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Hey, #LitigationDisasterTourists: Going to drop a little bit of content here, as a treat.
Twitter is now blocking Mastodon links - to both posts and accounts - as "harmful". Checked it myself, here's the error message that pops up. Give it a shot with any Mastodon link you want.
Twitter is now blocking Mastodon links - to both posts and accounts - as "harmful". Checked it myself, here's the error message that pops up. Give it a shot with any Mastodon link you want.
And yes, it's the Mastodon link. Break it and the tweet sails through just fine
There are a couple of takeaways here.
First, this is an *incredibly* stupid and self-destructive move. These next screenshots are from the @FTC's fact sheets on the Sherman Act (U.S. antitrust law). See the problem?
First, this is an *incredibly* stupid and self-destructive move. These next screenshots are from the @FTC's fact sheets on the Sherman Act (U.S. antitrust law). See the problem?
OK, folks, this Yoel Roth imbroglio, of all things, has effectively been the last straw for me. I'm going to be significantly decreasing my twitter usage and migrating my Litigation Disaster Tours over to Mastodon (mastodon.sdf.org/@AkivaMCohen). I'll post links to them here when I do.
Twitter's been an absolutely amazing place for me. I've found better friends, partners, and clients than I could've ever imagined, some great communities. Somehow 40K of you decided I was worth paying attention to, which seems like a mistake. But ...
If I wanted to have an account on Gab, I'd just have opened an account on Gab. We're the product, and with the owner of this site effectively using it to paint targets on people and apparently seeking to turn it into Fox.Social, I don't feel great about contributing
Hey, #LitigationDisasterTourists ...
So, I've been a bit busy this week and this weekend. But as you all probably know, on Thurs the 11th Circuit issued its ruling overturning Judge Canon's insane order appointing a special master to review materials seized at Mar-a-Lago
So, I've been a bit busy this week and this weekend. But as you all probably know, on Thurs the 11th Circuit issued its ruling overturning Judge Canon's insane order appointing a special master to review materials seized at Mar-a-Lago
Let's start with the panel who issued the ruling and how they did it.
If Trump could have drawn up his dream panel, this is probably what he'd have picked: 2 judges he himself appointed, plus Pryor, an arch-conservative who's called abortion docs as "abortionists" in opinions
If Trump could have drawn up his dream panel, this is probably what he'd have picked: 2 judges he himself appointed, plus Pryor, an arch-conservative who's called abortion docs as "abortionists" in opinions
That "Per Curium"? It basically means "all of us, equally and together"
Many times, it can be the sign of a panel that doesn't want to have a particular judge's name associated with a controversial opinion. Here, it reads way more as "we're in lockstep because this is obvious"
Many times, it can be the sign of a panel that doesn't want to have a particular judge's name associated with a controversial opinion. Here, it reads way more as "we're in lockstep because this is obvious"
Hey, new #LitigationDisasterTourists arriving for the Niemann v. Carlsen dust-up, the replies to this tweet link previous discussions "Twiqbal plausibility" - something I mentioned upthread and longtime readers know, but new folks probably won't
Where the term "Twiqbal" comes from
An example of what the "plausibility" standard means
Hey, new #LitigationDisasterTourists arriving for the Niemann v. Carlsen dust-up, this tweet is the first in a side-thread of links to older tweets discussing "actual malice" - an important standard in US defamation law that significantly harms Niemann's chances of success
Here's a one-tweet summary of what the "actual malice" standard requires a public-figure defamation plaintiff to prove:
Here's a brief discussion of whether niche fame (i.e. someone super well known in a particular community but not the wider world) makes you a public figure (yes, if the defamation at issue is directed at that niche community)
OK, #LitigationDisasterTourists, by popular request (@yesh222 @ariehkovler @crowder and others) let's do a live read. I've got no idea whether what's pled here is viable or not - haven't even read it - but public figure defamation is about the hardest case to prove in US law.
Not only is that hard to believe on its own, it highlights the existence of a third-party chess expert who seems to think you cheated.
Maybe I'm missing something here but this really does seem like an unforced error
Maybe I'm missing something here but this really does seem like an unforced error
The next section is basically an "I'm so awesome at chess and I did it all on my own" brag-fest that isn't particularly interesting or important here, AFAICT. Again, if something later changes that, we'll come back to it
OK, #LitigationDisasterTourists, let's spend some time on Trump's latest "legal" filing: an abomination that takes direct aim at the First Amendment and your personal freedom of expression.
Yes, even if you're a MAGA-fan Newsmax/OAN die hard: Yours.
Yes, even if you're a MAGA-fan Newsmax/OAN die hard: Yours.
The lawyers here are, once again, James Trusty and Lindsey Halligan, and I'm not kidding when I say that the courts should refer them for discipline for filing this flaming bag of dogshit on their doorstep.
Seriously, were I CNN, I'd seriously think about whether to ask the Court to declare Trump a "vexatious litigant" - basically, someone who routinely files frivolous claims for abusive purposes, who from that point on must get pre-approval by the court for future suits
Hey, #LitigationDisasterTourists Judge Loose Cannon is at it again, apparently completely unchastened by the shellacking she received from the 8th circuit and once again handing Trump everything he asks for.
storage.courtlistener.com/recap/gov.usco…
storage.courtlistener.com/recap/gov.usco…
Issue Number 1:
Cannon's order appointing Judge Dearie directed him to verify that the government's "Detailed Property Inventory" was full and accurate.
So Dearie directed the parties to do that. BOTH parties.
Cannon's order appointing Judge Dearie directed him to verify that the government's "Detailed Property Inventory" was full and accurate.
So Dearie directed the parties to do that. BOTH parties.
Not just the government, but also Trump had to make clear whether he was contending the inventory contained any items that weren't seized from the property ("say under oath that they were planted, motherfucker, I dare you"); or omitted anything, or misdescribed anything.
Hey, #LitigationDisasterTourists, remember what I said about the difference between Trump judges and Trumpist judges? The 11th Circuit just drove that home to one Donald J. Trump in an opinion issued by a panel including two judges he appointed
The ruling is stayed ONLY as to two aspects: the review of classified documents and the injunction stopping the criminal investigation. So Judge Dearie stays in place for the rest.
But since those were the only parts Trump actually cared about, this is a massive blow to him
But since those were the only parts Trump actually cared about, this is a massive blow to him
I'm not going to go over their recap of the facts & procedural history, but it's worth noting that they specifically said that NARA was acting as it was supposed to in trying to get documents back from Trump
Hey, #LitigationDisasterTourists - at about 11pm last night, the US filed its 11th Circuit response on its motion to stay.
As Zuma would put it, let's dive in
(Yeah, I've got little kids, and that show's watchable. It is what it is)
As Zuma would put it, let's dive in
(Yeah, I've got little kids, and that show's watchable. It is what it is)
This is how you open a reply brief:
Reset the factual situation
We showed XYZ
Their opp does nothing.
And it hammers the key point: When push comes to shove, Trump has no substantive argument - so much so that they never even really tried pretending otherwise
Reset the factual situation
We showed XYZ
Their opp does nothing.
And it hammers the key point: When push comes to shove, Trump has no substantive argument - so much so that they never even really tried pretending otherwise
Then immediately onto Schrodinger's Declassification, making the point that (1) he hasn't actually said he did that, so it can't be a basis to grant relief and (2) even if he'd done it, it wouldn't change the analysis
Hey, #LitigationDisasterTourists, Trump has filed his 11th Circuit opposition to the government's motion to stay Judge Cannon's order with respect to the 100 documents bearing classified markings. Let's do a live read?
Background: The government basically rehashed its stay application that Cannon denied, this time filing it in the 11th Circuit and using phrases like "of course 'documents bearing classification markings' are easy to segregate, THEY ARE THE ONES WITH CLASSIFICATION MARKINGS"
It was framed, essentially, as a "Motion to say 'what the fuck, Judge Cannon?'" based on the basic principles of "Trump can't have a possessory interest in documents with classification markings, or any conceivable privilege in them"
Now Trump is responding
Now Trump is responding
Hey, #LitigationDisasterTourists, we have 🚨🚨🚨🚨🚨developments 🚨🚨🚨🚨🚨 in the Mar-a-Lago litigation.
Requires some background, but let's just say it looks like TFG is going to regret suggesting Judge Dearie as the Special Master
Requires some background, but let's just say it looks like TFG is going to regret suggesting Judge Dearie as the Special Master
So on 9/16, Judge Dearie issued an order directing the parties to submit a proposed agenda for the 9/20 preliminary conference. The US did that earlier today, & mentioned that Dearie had circulated (to the parties) a draft Case Management Plan storage.courtlistener.com/recap/gov.usco…
Trump's response, though? That says a lot.
OK, #LitigationDisasterTourists, let's talk about the latest lawless decision from Judge Cannon - and I *do* mean "lawless"
Not who she selected as Special Master; Dearie is one of Trump's nominations but one the Government consented to.
The government had asked Judge Cannon to stay her decision as it applied to the 100 documents they seized from Trump with classification markings
The government had asked Judge Cannon to stay her decision as it applied to the 100 documents they seized from Trump with classification markings
The government's point was pretty simple: You appointed a Special Master because (well, at least you claim because) you don't trust our filter team to identify potentially attorney-client privileged documents and to look at executive privilege claims. But ...
So here's the thing, #LitigationDisasterTourists (and particularly @CoachTA13 who sent me this tweet): This is a solid motion that should and will be granted.
Yes, his defamation suit is a SLAPP, especially against the reporters. But this is about his accuser's battery claim
Yes, his defamation suit is a SLAPP, especially against the reporters. But this is about his accuser's battery claim
And on that one, the accuser doesn't have a *legal* leg to stand on. Rightly or wrongly, her accusation that he battered her was heard and decided, in the context of her application for a protective order, on the same standard as applies to her civil battery claim
The court took testimony and ruled that she hadn't proven battery by a preponderance of the evidence.
Unless there's some nuance in California law I'm missing, that ends that subject forever. It's called "issue preclusion" and it applies between parties who litigated an issue
Unless there's some nuance in California law I'm missing, that ends that subject forever. It's called "issue preclusion" and it applies between parties who litigated an issue
OK, #LitigationDisasterTourists, let's take a look at the briefing by both sides on this attempt by #WashingtonHebrewCongregation to claim they had parents waive liability for WHC fondling their kids at daycare, a sentence I can't believe I just typed.
Not going to do a full run through of every brief, just wanted to touch on some things at a high level (he typed before realizing that's NOT the phrase of choice in this context) because I have concerns with how both parties opted to brief their arguments.
Just to be clear, since a word got dropped in that first tweet, the kids fondled at #WashingtonHebrewCongregation were fondled by WHC *staff*, not by the building itself. Just in case anyone was wondering.
Hey, #LitigationDisasterTourists in some shocking news.
And yeah, the court has what to say. Gotta finish off some client work before I dive into this later today.
But while you wait, here's the link to the thread from when this was filed.
And yeah, the court has what to say. Gotta finish off some client work before I dive into this later today.
But while you wait, here's the link to the thread from when this was filed.
Folks, you probably don't even need me to break this one down for you, because judge Middlebrooks wrote most of it for a lay audience (most likely because he realized that included Trump's "lawyers"). Let's hit the highlights!
Here's the judge's summary of what specific nonsense Trump tried to argue
Hey, #LitigationDisasterTourists, this ruling in New Mexico disqualifying a County Commissioner from office as an insurrectionist under Section 3 of the 14th Amendment is pretty important.
It's the first case to interpret the Insurrection clause's application to J6. Let's read
It's the first case to interpret the Insurrection clause's application to J6. Let's read
Note: The Insurrection Clause bars people from office unless Congress "removes the disability". The Madison Cawthorn case from earlier this year addressed the interplay between that clause and the 1872 Amnesty Act, which removed the disability from civil war participants
Cawthorn argued that the Amnesty Act meant nobody who ever committed insurrection in the future could be barred from office either - and got a District Judge to sign off on that. The 4th Circuit went "LOL, no. Linear time, my friend"
OK, #LitigationDisasterTourists, let's take a run at a true litigation disaster - Judge Canon's order in the Trump Mar-a-Lago case. Will have to take a few breaks to help around the house, but let's do something different this time, and NOT start by reading the order.
Instead, let's review the Nixon cases that set the basic background for how courts respond to executive privilege claims by former officials.
We'll start with Nixon v. Administrator of General Services, 433 U.S. 425 (1977), a Supreme Court case you can find here
supreme.justia.com/cases/federal/…
supreme.justia.com/cases/federal/…
OK, #LitigationDisasterTourists, there's actually some stuff in the "What the special master should do" section that we need to talk about.
Like this:
Like this:
The Trump team is actually asking that they be allowed access to all of the classified material at issue and to provide "privilege" and "personal" designations to the special master ex parte - meaning without needing to tell the government what they're claiming is priv/personal
They then say that the special master should review only the stuff designated as privileged, but anything designated as "personal" should just be turned back over to Trump immediately
OK, #LitigationDisasterTourists, let's make today a twofer and read through Trump's reply to the DOJ's filing
Let's start with this:
He's not the fucking President anymore, guys. And that kind of makes a huge difference in this case, too
He's not the fucking President anymore, guys. And that kind of makes a huge difference in this case, too
They're trying to start off with a bang, but this fizzles, badly.
The "extraordinary" position of the DOJ is that they get to evaluate whether there was a crime and if so whether to prosecute?
My dude, we call that "Wednesday"
The "extraordinary" position of the DOJ is that they get to evaluate whether there was a crime and if so whether to prosecute?
My dude, we call that "Wednesday"
OK, #LitigationDisasterTourists, let's review the DOJ's Mar-a-Lago filing. A terrific brief - well written and persuasive - it does exactly what you want to do when you're defending a motion: offer the judge multiple independent reasons to say "no"
storage.courtlistener.com/recap/gov.usco…
storage.courtlistener.com/recap/gov.usco…
That said, I don't love the start of this brief. As the old commercial said, you never get a second chance to make a first impression, and the intro to your brief is where you do that. I always want to start with something high-impact that catches attention/sets a tone or theme
This is not that.
Hey, #LitigationDisasterTourists, it's time to look at the Ur-text of litigation disaster tourism, the decision on appeal from the place where, in many ways, all of this started:
For those of you who don't know the backstory, that's Vic Mignogna, a relatively famous anime voice actor with a long-whispered unsavory reputation as a sex pest.
Way back in (IIRC) 2019, those allegations exploded into public view at about the same time as the release of the Dragonball Super:Broly movie in which he played the lead character (it apparently involved screaming a lot, don't ask me, I'm not a DB guy)
Hey, #LitigationDisasterTourists
Want an explainer on why this is nightmare fuel - and why it's so important to have lawyers who know what the rules are?
Want an explainer on why this is nightmare fuel - and why it's so important to have lawyers who know what the rules are?
OK. This is going to be a relatively short thread, because it's a relatively short decision.
First, some background about the way Federal Courts work
First, some background about the way Federal Courts work
Not everything can go to federal court. In fact, they only take two types of cases: federal question (case involving federal law/constitution) or diversity (case between citizens of different states or a US citizen and a foreigner).
State law dispute between 2 NYers?
State law dispute between 2 NYers?
OK, #LitigationDisasterTourists, I promised you a breakdown of the #DeshaunWatson decision, so here it comes.
Fair warning - there's some pretty gross conduct described in the opinion and the outcome is, IMO, a disaster.
Fair warning - there's some pretty gross conduct described in the opinion and the outcome is, IMO, a disaster.
The full decision is here, btw profootballtalk.nbcsports.com/wp-content/upl…
Judge Robinson, who decided this case after being jointly appointed by the NFLPA and NFL is an extremely experienced former federal judge; she retired from the District of Delaware in 2017.
