Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 377! I’m Thomas Smith, that’s Andrew Torrez. How’re you doing, Andrew?
Andrew: I am fantastic, Thomas, and I sincerely mean that! Comnin’ off of a great interview with Andrew Seidel last week, we’ve got AG from Mueller She Wrote this week, I couldn’t be happier!
Thomas: Not only that, we’ve got a rare two-guest show because Andrew, of course, is going to be back with us for the thrilling conclusion of T3BE, but also as you mentioned, AG from Mueller She Wrote is on for the main segment, so wow, how fun! You know, we’re trying to keep our – we’re all quarantined but we’re keeping our interactions up!
Andrew: [Laughs] There is social distancing but not internet distancing.
Thomas: I tell ya, I really am seeing friends more than ever, because we’re doing all these calls. Zoom and Skype, we should’ve been that the whole time.
Andrew: I agree!
Thomas: Trying to find some positivity, you know. You and I have gotten to play a few games, stuff like that.
Andrew: Ah, except for the Codenames you scheduled and sent a, like, midnight my time and I was like eh…
Thomas: That was all impromptu and I gave you a chance. It was like eleven and I thought maybe Andrew will play but you decided to get your beauty sleep to be ready for this show.
Andrew: I have not – I have gotta tell you, yeah, I have not slept for anything this past week, it’s been rough man. But other than that I’m doing fantastic!
Thomas: Here I was trying to keep it all positive and pshh! Come on man! You Negatron!
Thomas: No, I’m just kidding. Let’s get to our show. Of course, as we mention we’ve got AG, we’ve got – and also you teased it last week, we’ve got the omnibus Andrew Was Wrong and Right so it’s a little catch up.
Thomas: So we’ll see how that is and I think we’re going to be going to that right now!
Andrew Was Wrong/Right on the Omnibus Bill
Thomas: Okay, what were you wrong/right about?
Andrew: [Laughs] A lot of stuff! Alright, so first I was wrong in episode 372 when I was listing states with Republican governors.
Andrew: And a fortiori not issuing shelter in place orders. I said North Carolina, I meant South Carolina. Lots of residents of both states wrote in [Laughs] to tell me. I have no defense for this.
Andrew: [Laughs] I really – we have, it’s now way in the future if we ever do live shows again. We will do live shows again. But we have a contingent routing for a research triangle area live show, which is Raleigh, Durham, and I forget what the third city is.
Thomas: Oh yeah!
Andrew: Durham is a super – I love, I used to take my son to Durham every summer for the Durham Bowls baseball camp.
Andrew: I love the city of Durham, there’s good food, there’s fantastic – the Durham Bowls are the – Bowl Durham, it’s a classic Triple A baseball team. I will go back to Durham, we will definitely be there at some point.
Thomas: I don’t blame you at all for this one, I don’t really know the difference between the Carolinas. I’ve been to one of them, can’t tell you which one!
Thomas: I think North Carolina, probably?
Thomas: I dunno.
Andrew: North Carolina has the cities, so, that’s –
Thomas: Yeah. Didn’t we do a thing? Wasn’t there a thing that we were all at there? A conference? No. There was something? Maybe I’ve been to neither of them.
Andrew: Oh! Yeah.
Andrew: We did a ReasonCon but I forget which Carolina that was in!
Thomas: [Laughs] So it’s not just me!
Andrew: [Laughs] There you go.
Thomas: Okay, so we’re all guilty here.
Andrew: Yeah, so we’re all guilty. I’m sorry, my bad.
Thomas: Carolina. Can we just call it Carolina?
Andrew: Carolina, East Carolina.
Thomas: Merge them.
Andrew: Yup. No … well yes.
Thomas: No we need to merge the Dakota’s first. Okay, what were you also wrong/right/wrong about?
Andrew: Oh, I was 100% right, there are certain listeners from the great State of Illinois that write in every time I say the State of Illinois and say “it’s Illinois,”
Thomas: Yeah, Illinois.
Andrew: License to Ill, yeah-
Thomas: It’s not Ell-enois.
Andrew: Yup. So Peter – and I said-
Thomas: Is this really the topic? Hold on. Pronunciation? [Laughs]
Andrew: This is sincerely, yes, the pronunciation of Ellenois.
Thomas: Well then you’re flat out wrong.
Andrew: I’m 100% right.
Thomas: See it’s the letter “I” which … you know, I’m not an expert on much in this show but I am familiar with the letter “I.”
Andrew: Yeah, look, [Laughs] if we can have whist-e-shear sauce I can have Ellenois, okay?
Thomas: No, that’s fair.
Andrew: I expressed that my parents were from Springfield, from downstate, and that that is a downstate pronunciation, and Patreon Peter Curowhack writes in to say “so, as a worker for the Illinois Department of Revenue here in Springfield, I can confirm that many folks here do indeed pronounce the state as ‘Ellenois’ instead of ‘Illinois.’
Having been born in Urbana myself,” ooh, nice! “I used to say it that way too, but being a linguistics nerd, I like to announce myself as working for the” and he wrote all of this in the Schwa language of how to actually linguistically pronounce things, but you can’t see that so I just have to read it out. “For the Illinois Department of Revenue.” I was right. Springfield pronunciation, Ellenois.
Thomas: I like how he’s like “oh, and then I became a linguistics nerd and became familiar with the letter ‘I’!” [Laughs]
Thomas: I saw a Sesame Street and they said “I” and I knew that it was Illinois, not Ellenois, but that’s fine. That’s alright, I get it.
Andrew: Someday on one of the Q&As somebody can ask me my all time favorite Sesame Street clip, because there’s a great one.
Thomas: Oh sorry. You know, as the poster said when we were all in 3rd grade or something, and this is not another “Letter I” joke. As the poster said, sometimes being right is not popular, and being popular is not always right. I’m not telling you I have the popular opinion correct on every single pronunciation, but I am pronouncing everything correctly according to me which is all that matters.
Thomas: It’s Worcestershire and it’s Illinois, and that’s all there is to it.
Andrew: And Theh-sur-us. [Laughs]
Thomas: No, that one – okay, I’m a human, I make mistakes that’s fine. Thesaurus, I get it, that’s cool, that one I’ll take. … It’s Illinois though. 100% Illinois. [Laughing] Alright, hopefully there’s slightly more meaningful things you were right or wrong about but that’s okay.
Andrew: Yeah! But I gotta get that. Okay, next thing that I was definitely right about and we were ahead of the curve on, in episode 372 we explained the way your $1200 check is going to work-
Andrew: Is that it is being processed as an advanced refund on your 2021 taxes. There are a whole bunch of stupid reasons to do it that way. The biggest is it’s the easiest way to exclude immigrants in this country who are out of documented status.
Thomas: I think you mean emigrants, but that’s fine.
Andrew: Immigrants in this country, not emigrants out-
Thomas: No, it’s an “I” though, so emigrants, right?
Thomas: Or is it the case that you actually need to pronounce letters the way they’re pronounced because it could be confusing? Like emigrant versus immi- sorry, I’m still on the last one! Okay, immigrants, yup.
Andrew: [Clears throat] So! [Laughs] I was very proud of the fact that we worked through the entire 880 page CARES act, we’re gonna have a follow-up on some of the provisions because we hit the highlights and lowlights, we’re gonna have a follow-up on some of the application with respect to that.
But we were really the first source out there saying this is not written as a stimulus check will be just cashed to you as an American and we’ll figure it out, but the way that it is processed is via as an advanced refund on your 2021 taxes. As other news outlets started to figure that out people started writing in with questions saying “so, does that mean that it’s gonna get deducted on my 2021 refund will be reduced by the $1200?”
Thomas: Which is like a totally reasonable question.
Thomas: Because this is a weird freaking thing that they did.
Andrew: Yeah. It is a weird thing and it is a totally sensible question, but as we said on the show and worth reiterating here, the final version of the law will be codified, it is not yet codified in the U.S. Code but will be codified at 26 U.S.C. § 6428(d). It’s page 154 of the bill that’s linked in the show notes, that specifies exception from reduction or offset.
“Any credit or refund allowed or made to any individual by reason of this section shall not be subject to reduction or offset or reduced or offset by other assessed federal taxes that would otherwise be subject to levy or collection.” There’s nothing to stop the next Congress from changing the tax code, but in order to do so prospectively they would have to do so either this year or for 2021 which will show up on your 2022 returns.
It’s not to say that at some point the bill for all of this spending isn’t going to come due. At some point it will, but there is no provision in the bill that says you have to pay it back out of next year’s taxes, and in fact the bill explicitly operates the opposite, which is it cannot be offset by any tax liability or anything that you owe, or any future refunds or any anything.
Let us know when you get your $1200 checks, but they are not gonna be credited or offset against next year’s taxes even though that’s how they’re being processed.
Thomas: Ah, I still don’t get it but okay, we’ll take your word for it I guess.
Andrew: [Sighs] Thanks? [Laughs]
Thomas: What a confusing bell they passed.
Thomas: Anyway [Laughs] Let’s go on to the next etum on our lest. The etum on our lest, that’s gonna be hard to do all of this. It’s almost like we should just pronounce the letters how they – never mind, it’s fine. Okay, final one, you were right about Justin Walker being a no-talent assclown?
Thomas: My words, not yours.
Andrew: Yeah, no. I definitely was right about that and if you have missed the news because it’s kind of flown beneath the radar, you should not –
Justin Walker, age 37, credentials being a law professor, and really – again, I have zero published law review articles as a practitioner, so when I say he’s had a handful it’s more than I have, which is a fair retort, but it’s fewer than you would expect from somebody who is ostensibly making their career as an intellectual and academic – very quickly joined a law firm, took no depositions, obviously conducted no trials, has never cross examined a witness. Has no judicial experience and then was appointed to the U.S. District Court for the Eastern District of Kentucky for life anyway despite our efforts to draw attention to, not only his lack of experience, his unanimous not qualified ranking from the American Bar Association, which is not some crazy liberal interest group. It is a nonpartisan group that has rated lawyers since time immemorial, but now conservatives don’t like it.
Well, he’s been on the federal bench for a week and a half, so now it is time for Donald Trump to announce that he intends to elevate Justin Walker to fill a vacant seat-
Thomas: Supreme Chancellor of Earth.
Andrew: Close. On the U.S. Court of Appeals for the D.C. Circuit. That is the court of which Merrick Garland is the chief judge. It has long been the- it was the court from which Brett Kavanaugh came. It’s the training grounds for the Supreme Court, and there are lots of reasons for that but the primary one is that you get all of the cases against the government. So you tackle, particularly, all of these administrative cases that The Federalist Society is so keen to bring to a crashing halt.
Look, we have the hashtag #opposejustinwalker, he is just as unqualified to sit on the D.C. Circuit as he was to sit on the Eastern District of Kentucky. It’s not gonna matter. Mitch McConnell is gonna ram through this nomination at some point in the next six months and there is not a damn thing we can do about it.
I do want to draw your attention to episode 289, which is when Justin Walker announced that he was gonna be appointed to the federal bench, lifetime appointment, in the first place, and we pointed out not only all of the things that I’ve just said but that of his published law review articles, they really boil down to two of note. One argues that transparency in government is a bad and possibly unconstitutional thing.
Andrew: And the other arguing that the FBI director has a moral obligation to be the President’s lackey.
Andrew: To exercise no independence but to serve at the pleasure and absolute discretion of the President. So it is not an exaggeration to say that this is somebody who believes in the consolidation of power in the executive branch in service of an executive branch run wild with power that views itself as accountable to nothing. It is the worst kind – in addition to your doctrinaire right wing nonsense beliefs from the Federalist Society, he’s uniquely dangerous among Federal Society hacks.
Andrew: And it’s really bad. I’m also gonna link 224 which is my debate with Justin Walker in which you can hear him lie at the end of the debate – you can hear him lie throughout about his accidentally candid evaluation of Brett Kavanaugh when speaking to Fox News. I gave him the benefit of the doubt in the debate and I feel bad about that.
Thomas: Yeah, never do that again.
Andrew: Believe me, I will not. And then you can hear him at the end in front of a nonlawyer audience try and end with a rhetorical appeal about not having a religious test for office and about that somehow invalidating the questioning of religious zealot Amy Coney Barrett at her judicial hearing on her extreme religious beliefs. I do call him out at that debate for that.
So we’ll link both out in the show notes, try and draw attention to it, but no, we’re stuck and if you have people in your life who say “well it doesn’t matter,” this is a crucial example of what matters. I’ve said this before, I will say it again, Donald Trump has now made more judicial appointments in three and a half years than Barrack Obama did in eight at every level. If Donald Trump is reelected the judiciary will be unrecognizable. It will be 2/3 to 3/4 howler monkeys. It will be 6, at minimum, conservative votes on the Supreme Court.
Look, the rest of the liberal wing, Ruth Bader Ginsburg is Ruth Bader Ginsburg, but the rest of the liberal wing of the Supreme Court is, um, uhh… they’re not particularly young either. This is a slowly unfolding disaster that you can either help try and stop or you can make worse. That’s all I’ll say about that.
Thomas: Whelp, I would say you were right about that and there’s nothing we can do unless anyone has access to a time machine, can go back to 2016 and realize that there was a lot at stake in that election and that two sides are not the same no matter how much you might personally dislike a candidate. That just voting based on that is really stupid, it’s not gonna turn out well. That’d be the only thing. Or if there’s some other chance to do that again 4 years later. That’s weird, I dunno why I mention that.
Andrew: [Sighs] Yeah, that would be odd.
Thomas: That’d be probably the only other thing we could do about it.
Andrew: Yeah, let’s hope that happens.
Thomas: Yeah, maybe! Alright, well it’s time to be joined by AG for hopefully a slightly cheerier subject?
Thomas: Sort of?
Andrew: Stickin’ it to Donald Trump! How can you not enjoy that?
Interview with AG
AG: So I’m lucky enough today to be joining the Opening Arguments podcast, and we’re gonna record this for our Daily Beans podcast, because I wanted to speak with a real life lawyer about an Adam Klasfeld tweet that went out, Courthouse News guy, about Trump and his family and his company no longer being able to force people, accusing them of promoting pyramid schemes, into arbitration. Which is obviously a largely opaque private system and this is from a federal judge ruling that happened last night.
So hey, how are you? How is the Opening Arguments scene these days?
Andrew: Well AG, thanks for doing this collaboration here, you’ve got me, you’ve got my cohost Thomas Smith-
Thomas: Oh yeah, I’m here! Hi! [Laughs]
AG: Tom Smith. I’m writing it down, writin’ it down. T-ooo-m Smiiiith.
Andrew: Not an alias-
Thomas: Yeah. My name is less identifiable-
AG: Hey, don’t make fun of people with aliases!
Thomas: -than just your initials! [Laughs] If I say I’m Thomas Smith and you say you’re AG, they know more about you than me, that’s how generic my name is.
AG: I know. I almost picked “Tom Smith” as a pseudonym, but…
AG: I wonder when you check into hotels if people are like [Sarcastically] “uh-huh. Hmm, yeah. Tom Smith.”
Thomas: I get that a lot!
Thomas: I know there’s real stuff to talk about, but when I traveled to Europe I was frantically running through the airport in – I forget where. Oh, it was the Paris Airport, Charles De Gaulle or whatever, and I was late for a connection because the flight was delayed. I’m running, I’m running, I’m running, I’m trying to find somebody who’ll help me and I just find some people that look like they’re employees of something, I hand my boarding pass like “can you help me?” and they look at my name and literally burst out laughing! They’re like [Sarcastically] “Oooh!” and they did an impression of it? These two French girls were like “Oh, Thomas Smith!” My name’s a laughing stock! I understand.
Thomas: I couldn’t be more American to them. They’re like “Charles Pizza” or something, like that’s my name. “Hot Dog Freedom Eagle” is my name to them.
AG: [Laughing] Hot Dog Freedom Eagle, you know you’re supposed to put a Canadian patch on your backpack when you travel to Europe, Tom!
Thomas: True, yeah.
AG: Everybody knows that!
Thomas: So we’re good. We’re doin’ well.
AG: Good, good. So what Tom, Tom and Andrew, what do you think of this ruling? That he can’t force people into arbitration, I think that’s pretty great.
Andrew: So… [Sighs] Look, I think it would be pretty great if there were not left open the possibility that Trump can move to compel arbitration on the remaining claims. Now usually you do that in a slightly different order. Here, for example, I don’t underst- there is an argument that you’ve waived your right to arbitrate by moving to dismiss certain claims that are in a particular lawsuit.
Why don’t we break it down this way? You talk about the facts of the underlying lawsuit and then I can talk about how they’ve been pled in the context of this complaint.
AG: You want me to talk about the facts of this specific underlying lawsuit?
Andrew: Yeah, what these people – look, thousands of people sue Trump all the time for generally being a scumbag in terms of how he conducts his business operations, so I’m curious your take on specifically what Donald J. Trump, the Trump Corporation, Donald Trump Jr., Eric Trump, and Ivanka Trump have been alleged to have done here.
AG: Well, from the ruling here, the summary of the complaint is a nonparty, ACN Opportunity LLC-
Andrew: That sounds totally legitimate. [Laughs]
AG: Right. It’s right up there with Fraud Guarantee. It’s a multilevel marketing, it’s a pyramid scheme, and it offers services through independent salespeople known as IBO’s, or Independent Business Owners, and in order to sell ACN products, these business, these IBO’s must pay an initial signup fee and an annual renewal fee, [Laughing] right? And they also have to sign an “agreement” that contains an arbitration provision. So if you wanna talk about the specifics of this pyramid scheme, does it matter what they were selling? [Laughs]
Thomas: [Laughs] Yeah.
AG: Because obviously the whole point is you have to pay a fee upfront, and then you have to pay an annual dues, and of course Trump group here, the Trump associated business in this case, wanted to – they filed a motion to go into arbitration. Basically the judge denied it. If I’m looking here at the specific, they go through the procedural history but that’s the general background.
AG: But then they talk about the standards, which is what you wanna talk about, in deciding motions to compel arbitration, right? Because it’s a standard similar to that applicable for a Motion for Summary Judgment.
Thomas: By the way, this is how Andrew got me into Opening Arguments? I had to pay a lot upfront to be a cohost, but then if I sign up enough other cohosts, it’s gonna pay off for me eventually. So I’m very familiar with this business practice.
AG: Well I get $5 every time Andrew appears on my podcast, but I made him sign a couple NDAs and a non-arbitration agreement, so…
Andrew: [Laughs] They were routed through my attorneys, LLC, Essential Consultants.
Andrew: So, yeah. Let’s take a step back. Number one, I think it’s really, really important to point out that – and again, all of our audience, respective audiences, know this already, but it is important to illustrate that so much of what Donald Trump has done in his capacity as supposed successful businessman has just been pyramid scheme nonsense garbage, right? All of the complaints against Trump University fall into that same category.
AG: Yeah, I was gonna say it sounded a lot to me, when I was reading the specifics of the case and the ruling it sounded so much like Trump University. I mean so much of it is just like that, and of course we know what happened there with Pam Bondi, the Florida – was she the DA or the U.S. Attorney? Not prosecuting, being given a $25,000 donation to her campaign-
AG: And then all of a sudden she shows up on the impeachment team. Come on!
Andrew: That … god, I could go down that rabbit trail for days in terms of the level of corruption. It’s just … it’s just terrible. But okay, so let’s talk about this. The most important thing, I think, to know from people who are particularly reading the document that is attached to the Courthouse News Service document that Klasfeld tweeted to, that there were in fact multiple rulings that were issued yesterday. We’re doing this for the Tuesday show, so we’re gonna shoot on Wednesday, April the 8th.
The one that’s linked is an order on a motion to dismiss that has to do with certain RICO claims that were alleged by the anonymous plaintiffs against the Trump organization’s crazy-ass pyramid schemes that, you know, again it’s never RICO. It’s not surprising to see a substantive motion to dismiss. What is not linked is the order on the motion to compel arbitration. So I can – I’m gonna link it in our show notes, I’ll give you a copy for yours as well, AG, I had to pull this off of PACER. I don’t know that it is otherwise publicly available to nonlawyers, but I got a copy because that’s what I do!
I wanna explain the underlying background on what it means to compel arbitration and the fact that more and more of our commercial cases are being pushed into an arbitration scheme. This directly be – So the way to think about it is if you are at all concerned about overcrowding and plea bargaining in the criminal justice system, that same level of tax on judicial resources is there in civil practice. So 95-99% of criminal cases (quote) “settle” through plea bargaining and 95-99% of civil cases settle, and that’s because we don’t have enough federal judges, we have too many cases, we have overworked judges, we have over worked dockets.
Everything that is designed to alleviate pressure on a court’s docket comes in with sort of a heavy presumption in favor. That is, you can disagree with it, but until you elect somebody who says “I’m going to double or quadruple the federal judiciary,” you’re just wringing your hands about it because there are not enough resources to adjudicate the cases that we have pending in federal district court.
AG: Well, yeah, ever since Trump became an adult the courts are jammed with civil lawsuits, criminal lawsuits, the Supreme Court house oversight lawsuits. I honestly blame Trump for jamming up at least 20% of our court system.
Andrew: [Laughs] We laugh, but you know, one of the things [Teeth clenched] we’ve said on our show dating back to August of 2016, the most effective Hillary Clinton ads were the ones that ran sparingly in 2016, that pointed out that Trump’s typical business practice is agree to $100,000 contract with a small contractor and then just be like “yeah, but I’m not gonna pay you,” and then force them to bring a lawsuit. You send out your team of lawyers and you’re like “alright, will you take 30 cents on the dollar? Will you take 50 cents on the dollar or are we gonna chew you up in court?”
That is, if you are evil and you want to maximize your profit in our system, that’s the logical consequence of having litigants pay civil justice system. And that’s what Trump does. I wouldn’t do any work for Trump, you know don’t take legal advice from a podcast, but if you do any work for Trump make sure you get paid 100 cents on the dollar up front, because otherwise you will not get paid. It’s just clear, that’s how he does it.
AG: So he’s sort of taking advantage of that? Of the fact that these things settle out most of the time because our courts are just jammed?
Andrew: Yeah, and except in extreme cases each party has to bear their own costs in litigation.
Thomas: Yeah, and his contractors that he’s working with don’t have the resources to muster a fight or it’s not worth it to them so they just take the pay cut.
Andrew: Yup, that’s exactly right. You look at it and you say [Sighs] alright, do I wanna pay a lawyer tens of thousands of dollars to pay against the lawyers that Trump is gonna hire to maybe get my $100,000 back at the end of the day? Or do I just wanna take his $30,000 check and go home?
Andrew: Over and over, I mean there are thousands of these cases in which people just, you know, take the $30,000 check and go home. There are plenty more – if you don’t sue at all, in which he just walks away and says “yeah, I don’t do it.”
So now, [Laughing] with that in mind, it should not surprise you that in your contractual dealings with Donald Trump that he would take other steps to prevent you from recovering in any way against the Trump Corporation. These IBOs, Independent Business Owners, pay an initial signup fee, and an annual renewal fee, and they sign an agreement.
The agreement contains two paragraphs which say “I agree to indemnify and hold ACN, the other ACN companies, the ACN providers and their respective shareholders, directors, officers and employees harmless from any and all claims, damages, and expenses, including any attorney’s fees arising out of my actions or omissions in this agreement.” That is a standard indemnification clause which basically when you indemnify somebody you agree to take responsibility for third party liabilities against that person.
The idea that you’re taking a Harry Homemaker here who signs up as the bottom rung on a pyramid scheme to [Clenched teeth] indemnify the Trump corporation kind of puts that on its head, but-
Thomas: And I think the next thing it says that you do is message all of your old high school friends on Facebook and say “I have a tremendous business opportunity for you.”
Andrew: Yeah! [Laughs]
Thomas: That’s the next clause.
Andrew: [Laughs] That is, that’s the “B” provision. But then the arbitration clause says “in the event of a dispute between ACN and me as to our respective rights, duties, and obligations arising out of or relating to this agreement, it is mutually agreed that such disputes shall be resolved exclusively through binding arbitration before the American Arbitration Association pursuant to the Commercial Rules of Arbitration.”
I will tell you, I have conducted binding arbitration before the American Arbitration Association pursuant to the rules of the Commercial – of it’s Commercial Arbitration Rules on multiple occasions. Essentially what this is, the best way to think about it is it is outsourcing a trial to a retired judge. Mm-kay? The Triple A is the gold standard of high end commercial arbitration, and the Triple A arbitrations that I have done … [Sighs] almost entirely have been on behalf of Lloyd’s of London, you may have heard of them in billion dollar insurance coverage cases.
What you do is the arbitrator is typically a retired judge who both parties have to pay the arbitrator for their time. Now, again, when this is a multinational, multibillion dollar corporation, suing 50 different insurance companies over a billion dollars worth of coverage related to, you know, $10 billion of asbestos lawsuits, yeah. Paying some dude in San Francisco $500 bucks an hour to read your pleadings is no big deal.
But that’s the primary disincentive here that I think a lot of the news articles are sort of missing in terms of talking about this as being a nontransparent practice. I mean, that’s true. You don’t have, the arbitrations are conducted – well now they’re being conducted over Zoom, but they’re conducted in conference rooms rather than courtrooms, there’s no presumptive right of access to the arbitration materials. So there is some of that, but the biggest thing is you have a retired judge who is being paid by the hour to read the parties pleadings as opposed to in the court system, you have a judge who’s paid by tax dollars to read your pleadings.
And by the way, if you think that that means judges, that Triple A arbitrators read very, very slowly?
Andrew: You would probably be correct on that. And again, I’ve had great experience with this, but there is no way on earth that somebody who would be taken in by the, you know, pyramid scheme sell seven bars of soap and bring in – right? They’re already attracted by the idea of making a five figure salary from home, it’s going to cost you six figures to arbitrate this case at minimum. So yeah.
AG: Okay. Question, though, doesn’t that keep it out of the public eye? An arbitration?
Andrew: So yes and no. Because at the end of the day-
AG: Andrew, you seem biased to me.
AG: You seem real biased right now.
Andrew: Well.. [Sighs]
Andrew: So here’s the thing-
AG: I mean, isn’t there a public discovery process when you take it to court? Is there a discovery process with arbitration where all that shit becomes public?
Andrew: Let me answer that and then go back to the answer you didn’t let me give. [Laughs] It’s fine.
AG: Oh, oh.
Andrew: Arbitration – this will actually merge those answers together. An arbitration award can be – and in order to enforce it you have to go to a court to approve of the arbitration decision and enforce it. So we arbitrate privately, we go to the court and we say in the court “hey, the arbitrator reached X result and now I want the court to approve of that result.” The court will rubberstamp, by and large, that award. This is 9 U.S.C. § 201-
AG: But I think I know what you’re gonna say, because on the flipside things that go to public court are often settled in private. You don’t get to see – like we don’t know what the settlement was for a lot of the Trump stuff that we’ve been covering because even though it was adjudicated in a public court, paid for by taxpayer dollars, it was adjudicated under seal.
Andrew: Yup, yup!
AG: The settlement.
Andrew: And what I was gonna add to amplify that is one of the only reasons that a court will overturn an arbitration award – so a court will not overturn an arbitration award if the arbitrator makes [Laughing] (quote) “a mistake of fact or law” (end of quote). That’s true! I had an arbitration that the arbitrator very clearly misapplied a particular legal standard and said as true a thing that both parties agreed was not true. So he made a plain mistake of law and a plain mistake of fact and that’s not grounds to overturn an arbitration award.
Andrew: One of the only things that will, however, is if the arbitrator refuses to hear certain evidence. So as practice what that means is – and you couple that with the fact that the arbitrator is paid, remember that whole “the arbitrator gets paid for everything they read?” The discovery process in arbitration is as extensive – in Triple A arbitration, in particular, is generally as extensive, sometimes even more so, as in litigation in court.
Andrew: I think there’s the same ability to get out that information, and it’s subject to the same standards, which is to say the other side can designate it confidential, you can challenge that designation. If you were a litigant and they move to enforce the arbitration award you could in your opposition attach all of the nonconfidential documents as exhibits to that opposition and thereby get them into the public record. So there are lots of ways that you can get stuff into the public record, and there are lots of ways that stuff at trial does not enter the public record.
Andrew: So that’s why – look, it isn’t that the point is wrong, it’s that in my view far more important is the onerous financial burden here as opposed to the procedural burden.
AG: Alright, so six and one half dozen or the other, unless you don’t have a lot of money and then it’s better to arbitrate.
Andrew: Correct. Yup!
AG: I gotcha. Well I appreciate you clearing that up because I was wondering, you know, the impact and the importance of that order.
Andrew: Yeah, so we were talking about sort of the differences and similarities in arbitration. What is really interesting about this is courts have, because of the underlying dynamic of reducing the dockets, courts typically take a very broad view of applying arbitration clauses. You heard that, that clause seemed pretty broad, right? [Laughs] So what I think is really, really interesting here and applies elsewhere are the court’s reasons for holding that the arbitration clause didn’t apply in this particular case.
Let’s work backwards because there are two of them. The first is a principle called equitable estoppel. The idea is if you have an arbitration clause you can waive that arbitration clause by acting in a way that is inconsistent with it. But again, pretty high showing. The standard is the waiver of the right to arbitrate is not to be lightly inferred, but here the court says – and I have to think Trump probably litigates all of these cases the same way – “defendants” that is the Trump-
AG: Well he’s got a lot of practice, right?
Andrew: [Laughs] Right.
AG: He’s become very good.
Andrew: Yeah, no and I’m being sincere. You get the same lawyers and they rubberstamp, they develop a (quote) “best practice” of how they handle these cases, and here’s what the court said.
They said, “Defendants aggressively litigated in this judicial forum for eight months before informing plaintiffs of their intent to arbitrate the surviving claims. Defendants obtained the benefits of litigating in federal court: dismissal of the RICO claims, stay of discovery while the motion was pending and the issuance of numerous nonparty subpoenas that would not have been available in arbitration.
The wins and benefits on the defense side represent defeats and prejudice on the plaintiff’s side. Now that the defendant’s have extracted what they can from the judicial proceedings, they seek to move to a different forum. This conduct is substantively prejudicial towards the plaintiffs and seeks to use the arbitration act as a vehicle to manipulate the rules of procedure to defendant’s benefit and plaintiff’s harm. Such tactics undermine a fundamental purpose of the arbitration act to support the economical resolution of claims.
Defendants over many months of litigation never suggested they might seek to arbitrate this dispute. If defendants had revealed such an inclination, the court, in the interests of fairness and efficiency, would have directed defendants to file the motion to compel arbitration first and decide the appropriate forum before making any decision on the merits.”
I will say, I just won a motion to compel arbitration in the U.S. District Court for the District of Columbia. That is the best practice. When someone files a complaint against you and you think the complaint is covered by an arbitration clause, as a lawyer its your obligation to go to the court and go “no. This is an arbitratable case and we’re not gonna get the goodies and then try and arbitrate, we’re gonna arbitrate this whole thing.” Trump didn’t do that here, and I suspect he probably hasn’t done that in other cases.
So that’s sort of the first benefit. The second is these cases, and I suspect other cases-
Andrew: Involve ACN, the Trump Corporation, etcetera etcetera, but also involve independent endorsements by Donald Trump when he was hosting The Apprentice. So in bringing – I do not know the relationship of Don Trump Jr. and Eric Trump and it’s just not clear to me why they’re joined as parties, other than-
Thomas: They were on the show too.
Andrew: Yeah, no you’re absolutely right. Ivanka Trump and Donald Trump Jr. were both on Celebrity Apprentice. So the ruling that I think is portable here that doesn’t have to do with the conduct of this specific case is the inability of the other Trump defendants to take advantage of the ACN arbitration clause.
AG: Oh, mm-hmm.
Andrew: Because the arbitration – in order to benefit a non-signatory you have to show as a matter of law that the non-signatory (quote) “would predictably become with, with the plaintiff’s knowledge and consent, affiliated or associated in such a manner as to make it unfair to allow plaintiff’s to avoid their commitment to arbitrate.”
Let’s unpack that a little bit. This whole idea is kind of premised on the fiction, [Laughs] and it is a fiction in cases like signing a form contract with a Trump ward, that you freely chose the terms that are in that agreement. You didn’t, they handed you this 16-page contract written by a lawyer that is half in Latin that nobody understands and you know, you just kind of take it or leave it.
But okay, let’s assume that that’s voluntary consent. This doctrine says you’ve expressed your agreement to arbitrate your claims against ACN. Does that extend to other people that didn’t sign the agreement? Here, Southern District of New York, federal district court judge, this is Judge Lorna Schofield, said no. It’s not fair to extend that out to Donald Trump individually, to Don Trump Jr., to Ivanka, to Eric, to the Trump organization, to anybody that you didn’t sign this contract with. That, I think, is really, really significant.
Those are sort of the two results on the arbitrating, taking this case and taking it out of arbitration and having it be resolved in the courts. I’m gonna anticipate the question that Thomas is about to ask me, which is there’s no chance that the Supreme Court’s gonna take this up.
AG: Well wait, can we have Thomas ask that real quick?
Thomas: Oh, I was gonna ask what does anything you just said mean? But no, I like your question better.
Thomas: You know what? I’ll take your question – Andrew, is the Supreme Court gonna take this up, though?
AG: [Laughing] There we go!
Andrew: No! No, however much you believe, and I certainly believe and I believe a lot more now than I did three years ago or three months ago, that the Supreme Court has an activist unchecked right-wing agenda, they do. That they want to benefit Trump personally, I think that’s also clear. They’re not gonna take this case! [Laughs]
There is no chance. I mean, you’d have to get through the 2nd Circuit first, but this is – the 2nd Circuit is almost certainly going to affirm and the Supreme Court will have no interest because this is not a novel proposition of unsettled law or an issue where there is a dispute between the circuits. This is a fact intensive application of the principles of waiver and estoppel to a very specific kind of arbitration agreement, and yeah. Trump’s gonna have to suck it up now with these plaintiffs in federal court and not send each of them a six figure bill to keep going, so it’s a good thing!
AG: Interesting. I dunno, I’ve been disillusioned with SCOTUS lately anyway, Thomas, to your question. [Laughs]
Thomas: [Laughs] To my brilliantly stated question, yes, I remember. That question, yeah.
AG: Yes, yes, yes. This whole Wisconsin thing, that decision – I know this is a different subject but that has me worried about what’s gonna happen in November with our November elections and the possible vote by mail.
Thomas: Why, we were just yelling about all that minutes ago on our Friday show! So anyone wants to hear more about that, check that out.
AG: Yeah, we yelled about it too.
Thomas: Good. Everyone should be yelling about it.
Andrew: They should be. I mean it is indefensible and as, you know, we pointed out on our show, this is – you can go through. [Laughs] This is a three and a half page, per curium, unsigned opinion. That means it’s supposed to be anonymous, except that, you know, the dissent names who’s in the dissent so it’s not hard to figure out who’s not in the dissent and it’s the five jokers that you would expect.
In the three and a half pages of this opinion, there is one statement that is supported with a citation to cases and that statement is an own-goal. It is the opposite of what this holding is. It says “this court has repeatedly emphasized that federal courts should ordinarily not alter the election rules on the eve of an election” and then a cite to three cases. Other than those three cases, that’s the only citation, those are the only citations contained in the Wisconsin opinion.
Andrew: It is hard for me to overstate-
AG: They only cited one case?
Andrew: They cited three cases as part of a string-cite for a proposition that is contradictory to their outcome. So all of the stuff about why they need to allow Wisconsin to go forward is literally just made up. It’s just opinion, it is unsupported by any case whatsoever. The dissent is written like a normal opinion. It’s got like 50 or 60 case citations in it.
AG: Yeah, I read the dissent because, you know, I read the good-
Andrew: Yeah, ‘cuz that’s what a lawyer wrote.
Andrew: I realize that, and now we’re re-treading some ground here.
Thomas: We’re still mad, though, that’s the thing. We’re all still mad.
Andrew: Yeah, you should be!
Thomas: How ‘bout that swing Justice Roberts, huh?
Andrew: [Deep Sigh]
Thomas: He swings one way, I think is what that… is…
Andrew: [Laughs] I had a friend like that! Oh, ugh, those pieces will not age well. I continue to sort of want it to be out there that I am more concerned than ever about the first – and there are a couple cases that are working their way up that involve disparate tax treatment for same sex marriage and folks don’t realize that John Roberts wrote a scathing dissent in Obergefell. I honestly believe, you know, particularly-
Thomas: He wrote a dissent that Ben Shapiro might not right now.
Thomas: Ben Shapiro would be like “that’s a little … too far. That’s a little too far for me.”
Andrew: Yeah! So particularly, if Trump is reelected and gets another chance to appoint another Supreme Court Justice, a lot has been focused on women’s reproductive health, which it should be, but a lot of people have sort of blown off the idea that like, oh well, you know, Obergefell is gonna be fine. Obergefell’s a 2014 decision. The ink is not yet dry in constitutional terms, and we have a Supreme Court that has, you know, torn up precedent that is 40 and 50 years old. I’m terrified.
Thomas: I don’t understand, AG, you don’t wanna use this for the happy segment on your show? Okay, fine. Do your own good news segment I guess, don’t use ours. I get it.
Thomas: Is this not happy enough for you?
Thomas: Alright, well, AG thanks so much for coming on, we love having you on this show even though we tend to talk about stuff that’s like not super happy, but it’s nice to be in good company during the end of the world. [Laughs]
AG: Yeah, it might not be happy but it’s absolutely necessary. I appreciate what you guys do, so thank you so much for having me on. Tom, Andrew, I appreciate it.
Thomas: Right back at ya!
Andrew: Yeah, we love having you on. Everybody should check out – all our listeners I think are already tuning into Mueller She Wrote, the Daily Beans Pod. Anything else you wanna plug that we should know about? I guess … ooh!
AG: I – go ahead.
Andrew: Yeah, no you go.
AG: No, I like when you ask questions and keep talking!
AG: [Laughs] Sorry!
Andrew: Send your hate mail to firstname.lastname@example.org
Thomas: The thing is I’m pretty sure all three of us are guilty of that!
AG: [Laughs] Yes! We all are!
Andrew: If you like me, are disgusted and appalled at this treatment!
Andrew: Send your hate mail via Twitter to @muellershewrote. No, so please!
AG: Well actually – no, I forget the question.
Thomas: Other stuff your gonna plug!
Andrew: Other stuff to plug, yeah I’m tryin’ to do you a favor, here! [Laughs]
AG: Yeah. In my free time I’ve been doing a podcast called “Awful Neutral.”
AG: It’s a Dungeons & Dragons podcast and we play Call of Cthulu, D&D, and a new game called Kids on Bikes which is based on Stranger Things and it’s super fun, so if you’re, you know, bored and into Dungeons & Dragons, roleplaying games, RPGs if you will, check out Awful Neutral.
Andrew: Okay, we need to talk offline because I’ve gotta hook you up with the Puzzle folks who are doing D&D Minus which is similar kinda bent.
Thomas: Thanks again!
AG: Yeah, have a good one! Stay safe.
AG: Stay home and stay safe.
Andrew: You too.
Thomas: And now it’s time to thank our top patrons, our hall of famers, our all-time greats here on Top Patron Tuesday. I’ll start us off!
[Patron Shout Outs]
T3BE – Answer
Thomas: Alright and now it’s time for T3BE, answer time! Of course we are once again joined by Andrew Seidel, how’re you doing, Andrew?
Andrew S.: I’m still doing pretty well, I’m a little less angry right now but not much, to be honest. [Laughs]
Thomas: Slightly less? You know what, you should keep dwelling on it, though. Don’t let the anger die!
Andrew S.: Yeah, I hear that’s healthy!
Thomas: Yeah exactly! [Laughs]
Thomas: Especially when you’re just cooped up with your family, that’s a good time to be angry all the time!
Andrew: Hey, you’ve got some walls you can punch through, or you know [Laughs]
Thomas: Let’s find out how we did on this very difficult question, here we go!
Andrew: Yeah, so this was a federal civil procedure diversity jurisdiction question involving a person who lives in State A visiting State B and was just crossin’ the street. He was hit by a car driven by what Thomas characterized as a dirty foreigner, it was a really weird episode of the show!
Thomas: What, that’s not, no I didn’t. I meant is a … he is a foreign citizen there for diplomatic reasons, that’s what I mean.
Andrew: Because you know, there are more diplomats than there are people who visit the United States. Although, you know, to be honest, that’s probably true right now!
Thomas: That’s probably true now, yeah! [Laughs]
Andrew: But I don’t think this was a COVID-inspired question from 1997 or whenever this was written.
Andrew S.: [Laughs]
Andrew: So pedestrian gets hit by the non-U.S. driver in State B, and then the pedestrian files the negligence action against the driver in federal district court in State B seeking $100,000 in damages. The driver of the car thinks it was all the pedestrian’s fault, that the pedestrian was crossing the street illegally. Assume for the state of the question that State B is a contributory negligence state.
I think both of you understood the implications of that. I’m not surprised that Andrew did, but contributory negligence is the older more archaic form that when you sued somebody for negligence – or when somebody sued you for negligence if you could prove that the plaintiff contributed to the negligence then that acts as an affirmative defense to the action. You say look, this is really your fault, you’re the one who screwed up.
Thomas: Yeah, I really hurt my shoulder running over your corpse!
Andrew: [Laughs] Yeah, exactly!
Andrew S.: [Laughs]
Thomas: You owe me money!
Andrew: And in 13th Century Saxony that was a complete bar to the plaintiff’s complaint.
Thomas: [Laughs] Well, yeah. Back then when your carriage hit a person it probably did damage the carriage.
Andrew: Well your horse, right? In the 20th Century virtually every State has gone to a comparative negligence doctrine, which is of course the right way to handle it, which is to say well if the plaintiff’s negligence caused 25% of the accident then you reduce the damages by 25%. Now is there a certain amount of – or an entirety of arbitrary – of course there is some arbitrariness to picking out-
Thomas: I think what always screws me up on this is that sounds like contributory negligence!
Andrew S.: [Laughs]
Thomas: The phrase “contributory negligence” sounds like the thing that apparently it’s not! You kinda helped me ‘cuz you said “well only 6 states have this,” that actually told me oh, this is the other one. But still, hold on what are the two names? So contributory negligence which, again, sounds like you contributed X%, I contributed X%, but it’s not that, right?
Andrew: Yeah, contributory negligence is a complete defense, affirmative defense raised by the defendant.
Thomas: So it’s if you contributed a little bit, then 100%.
Andrew: Yeah, right.
Thomas: So what’s the other one?
Andrew: Comparative negligence.
Andrew S.: Yeah.
Thomas: Comparative. Well that also sounds- so those sound like the exact same thing and I cannot keep them in my mind.
Andrew S.: And you know what that means, too, Thomas. Oh okay. Should’ve asked for judgment on the pleadings. [Laughs]
Thomas: [Laughs] We’re both very competent, practicing lawyers is what it means.
Andrew: So lawyers Thomas and Andrew are asked how they would advise the driver to respond to this particular fact patter.
Thomas: Oh that means it’s B, doesn’t it? [Sighs]
Andrew: You guys instantly ruled out C, move to dismiss for lack of personal jurisdiction because the driver is not a citizen of State B. Yeah, that’s a nonsense answer. You both figured that out.
Thomas: Yeah, we all knew that!
Andrew: The state longarm statute – or the federal longarm statute is going to bring in a non-citizen of State B for acts committed while in the jurisdiction in State B. You come over to the United States, you rent a car in State B, you’re driving it around, you agree to abide by State B’s laws and you’re responsible for violating State B’s laws even if you don’t live in State B.
Andrew S.: It’s international shoe, not national shoe.
Andrew: [Laughs] There you go!
Andrew S.: Isn’t that the nerdiest joke ever?
Andrew: That was great!
Andrew S.: [Laughs]
Andrew: You and I instantly loved that joke and like 8% of our audience is giggling, and Thomas was just like yeah, I’ve got other stuff queued up-
Thomas: I treat it – I thought it was just static on the line, I didn’t hear a joke.
Andrew S.: [Laughs]
Thomas: Couldn’t even parse that a joke happened. Lawyer humor, folks! No, I’m sure it was a very good joke.
Andrew S.: No it was terrible.
Thomas: But hold on – just for fun, if this had just been state court would there have been a different – because I totally lucked into the fact that I missed that it was federal court. Would that have changed the jurisdiction-ey stuff there? Those answers?
Andrew: It would not have initially changed, you can sue – and then it will depend on the state longarm statute whether that will extend to non-U.S. citizens. The general rule is plaintiff is master of her complaint, you can file the complaint wherever you want, but what would happen in that situation, that would wind up testing, as a bar question, would be a test of the diversity statutes. The non-U.S. citizen would be able to remove to federal court on the basis of the fact that they’re not a citizen of either State A or State B. Makes sense?
Andrew: And in fact I think that’s a nice transition to, you ultimately considered but rejected D, move to dismiss for lack of subject matter jurisdiction because the driver is not a U.S. citizen. The court gains subject matter jurisdiction when you have a citizen of one state suing a citizen of a foreign country, that’s a subset of diversity and the amount in controversy exceeds $75,000, that’s why it’s important that they’re seeking $100,000 in damages. So court gets subject matter jurisdiction over the state law claims because the citizens are diverse and the amount in controversy exceeds $100,000.
So then the only question is, as between A and B, should you raise contributory negligence as an affirmative defense and then assert a counterclaim for negligence? Or should you raise contributory negligence as an affirmative defense and move for judgment on the pleadings? You both picked A and despite Andrew’s second guessing himself, I am pleased to tell you you are both correct!
Thomas: Ah thank you! Yes!
Andrew: Exhale, there!
Thomas: Andrew, we’re both geniuses and knew exactly what we were doing!
Andrew S.: [Laughs]
Thomas: Good job putting on a show like we did, pretending we didn’t know-
Andrew S.: Listen, we need to build the tension.
Thomas: Yeah! The show doesn’t work if we just-
Andrew S.: Nobody wants to see a fait accompli.
Thomas: -nail these every time! Yeah.
Andrew: No, Andrew correctly explained what judgment on the pleadings is, which is to say there are no material facts in dispute so you can just rule right now.
Andrew: Go ahead.
Thomas: So I wanna make clear, I actually – I knew what that meant. What I meant was I don’t know how the question is thinking like what’s the best way? If both of those ways of responding work how is the question deciding, you know, the attorney is going to advise. Because maybe B is easier but you also want damages from A? So that was my confusion, I didn’t know which one the question would think was a good thing.
Andrew S.: Well I can do you even better, Thomas. I mean, I forgot that there was comparative and contributory negligence! So! [Laughs]
Thomas: Even I knew that! Come on!
Andrew S.: So there you go! I mean, I studied for the bar 11 years ago, I don’t need that information anymore and it’s been replaced. [Laughs]
Thomas: Sure. Well, so like Andrew Torrez was saying there’s only a few states that still have this BS version of negligence.
Andrew S.: There’s that too, yeah. That too. And also right now on – we’re recording this on Thursday, are we allowed to say that?
Thomas: You just blew the whole show!
Thomas: No I’m just kidding.
Andrew S.: On Thursday, April 9th, it’s actually snowing out my window right now.
Andrew S.: That’s totally normal.
Andrew: There is a snow contingency in the negligence laws. No, I think the reason for inserting the move for judgment n the pleadings is to test that you know that contributory negligence as an affirmative defense, that the driver will bear the burden of proof on that.
Thomas: Oh! You probably – you need to prove it. Yeah, I see! That does make sense.
Andrew S.: There’s an issue factually.
Andrew S.: So the foreign citizen, the one that Thomas slandered so awfully in the initial segment, that’s just an attractive distractor?
Andrew: Yeah well I guess you need to know that, what is it, 1132(a)?
Andrew S.: Diversity, but it doesn’t, the foreign nature of it, it could’ve been from a different state. That would’ve made Thomas happier, but.
Andrew: Yeah, that diversity applies both to citizens of other states and also to citizens of other countries. So, that’s … yeah.
Andrew S.: Yeah.
Thomas: Ah. Alright well I think all I’m getting from this is that we nailed it and we’re the best, Andrew.
Andrew S.: Agreed!
Thomas: So good on us! Let’s find out if any listeners did as well as we did. Andrew, hop in your time machine, tell us who this week’s big winner is!
Andrew: Well, Thomas, this week’s winner is Emmett Witkovsky-Eldred on Twitter, who gave I think the densest, best law geekery answer that we have ever had on T3BE, and yes, that is a contest going forward.
Emmett writes “A. The federal court has personal jurisdiction because the events occurred in State B and subject matter jurisdiction because this is an alienage case (not as cool as it sounds). No judgment on the pleadings because whether the pedestrian contributed to the accident is a material question of fact, not law.”
Well that is 100% correct in every respect and, like I said, incredibly dense, incredibly geeky, love this answer. Everyone give Emmett Eldrid a follow on Twitter, that is @emmetteldred, and congratulations on being this week’s winner!
Thomas: Alright, thanks again for playin’, Andrew, and you know, stay mad.
Andrew S.: My pleasure guys, I will!
Thomas: Alright, what an action packed show. Andrew, two in a row action packed! Lots of good stuff, thanks so much for your good work, keeping us all a little more sane in these troubled times, and thanks to our fine guest, AG and as always Andrew Seidel, probably the Steve Martin of this show, right?
Andrew: Definitely, definitely the Steve Martin of the show, yeah.
Thomas: So thank you all and please stay safe out there and we will see you for Rapid Response Friday and also Law’d Awful Movies coming at you very soon, FYI patrons! So check that out too. Alright, see you next time!