Friday, December 17, 2021

Stormy Daniels – the Importance of Four Days

It has been a while since Stephanie Clifford, aka Stormy Daniels, has been in the news. You will recall that she was paid $130,000 to keep quiet about her dalliance with Donald Trump. After this liaison became known, two lawsuits were filed. 

In the first, Daniels claimed that the non-disclosure agreement she signed was fatally defective and that she was entitled to tell her story. She won this case.

In the second suit, Daniels filed a defamation lawsuit against Trump for his disparaging remarks about their presumed relationship. That case was dismissed by the court because the statements made by Trump did not meet the legal standards for defamation. 

In both cases, the winning side was entitled to attorneys’ fees. Daniels was awarded $44,100 in the nondisclosure case. In the defamation case, Trump was awarded $292,062.33. Much of the disparity in attorneys’ fees was due to the relative complexity and time involved in the cases. 

From the outside, one would think that the two cases could be brought together financially, with Daniels paying Trump the difference between $292k that he won and the $44k she did. That apparent solution is not that simple legally. 

On the Trump-winning side, we have the issue of her liquidity. She simply does not have it. The reason is that her former attorney and short-term media darling, Michael Avenatti, absconded with funds belonging to her as the result of a book deal. It has since been revealed that the now disbarred Avenatti made a practice of spending his clients’ money and attempting to extort others. It is also apparent that the defamation case he filed on her behalf was not done for her benefit but to keep him in the public eye. 

Arguably, then, the reason Daniels owes Trump any money at all is because of Avenatti’s avarice. Daniels could, of course, attempt to get that money back from Avenatti, but she is near the back of a long line of creditors. 

The bottom line for attorneys’ fees payment from Daniels is that she is simply “not collectable.” 

The “four days” referenced in the title to this article concerns the $44k owed by Trump to Daniels. Trump’s then attorneys attempted to appeal the attorneys’ fee award. That is where the legal stuff comes in. 

There is a legal adage that lawsuits are nothing more than a series of hurry up and wait. The “hurry up” is caused by specific, strictly enforced timelines that lawyers are required to follow. 

In the present case, Trump’s lawyers had 60 days from the court clerk’s certification of the lower court attorney’s fee order to file their appeal. This time limit is called “jurisdictional,” meaning that if you miss the deadline by even a day, your case is finished. No exceptions. This strict rule probably causes lawyers more panic than anything else. Miscount the days? You lose. 

Trump’s attorneys’ fees appeal missed the deadline by four days. They attempted to argue that the clerk’s certification really had not occurred until days later than appeared on the certification form. This time difference would have given them additional time to file the appeal. The appellate court panel said the evidence simply was not there to prove that. Therefore, since the appeal was not timely made, the case is finished.

It is highly unlikely that money will ever change hands between Trump and Daniels. So financially, there is no winner. The true losers are Trump's former lawyers who will now need to explain to their forgiving and longsuffering boss why they lost. I hope their malpractice insurance premiums are up to date. 


Tuesday, December 14, 2021

When Your January 6th Defense Is Essentially “I Got Nuthin’, Your Honor.”

Some days as a defense lawyer are tougher than others. You try to make the best case possible, but sometimes the facts make your arguments seem a bit tenuous. 

Capitol riot defendant, Nathanial Degrave, wearing protective gear and carrying knives, entered the Capitol and, among other things, shouted at the rioters to “take laptops, paperwork, take everything.” He faces numerous charges, including the felony of “obstructing an official proceeding.” 

From the context of the January 6 events, it is clear that those who planned and stormed the Capitol had one immediate goal—to prevent the certification of the election. One would presume that this certification would occur during an “official proceeding.” 

Not so fast, says the defense. Their argument is that when Congress gathered to certify the election, it was not an official proceeding because it was “purely ministerial and ceremonial.” Therefore, the proceeding did not meet the technical statutory requirements for an official proceeding. 

So which is it? Either certification was a proceeding that could have been thwarted, which at least some of the invaders believed, or it was ceremonial, which would make their entire day’s work useless. 

U.S. District Judge Dabney Friedrich of the District of Columbia is the first judge to rule on this defense theory and she denied the motion to dismiss the charge. She noted that defendants were trying to find ambiguity in the statute where none exists. (Ambiguity is central to defendant’s argument because this gives rise to something called “the rule of lenity”—ambiguities in a statute are to be resolved in favor of the defendant.) 

If you are thinking that the defendant will immediately appeal this decision, delaying the criminal proceedings, they cannot. The denial of a motion to dismiss is not a “final appealable order.” The case will now proceed to trial (or a plea agreement). 

While writing this, I could not help but think of an example where a ceremonial event could be disrupted. “If anyone knows why these two should not be wed, let him speak now or forever hold his peace.” My guess is that if someone shows up at a wedding in riot gear, things will not go well.

Monday, December 13, 2021

The Entrapment by Estoppel Defense – Why Blaming Trump Will Not Work

Defendants in the January 6 storming of the Capitol have relied on a variety of defenses, some serious, others outright silly. A common thread has been the implication that Donald Trump encouraged them to act.

We now have a case where a Trump-specific defense is being offered – entrapment by estoppel.

What is that defense and why are prosecutors are saying it should not be allowed?

First, an analogy: a bank robber claims he should not be found guilty because the Chief of Police told him it was okay. In other words, the prosecutor is precluded (estopped) from charging him because he himself was being victimized (entrapped). In order to win, our pantyhose-masked perpetrator must show five things:

1.    The police chief had the authority to give him that advice.

2.    The police chief was aware of existing law and facts before giving the advice.

3.    The police chief affirmatively told the defendant to go ahead and rob the bank.

4.    The defendant relied on the advice.

5.    It was reasonable to rely on the advice.

Yes, this is a ludicrous case, but it shows how high the standard can be if you expect to win.

The problems for this January 6 defendant are myriad.

First, did Trump have the authority to advise him to create mayhem inside the Capitol, especially considering rules for conduct at that institution? Well, we have already lost here, but we may as well continue.

Second, did Trump affirmatively tell the defendant to commit those acts? There is a fact question here about what Trump really said. However,

Third, defendant claims that he relied on that advice.

So, fourth, was it reasonable to rely on this advice?

Reasonableness is always the key in these cases. Think about when your mother asks: “if everyone else jumped off the bridge, would you too?”

As a defense lawyer, my best witness would be Trump himself. I would have him state under oath that as Commander in Chief, he had the authority to abrogate rules of conduct at the Capitol. Further, that he told people to storm the capital. And finally, that people had every reason to believe him when he said the conduct was permitted.

We all know that this testimony will never happen. The defense cannot win without it. This is why the prosecutor is arguing that the defense argument should not be considered.

Then why is the defense using this argument at all? It is really all they have. If, as so many have claimed, they only acted upon the encouragement from Trump, there was an expectation that he would have their backs. Perhaps that would mean the grant of some sort of amnesty or pardon after the fact. At the very least, it might mean that Trump would cover some of their legal expenses.

Obviously, none of that occurred. As noted above, “reasonableness is always the key in these cases.” These defendants may now be asking themselves whether it was reasonable to believe Trump would have their backs. Then again, maybe not. There’s always the Miracle on 34th Street.


Thursday, December 2, 2021

Trump’s Sanctioned Lawyers Learn the Meaning of “Lodestar”

Among the “vexatious and meritless lawsuits” challenging the results of the 2020 presidential election, one case filed in the State of Michigan was especially noteworthy. Judge Linda Parker found that the plaintiffs’ claims in that case were so excruciatingly bad that they rose to the level of being an abuse of the legal system. So, after dismissing the lawsuit, Judge Parker required ALL of the plaintiffs’ lawyers to appear for a hearing to explain why they should not be sanctioned (punished) for purposely undermining confidence in the election process. 

It was not a close call. In August, Judge Parker sanctioned all the attorneys, requiring them to take remedial ethics education and referring many of them to their respective state bar associations for possible disbarment. These lawyers included Sidney Powell and L. Lin Wood who continue to ask their followers to financially support them. 

Courts realize that “true believers” often do not understand the concept of sanctions. And, whether due to willful ignorance or the inability to make rational decisions, some will continue to believe the long-disproved narrative that the Powells and Woods espouse. 

Therefore, the court’s only other remedy is to hit the lawyers in the pocketbook. That is what Judge Parker did today. She ordered the entire legal team to pay the legal fees incurred by the State of Michigan and City of Detroit in defending the spurious lawsuit. The amount of those fees? $175,250.57. These are owed by the plaintiffs’ lawyers “jointly and severally,” which means that the money will come from whoever has the deepest financial pockets. 

$175,250.57 is an oddly specific number and it offers the opportunity to talk about lodestar. 

You are familiar with many different methods of computing attorneys’ fees. Sometimes, fees are based on a percentage of the amount recovered (such as in traffic accident cases). In other matters, such as probate proceedings, fees are awarded according to a court-approved formula. 

For proceedings such as this, however, those approaches do not work. Therefore, the court requires the lawyers requesting fees to document them using what is known as the “lodestar” approach: the number of hours worked multiplied by a reasonable hourly fee. 

The time sheets that document an attorney’s work are specific both as to the time involved per day (broken down into 6-minute increments) and the specific work performed. So, for example, I could not claim to have worked “all day on this litigation.” Rather, the description would be more like “2.7 hours drafting answer to count one of the complaint.” 

The hourly rate must also be “reasonable.” I may think my time as an expert is worth $900/hour, but if the average hourly rate for similar work in that same geographic region is $325/hour, my fee request must be closer to that lower figure. 

Judge Parker in her order reviewed the time spent and hourly rate in detail. After excluding amounts that she found were not applicable, she arrived at the final dollar amount.

Do not expect that a check to pay those fees will be coming any time soon. The order states specifically, that the payment will be due only after any appeals have been concluded. Will the plaintiffs’ attorneys appeal? Since this group is known to delay and delay and delay, an appeal would not at all be surprising. 

In the meantime, Powell and Wood will continue to shear their sheep financially. And, if you are thinking that Trump might be using some of his multi-million dollar defense fund to pay these costs (which were expended for his benefit), your money might be better spent on a MyPillow.

Wednesday, November 24, 2021

Arbery Convictions: the Felony Murder Rule

Two of the defendants in the Ahmaud Arbery murder case were convicted of felony murder. 

The concept of felony murder has a long and consistent history in this country. It is also one of the first criminal law concepts taught in law school. Simply stated, you do not need to be the person pulling the trigger in order to be convicted of murder. The fact that a felony was committed during the time surrounding the murder is enough for the conviction. 

One of the classic examples of felony murder is the driver of the getaway car during a bank robbery where a person was killed. The rationale for the rule is that all people involved in the planning and execution of a felony are responsible for everything that results from that felony. 

Although the rule has been criticized in the past as being unduly harsh, it ensures that nobody is excused from egregious and horrible conduct. The rule also has the deterrent effect of discouraging others from following along with conduct they should have known was improper.

Saturday, November 20, 2021

More Rittenhouse: Why Prosecutors Brought a Case They Wouldn’t Win

When prosecutors lose a high-profile case such as the murder trial of Kyle Rittenhouse, the blame game kicks into high gear. 

Following Rittenhouse’s acquittal, some are pointing at Judge Schroeder’s sometimes questionable actions during the trial. Other are dissecting what they see as prosecutorial missteps during the trial. There is plenty of fodder for discussion in both instances. 

However, the biggest problem is that prosecutors brought a case that they had little chance of winning and failed to amend the charges before trial when it was clear that there would be problems. 

The context of the Rittenhouse case was emotionally charged. This was the third night of chaotic and violent protests that occurred in the context of the shooting of Jacob Blake. Kyle Rittenhouse, a 17-year-old from Illinois, inexplicably walked into the area with a semiautomatic rifle. During the ensuing hours, Rittenhouse shot three people, killing two. 

There was no middle-of-the-road reaction. These deaths were emblematic of a much deeper societal divide. 

Attorney L. Lin Wood (who is currently facing disbarment proceedings for his abuse of the legal system in the 2020 election contest cases) stepped in for the defense and argued that Rittenhouse should be kept in custody for his own safety rather than being released on bond, due to what he described as the “impending Armageddon” that would follow the 2020 election results. 

On the other side, prosecutors were being bombarded by calls for justice due to the apparently random vigilante actions of Rittenhouse. Justice, in this context, meant to charge Rittenhouse with murder. For prosecutors to do anything other than to file the most severe charges possible would have resulted in an outcry of favoritism towards a white defendant. 

Prosecutors charged Rittenhouse with five felonies that were equivalent to murder charges. They also charged him with a misdemeanor that was later dismissed by agreement of the parties. 

Within the next few months, Rittenhouse fired Wood as his attorney and was released on bond. At the same time, prosecutors began sorting through the volume of evidence. 

In the process of gathering evidence, prosecutors soon realized that this was not an open-and-shut murder case. Rather, it was apparent that defense would be able to argue self-defense to show “reasonable doubt.” We know that from later trial testimony. 

For example, videographer Richie McGinness described Rosenbaum chasing Rittenhouse and lunging for Rittenhouse’s gun. When pressed by the prosecutor about Rosenbaum’s intent, McGinniss quickly answered: “Well, he said ‘F--- you.’ And then he reached for the weapon.” 

The key moment in this case may have actually occurred at the final pre-trial conference. This is a meeting of the judge and attorneys where the guidelines for the trial are all set. 

If the prosecutors were to change what they were charging Rittenhouse, this would be the time. Prosecutors could have elected to reduce the charges against Rittenhouse, substituting charges where self-defense claims would be irrelevant. This was a winnable case. But this would have taken murder off the table, an option that would have caused a tremendous outcry from those who thought that a murder conviction was the only acceptable outcome. 

Prosecutors held firm and rolled the dice. 

The Rittenhouse case is a cautionary tale. We all have our own ideas of what justice looks like. However, what you can prove legally may not match those ideas. The prosecutors in the Rittenhouse case were pushed to prove a certain result, not to produce the best result with the evidence they had.

We know the result.

Friday, November 19, 2021

Rittenhouse Redux: Not Guilty Does Not Mean Innocent

Emotions from the just-released verdict in the Kyle Rittenhouse trial are, of course, running high. A few things should be kept in mind from a legal standpoint. 

Nothing in the verdict says that Rittenhouse was without blame for his conduct. Being found “not guilty” is not the same as a finding of innocence. Rittenhouse was charged with specific violations of Wisconsin state law. What the jury found was that the state did not find him guilty of those SPECIFIC charges beyond a reasonable doubt. Our system of justice says that when 12 people agree, their decision controls. 

Although there has been much focus on the conduct of the judge in this case, my second-guessing would rest with the prosecution. The claim of self defense (in the context of “reasonable doubt”) applied directly to all of the charges brought. That same defense would not apply to some charges that the prosecution did not, but could have, brought. I’m still confused why those lesser charges were not promoted sufficiently. Simply put, the jury was not provided a way to convict without considering the self defense testimony. 

The criminal trial may be over, but do not be surprised if Rittenhouse is not later sued for civil damages. Think back, for example, to the O.J. Simpson case where he was acquitted criminally but held liable for damages civilly. In a civil case, “reasonable doubt” does not apply. “Preponderance of the evidence” is the standard, making it much easier for a plaintiff to prevail. 

Rittenhouse’s sign of relief may therefore be short lived.

The New Facebook/Meta Rule That Doesn’t Exist

Perhaps you’ve seen a recent Facebook post that starts: 

The new Facebook/Meta rule starts tomorrow where they can use your photos. Don't forget the deadline is today! This could be used in lawsuits against you. Everything you've ever posted is posted today - even messages that have been deleted. It doesn't cost anything, just copy and post, better than regretting later. 

You are urged to: 

Hold your finger anywhere in this post and a copy will appear. Click on Copy. Then go to your page, start a new post and place your finger in an empty field. ′′ Insert ′′ will appear and you will click on it. This will pass the system.

I'm not giving Facebook/Meta permission to share my information posted on their website. PHOTOS, CURRENT or PAST, PUBLICATION, PHONE NUMBER OR POST... Absolutely nothing can be used in any form without my written permission. 

The post sounds scary but it is basically a rehash of unnerving posts that have been appearing sporadically for years. However, the “facts” are wrong and the advice is useless.  The reason is basic contract law. 

When you sign up for Facebook, you are essentially entering into a contract with them. In exchange for using this social media platform, you are agreeing to the dreaded “terms and conditions.” As with any contract, one person may not simply decide to ignore or change the terms of the agreement without getting the consent of the other party. This is what you are being urged to do by the post. 

If you are concerned with how Facebook uses your personal information or shares your posts, there are a number of privacy options you may select in your profile. If you do not like any of those options, your remedy is to decline to participate. 

Many people have raised legitimate concerns about the Facebook/Meta and other social media platforms and how they accumulate and share information. My intention is not to diminish those misgivings. Some are truly serious. 

The point is simply this: take whatever action you deem appropriate, but you accomplish absolutely nothing by posting a privacy declaration.

Thursday, November 18, 2021

Why Filing Identical Election Defamation Lawsuits Is a Shrewd Move

Last week, Smartmatic filed suit against attorney Sidney Powell in the U.S. District Court for the District of Columbia , claiming damages for false statements she allegedly made against the voting machine company in connection with the 2020 presidential election. The suit is virtually identical to the one they had previously filed against her in New York. 

Was this a crazy thing to do? No, it is quite the opposite. The reason relates to two issues: jurisdiction and the statute of limitations. 

As we saw in all of the failed election challenge lawsuits, your first step to succeed in a lawsuit is to make sure that you are suing the proper defendant in the proper court. Sometimes it is easy for the court to agree to accept or reject jurisdiction claims. In other cases, the answer is not so easy. 

In the first suit by Smartmatic against Sidney Powell in New York, there is some question whether that court has “personal jurisdiction” over Sidney Powell. If jurisdiction over Powell is denied, the case is over in that court. 

An attorney who loses a case on jurisdictional grounds might well decide to then file in another court where jurisdiction is clear. That option is not available to Smartmatic. The reason is due to the statute of limitations. 

The purpose of a statute of limitations is to make sure that an injured party acts promptly to claim damages. So, for example, if I am injured in a traffic accident, I cannot wait 10 years to decide to sue. Individual state laws set the maximum time period to file suit. In election defamation cases, that period is generally one year. 

The one-year statute of limitation period is quickly coming to an end for Smartmatic lawsuits. If they were to lose in New York on jurisdictional grounds, they would have no place to go to get relief because time had expired, unless … 

Unless they file what is called a “protective lawsuit” in another court where jurisdiction is assured. This is exactly what Smartmatic did. Interestingly, Smartmatic told the D.C. court exactly why they were filing the lawsuit at this time. They went so far as to tell the court that they fully expected (and wanted) the case to continue in New York and would not take any further action in D.C. until the jurisdiction question in New York was settled. If New York accepts jurisdiction, the D.C. court will be dismissed. 

The protective action by Smartmatic is smart legal practice. 

You might be asking how Smartmatic filing suit in different courts is different from the election contest cases. In the election contest cases, almost identical cases were also filed in different courts. 

The difference is that Smartmatic is not filing spurious claims in multiple courts, hoping that, like spaghetti thrown against the wall, maybe something will stick. In other words, the goal of the Smartmatic cases is to actually win, not simply to keep unfounded claims in the news.

Saturday, November 13, 2021

Rittenhouse Trial – Is the Judge on Trial Too?

The Kyle Rittenhouse trial concluded this week and will likely go to the jury on Monday. Interestingly, those who are following the case have asked me more questions about the judge than the case itself. Specifically, some have suggested that the judge had shown bias towards the defendant in a way that could sway the jury in its deliberations. 

If you have followed the case from the beginning, you likely have a personal opinion of Rittenhouse’s guilt or innocence—an opinion that was formed prior to the trial itself. I really do not care what that opinion is, but I suspect that it has colored your reaction to the trial strategies, demeanor of witnesses and the actions of the judge.

My goal here is to break down some segments of the trial process and, because I’m putting on my lawyer hat, to do that somewhat dispassionately. 

Let’s start with the rules for this trial. If you read my October 22 post entitled Sex Trafficking and Pre-trial Maneuvers, you will remember that a judge often sets special rules that will apply to a particular trial. In Ghislane Maxwell’s case, as here, there was much discussion about what words may be used to describe the parties involved. In Ghislane’s case, focus was on words such as “victim” and “minor victim.” In the Rittenhouse case, examples are “victim” and “looter.” 

It is immaterial whether or not you agree with what the judge decides before the trial about using those words. Those are the rules. The GOOD news for the lawyers is that they know what the rules will be before the trial begins. That gives plenty of time in trial prep to develop workarounds. 

Preparation for the trial also includes knowing the judge. Although there are generally defined rules for the conduct of a trial, much discretion is left to the judge in controlling the flow of the trial. Judges’ personalities are all over the board. Some are dour and sticklers for detail. Others take a more hands off attitude. Some even have a sense of humor. 

The point is that you know in advance how this particular judge runs their court. Consequently, if you know that particular actions or argumentation techniques bother the judge, you try to avoid them. 

Judge Schroeder who is presiding over the Rittenhouse trial is, to say the least, a character. He also tends to be a bit of a loose cannon, meaning that you can’t predict from one day to another what might set him off. It is what it is. 

I won’t detail here the things the judge has said or done during the trial. Strictly speaking, some of his remarks or actions may have crossed the line of impartiality. That is another example of “it is what it is.” Judges are given tremendous latitude in the conduct of their trials. Verdicts are overturned on appeal only in the most exceptional cases of judicial misconduct. Whether you like Judge Schroeder or not, it is unlikely that an appeals court would find his conduct to be that egregious. 

Back to the trial. As a prosecutor, you knew the special rules and you know the judge. By the conclusion of the trial, you also now have a fairly good grasp about how well the trial went. The prosecutors initially charged Rittenhouse with the severest charges possible, believing that they could prove these charges beyond a reasonable doubt. At the end of the trial, where we are today, they have the opportunity to review whether they gauged the strength of their case correctly.

From all appearances, the prosecutors aimed a bit too high. This is not unusual. Once a trial begins, it is too late to increase the severity of the charges, so overcharging is a protective measure. What the prosecutors CAN do at the end of the trial is to request jury instructions that cut back on what they are requesting. I anticipate this is what they will do on Monday. 

The jury will likely be presented with a number of guilty options. On a scale of 1 to 10, the prosecutors are probably hoping that the jury will convict at a level of 7 or 8. These guilty options prevent the worst case scenario for a prosecutor—the choice between all or nothing. 

The saddest part of the Rittenhouse case is that, regardless of the outcome, many people will be outraged. Confirmation bias. And Judge Schroeder? He’ll conduct another trial next week that virtually nobody will notice.

Friday, November 12, 2021

Well, We Agree About the Beer

When a complaint is filed, the defendant helps to set the parameters for the lawsuit by either admitting or denying each individual allegation. For example, “The defendant admits the allegations contained in paragraphs 1, 3, 5, 7 and 8 of the complaint.” 

Introductory paragraphs to the complaint are not considered to be “allegations” and therefore no response to them is required. However, in an ongoing case in North Carolina, defense counsel could not resist a touch of humor. Here is how he begins the answer to the complaint: 

No response is required to the introductory statement in Plaintiff’s Complaint. However, Defendants admit that George Washington brewed beer, that the Founders drank beer after drafting the Constitution, that Supreme Court Justice Kavanaugh loves beer, and that President Obama invited Sgt. Crowley and Professor Gates to the White House Rose Garden for beers. All other allegations contained in these paragraphs are denied. 

We unfortunately hear all too much from self-aggrandizing lawyers such as Rudy Guiliani, Lin Wood and Sidney Powell, who are facing disciplinary actions for their lack of civility and respect for the legal profession. 

This little North Carolina case illustrates that attorneys can disagree without being disagreeable. It says something positive about their clients as well. 


Wednesday, November 10, 2021

Injunction Junction, What’s Your Function?

As part of the Congressional special committee’s examination of the facts relative to the January 6 attack on the Capitol, they have requested the National Archives to release a tranche of information related to Donald Trump’s potential involvement. As a surprise to nobody, Trump filed suit to stop the production of these materials. 

The term “injunction” is being used in so many contexts here that it might be helpful to outline the different kinds of injunctions that are involved. 

When Trump’s lawsuit asked for an injunction to prevent the National Archives from producing materials, it claimed that, although records are readily available, the Congressional committee simply should not be allowed to have them. Ever. The ultimate goal of the case is to permanently prevent the committee from receiving access to these documents. This is a permanent injunction

It takes a lot of time and legal proceedings for a permanent injunction to take effect. The Court must consider a variety of facts and also determine whether there is a legal basis that would allow an injunction to be issued. 

In this case, time is not a luxury that Trump has. According to the timetable for producing documents (which is outlined by statute), the National Archives are required to produce the first tranche of these documents by Friday of this week. 

Because the proceedings necessary to receive a permanent injunction will take so long, Trump asked for the process to stop in its tracks until all of the arguments can be presented. He did this by asking for a preliminary (or temporary) injunction. When confronted with a preliminary injunction request, the court considers a number of factors, including irreparable harm to the requesting party. 

Yesterday, the court denied Trump’s request for a preliminary injunction. The next step for Trump, then, is to appeal this decision, asking a higher court to reverse the denial of the preliminary injunction (which he did). However, there is one step that occurs before the appeal ever takes place. 

Trump was required to ask for a different injunction, one where the lower court, on its own, stops the process until the appellate court can weigh in. This is called an injunction pending an appeal or an administrative injunction. This is what is being argued today. 

If that injunction request is denied, Trump will immediately ask the appellate court to stop the proceedings while it considers whether the preliminary injunction was properly denied. 

Confused yet? Try this. 

Trump requests a permanent injunction (ongoing as part of the complete case)

Trump requests a temporary injunction concerning production of documents (denied)

Trump files an appeal (pending)

Trump requests an injunction pending appeal with the lower court (pending)

If that is denied, which is likely, Trump will ask the appellate court to reverse the denial of the temporary injunction. In other words, the appellate court will be asked to order the lower court to grant a preliminary injunction until the full case is heard. 

Considering the case law on the subject, it is likely that the committee will eventually be given access to some, if not all, of the National Archives records they have requested. This is especially true because the National Archives do not contain confidential (privileged) communications of a former president. 

The question, then, is how long Trump will be able to drag out the process. We will learn that shortly.

Tuesday, November 9, 2021

There’s a Problem with My (hic) Bombay Gin

Here’s the setting. Having been invited to a small party, you stop at the Winn Dixie and pick up a bottle of Bombay gin. The party ends up not being as exciting as you had anticipated, so at some point you start reading the contents label on the bottle of gin (apparently between the time you think this might be interesting and when you can no longer focus.) This literary foray leads you to ask “What the heck is ‘grains of paradise’ and what is it doing in a bottle of gin?”

Your buddy does a quick google search and finds out that this is a spice from west Africa that many years ago was thought to be poisonous and could “morph drinkers into suicidal madmen.” By this time the bottle has been drained and you all had a good laugh.

The next morning you have a hazy recollection of the prior evening’s conversation and wonder how this drug ever got into the gin. Being a lawyer, you do a little research and find that an 1858 Florida statute prohibited the use of grains of paradise in alcoholic beverages. The dollar signs go off in your head when you realize that you could make a lot of money based on a technicality.

We do not know if this is exactly how the lawsuit started, but it is probably close enough. Uri Marrache filed a class action against Winn Dixie and Bacardi. The plaintiffs claimed that Bombay violated the archaic statute by including grains of paradise in its liquor and that they were entitled to damages as a result.

Although the allegations were technically correct as far as they went, plaintiffs failed to note that Congress amended the Federal Food, Drug and Cosmetic Act in 1958 and listed grains of paradise as “generally recognized as safe,” giving us the delightful acronym of GRAS. Therefore, since grains of paradise is GRAS, it is can no longer be considered the harmful ingredient identified in the 1858 statute.

Even if there was some sort of conflict between state and federal laws (which the court was easily able to dismiss), plaintiffs had one additional problem: they knew the ingredients before polishing off the bottle. You cannot claim damages without having, well, damages. The lawsuit was dismissed.

Technicalities often matter. But as the Bombay lawsuit demonstrates, finding a technicality is not necessarily enough. Sometimes the GRAS is greener on the defendant's side of the fence.

Saturday, November 6, 2021

The brilliance of My Pillow’s Mike Lindell

In the olden days, hucksters sold snake oil by the bottle. Televangelist Jim Bakker sold it by the bucket. Give people something they desperately want to believe and you can sell them anything. After all, rubes deserve to be fleeced. Consider W.C. Fields’ famous “Never give a sucker an even break.”

Mike Lindell is not your garden variety huckster. He is brilliant. Here’s why. Many charlatans are able to drag true believers along even after promised events do not occur. Consider, for example, the apocalypse preachers who predict the end of the world and then, um, recalculate. True believers still follow.

If that scenario sounds a lot like Lindell, it should. He has been predicting dates when Trump will be reinstated all year, including my birthday (which, coincidentally, is the date the Berlin wall went up). That people continue to believe isn’t surprising. Snake oil sells.

Lindell’s brilliance is that he has taken his show to a higher level. A recent posting on his website urges visitors to “Sign the Petition!” Specifically, “Sign this petition to encourage the Supreme Court to accept the bill of complaint brought by patriotic states to save our country.” The required fields are your first name, last name and email address.

There are couple of wee problems with what is encouraged here and this is the legal stuff. First, there is no mechanism for the Supreme Court to accept a petition as he describes it. That is not how the court operates. Second, there is no “bill of complaint” filed anywhere, much less by “patriotic states,” whatever they may be. So, if a petition means nothing and there is no bill of complaint, why is he asking you to sign the petition?

Unless you’ve already signed the petition, you know why. He is assembling a sucker list who will later be urged to contribute to his cause (as he has done before). Brilliant.

One more thing. Lindell’s latest prediction is “We will have this before the Supreme Court before Thanksgiving. That's my promise to the people of this country. We're all in this together. We worked very hard on this!"

Don’t let your turkey get cold.

Friday, November 5, 2021

Gimme a Head with Hair – What Is This, the 60’s?

The Magnolia, Texas 2021-22 student handbook states that hair must “be no longer than the bottom of a dress shirt collar, bottom of the ear, and out of the eyes for male students.” Hair also cannot “be pinned up in any fashion” or “worn in a ponytail or bun for male students.”

Nine boys of various ages have been suspended for violating this dress code and the ACLU has filed suit, claiming that the policy is improperly gender based.

The Texas school board defendants will have a couple of problems defending this suit. They are related to how the policy has been enforced. First, although the policy has been on the books for a number of years, it has never previously been enforced. Second, all of the disciplined students are members of minority groups or have different gender orientations. This would indicate ulterior motives for the new enforcement measures. Most notably, since this is Texas, members of the football team with long hair have not been bothered.

As recently as 2020, a federal judge in Houston found that two Black students were not required to cut their hair, which they wore in dreadlocks, to meet the school district’s dress code policy. In that case, which is ongoing, there were also indications that the dress code requirements were race related.

Some people are shaking their heads about the basis of the suit, suggesting that this part of a disturbing trend to blur the line between men and women. They miss the point.

The reason the ACLU used sex discrimination as the basis for the litigation is that this assures that the suit will not be dismissed for jurisdictional reasons. As the lawsuit proceeds, the true reason for enforcing the code—selective enforcement against particular groups—will come out. THAT is the point. This is well thought out litigation.

As an aside, I apologize that you had to read this with the tune from Hair going through your head.

UPDATE: Since this post was originally written last week, the defendants have agreed to an injunction that they will not enforce the questioned policy until the matter is resolved by the courts. This is an early indication that there may be some weaknesses in their original position.

Sunday, October 24, 2021

You Can Throw Your Friends Under the Bus; Not Your Enemies

You may recall that in 2018, Andrew G. McCabe was the F.B.I’s deputy director and had an active role in the Russia investigation. Then-President Trump excoriated him over that role, referring to him as an agent of the deep state. 

Jeff Sessions, the attorney general at the time, fired Mr. McCabe on March 16, 2018, literally hours before his pension was to vest. Trump cheered the firing, tweeting: “Andrew McCabe FIRED, a great day for the hard working men and women of the FBI - A great day for Democracy.

McCabe filed suit, claiming that his firing was political retaliation. In other words, this was Trump using his presidential office to punish an enemy. The lawsuit proceeded in typical fashion, but then things got quiet. This is often an indication of action occurring behind the scenes—which was exactly the case.

Last week we found out why it had been so quiet. The Justice Department settled the case, which included reversing McCabe’s firing.

Under the terms of the settlement, McCabe will now officially retire, receive his pension and other retirement benefits AND receive around $200,000 in the pension benefits he should have received since he was improperly fired.

There’s more. Any mention of his firing in the personnel records of the F.B.I. are going to be expunged and he will receive the typical plaudits given a senior executive who retires with honor: cuff links and a plaque with his mounted F.B.I. credentials and badge.

It took three years, but Andrew G. McCabe was vindicated.

We also know how Jeff Sessions was rewarded for doing Trump’s bidding in the McCabe firing. Trump endorsed his opponent, Tommy Tuberville, in the ensuing Alabama Republican Senate primary.

Saturday, October 23, 2021

Do-It-Yourself Sometime Works

 A little background first.

Filing a lawsuit usually means paying upfront court fees. There are exceptions, however, the most notable of which is when a person demonstrates poverty. In these cases, the fees may be waived if you file an IFP Application, IFP standing for in forma pauperis.

Juan Carlos Chavez successfully used this approach. So far, this isn’t particularly noteworthy. Juan’s problem was that he didn’t know the names of the people he was suing. That isn’t particularly noteworthy either. Lawyers typically sue “John Doe” until the identity of the defendants can be determined.

Juan clearly isn’t a practicing attorney, so he can be excused for not knowing the “John Doe” maneuver. So, he sued CAUSE YALL TOOK MY PHONE I DONT KNOW THEIR NAMES. Yes, the lawsuit is officially listed as Juan Carlos Chavez v. CAUSE YALL TOOK MY PHONE I DON’T KNOW THEIR NAMES.

Remember that the judge granted his motion to proceed without paying fees. The moral here is that if you are a truly genuine person with a legitimate claim, the courts will help you out. That’s the American judicial system at its best.

Friday, October 22, 2021

Sex Trafficking and Pre-trial Maneuvers

Ghislane Maxwell will shortly go to trial for sex trafficking related to Jeffrey Epstein. Her pre-trial motions give a behind-the-scenes look at how her lawyers are trying to shape what the jurors will hear.

We are all familiar with “Objection, Your Honor!” being used at trial to keep jurors from hearing a specific line of questioning.

However, before a trial even begins, the judge may set rules that are specific to a particular case, often because of pre-trial publicity. The purpose of these rules is to make sure that what the jury hears does not interfere with them making an informed and proper decision.  Prosecutors want the jury to hear everything. Defense attorneys want to block as much as possible.

In Ghislane’s case, there are some allegations that use powerful language. The terms “victims,” “minor victims” and allegations of rape occur with frequency. Naturally, as part of the “special rules” for this case, she would prefer that the prosecutor would never use those terms.

The way to ask for “special rules” is a motion in limine. To the extent that the judge grants this motion, any violation of the special rules by the prosecutor may be enough to have a mistrial declared.

It is completely within a judge’s discretion whether or not to grant a motion in limine. It remains to be seen whether the judge will allow the prosecutor to use terms such as “minor victim” during the trial. The judge's ruling on this motion, as obscure at it may appear, will have a dramatic effect on how the trial unfolds.

Thursday, October 21, 2021

Yep, I’ve Got a Fool For a Client

Abraham Lincoln famously stated “He who represents himself has a fool for a client.” Of course, that was before Google. Now, some people think that they can do a bit of online research and gain enough information to beat the system without the necessity of being represented by a professional. They are still fools.

At this point in the prosecution of the January 6 rioters, there are at least six defendants who believe that can go it alone. Brandon Fellows is one of them. At his bond hearing last week, the judge patiently tried to explain that he would be better served by listening to the advice of his court-appointed counsel.  He decided against that—which was his first mistake. 

Brandon’s second mistake was not recognizing the difference between a bond hearing and an evidentiary hearing. 

Brandon’s third mistake was trying to use a “loophole” he found on line to disqualify the judge. This loophole turned out to be a felony.

Brandon’s fourth mistake was not recognizing that anything he says in court can be used against him in further proceedings. 

So now Brandon is not only still in custody but also faces additional felony counts for things he said under oath in court. 

A fool indeed. 

There is an implied fifth mistake as well. Brandon, as well as many other defendants, are claiming that they should not be held responsible because they were simply trying to promote Donald Trump’s position concerning the election. These valiant political soldiers were under the impression that Trump would protect them or at least pay a portion of their legal fees. After all, it was Trump himself who said "It was a loving crowd, too, by the way. There was a lot of love."

Brandon and his friends are learning that expressions of love don’t pay the bills.

Monday, August 30, 2021

I’m not a lawyer, but I DID stay at a Holiday Inn Express last night

John Pierce, a high-profile conservative attorney who is representing a number of the January 6 defendants has apparently been hospitalized for a couple of weeks and has not been communicating either with his clients or the court. 

Attempting to step in to temporarily take his place in these cases has been Ryan Marshall, an associate from Pierce’s law firm who is not a licensed attorney. According to the Assistant U.S. Attorney, Marshall has been appearing at court hearings and meetings with the government “for roughly the past week.” 

The U.S. Attorney’s office is requesting that proceedings against these defendants be stalled until they are represented by a licensed lawyer. 

This is not a frivolous matter. Non-lawyer associates are often knowledgeable people, but that is not the point. A defendant deserves the protection that only a licensed lawyer can provide, including, sadly, legal recourse in cases of malpractice. 

It says something about the quality and integrity of the U.S. Attorney’s office that they have been proactive (even though not required to do so) in ensuring that the defendants in the January 6 cases are represented appropriately.

Friday, August 27, 2021

As an attorney, “Ignorance is not bliss—it is sanctionable”

Michigan District Court judge Linda Parker has ruled that the lawyers who filed the election fraud case in Michigan should be sanctioned. Her 110-page ruling is extraordinary in its detail and legal reasoning. 

The net result for Sidney Powell, Lin Wood and the other plaintiffs’ attorneys is that they must pay the other side’s attorneys fees, take continuing legal education classes, and face possible disciplinary actions, including possible disbarment, in their home states.

I can’t do justice to the intricacies of Judge Parker’s analysis in a brief note, but the ruling boils down to this: attorneys are responsible for what they file in court, they are presumed to know both the court rules and the laws that they are challenging and, most importantly, you never lie to the court. 

The Michigan lawsuit, which contained large elements that were cut-and-pasted from other state lawsuits, had dramatic shortcomings. The most notable was the complete failure of plaintiffs’ lawyers to perform even the most basic “due diligence.” In other words, these lawyers made little or no attempt to determine whether the claims could even arguably be supported. Furthermore, even when what they were asking for in the complaint was no longer feasible, they kept the case going. 

The actions of these lawyers were simply unconscionable. It is one thing to be merely incompetent. It is another entirely to purposely use the courts to promote their personal ends. 

The response by some of these sanctioned lawyers and members of the right-wing media has been boring in its predictability. The brilliance of Judge Parker’s ruling is that she anticipated—and answered—the hand-wringing responses that are being spouted. From the opinion: 

“Journalists”—like attorneys, Powell argued—“must be free to rely on sources they deem to be credible, without being second-guessed by irate public figures who believe that the journalists should have been more skeptical.” 

Of course, Powell missed the most essential point. 

Attorneys are not journalists. It therefore comes as no surprise that Plaintiffs’ attorneys fail to cite a single case suggesting that the two professions share comparable duties and responsibilities. 

The Court also addressed the argument that the lawyers have First Amendment (free speech) rights that would be seriously undermined by the issuance of sanctions. 

Plaintiffs’ counsel’s politically motivated accusations, allegations, and gamesmanship may be protected by the First Amendment when posted on Twitter, shared on Telegram, or repeated on television. The nation’s courts, however, are reserved for hearing legitimate causes of action. 

What Judge Parker’s decision demonstrated (in painstaking detail) is that there are plenty of public forums to peddle your conspiracy theories where they can be eagerly lapped up by people devoid of analytical capacity. However, when you come to court, you must follow the exacting rules to establish the truth. 

Trump’s lawyers failed to uphold even the minimal professional standards expected of attorneys. And they will now pay for their chicanery. 

Addendum. Judge Parker was appointed by a Democratic president. According to some, that means that her decision is politically motivated. That is an interesting but deluded argument, especially if you read the opinion. Had her intention been partisan, she would have taken a vindictive stance. She did not. In fact, one lawyer who asked for attorneys’ fees was denied them. The reason? Judge Parker noted that his participation did not add anything meaningful to the lawsuit. Had the judge been a political hack, she would not have been so careful in meting out the penalties.

Friday, July 30, 2021

Trump Loses His Valued Secrecy in Arbitration Case

Buried deep in the small print of many contracts is a provision stating that disputes will go into arbitration. That provision is typically inserted by the party having the higher degree of power: landlords, franchisors, etc. The two main reasons why arbitration (rather than lawsuits) are beneficial for the party with greater power are: (1) arbitration is a more streamlined and less costly option that proceeding through the court system and (2) arbitration proceedings are private, not subject to the same kind of public scrutiny as lawsuits.

The applicability of arbitration agreements came into sharp focus in a decision earlier this week by the Second Circuit Court of Appeals (one step below the U.S. Supreme Court).

Here is an oversimplification of the facts.  ACN Opportunity, LLC (ACN) is a "multi-level marketing" company that enlists individuals to work on its behalf as "Independent Business Owners" (IBOs) in exchange for a sign-up fee and annual renewal fees. A large class of people signed up. When most people hear the term “multi-level marketing,” something goes ding, ding, ding in their brains and they slowly walk away. These investors did not. Why?

The answer is Donald Trump and the Trump Organization. Through various forums, including at ACN events, recruiting publications and videos, and on two episodes of "The Celebrity Apprentice" television show, ACN was strongly promoted. This series of messages by the Trump group was critical, the plaintiffs asserted, in convincing consumers – including them – to invest in ACN as IBOs. The court noted that the investors’ chances of success were minimal at best: 

Contrary to the defendants' [Trump] representations that ACN's business opportunity was a low-risk entrepreneurial venture that offered investors a viable source of income, investigations by regulatory agencies allegedly have demonstrated that ACN's business was high-risk and that investors had a minimal likelihood of commercial success. Despite claims that ACN's business opportunity would be highly profitable for investors, it is nearly impossible for IBOs to profit or earn a satisfactory income from such multi-level marketing arrangements.

The problem wasn’t that Trump endorsed ACN. He endorses things all the time. The issue was that Trump claimed that the profitability of ACN was based on an “independent evaluation.” But was it?

[T]he plaintiffs allege that in exchange for millions of dollars in secret payments from ACN to the defendants[Trump] between 2005 and 2015, the defendants fraudulently promoted and endorsed ACN as offering legitimate business opportunities that were likely to afford IBOs success.

The plaintiffs had a choice. They could have pursued ACN for damages. However, under the terms of the IBO agreement, this would have gone to arbitration. So the plaintiffs sued Trump and the Trump Organization in the federal district court.

Trump cried foul, claiming that arbitration was required. Both the district court and court of appeals ruled against Trump, noting that since Trump was not one of the parties who signed the contract, arbitration did not apply.

Because of the court’s ruling (which specifically said it was not addressing the merits of the lawsuit), the case can proceed in the federal district court.

Why would Trump and his organization work so hard to keep this in arbitration? Public access to information.

Arbitration proceedings are conducted in private and the only thing that the public will typically ever hear is who won. Court cases, however, are widely reported, pleadings by the parties are public, and information that comes out during the lawsuit often reveals facts that some people would prefer remain hidden.

For an individual such as Trump who regularly uses arbitration agreements and nondisclosure agreements as a silencing measure, this defeat will be highly disconcerting.

Monday, July 12, 2021

Michigan Sanctions Hearing - Seven Lawyers Meet the Judge

Today there was a six-hour hearing in the Michigan Federal District Court. This is the latest stage in one of the multiple dismissed lawsuits claiming election fraud in the 2020 election. The purpose of the hearing was for the judge to decide whether the seven lawyers who brought this case should be punished (sanctioned) for filing the lawsuit and continuing to argue it after the case was finished.

Although you will hear a lot of posturing from those lawyers following the hearing, the reason why they were called into court to answer for their actions is a relatively simple one.

When lawyers file a lawsuit and sign their names to it, they are putting their reputations on the line. Their signatures affirm that the allegations contained in the complaint are true and accurate to the best of their knowledge.

What that means is that the lawyer has taken every reasonable precaution to make sure that the court is not mislead. This is also called “due diligence.” The lawyer’s responsibility extends beyond the complaint itself. It also includes sworn statements (affidavits) that are attached to the complaint. If you fail to exercise due diligence, the court may punish you with fines, suspension to practice law in that court, and referral to the state bar association who may take away your license entirely.

Seven lawyers had their names associated with the Michigan election fraud case. The judge called them all into court to find out who was responsible for what appeared to be an attempt to mislead the court or, as a related matter, to use this lawsuit to make political points.

The judge was interested in three things from each of them:

Question number one: did you actually READ the complaint and exhibits before you signed the paperwork?

Question number two: was there anything in the affidavits supporting the complaint that made you go: “Huh? That doesn’t make sense.”

Question number three: did you actually speak to the people who prepared to affidavits to make sure that their information was accurate? 

These are all yes and no questions that get at whether you did your basic job as a lawyer and acted ethically.

The vast majority of the hearing consisted of those seven lawyers (and the two lawyers they had hired) studiously trying to avoid answering those three questions. On the other side of the aisle, the lawyer for the City of Detroit (who was asking for the sanctions) spent a lot of his time giving his opinion of the evidence, which was similarly improper.

At the conclusion of the hearing, the judge gave all the parties the opportunities to file additional legal arguments before she renders her decision.

Do not believe for a moment that the judge will have been confused by either side’s extraneous arguments. She got the information she needed to make a ruling, as a good judge does.

The post-hearing posturing will likely contain complaints about how “we weren’t allowed to present evidence.” This argument completely misses the point of the hearing and is designed to simply make points.

How the judge will ultimately rule remains an open question. If I had been one of the seven lawyers facing sanctions, you can be sure I would have been remorseful. But then, I would not have put myself in that tenuous position in the first place.

Side note: the judge showed extraordinary patience during this hearing. Even when she could have been justified in losing her cool, she did not.

Friday, July 9, 2021

MAGA - My Attorneys Got Attorneys

Of the more than 60 post-election challenge cases that went down to defeat in states across the nation, one of the most high profile was in Michigan. Gov. Gretchen Whitmer and the City of Detroit among others were sued unsuccessfully in the U.S. District Court case in a case alleging voter fraud.

You may recall that one of the allegations of the complaint was that in some counties there were more votes cast than there were registered voters. What did not impress the judge was that the person doing this analysis used actual voting records from Michigan but related them to registered voters in Minnesota that had counties with the same name. Making this kind of allegation in a sworn affidavit has a name – a fraud on the court. The case was dismissed as having no merit.

Based on this and other defects, both procedural and substantive, the Michigan Attorney General and the City of Detroit told the court that the attorneys who filed and promoted this case should be sanctioned and fined. The sanction motion from January 28 stated:

It was never about winning on the merits of the claims, but rather plaintiffs’ purpose was to undermine the integrity of the election results and the people’s trust in the electoral process and in government. … The filing of litigation for that purpose is clearly an abuse of the judicial process and warrants the imposition of sanctions.”

These lawyers included “release the Kraken” proponent Sidney Powell who was one of Trump's lawyers at the time.

It is not unusual for winning lawyers to ask for sanctions against a losing party, especially when their conduct was unprofessional or incompetent. Typically, though, a motion for sanctions is denied or resolved based on briefs written by the parties.

However, U.S. District Court Judge Linda Parker took a somewhat remarkable approach. On June 17th, she issued the following order:

Each attorney whose name appears on any of the Plaintiffs’ pleadings or brief shall be present [virtually] at the motion hearing. 

This is not an order that a plaintiff’s attorney wants to receive. Judge Parker set the hearing for July 6th.

Nine days later, one of the plaintiffs’ attorneys asked that the hearing be rescheduled to a later date due to an emergency conflict with her schedule. The emergency? A previously scheduled family vacation. Out of what can only be described as the goodness of her heart, Judge Parker granted that request and reset the case for this coming week.

It gets better. Following the order resetting the hearing, the plaintiffs’ lawyers … got lawyers. These lawyers’ lawyers then asked the Court if they could appear in court on behalf of their clients (so that the original lawyers would not need to personally appear). The judge was not amused. In a one word order, she simply said “DENIED.” As one commentator noted, this was the equivalent of answering with a strong verb and a pronoun.

One more aside. As if the lawyers hiring lawyers at this late date in the proceedings isn't unusual enough, one of the original plaintiffs' lawyers (who now had her own lawyer) filed a pleading on her own yesterday. Without her lawyer. She misspelled her own name on the signature line.

The hearing Monday morning on all pending sanctions motions should be interesting.

Unrelated update to a previous article: Following and based upon Rudy Guiliani’s suspension to practice law in New York, the D.C. Court has also suspended his right to practice in that court.

Thursday, July 8, 2021

Fundraising Stalled? File High-profile Lawsuits!

When you initially sign up on a social media site, you first provide basic information about yourself. You are then directed to check a box that says something like “I have read the Terms of Service and agree to their terms.”

By checking the box (whether you ACTUALLY read the terms or not), you have entered into a contract with the provider. As with other contracts, the provider normally has full discretion to decide how or when to enforce the contract’s terms. These contract terms are markedly different than the enforcement of a law, which much be applied fairly and equitably to all people.

This is where a lot of people get it wrong, often because they are being sold bad information. They assume that because laws must be enforced uniformly across the board that the same rules apply to contracts. This is simply wrong.

Donald Trump just filed “class action” lawsuits against Twitter, Facebook and Google under great fanfare. His chances of success on any of these suits are minimal at best. We will only discuss the highlights here.

We should eliminate a misnomer first. Just because you have filed a lawsuit, it is not automatically a class action, even though that sounds impressive. When a lawsuit is filed with claims similar to numerous people, one of the first things filed with the court is a REQUEST to certify the case as a class action. The point you are making is that the number of people who are similarly affected is so numerous that it is impractical to name all of those people as plaintiffs.

Assuming that the court agrees (and that is no sure thing), an attempt is made to identify the members of that class. These possible members are then individually notified and given the option to opt out. This process should be familiar. We have all received those notices. Class actions are seldom certified in contract disputes (because everybody checked the box), but that remains a possibility.

Next, the Terms of Service contract often states the location of the court where an aggrieved person may bring a lawsuit. It is usually in a court that is conveniently located to where the service provider operates. The Terms of Service provided that the proper court would be in California. Trump’s lawsuits were filed elsewhere (at least one was filed in Florida). A basic, basic, basic rule is to file suit in the correct court. Otherwise, the judge may very well dismiss the case for having filed it in the wrong place.

If I wanted to be cynical, and perhaps I am, I would suggest that the cases may have been intentionally filed in the wrong court. Then, when the case is dismissed, the plaintiff can do a “poor me,” complaining that the judge did not really want to hear the case and dismissed it on technical grounds. If that sounds familiar, it should. You heard that a lot when election challenge cases were dismissed for having been filed in the wrong place.

Maybe Trump can get past the jurisdictional issues. If so, the crux of these lawsuits appears to be that getting kicked off the social media platforms were attempts at censorship and a violation of Trump’s first amendment rights to freedom of speech. That makes for a great sound bite (and he repeatedly uses it), but it has questionable legal basis.

Try this analogy. I enter into a franchise agreement (contract) with Tupperware that gives me the exclusive right to sell their products in the greater Portland area. Other people have similar exclusive rights in other areas. Being a successful entrepreneur, I decide to sell products in New Hampshire in violation of the contract. Tupperware shuts me down. I complain that Tupperware has violated my first amendment rights. I have no chance of success in this lawsuit for two reasons: First, I was the one who violated the contract, and second, freedom of speech does not apply to private contracts. Even if I can show that other franchisees have dome similar things, it simply does not matter.

This analogy breaks down, of course, as analogies do. However, the central point is this. You can claim censorship and first amendment violations all you want, but the courts have consistently held that these claims do not apply in contract cases. Social media companies are private and not, to use legal jargon, “state actors.”

Finally, if you wanted to file a groundbreaking first amendment case, who would you hire as a lawyer? My guess is that you would enlist a top-notch Constitutional law specialist. None of them would touch this case.

So if these lawsuits are simply longshots (and that is being charitable), why were they filed? In his press conference, Trump said:

"I stand before you this morning to announce a very important and very beautiful, I think, development for our freedom and our freedom of speech — and that goes to all Americans. Today in conjunction with the American First Policy Institute, I am filing, as the lead class representative, a major class-action lawsuit against the Big Tech giants including Facebook, Google, and Twitter as well as their CEOs Mark Zuckerberg, Sundar Pichai, and Jack Dorsey."

Moments later, an email went out to a group of his supporters that read:

Pres Trump: I am SUING Facebook & Twitter for UNCONSTITUTIONAL CENSORSHIP. For a short time 5X-IMPACT on all gifts. Donate NOW: (with a link) 

You may ask yourself whether the timing of this fundraising email was coincidental. If you do, follow the link.