Paging Rule 11

Episode Notes

Transcript

[Music]

Joe Patrice: We returned.

Kathryn Rubino: Hey.

Chris Williams: Hello.

Joe Patrice: See that didn’t even make sense of the context of what I was saying.

Kathryn Rubino: I just said hey.

Chris Williams: It wasn’t about what you were saying, it’s that you said something. We have a tradition here.

Kathryn Rubino: I got someone on my side.

Joe Patrice: And now we can come in in 3, 2, 1, hi, this is the new episode of –

Kathryn Rubino: Okay.

Joe Patrice: New episode of Thinking Like a Lawyer. I am Joe Patrice.

Kathryn Rubino: New episode, same bullshit.

Joe Patrice: Okay, earning of the explicit tag once again. I am Joe Patrice from Above the Law. I am joined by Kathryn Rubino and Chris Williams. We are here to talk about the week that was in legal, which was not much of a week because it was a holiday and that got in the way of a lot of legal happenings, but –

Oh that sound means.

Kathryn Rubino: I do.

Joe Patrice: It means it’s small talk time.

Kathryn Rubino: I do. It was a holiday as well. How is everyone’s Thanksgiving?

Joe Patrice: Great, you know.

Chris Williams: It was good.

Joe Patrice: Solid bird and moved into the actual winter holiday season with some decorating, got all that done, you know.

Kathryn Rubino: I did the same. I have to have to report. I added my sixth Christmas tree to my décor and this year’s edition is a Taylor Swift themed tree, which is going to be a surprise for my nieces hopefully they’re not listening. I mean, they probably aren’t because they’re children not lawyers.

Joe Patrice: You have a Taylor Swift Christmas tree.

Kathryn Rubino: Uh-huh.

Chris Williams: You suck.

Kathryn Rubino: No it’s the best, it’s literally the best.

Chris Williams: I’m assuming, I’m assuming our audience is primarily of associates at big law firms and partners trying to stay hid but you have entirely too much money. If you can afford to have a sixth tree for Christmas that is Taylor Swift based.

Kathryn Rubino: First of all, I’ve slowly added trees over the years and thanks to Amazon getting a four-foot pink tree because obviously it’s pink is really quite affordable. I think it was $37. It wasn’t tremendously expensive and I’ll have it for forever. But what I did was you’re familiar with the concept of the friendship bracelets that are popular at Taylor Swift concerts.

Chris Williams: No I am not.

Joe Patrice: Nope and we’re done.

Kathryn Rubino: People are curious now. I’ve piqued their interest. I’m going to explain what my tree is.

Chris Williams: There is a line between curiosity and appalled that I think we should interrogate here.

Kathryn Rubino: The tree is amazing.

Chris Williams: What’s your fourth one? How was that one decorated?

Kathryn Rubino: The fourth one I think it’s my Disney tree.

Chris Williams: Oh my God. You have a Disney tree?

Kathryn Rubino: Yes. I have a Turquoise tree. I have a Disney tree. I have a traditional tree. I have a white tree. I have a blue and teal that’s like my main like kind of glitzy tree. And now I have a pink three.

Chris Williams: You have a problem Kathryn. You have a problem.

Kathryn Rubino: Maybe, I mean I didn’t say I didn’t.

Joe Patrice: Wait blue and teal is not the same as the turquoise one.

Kathryn Rubino: Correct.

Chris Williams: And just to be clear, the turquoise one is just turquoise like that’s the theme that it’s –

Kathryn Rubino: Yes.

Chris Williams: On my God.

Kathryn Rubino: The treats of is sparkles and it’s glittery and it’s turquoise actual like leaves on it and it’s decorated with silver décor. The teal and red wine is like in my main living room. It’s like a nine foot tree and all and it’s a green tree but all of the decorations are teal and red and like it goes like next to like where my stockings are which are also teal and red.

Joe Patrice: Then what’s the traditional tree?

Kathryn Rubino: The traditional tree is like my kind of country not, it’s basically all my childhood ornaments that don’t actually match the themes of any of my other trees.

Joe Patrice: I see.

Chris Williams: So when did you realize that you were supposed to be an extra on the movie Elf? You have enough Christmas cheer for eight people off the trees alone.

Joe Patrice: Or at least six.

Kathryn Rubino: I will also say that does not count I purchased for my daughter, it’s her first Christmas this year obviously, I purchased my first Christmas tree from Step 2, which went viral last year. It was very difficult to procure, but I was able to get it when they restocked it this year. So I don’t even count that because that’s technically a toy, not really like a tree. It’s not like just décor.

Chris Williams: You’re a Christmas tree heist beast. I didn’t even know they made those, I don’t know there was like a snooker thing.

Kathryn Rubino: They absolutely do. They absolutely do. There were certain like ornaments like one of the ornaments that I got for this year for my Disney tree, it’s the Disney electrical light parade and that ornament sold out so quickly. I actually had to procure it on the secondary market.

Chris Williams: So do you have like a little appy going at 1Joe Patrice:59 p.m. to make sure that you’re the first one there when it releases?

(00:05:00)

Kathryn Rubino: No otherwise, I wouldn’t have had to go to the secondary market.

Joe Patrice: Oh God.

Kathryn Rubino: But it is super cute and it plays like the electrical light parade song and it like has different LED lights, it is very, very cute.

Chris Williams: You know what I did why you were in the Christmas spirit pre-Thanksgiving because you need to have weeks in advance to hang all these things.

Kathryn Rubino: Correct, 1000% accurate.

Chris Williams: Oh my Lord.

Kathryn Rubino: It is really, really nice. My Christmas trees situation is what I will say.

Chris Williams: There is an S after that tree.

Joe Patrice: And yes that’s it for small talk.

Kathryn Rubino: And look we didn’t even have to deal with the Joe versus Chris is turkey a good meat situation.

Joe Patrice: I mean we’ve already resolved that.

Chris Williams: There were higher priorities.

Joe Patrice: Yeah. All right, let’s somehow transition from that to sound like we are experts in anything. Let’s talk about this week or last week.

Kathryn Rubino: I am expert in Christmas trees. I think we’ve established that.

Joe Patrice: Anything useful, sorry good point.

Chris Williams: I got you Joe that amount of trees under one household should not be legal.

Joe Patrice: All right and yeah, that’s how we make this legal. All right so let’s –

Kathryn Rubino: It’s small talk, it doesn’t have to be legal.

Joe Patrice: Okay. All right. So one of the biggest things of last week was Elon Musk decided to go thermonuclear as he put it. What he meant by that was that Media Matters had issued a report that had pointed out that there were various Nazi white supremacist ads showing up with, not ads, white supremacist timelines and ads for big-box corporations were showing up right next to them. Elon said that that was true, but not true and decided to threaten a lawsuit.

Kathryn Rubino: Well, it’s a problem because he had previously told advertisers that that their ads would not appear near white supremacist content.

Joe Patrice: Well, right so now we’re getting into the –

Chris Williams: Just to clarify.

Joe Patrice: Yeah.

Chris Williams: If you run a forum and you have to give that caveat to your advertisers, something is wrong.

Joe Patrice: You’re already in trouble.

Kathryn Rubino: Yes, yes, yes.

Chris Williams: Yeah, just wanted that to be clear.

Joe Patrice: There’s so much going on here. So he threatens his lawsuit that lawsuit does not materialize immediately leading. So most of us do assume that someone has informed him of the vagaries of Rule 11. But no, he did eventually come out and he’s alleging various defamation claims saying that Media Matters had tortious interference with business with existing contracts with prospective businesses and has denigrated their exes business. All of these are –

Kathryn Rubino: But it’s true.

Joe Patrice: Well, this becomes a bit of the problem. Yeah so of note Quinn Emanuel, who is the usual attorney on all of this is not on the paperwork nor are Morgan Lewis attorneys who Elon also often uses, none of those folks seem interested in touching this at all.

Kathryn Rubino: With a 10 ft. pull you might even.

Joe Patrice: One might say and that makes some sense because the biggest problem with this is that the alleged action at the base of it is true, which is obviously a problem for the defamation based claims but is also a problem with the tortious interference claim because the tortious interference actually requires you to have the wrongdoer to have done something tortious that leads to that and at least with the under Texas Law with the prospective one with prospective relationships and if the underlying statement is true that still means it wasn’t wrongful tort.

So basically what he said was that yes everything in this Media Matters report is true. These ads did show up in this timeline, but he says yeah, but no one would ever have a time line exactly like that. So they really put together a timeline that brought out the worst because they put together a timeline specifically with a bunch of Nazi accounts and then like waited for it to show these ads and then it did and so this is unfair.

The problem with that of course is that that means that it is still true and it means that the statement and Kathryn already alluded to this that it wasn’t really Elon but Yaccarino the CEO male of X had assured IBM and Amazon and all these other folks who advertise there that there were safeguards to prevent their ads from ever showing up in the situation. So once you have told your advertisers this can never happen.

Kathryn Rubino: And then it happens –

Joe Patrice: And then it happens –

Kathryn Rubino: Doesn’t matter how tortured the timeline is, it still happens.

(00:10:00)

Joe Patrice: Right.

Kathryn Rubino: One of the point I would think if there were safeguards somehow creating this perfect storm of a timeline where there’s only these kinds of content in it would mean it’d be easier to block it as opposed to someone who only follows the occasional white supremacist in getting those that content in there.

Joe Patrice: That’s an excellent point.

Kathryn Rubino: It should be easier for them to stop it in this situation not more difficult.

Chris Williams: I mean who doesn’t follow Elon Musk.

Kathryn Rubino: Well you are forced to.

Chris Williams: The occasional loss of premises, tell me.

Joe Patrice: Yeah. Oh, I see. Yeah. No. Yeah at this point we are forced to it’s kind of like we’re back to having to have Tom as a friend on MySpace or what other.

Kathryn Rubino: Gosh remember MySpace.

Chris Williams: Shout out to Tom.

Joe Patrice: Wasn’t it Tom?

Kathryn Rubino: It was definitely Tom. It was Tom. Gosh, it was so much simpler than, I mean you had regular friends, which was its own form of drama.

Joe Patrice: No I mean it was just like speed dial which was effective.

Kathryn Rubino: Except it was public, everybody knew who your top eight was, right like your personal speed dial like didn’t really necessarily share with the world.

Chris Williams: You’ll know MySpace is a music site now.

Joe Patrice: Yeah Timberlake bought it, right.

Kathryn Rubino: Justin, yeah.

Joe Patrice: Yeah as opposed to some — as opposed to William Timberlake. Yeah. No, I meant him. I didn’t know as though I needed to clarify that Timberlake involved.

Kathryn Rubino: Sure.

Joe Patrice: Okay of the East Shire Timberlakes, I don’t know like see that was I deserve better than that like a Thai roll.

Kathryn Rubino: You got what you deserved, don’t worry.

Joe Patrice: The point is yeah, so, all right, let’s get back to the legal of this. So this case is filed in Texas, Texas Federal Court. They found a court that has a bunch of Trump judges and Reed O’Connor, which is somehow worse. And so they gain — it seems as though this is forum shopping to the nth degree. It also seems a little weird as the terms of service which are implicated in this conversation that Twitter makes everybody sign mandates that this be in San Francisco. So one would assume that this gets moved.

Kathryn Rubino: That seems like an easy contract kind of question like this was on a law school exam. It would only be worth one point right it’ll be like, yes, you’ve spotted the obvious next what are the more interesting aspects of this.

Joe Patrice: This also amounts to an — this amounts to a SLAPP suit which you would assume an anti SLAPP law would take out. This is actually one of the more interesting legal things and I shout out to all the tipsters who helped walk me through this because this was more convoluted. This is actually a real law school exam. I made the claim in my original writing that maybe one of the reasons they chose this unorthodox forum was to avoid California’s rather powerful anti-SLAPP law.

Someone pointed out actually Texas has its own anti-SLAPP law, which I made an update. Then somebody else pointed out that the Fifth Circuit has already ruled that Texas’ anti-SLAPP law can’t apply in federal courts in Texas because according to the Fifth Circuit, it’s a conflict with the Federal Rules of Civil Procedure. That is gibberish. However, is it a pair of words –

Kathryn Rubino: Those are words that are strung together.

Joe Patrice: It is apparently how the Fifth Circuit operates. So even though Texas has an anti-SLAPP law yet again that might be a reason that they are trying to be in Texas because they can avoid it by being in Texas Federal Court for some reason. Yeah, this is –

Chris Williams: Wait, wait, wait so as it turns out you were right with the reason we’re white was wrong.

Joe Patrice: Right was wrong. Yes.

Chris Williams: That is law school’s question.

Joe Patrice: Yeah, yeah, yeah, so true.

Chris Williams: You’re correct. I’m sorry.

Kathryn Rubino: We are probably too far, too close to the end of the year at this point, but some law professor has to use a variation on this as a great little fact pattern.

Joe Patrice: Well, I think Chris you had a story about this, right. There’s some law professor who’s doing an Elon class right, one of that your story.

Chris Williams: Yeah. There’s — Elon Musk has been in so many legal snafus. So there’s an entire class dedicated to his legal machinations.

Joe Patrice: Yeah.

Kathryn Rubino: There’s also a class at South Dakota Law about Taylor Swift’s legal machinations.

Chris Williams: Okay.

Joe Patrice: You are fired.

Chris Williams: I for some reason like Elon less so let’s focus on him right now, please and thanks. Well that tie turns, I will be dumping on Taylor, let that be known.

Joe Patrice: But yeah no so that’s the setup now. This is an ongoing issue. Obviously if this were a situation where we could trust judges to be real law people.

Kathryn Rubino: To do their job, to do the job that they are sworn to do.

Joe Patrice: This would either quickly be sent back to California or would fall under the Texas anti-SLAPP but however, who knows given the people who are involved here.

(00:15:02)

So ongoing issue it’s also a little — it’s also got some serious old caused issues because the damages that they’re after that they’re seeking is that this Media Matters report resulted in a bunch of advertisers leaving the site which I mean maybe but also Elon Musk posted about the great replacement theory the day before and maybe.

Kathryn Rubino: That might have something to do with it.

Joe Patrice: And maybe it might have skeeved out a few advertisers to have that.

Kathryn Rubino: I would love to see the third-party discovery if this case gets any further.

Joe Patrice: Good Lord. All right yeah.

Kathryn Rubino: You just be like IMB being like no, no, it’s the replacement theory for us actually.

Joe Patrice: I mean I assume they wouldn’t even bother to reply to third-party discovery the usual but who knows if they could ever get.

Kathryn Rubino: It would be hilarious.

Chris Williams: I’m just waiting to see how Judge Ho sneaks Jesus into this case.

Joe Patrice: I mean. God willing this doesn’t get to the point where it gets on an appeal and somehow this gets resolved quickly but.

Kathryn Rubino: I mean it seems inevitable. But you know, we can all hope springs to turn out.

Joe Patrice: I don’t see a scenario where this gets very far at all. I don’t know.

Kathryn Rubino: I mean it shouldn’t, you’re correct,

Chris Williams: Well, you’re assuming like normative law and how things used to work you have to factor it alternative facts, this is an alternative facts case.

Joe Patrice: Yeah, and it is not a district known for doing the law.

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Joe Patrice: Okay back. What do we want to talk about? Donald Trump is in the news again.

Kathryn Rubino: Sure. I mean for so many reasons. You have to be a little bit more specific.

Joe Patrice: I guess you can’t really say in the news again when they never left, right.

Kathryn Rubino: He never stopped, never stopped, can’t stop, won’t stop.

Joe Patrice: The latest story that was the biggest story on our website last week comes from Liz dies coverage various Trump things. This one is about the E. Jean Carroll case, which you may recall is the case where author E. Jean Carroll pointed out that Trump had raped her in the 80s. He said he didn’t. That case has ended at this — well, he did a bunch of things. He tried to remove it to the — well, so she said that at which point the statute of limitations had closed, so she just said that he said that she was lying. She sued for defamation. That case then involved the justice department trying to intervene and claim that as president, he has — it’s part of the duties of his office to call people too ugly to rape which is what he did that carried on troubling way too long.

But ultimately this case ends with the Adult Survivors Act coming out and now she can file the claim for the actual assault and in the end, he’s liable under that. So fast forward he’s peeling all of this as one might imagine and his folks put in a brief. The brief is creative.

Kathryn Rubino: That’s a word, that’s definitely a word.

Joe Patrice: It involves all sorts of I mean Chris just made the mention of alternative facts. It is an alternative fact based brief but it also and we’ve also been talking about law school exams. It actually reads like a struggling law student who’s just throwing different things.

Kathryn Rubino: Just spaghetti at the wall constantly.

Joe Patrice: There is the well — there was no DNA test and it’s like yeah well that’s cause you refused to do it.

Kathryn Rubino: Because you refused it.

(00:20:03)

Chris Williams: But there was none.

Joe Patrice: Yeah, there was well this evidence, there wasn’t a 415 instruction on it and it’s like well that is true given that it came in under 404B, right there was a talk about doing it under 415 and then they didn’t and there’s a whole like long, the court has written the explaining this thought process. Although I think the most impressive one was that there was some testimony that was being brought in about something about an assault that had happened or harassment assault depending I like I guess we can’t say because these things aren’t necessarily proven but allegations.

Assault allegations will say that took place on a plane that was brought in under the Rules of Evidence. The Rules of Evidence though say that you can only bring in evidence of these acts that took place within the United States for obvious reasons and the Trump lawyers argue well, there’s no way of knowing that this was the United States it was a plane right, which you know, is unargument.

Chris Williams: It’s not a good one.

Joe Patrice: It’s also not one that makes you look particularly good. Yeah.

Kathryn Rubino: The only think I can say is creative is the kind way to say where is the Rule 11 response?

Joe Patrice: It’s fun though like it is actually kind of fun to read it. Like it’s just –

Kathryn Rubino: Like I was entertained personally. I know Justice put to one side.

Joe Patrice: It makes me wonder like thinking back to like handling clients and stuff like you have to think some of this is him demanding they make an argument to things that don’t.

Kathryn Rubino: But professional ethics.

Joe Patrice: Right, yeah, like you –

Chris Williams: But money.

Joe Patrice: But some of these, some of these arguments you can’t possibly put on paper unless somebody’s ordering you to do it and you are viewed as part of your zealous advocacy or something. I don’t know like it’s bad.

Kathryn Rubino: It’s not a great look for anyone involved.

Chris Williams: And they won’t be paying for it.

Kathryn Rubino: That’s the kicker.

Joe Patrice: Who knows.

Chris Williams: Like they are just doing this for the love of the game.

Joe Patrice: I mean, you know, forget pro bono lawyers the real hero is here.

Kathryn Rubino: Wow. Wow. Wow.

Joe Patrice: Okay. Well anybody else have anything to say about what was the biggest story that we –

Kathryn Rubino: We said a lot.

Joe Patrice: We didn’t really. We said very little.

Chris Williams: Much to do about nothing.

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[Music]

Joe Patrice: Okay, it was Thanksgiving last week. Yeah, we already kind of discussed that. On that note Stephen Miller as who is not in fact a lawyer by any stretch of any imagination however runs a –

Chris Williams: Thank God.

Joe Patrice: I mean, yeah fair, but however runs a legal group because reasons.

Kathryn Rubino: Why not? Why not?

Joe Patrice: Where he goes around suing people. He has famously sued Pop-Tarts for making kids gay.

Chris Williams: Is it the sprinkles?

Joe Patrice: I meet I don’t think it’s the sprinkle. Well, it might be, it might be because they are rainbow. I’m not positive.

Chris Williams: Look man, the less attention you pay the more sense it makes.

Joe Patrice: He has gone after M&Ms because Sexy Green M&Ms or something, I don’t know.

Chris Williams: But that I agree we need to bring her back. She was bad.

Kathryn Rubino: I didn’t think we get to you the I agree with Stephen Miller portion of the podcast but here we are.

Chris Williams: Neither did I. Listen greater M&M will make me do things, I will not since he is coming.

Joe Patrice: Okay so with all of that said, he is also suing – oh no, oh yeah he is suing NYU Law Review on behalf of a 1L, who is remaining anonymous to date and I think that’s a smart move and because if I were the name behind a lawsuit that said I think I am too stupid to get on law review, I don’t know if I want my name out there.

Kathryn Rubino: Googleable.

(00:25:00)

Chris Williams: We just talked on those whitemen’s burden cases.

Joe Patrice: Yeah about being fair. Well so he is anonymous for now that won’t last.

Chris Williams: His name is Steve, it’s Steve or Josh, something is in there.

Kathryn Rubino: Chad.

Joe Patrice: Okay we will revisit this when the day comes. I mean I don’t think the day will come. I think when that order comes that he asked to name himself, I think this case dies but we will see. Anyway, that’s neither here nor there. Steve Miller got in the headlines last week because he sued Macy’s saying that the company –

Kathryn Rubino: You know what’s really funny and interesting about that.

Joe Patrice: What is it?

Kathryn Rubino: Macy’s is the one who does the Thanksgiving Day Parade.

Joe Patrice: It is.

Kathryn Rubino: Yeah so a lot of people are interested in.

Joe Patrice: It’s almost like the SEO for the word Macy’s shoots up a ton during the week of their parade.

Kathryn Rubino: They’re very famous parade.

Joe Patrice: Yeah.

Chris Williams: Now that is a coincidence.

Kathryn Rubino: Coinkidink.

Joe Patrice: It’s a coinkidink so just now the week before their parade he made the decision that it was time to sue Macy’s for having – well not sue, file a complaint with the EEOC I should say. He files a complaint with the EEOC over Macy’s discriminatory policies and by discriminatory policies, he means that they have a training course for worker, women and workers of color who they identify as potentially promotable. They have training courses to help them burnish their resumes and get more qualifications such that they might be able to get that promotion.

Chris Williams: You can’t do that.

Joe Patrice: Yeah well that’s his argument. He says that is discrimination. I got to be honest. So my takeaway when I read it was like it’s always been kind of a big leaf argument but there used to be the argument that the problem with these policies that promoted diversity is that it would mean that an unqualified person would get the job instead of a qualified white person.

But now with this training course being objected to, it’s a complaint that qualified majority candidates might get the job instead of white people which is — I mean, I’m glad that’s taken off.

Chris Williams: A quick literary point and it might be nerdy of me. But I really do wish people took to heart the meaning of that what I think it was Orwell shooting an elephant right. It’s that so many of the people regardless of race are not qualified for the positions they’re in, they’re pushed there out of shame and guilt and resentment.

Joe Patrice: Right. Well, I mean in fairness, the Peter Principle remains true. Everyone is holding a job one level ahead of their actual own competence, right, that’s how that works. All right well anyway, so on the one hand litigation for the purpose of fundraising is not necessarily awful, right. Like if you do have a case doing things in a way to increase the profile of a nonprofit organization for the sake of raising money that’s not necessarily a bad thing.

That said, you do kind of have to own that that’s what you’re doing. I feel like some of these organizations in particular religious organizations file things around the holidays and stuff like they they’re kind of — they’re willing to admit that they’re doing this because of the greater visibility of the issue right now. This was just such calculated nonsense and in a pattern of nonsense suit, it’s like the M&M suit which was time to during Green M&M Mania. The Pop-Tarts stuff that they did when it became kind of a viral issue among right-wing people.

Like it’s just slapdash jumping at the next thing that they could potentially grip somebody watching Fox News out of some money.

Chris Williams: What do you think the next one will be?

Joe Patrice: I mean I don’t know but I will say whatever the next everyone gets up and arms over something is, it’s going to be that like the next time.

Chris Williams: My money is on Mall Santa and immigrants.

Joe Patrice: Oh, yeah, yes no that’s actually — that I will go ahead and say that you’re right about that. I am fully prepared to give you the win on it’s got to be a Mall Santa case. He’s going to find a black Santa somewhere and make a huge deal out of it.

Chris Williams: Yeah.

Kathryn Rubino: But until then we have this one to ridicule.

Joe Patrice: Yeah. So Macy’s went off without a hitch probably due to the expert planning of all the actually qualified people who work there. Alright with that said we are done I think so thanks everybody for listening. You should listen to show, subscribe, get, leave reviews all of those are great things to do.

You should listen to The Jabot. I’m also a guest on the Legaltech Weak Journalists Roundtable. You should also listen to other shows in the Legal Talk Network’s stable of programming.

(00:30:00)

You should read Above the Law every week so you read these and more stories before we chat about them. You should follow on social media. It’s @atlblog on the website that has advertisers that appear next to Nazis.

Kathryn Rubino: Social media.

Joe Patrice: Yeah I’m @JosephPatrice, she’s @Kathryn1, Chris is @WritesForRent there. On Bluesky, everything is the same except I’m @JoePatrice, and I think with all of that we are done.

Kathryn Rubino: Peace.

Chris Williams: Also throughout to Thanksgiving food, you have had turkey almonds for the last two days.

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