Thread by @LawoftheGame

OK, so I understand that Ty asked any lawyer who has disagreed with any part of his case to set forth how he can win his case. So here goes. No snark, animosity, or anything else intended in any point herein. And this is going to ignore responding to affirmative defenses.

And further, this is about winning at trial. Not winning at the TCPA stage or anything else. The hypothetical is how can Vic win his case overall, just so we're clear.

Vic's pleadings make 5 specific allegations:
1) Defamation
2) Tortious Interference with Existing Contract (TIwK)
3) Tortious Interference with Prospective Business Relationship (TIwBR)
4) Conspiracy
5) Vicarious Liability (aka Respondeat Superior, VL/RS)

Step 1: Did we miss claiming anything? Intentional Infliction of Emotional Distress (IIED) seems like the obvious choice. Given Vic's testimony about his depression in his deposition, it's a logical choice. So we'll tack that on to the discussion.

Step 2: How best to work with these causes of action. Defamation, TIwK, TIwBR, and IIED can stand on their own. We have to have one of these stick for Conspiracy or VL/RS to even work. So The most important piece is making one of the first 4 work to access the last 2.

COA 1: Defamation
First, I'd revisit the supposedly defamatory tweets. I'd make this a much cleaner assertion by removing the ones that aren't reasonably defamatory (ie mere insults), and I'd further break them out by person into statements that are defamatory per se vs per quod

The per se tweets are the stronger ones as they don't have to show independent damages as they all relate to " falsehoods that injure one in his office, business, profession, or occupation" per Main v. Royall, 348 S.W.3d 318, 390 (Tex. App.—Dallas 2011, no pet.)

The more difficult hurdle is going to be keeping Vic out of public figure status (limited purpose). Honestly, I've got nothing here. If you can keep him from being a LPPF, you've got a much better stance. But given he's making money by appearing at conventions for fans...

...arguing against LPPF is hard. And that then leading to requiring actual malice makes this even harder. The standard for actual malice in Texas is the Sullivan standard (see THE DALLAS MORNING NEWS, INC. AND STEVE BLOW v. JOHN TATUM AND MARY ANN TATUM)

This leaves us trying to prove the statements were made with either knowledge they were false or reckless disregard for the truth. And this is where I start to struggle with both the choice of tweets and defendants (arguably other parties might be easier to work with).

Again, cutting out the more silly inclusions, we would need more factual evidence to illustrate the state of mind of the defendants. Right now, we really don't have anything evidencing Vic's assertion, and all we have from the defense side, we have the parties words.

Burden is on the plaintiff, so I need to find more to bolster my side. So on COA 1: defamation, the key to success to more facts to prove up actual malice.

COA 2: TIwK
Here, again, the immediate issue to remedy is one of facts, but it should be one that is easy to remedy. The basic groundwork is that a contract was breached. So I'd be providing every contract and the associated alleged breach by the other party to the K.

TIwK is specific to each agreement and not a general concept. So with each K outlined, I'd then be trying to show how one of the defendants induced the breach in question. Specificity matters. Injury and damage (loss of the income from the K) should be easy.

COA3: TIwBR
This one is one where you can be a little more scattershot, and if you can get over the big hurdles, injury and damages are again pretty easy. So what are the big hurdles? It's elements 2 and 3. Element 1 (that there's a reasonable chance Vic could enter into a

relationship) is easy because Vic goes to cons. 2 (that the defendant acted with either specific intent or reasonable knowledge that interference would occur) and 3 (that defendant committed an independent tort) are the hard ones. 2 could be proven with similar facts to

defamation's actual malice. But 3 is tough. Unless you can get defamation or TIwK to stick and tie that to the interference here, it's a lost cause. You might be able to get there with IIED (below) but I'm not aware of any case successfully doing so.

So, again, if I'm trying to help Vic win, my focus needs to be on the defamation and the TIwK being successful. TIwBR can only really follow on to their success because of the requirement of independently tortious conduct, though if you can get there, it's follows.

Here we'll add IIED. Relevant case for current standards: Hoffmann--La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004) but the basic elements are: 1) D acted intentionally or recklessly; 2) D's conduct was extreme and outrageous; 3) D's actions cause P's distress;

and 4) P's distress was severe. I think 4 needs some fleshing out from the depo, but if you can get to actual malice, I'd think you can likely jump the hurdle for 1 and 2 here. But again, you'd need to show that some (or all) of the D's were basically making these stories up

to intentionally harm Vic to get there. And Vic has the burden of proof on that; unless Vic tips the scale to make it more likely that what he's alleging is true, D's win. As the P, we get no benefit of any doubt.

Back to the alleged COAs: Conspiracy. Besides making sure that you have a tort stick (otherwise this means nothing), you have to prove there was an objective and a meeting of the minds on that objective or course of action. Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005)

Yes, these people all know each other, but finding something that tips the needle on them coordinating in some way is the key. Also an issue of facts, and one likely requiring the discovery of private communications or circumstances that suggest meeting in person.

Not going to dig into what sources I'd go after, but right now, there's nothing in the record that shows enough in my mind to be comfortable with a possibility of success. It's all too much of a stretch.

Which brings us to the last COA: VL/RS. Again, I need to make sure that I get one of the 3 individual Ds on Defamation or TIwK (and getting TIwBR would be a bonus) to even have this matter. But I've included it because anyone would: if I can make it stick, I can make...

the deepest pocket responsible for everyone. Moreover, if it sticks, then I may also be able to go into wrongful termination and whatnot. Obviously, arguing based on everyone's contract with Funimation plus whatever internal policies they have for contractors is the key, but...

The Texas Workforce Commission and whatnot are red herrings. I'd also be pulling Sony into this as a RS for Funimation. But again, this is all fact dependent (and since I don't know full facts; only Ty does), I'd be looking to that pool to again push the needle on this.

As it stands now, I wouldn't be comfortable that I can make a case for apparent authority for Ron or employee status for Jamie or Monica.

So there you go. If I were representing Vic, and given only the public information, that's what I'd be doing. If I had something in my back pocket that already bolstered the fact issues I pointed out, I'd make sure it was out there sooner rather than later...

...especially with the TCPA hinging on me making a prima facie case. It would be a colossal mistake to hold something back and then lose at the TCPA stage as a result.

TL:DR More facts supporting certain assertions will greatly increase the likelihood of success on certain causes of action. The facts, as they stand in public, aren't great for P, but certain specific adds could greatly push things in his favor.

@HaygoodLaw, you want to give this a shot? Or any other ideas here?