing room at Bergdorf Goodman's department store in 1996. But before the book came out, New York Magazine published an excerpt in which she described the assault, after which Trump posted, after her description of it, Trump posted a bunch of really gross stuff about her and said a lot of Really nasty things because he's Donald Trump.

So he not only denied the allegation, saying, "I've never met this person in my life, she's trying to sell a book." He said, "It's a total false accusation and I don't know anything about her." And she's made this charge against others, because, you know, actually women of her generation and a lot of women of a lot generations have been assaulted by multiple men, and that doesn't make it less true. Also, he said, "I'll say it with great respect. Number one, she's not my type. Number two,"

0:02:47 Thomas: Yikes. Thanks

0:03:14 Liz: It never happened because he's gross. He's a garbage person. So, okay. So the following month, Carroll sued Trump for defamation in New York state court. And as with all efforts to hold him accountable during his presidency, he fought tooth and nail to get out from under it. So he ducked process server for weeks and he instructed his counsel not to accept service. He said he was a Florida resident and beyond the reach of the New York court, he said he was magically immune from civil process as a sitting president, for which he bizarrely cited the Clinton v. Jones case, where the court actually made Bill Clinton step for deposition by Paula Jones's

0:03:14 Thomas: Oh Jesus Yeah

0:03:46 Liz: Lawyers. Like, I don't know what that was about. Okay.

0:03:46 Thomas: I Feel Like I remember That, yeah

0:03:49 Liz: So So then the New York courts were about to start discovery in September of 2020, and Bill Barr swooped in a mere two years after the complaint was filed and removed it to federal court under the Westfall and Federal Tort Claims Act, which we don't have to get into it. I'm sure you guys already covered it. But basically, those laws say that when an employee of the federal government commits a tort within the scope of his duties, the government will substitute itself as the defendant in any resultant civil suit. And because of the doctrine of sovereign immunity, the federal government gets to decide what it will allow itself to be sued for, and

0:03:55 Andrew: And Yeah

0:04:22 Thomas: Jeez

0:04:22 Liz: It has not waived immunity for defamation. So if the government is eventually allowed to stand in for Trump in this case, the whole thing's going to go away because you can't sue the government for defaming you, and Donald Trump was the government in theory. Okay. So originally, U.S. District Judge Lewis Kaplan refused to let the government substitute itself for Trump. He ruled in October of 2020 that Trump was not an employee of the federal government. And if he was, he wasn't acting within the scope of his employment when he said that Carroll was too ugly to rape.

0:04:34 Thomas: Wow God You would hope, you would help That's not part Of The job Description

0:04:54 Liz: Right. Well, you would think, right? Like, right. Well he said it with great respect, Thomas, so chill out. It's cool. Calm down.

0:04:58 Thomas: Oh Wow, sorry Yeah, you know, I'm overreacting, I apologize for that, I

0:05:03 Liz: Yeah, no, it's cool, it's good that you have a woman here to explain this to. Anyway, the Second Circuit disagreed as to the first part of that ruling and it punted on the second part, right? So the appellate court said the president is an employee of the federal government. But they said that the issue of whether he was doing his job as president when he said E. Jean Carroll wasn't his type was actually a question of DC law, since that's where he talked smack about her. So they certified the issue to the DC Court of Appeals and basically said, hey, DC, you tell the Southern District of New York what to do here, whether this was Donald Trump doing his job as president or whether he was just citizen asshole.

0:05:42 Thomas: Mean I could tell them do, would that work? No, okay.

0:05:45 Liz: I have told them in writing so many times. I don't know why we're even bothering with this intermediate step, but all right, this is where we are. It took the Second Circuit a long time to reach this kind of non-conclusion. It took them actually two years almost. So it was almost two years between when Judge Kaplan said that the discovery could proceed and the time when the Second circuit partially reversed him, which was in September of this year. During that time, Trump's lawyers have been just like totally obnoxious, as is their habit. And so has Donald Trump. You knew it was going to like go downhill once Trump's longtime real attorney, Marc Kasowitz, noped out and got replaced by Alina Habba, who is like my favorite character in the Trump land lawyer orbit. She's that dingbat who filed that batshit RICO suit in Florida against Hillary Clinton and her supposed BFF, James Comey, who they were all in it to ruin Trump's life with the Russia investigation.

0:05:46 Thomas: Oh, okay! What?

0:06:38 Thomas: I'm sorry!

0:06:39 Liz: Because, you know, Hillary Clinton and Jim Comey are tight.

0:06:40 Thomas: The... Yeah! Famously close! The James Comey who basically, maybe, single-handedly was enough to cost her the election? That James ComeY?

0:06:44 Andrew: Yeah. Yeah.

0:06:44 Liz: Right. Yeah. That giant tall motherfucker. Anyway, she's the one who, um, Habba is the one who tried to get a federal judge to order New York Attorney General Letitia James to stop investigating the Trump Organization. And she managed to get Trump sanctioned by a New York State, New York State court for his years long refusal to cooperate with discovery. Every. So she's, you knew this was just like going to go to shit. And it did.

So they've had two years, um, Habba and Trump between the two of them to get Judge Kaplan really good and pissed off. Um, so Habba, among other things, tried to file a countersuit like this year against E. Jean Carroll of SLAPP suit, um, or accusing her of a SLAPP action, which, earned um her a mini lecture on the Erie Doctrine in open court, which, which for the non-lawyers is like akin to having someone tell you your fly has been down and you have toilet paper on your shoe, except like it was on an open phone line where assholes like me were live tweeting it. So that was really fun for me, but maybe less so for her. Meanwhile, Trump will not shut the hell up about this case on social media. So here's what he said on October 12th, after Judge Kaplan refused to delay discovery pending the DC Court certification of that issue of the employment. And partly, partly because he wouldn't delay it, because Trump has already taken discovery from Carol and had taken discovery of Carol, thousands of pages of it, deposed her and refused to participate in discovery himself.

So it was really a truly bad faith on his part. So here's Trump after he lost that order when he was on his Twitter knockoff site. He said, "This Miss Bergdorf Goodman case is a complete con job in our legal system in this country, but especially in New York State. Just look at Peekaboo James, it's broken disgrace, you"

0:07:44 Andrew: I

0:08:31 Thomas: Peek-a-poo-choo.

0:08:32 Liz: Have to fight for years and spend a fortune in order to get your reputation back from liars, cheaters, and hacks. This decision is from the judge who just overturned on my same case. I don't know this woman, have no idea who she is, other than she seems she got a picture of me years ago with her husband shaking my hand at a reception line and a celebrity charity with her event, shaking my, um, she completely made up a story that I met her at the doors of this crowded New York City department store and, with minute, within minutes, swooned her. Oh my God, I don't know that means, but it's gross. Who the hell knows? Anyway, he said, it's hoax and a lie, and a lie, just like all the other hoaxes that have been played on me for the past seven years. And while I'm not supposed to say it, I will. This woman is not my type. It's like, so gross.

0:09:07 Liz: I don't want to know what swooning is.

0:09:07 Thomas: Wow. Wow, I I can't get over Peekaboo Jim, what, we still pretending he's good at the nicknames

0:09:13 Liz: I think it's a euphemism for a racial slur. I'm pretty sure that's a, yeah, I mean, there's speculation that his phone is auto-correcting from a racial epithet that starts with J. I're not, look, I'm not going to analyze his mind. He's just gross.

0:09:17 Thomas: Really what

0:09:30 Liz: Like, he's just a gross pig. What do you want from me? This can only happen to Trump, right? Just take his word for it. Anyway, so if that sounds like he made yet another defamatory statement, Maybe you get today's no prize because, like, he had just repeated what he said when he was president that got him sued. And now, like he doesn't have Bill Barr.

0:09:28 Thomas: Peekabee James Oh

0:09:47 Andrew: Is No longer Right, yeah.

0:09:49 Liz: Right. He doesn't have Bill Barr to dive on that grenade for him anymore. So Carroll's lawyer, Roberta Kaplan, who is no relation to the judge, immediately said she was going to file another lawsuit based on the new defamatory statement. And he wasn't going to get that get out of jail free card because he can't, he can't rely on the Westphal Act and the federal tort complaints.

0:09:49 Andrew: Yeah.

0:10:01 Thomas: Okay. Yeah. No. I'm still working as president because of the election hoax

0:10:10 Liz: I mean, he still thinks he's president. He still refers to himself as President Trump all the time. So who knows? Anyway, in addition to all of that, the state of New York this summer passed the Adult Survivors Act, granting a one-year amnesty period during which any adult victim of sexual assault or incest can sue her assailant, even if the statute of limitations is long since told. And that law went into effect on Thanksgiving, after which Carroll immediately filed suit at midnight on Thursday.

0:10:10 Andrew: And

0:10:11 Thomas: Wait Just to understand, that's the law, said just for this year, anybody, it's not like a permanent year period, adding to anything it's, oh interesting

0:10:43 Liz: Right. It's, it's no, no, it'S not like a one-year addition. They're saying right now, if you have claims that you, um, did not bring, but now you feel safer bringing them, you may, you may bring them against your assailant. Um, itS not, it only applies if you were over 18 at the, at the time of the assault. Um. Most of the, you know, I mean, yeah. So, okay. So EG and Carroll knew this was coming and talked about it. Everybody knew this was coming. So they filed this on suit Thursday. It not only includes a claim for battery, it also includes a claims for defamation for the shit that Donald Trump said last month. And last week, before they filed the suit, there was a hearing before Judge Kaplan where Carroll's lawyers said they wanted to consolidate the two cases because the facts at issue are the same, right? We're We're talking about the same assault, and we're talking about comments about the assault. And as I've said, they've already conducted discovery, even some on Donald Trump, because after Judge Kaplan's order, Trump actually did have to sit down for a deposition.

0:10:49 Thomas: Oh Wow.

0:11:45 Liz: And Carroll's lawyer said in court that they'd already asked him about the October 2022 statement during that deposition, so we're not really talking about that much more discovery here. This is the exact same facts at issue. You. And so during that hearing, Alina Haba, well,

0:11:59 Andrew: Let me just jump in and say consolidation of cases like this is, is routine, right? I mean, this is, I have a case that is consolidated before the federal court, the United States District Court for the District of Maryland right now, and it almost never is a subject of dispute, right, because you look at it and go, why should you have two open matters before the same court touching on the same issues, uh, when you should consolidate them on the same docket. So I, is, it's just utterly routine.

0:12:32 Liz: Don't faint, Andrew, but Haba and Medeo or Habba and her partner, Michael Medeo, did in fact contest it. And because their mission in life is clearly to like to piss off every judge in the New York tri-state area, and most of them in Florida, too, since Habba likes to go on those legal adventures with Trump in Florida.

0:12:34 Thomas: The supply

0:12:52 Andrew: Do You know anything about Medeo, other than this is the guy who agreed to be Alina Habba's second fiddle, so you know, But, but

0:12:54 Liz: I mean, Look, if he's in the room with her, he's not the craziest person in the room, so nobody's paying attention. If he was ever by himself, maybe. But if he was standing next to her, she's going to win that crazy off every time. So I don't know anything about him.

0:13:04 Andrew: Oh,

0:13:14 Thomas: Of lawyers is not infinite, right? Like, eventually will he run out of lawyers who are willing to be this terrible, or no, are there enough, enough

0:13:23 Liz: He's run out of competent lawyers. So now he's... Okay, so these are not the people that you get if you have any other choices. Like, these are, you already ran out, and now you're here. Okay? So they are clearly trying to get beaten to death by a federal judge with a gavel or something. I don't know. Anyway, so Carroll's attorney, Roberta Kaplan, wrote a letter to the court and cc'd Habba on August 8th saying that she intended to file this case when the Adult Survivors Act went into effect and she wanted to consolidate the two actions. And she said within days of Trump's gross word vomit on Truth Social that she was going to file another defamation suit. Like, everybody knew this was coming. Coming. But in court last week, Habba and Medeo complained that this had all been sprung on them. They couldn't possibly comment on the unfiled suit because they hadn't been retained for it, which is like, so

0:13:26 Thomas: What

0:13:27 Andrew: Yeah, yeah.

0:14:17 Andrew: Hey, when it

0:14:18 Thomas: Wow.

0:14:18 Andrew: Comes to Donald Trump, that is a valid objection, the my client has a serial history dating back his entire miserable life of never paying lawyers. So unless we get paid up front, we're not going to take this case. Yeah, I don't want to be on the side of Alina Habba here, but, you know, on the the side of somebody who who laws for a living, like, get the check from Donald Trump in advance.

0:14:32 Thomas: Yeah. Big debate on the show

0:14:42 Liz: I like that was really generous of you, Andrew, because I just think she's full of shit. But okay. I mean, potato, potato.

0:14:47 Andrew: So, a

0:14:47 Thomas: I think I agree with Liz. What?

0:14:50 Liz: Yeah. Okay. So they said they couldn't comment. But if they could comment, what they would say was that these cases shouldn't be consolidated because there was going to be so much new discovery in the new case. Well, I told you she was full of shit.

0:15:00 Thomas: What? You can't comment, you can't comment. Hmm.

0:15:07 Liz: Well, they did. All right. So they're continuing to play these same stupid games. And Judge Kaplan was clearly like not amused. And he said, your client has known this was coming for months and would be well advised to decide who is representing him in it. And although he did not make any ruling for the bench, he said he'd have a lot more to say after the case was filed, which it has now been. So this is going to be really fun this week because I think the court is pretty promptly going to allow these cases to be consolidated and then we're going to move forward, right? And now, even if the D.C. says that Trump was acting within his duties as president, you're going to have this action, which is going to proceed anyway. Um, and then, and they were already most of the way through discovery, right? That E. Jean Carroll doesn't have to go back to the beginning and like try and serve Trump again and Trump drop process and have the same whole bullshit. Um. This is going come. We're already, this ripe as it were.

0:15:59 Thomas: Can

0:16:01 Andrew: Bunch of kind of follow-up questions that, uh, I'm not sure the answer on, and I think, and the biggest one is, okay, you've well explained that by repeating his earlier comments out of office, right, that is what's going to enable this lawsuit to go forward, every right? Time you repeat a defamatory statement, that restarts the clock for statute of limitations purposes, right. And we've actually seen that in a number of other cases. But what we haven't seen in those other cases is when repeating the defamatory statement includes by reference a statement that you made while being the president, while arguably being immune. So in other words, I guess my question is, are they going to be able to use all of the discovery, or is sort of the next step for Trump, through Habba and Medeo to argue that, no, we still have to wait for the D.C. Court of Appeals to rule on whether I was within the scope of my employment, because otherwise I'm immune for the things that happened while I was president, even though you can now maintain the suit against me? Does that make sense? Yeah.

0:17:18 Liz: It does. Although I, I'm not sure that it's going to matter. The

0:17:21 Thomas: I say I'm not sure the Non-lawyers would have understood that, Andrew, are you saying that, but because he said the things while he was president, it would be okay to say them after?

0:17:21 Andrew: So

0:17:22 Liz: No,

0:17:32 Andrew: No, no, it's not that it's okay, right, like, so defamation has a certain statute of limitations on it, right, three years is typically under most state law, uh, but if I republish my statement, right, that restarts the clock on the statute of limitations, right, because more people see it the second time I say it, a different set of people see, so the way, so, so by repeating the dumb stuff that Trump had said while, while he was president, while he's no longer president, right, gets you around any questions of the Westfall Act applying, because he's now said those statements as a private citizen and not just as, you know, while arguably within the scope of his duties.

My question is, is the fact that that statement refers back to and incorporates a statement that was made decade while he was the president, is that going to give Trump kind of the ability to argue, okay, you can go forward with the lawsuit against me, but you can't get discovery based on, and you can't use the discovery from the time period when I was the President because I was The President and I was acting in my

0:17:34 Thomas: Okay. Uh-huh.

0:18:46 Andrew: Official capacity.

0:18:46 Thomas: What do we need discovery for if this is all? Do we need Discovery for something? Because it seems like it's all pretty out there, right? Or am I not understanding something?

0:18:54 Andrew: Do we need discovery with respect to the defamation? Mean, he's been asked about his version of events, right? Right? Like, I mean, you know, there is evaluating Trump's defenses to, you know, What Ms. Carroll has alleged, right? So, you know, that's sort of a classic, like, witness testing. I don't know what other questions and, you documents they've seen in connection with that, but, he, you had to sit for a deposition, and again, whenever Trump sits for a deprivation, you can infer that it did not go well, so you know that would be that would be my inference, so right.

0:19:09 Thomas: Hmm.

0:19:30 Thomas: All right. Oh,

0:19:32 Liz: I think it's going to be pretty clear pretty soon. Because I the DC Court of Appeals has agreed to expedite its decision. So it's, it's gonna be pretty fast. I think we're going to know soon. Um, I think most of the discoveries about what happened, you know, in 1996, some of it will be about what, you Know... So, okay. So suppose that the DC, said, um, DC Court of Appeals said, you know, this is, this was, he was acting within the scope of his duties. Let's just say that they adopt this argument that, that Habba has made that he had, had a duty as president to respond to questions about current events and the news of the day. And this was the current event and he was asked about it, you know, on the, on Air Force One. So yeah. Okay.

He was, he was presidenting, fine. I mean, that's a, that's a possibility that could, that could arise here. I'm not sure that the second statement repeating it counts as a republication. I mean, sure that Roberta Kaplan is going to argue that it wasn't a republication, it was a new defamatory statement. I guess there's an issue of how much damage does it do when the president talks shit about you versus when some jerk on a golf cart talks shit about you. I, I mean

0:19:49 Thomas: Okay. Oh,

0:20:40 Andrew: Yeah.

0:20:40 Liz: How, how much less is she going to be damaged from that? But the case is still going to be alive because she's still going to have the battery claim under the Adult Survivors Act and she'll still have the second defamation claim. So whether they get to, they have to take new discovery, I mean, I don't think that Judge Kaplan's going to make them do it. He's certainly not shown any inclination to, to let Habba and Medeo play these ridiculous games.

0:20:50 Andrew: Well, I'm I'm Yeah, I agree with you on that, where I was going is, I am concerned, and and you started to, I think, highlight this issue for the listeners. I am, when concerned, on the damages portion of the defamation, right, that it could potentially set up a situation in which you are now, Habba and Medeo are now arguing, oh, look, all the damage that was done defamatorily was done while He was president. Yeah, while he was immune. And the republication, or you know, the additional statement, however you want to characterize it, that the damage was already done. That's exactly right, yeah. And don't give, I don't want get Lena Habba any litigation tips here, but I worry about that in terms of, you evading justice.

0:21:32 Thomas: I see. It was done when it was immune. Okay.

0:21:42 Thomas: Cat's already out of the bag. Yeah, Okay,

0:21:52 Liz: But honestly, do you think he's really going to do that? Do jury trial in New York? He's not so popular in New York, especially since he moved to Florida and shit all over New York and says racist things about the very popular AG on the regular. So I don'T think he'S going to go in front of a New York jury.

0:22:09 Andrew: No, are absolutely correct that it's never going to a jury. Not even with a reasonable defendant would this case go to a jury, let alone with Donald Trump. So, excellent point.

0:22:11 Thomas: Point. All I'm curious what you think, Andrew, about the constitutionality of that law. I mean, unambiguously, that law in my mind is a great thing, but I could see that being like weird constitutionally to be like, hey, everyone's got a year where they can report all this stuff even though the statute, statute of limitations was up. Are there complications there?

0:22:39 Andrew: There could be. I mean, it's that's a super interesting question that I think we should come back and revisit. I mean generally the purposes of statutes of limitation are to the argument that you're making is a reliance argument. Right, which is once you know you can cross X date off your calendar and you know, you don't have to maintain records, you know, you don't have to do certain things if you have potential notice of liability. Now, I'm thinking about that from the civil context because that's where I practice. It's a little more gross to think about that from the criminal context, but you could still say I acted in reasonable reliance, right? Like, I had maintained this relationship with this person who was an alibi witness, witness, uh, and once the statute of limitations expired, um, that, you know, I didn't bother, they were alive, you know, 10 years ago, and I never bothered reducing their statement to record because the statute of limitations expired.

0:22:45 Thomas: Okay, Yeah, Yeah,

0:23:38 Andrew: Why, why should I, why do I have to get you a, deposition transcript or an affidavit from someone, uh, because, uh, you know, you've now said I'm not, I'm going to be immune from prosecution. So that would be my first kind of instinct in terms of, you where you might go. And I certainly think whoever is the first person, you convicted as a result of the new act, that we will see potential litigation arising from it. And it's a really interesting question. And we certainly will, you know, cover that here.

0:24:06 Thomas: Pin in that for later. All right, thanks again for another excellent, excellent breakdown, Liz. That sounds like if we were to bottom line it, not good for Trump, right? I mean, it sounds like he could be in trouble for not not only the, for the defamation, which was kind of priced in, but the original incident now with this new law.

0:24:20 Liz: Yeah, shutting up is free, but he never does it.

0:24:23 Andrew: Bye.

0:24:24 Thomas: Alright, thanks as always.

0:24:26 Liz: See you guys.

0:24:27 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:24:32 Thomas: And now it's time for T3B answer time. All right, Andrew, this was another real curve ball that I think was not a curve. I don't know. What happened here?

0:24:40 Andrew: All Right. So this was, Cable Corp paid for an ad in the newspaper promising to include the FDO channel in its programming lineup for subscribers who signed up within two weeks. A family signed up on the 12th day of the promotion and received the channel on the 16th day. The FDO channel stopped showing on the family's television. What are Cable Corpse rights? And, uh, think there's a reason this question is so sort of awkwardly worded, um, we'll get to that when we get to the answer. So the, the choices were, A, Cable Corp is entitled to time to restore the FDO panel.

B, Cable Cork delivered on its promise and has no liability. C, the family is liable for damages for misuse of the FDO channel, that's ridiculous, or D, the family did not inform Cable Corp of the problem with the Fto channel. That's, that's minorly ridiculous, right? Um, suppose you could get there, but, but basically what the reason for the ambiguity in the question, oh, by, by theway you picked A, right, and I'm gonna just cut to the chase, tell you you were correct, um, But But I want to, but I want to play out why the question was written the way it did, and

0:25:27 Thomas: Yeah. Oh, thank God. Yeah.

0:25:49 Andrew: Why we had folks who played along who, who did in fact guess B, right, Cable Corp delivered on its promise and has no liability. And the reason that it says what are Cable Corpse rights is because the question deliberately wants you to think about is this going to be liability in contract or liability in tort. So if you're thinking about it as on a strictly contractual basis, you might say, as as some of our listeners did while playing along, hey, um, contract says if you sign up in two weeks, you'll get the FDO channel, sure, doesn't promise we'll keep it for very long, uh, and so if your, you know, it doesn't say anything about that, and so si you're about just breach of contract, I don't know, maybe you could squint and argue, like, hey, you got, you got what we promised, right?

0:25:53 Thomas: Hmm. Yeah, oh, but fraud? Is Is that what you're going to say?

0:26:40 Andrew: But That's exactly right, yeah, then, then you might say, okay, well, fine, you delivered on the contract, on the, on the, you know that the the the technical language, you know, being technically correct, the best kind of correct. Uh, but this kind of feels like fraudulent inducement, right? It kind of feels like hey, you said a reason to sign up for Cable Corp is we're going to get you the FDO channel, right.

0:26:42 Thomas: Yeah, sure. Et cetera, et cetera. You got me on the tiny print on the bottom. Yeah, technically correct. Best guy.

0:27:01 Thomas: Yeah, I need that FDO channel. I would die without that FTO channel. It's just, I watch it every day. I don't know what that is.

0:27:09 Andrew: And and None of us

0:27:13 Thomas: Did ooh, I Hope the winner came up with a good answer to the acronym. I should have said that at the time. Damn. Opportunity missed, no.

0:27:13 Andrew: Do and Yeah. The, thought process there is, okay, well, maybe there's some kind of potential, potential liability for fraudulent inducement, for some kind of, and, and, and if they didn't, if it's not an intentional misrepresentation, maybe it's a negligent misrep representation Right, and as you start thinking about that, then you would say, okay, um, so what would be the worst possible scenario, right, for Cable Corp, and that is somebody brings a plausible negligent misrepresentation claim against you for your, you know, allegedly fake advertising here, right? And I think in that scenario, right, you would say, oh, okay, well, if this is based on some kind of a negligence claim, then we would have a reasonable period of time to restore that outage, right, missed, like, it for, you one day at this point, right? You would not be able to maintain a valid breach of contract or certainly a valid negligent misrepresentation claim if you push out a notice that you're like, yes, sorry, man, the FDO servers were all messed up and, you went down for a couple of hours, but it's back, don't worry, and we're committed to keeping FDO in your household.

0:27:26 Thomas: Hmm. Yeah.

0:28:33 Thomas: Also, FDO led people to commit a coup on the Capitol, so they're no longer allowed to broadcast. Oh, no, actually, that, they still are, are allowed to broadcast. Nevermind. That wouldn't be a good excuse.

0:28:43 Andrew: Yeah, so that's why I think A is probably the best answer here, because just despite the weird language on Cable Corpse rights, I really think what they, what they're meaning to say is what could be said about Cable Corpse potential liability, civil liability, to the family, like it,

0:28:50 Thomas: Yeah, But that's what I want to ask you, because forget the facts of this question, and just talk language with me in terms of bar exams. If the question is, what are Cable Corp's rights, and you change the facts a little bit, could a correct answer to what are Cable Corp rights be, Cable Corp delivered on its promise and has no liability? Just grammatically?

0:29:22 Andrew: Yeah, well, that would be, what are its rights? Its rights are, you that it is immune from liability, right? You know, I agree with you grammatically that it's a problem with how this is written. Happens when, I, it can be, so the bar exam, you know, we've talked about this before, the bar exam will sometimes use overly colloquial language to disguise a really, really good point, right? The no, because this is a contract about onions, is right. Not, that was not only a valid answer, but you know oftentimes you will see the bar examine come up with answers like that. All I would say is is I once described at the onset of T3BE that the bar exam was like two plus two equals, and your choices are A, seven, B, 50, C, blue, or D, all of the above, right? And probably the best answer there is seven, you know,

0:29:31 Thomas: Yeah. No, I'm trying to evaluate for future. Did I get it lucky in relying on the grammar too much, or is that a tell at all, Yeah, Oh, God.

0:30:24 Andrew: Right, like it I know

0:30:25 Thomas: No, that hurts so much that makes it so hard for me as a math person. Yeah.

0:30:28 Andrew: It does. I know. I know. But, you know that it will often say, you know, sort of what's, you the best statement of the plaintiff's rights here or whatever. And that's how that was instantly how I interpreted this question, right? Like if I represented Cable Corp, I would not want to say like, all right, well time to dust our hands like jobs well done here. You you delivered them that station for 16 days and now we're in the clear. I think I would say like, hey man, you ran a huge ad campaign inducing people to come on because of this channel. You better get this channel back up as soon as possible.

0:30:41 Thomas: Yeah, Yeah.

0:31:06 Andrew: And that's how I think about it, approaching it as a lawyer.

0:31:05 Thomas: That's a weird way of asking the question. I

0:31:09 Andrew: It sure is.

0:31:10 Thomas: Think I think it was, I'm never gonna get used to this because I love, like, you know know, the New York Times crossword. I, I love how there's always specifically very specific grammar to, to it. It's conjugated this way, or it's a plural because, or to what, you know, like, and it might not make sense at first because you have the wrong idea of what, part of speech is going or whatever, like what the conjugation of the verb is, but like, It always ends up being right. Like the right answer is like, Oh, that's why that's right. The grammar fits perfectly, you

0:31:34 Andrew: Is so interesting to me because you and I have had, had this discussion, like I hate crosswords and I have always hated crosswords, and and maybe that's a reason why Like maybe that technicality aspect, like, is, is what rubs me the wrong way about it. I don't know, but

0:31:44 Thomas: Oh, wow. Interesting. Okay. Well, either way I nailed it. Another weird, I said curve ball. This was like a change up that just looked too good to be true. And like, it almost would, it always made me just swing wildly. Cause like, there's no way it's this easy of a pitch, but no, right down the middle, slam to home run. Who's this week's big T3BE winner? Yes.

0:31:50 Andrew: Um, Yeah, Yeah, This is someone who actually did what you asked, so, uh, how about, how about delivering on that? This is M, Wear Your Damn Mask, who writes, uh, I'm not totally, totally sure what the answer to T3BE is, but A sounds like it's close. Love that obviously the question writer is a fan of Scott Sigler, that is at Scott Cigler, who is the FDO, the Future Dark Overlord, who is known for his plaid battle tanks, so there you go.

0:32:35 Thomas: So Future Dark Overlord channel. It's like the Futurama, the, the, what is it, the, the hypno tone? The channel is just the Future Dark I, Overlord, just hypnotising us with magic or whatever.

0:32:38 Andrew: Yeah, the hypno toad or love It love it, love it. So everyone, congratulations to M, that is at Mario Spam on Twitter, at M-A-R-I-O S-P-A-M, and everyone, let's give them a follow and congratulations at Mario Spam for being this week's winner.

0:32:48 Thomas: Oh, Good stuff, and

0:33:05 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,

0:33:14 Thomas: Now it's time to thank our all-of-amers, our all-time greats on patreon.com/law. And we are on the final quartile. Yeah, good stuff. Love it. I don't it's my turn to do the I I'm get to go to the final of the quartile and you're lucky. But there's no look, let's face it. There's no bad hand when it comes to being dealt the final quarta. I mean, it's all aces. So, thank you to Balticate. Hashtag Mastodon Migration. I'm now at twit.social slash at Balticatay. And I may have already done that one, but I wasn't sure. So just in case, you might've gotten an extra shout out. Forgot to change my name last month because we have a new puppy. Congratulations. Philip Kizer, Andrea the Arbitrarian Capricious, Sleazy Legalese, Payne's Trumpet, Laugh-O-Copter wants a Denver OA live show please Christmas music should be banned from the radio until December 1st as a time place and manner exception to the first amendment that's awesome nice

0:34:17 Andrew: Outstanding, great use of the Patreon system, system.

0:34:19 Thomas: Yeah a karaoke legend who likes to sit on tables because because okay all right Milo Meadsong wishes all meteors a happy happy crash into Justice Thomas's stupid little RV Greg Crimer Sergeant Javier Escueda felony trial set for March in retaliation for whistleblowing the death of a subject in police custody. Absion. Join your labor union. Together we bargain, alone we beg. WordOrigins.org has a new book, From Barflies to Bitcoin, How Words Map Our Modern Era, available on Amazon. No situation is so dire that panic cannot make it worse. I probably just scrolled past my name. What? John Leguizamo Fan Club. False. Anonymous. Seriously, though, live show in Minneapolis. Minneapolis. Emotion Lemonade. Give to minusneeds.org. Then visit Derek, big easy blasphemy. Please don't read this on the pod. We don't need a call out. Thanks for what you do. Your turn, Andrew.

0:35:12 Andrew: And a big final final octile to Born to Pun, a comedic look at Bruce Springsteen, Ronda the Dork.com, a string of unpronounceable characters, not that Chris Wallace, Malika Chandler, Soggy Pants, Malcolm the Dragon, the Precious Variant Dude, Liz, Puffy Coats or Violence, W did Jury Belly, at Packies at Last Baby, Heather L, Matthew Vernon, Ian and Ally, Dan Irizari, Teresa Chan, Chris Waltrip, Teresa Gomez, Adam Costa, David in Brooklyn, Mitchell, We Scared Thomas Away With Terrible Movies, um, Michael Rops Yeah, Michael Rops, Sam Donnell, I agree with that 100, and our all-time great, he who shall never be dethroned, the occupant of the Conrad Michaels Memorial Chair, Sam Buck. We love you, Sam.

0:35:50 Thomas: Philosophers in space crossover there.

0:36:05 Thomas: And that's our show. Thanks so much for listening, everybody. And we'll see you very soon on this new schedule. Love it. And, uh, Andrew, this just in, um, we haven't run out of stories at all, even with four days a week, there's still more. We could go 19 days a year. So, uh yeah, plenty to talk about.

0:36:18 Andrew: Oh, shocker. Yeah. Yeah, it keep coming.

0:36:25 Thomas: We'll see you next time.

0:36:26 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.

0:37:00 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.

0:37:36 Thomas: I think it's your turn to go first and I get to do the final of the final, final quartile. I'm excited.

0:37:40 Andrew: You got it backwards. That's

0:37:42 Thomas: You're right. I don't, it's my turn to do the, I, I'm get to go to the final of the quartile and