Thread by @LawoftheGame

Ok, back from the hearing. This will be the thread where I go over my notes. I filled this notebook (good use of a speaker’s gift) so there’s going to likely be a lot.

Everything started right on time. All the lawyers you expect were there; only Monica and Jamie were present as parties. A certain YouTuber arrived late and sat at the back of the gallery. It was a full house.

JSL (Lemoine) was the first to speak, JC (Judge Chupp) asked which document they wanted to go over first. JSL said Motion to Strike the 2nd Amd. Petition and after a little discussion of the Dallas Morning News taking photos, ALH (Hsu) stood up.

ALH asks to hear the P's motion to strike late submissions first. JC disagrees, sticks with JSL's request.

As an aside, ALH seemed to present well. Really nothing bad to say about his demeanor, organization, etc.

JV (Volney) gets up to walk through the motion. His first point is this was filed in a clear attempt to circumvent the Rule 11 agreement. Second point is TRCP 59 specifically limits what can be exhibits to a pleading, and case law on this expressly excludes depositions, etc.

ALH argues the timing is irrelevant because the new pleading takes the place of the old. Beard is frantically handing notes to ALH during this.

Beard suddenly interjects a comment about CLE materials recommending amending pleadings.

JC: Seems like you're just trying to dodge the Rule 11 agreement, and this should have been filed 8/30. You also should have fixed your defective affidavits rather than filing something different altogether.

Beard begins what will become a pattern and bad habit of interrupting JC. Regardless, JC continues to circle back to a simple concept: you should have fixed the defective filings rather than file something new.

JV notes that the declarations themselves don't comply with requirements. ALH argues it's necessary to establish a prima facie case. Also trying to claim they are an instrument under TRCP59.

JC: Can you offer any proof an unsworn declaration is an "instrument" under the rule?
ALH: No.

At this point, ALH and Beard are both still talking and JC says "One of y'all needs to figure out who is doing this argument."

He then says let's deal with this later and move on to the TCPA stuff.

OK, on to the Marchi section. SJ (Johnson) for the defense is up. He has a power point, and the first slide after the title says "Why are we here?"

SJ outlines the TCPA, and it pretty well tracks to the filings. No real surprises.

(Paraphrasing)
JC: Which tweets are we talking about?
SJ: Well, they didn't attach anything to their responses, so we're guessing.

SJ does quite a job going through public figure, arguing GPPF and LPPF in the alternative. They cite everything you'd expect, including the GoFundMe and media coverage. Beard is shaking his head a lot.

JC makes two comments at this point: there's no evidence of TI and nothing about the statements in question seems to be defamatory. But is it a jury question? SJ says it's on the P to prove there's a jury question.

Beard gets up to respond for the Plaintiff. JC's first questions out of the gate: what statement that is in your pleadings is defamatory? (Just my sense that this does not bode well for the plaintiff.)

JC further clarifies: Not including the 2nd amended Petition. Beard fumbles with papers quite a bit here (something else that happens a lot) and then tries to launch into conspiracy. JC tells him to do defamation first.

JC asks how many defamatory tweets there are from Marchi, and Beard doesn't know the answer.

Another aside here. At this point it's become extremely obvious that one team is extremely disorganized, and their opponents are not. I won't say who's who, but I think you can guess.

Beard brings up the "he's a monster" tweet. SJ points out that only the head/balls tweet was in the 1st Amended Petition. JC was not amused and again says you can't re-plead to get around an improper response.

So here we get to the notary thing. Beard is now requesting a trial amendment to add the unsworn declarations, and attempts to explain he thought he could notarize by phone. I'm not sure anyone is buying this.

Also, to be a notary in Texas you have to take a training course. (notary.net/state/texas/) I used to be one, and this is a pretty major part of that course: the signatory has to appear before you personally.

JSL says they asked Beard to explain and got the 2nd Amended Petition instead. JC says that this is an obvious attempt to sidestep the Rule 11 agreement and asks what tweets were in the 1st amended petition specifically. Beard starts reviewing docs and there's a long silence.

Beard cites a 2/9 tweet about him being a predator. Another pause. Then the "name and shame" tweet. Then he starts on a tangent about the "private discord server" including defamatory statements and it being a conspiracy. Beard cannot stay on point at all.

(Paraphrase)
JC: Does she use his name?
Beard: No, but in context you can tell it's him.
JC: You need to show proof, and you've failed at that.

There's quite a back and forth over the timing of the filing between Beard and JC. The net result is JC in essence saying that if Beard was intending to file all these things, it all should have been ready 8/30.

(Paraphrase)
JC: Show me evidence a statement by Jamie referred to Vic from the documents you filed.
Beard: I can't.
JC: Defamation is dismissed. Do you have any evidence of a plan for conspiracy?
Beard: The TX Supreme court allows circumstantial evidence and rational inference.

So here we go on conspiracy. The jist of Beard's argument is Monica and Jamie are friends. They like and retweet the same stuff. And there's this mystery discord server.

Judge Chupp is pretty clear: Two people who agree on a comment to an article or something like (for example, liking or retweeting the same post) that is not a conspiracy.

Beard takes a left turn into tortious interference and other defendants, which seems to be exactly what JC does not want to do. He's trying to take this claim by claim, defendant by defendant.

Judge Chupp reiterates that republication is not a conspiracy and tells Beard he's reaching too much. Beard calls for a 5 minute recess.

Upon coming back from the break, Beard says to look at a tweet related to defamation. JC says he's already ruled on defamation, so stick to conspiracy. He also notes that any petition would be a conspiracy under Beard's theory.

(Para.)
JC: Which cause of action is conspiracy tied to?
Beard: Defamation. (Note: already off the table)
JC: OK, let me try again. These people had a plan to do what?
Beard: Well, Marchi couldn't influence cons herself.
JC: So TI? You have to have a plan to commit the tort.

Beard again brings up the discord server, and the defense points out that said server is no where in the record.

(Para)
JC: Show. Me. Proof. Of. Conspiracy.
Beard: *fumbling*
JC: I don't see conspiracy, and your analysis isn't rational. Dismissed. What's your argument on TI?
Beard: Same as on conspiracy.
JC: Dismissed.

Vicarious liability is clearly pointed to as only applying to Funimation (they're the only employer who could be vicariously liable for an employee), so everything against Marchi is dismissed. For those keeping score at home:
Beard: 0/5
Defense: 5/5
Remaining: 15/20

OK, moving on to Rial/Toye. JSL also had a powerpoint. It started out with "This case is a dumpster fire."

JSL is about to start on public figure, when JC stops him.

JC: Plaintiff is a limited purpose public figure.

He then cites the size of the crowd as evidence, and make a joke about how no one comes to see anything in his court (and it makes him lonely). Many folks laughed.

JSL then goes into the libel proof affirmative defense and Beard objects to relevance. JC overrules, but says let's get to the point. JSL starts on the CDA defense and Beard objects again (timing of this defense). JC: They can respond to you on a point of law regardless.

JSL starts in on KMBT and the cite to the dissent, but JC tells him to get to defamation. JSL begins on the context question, noting how every one of Ron's tweets is absent any context. Beard interrupts saying the tweets are not ambiguous, JC tells him to sit down until his turn.

JC tells JSL this is bogging down and asks again to get to the point. JSL: Depositions show no actual malice. JC comments that Monica's assault account cannot be slander as it was her view on what happened. JSL wraps up on the dual questions of falsity and malice.

Here there was an intervening motion in another case, so we broke again for a few minutes.

Returning post 2nd break, Beard is up again. After how his previous round went, I'm absolutely perplexed why someone (ANYONE) else isn't taking over. They have ALH, Bullock, and Christie all on hand. Add to that Beard has a paper visual aid, compared to all the Powerpoints.

Beard: CDA only protects the platform, not the user. (Note: he's just flat wrong. see eff.org/issues/cda230 "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider")

(Para)
JC: Regardless of the CDA, none of this proves a conspiracy.
Beard: If this were trial, I'd agree.
JC: So, that's settled.
Beard: No! It's only a prima facie case! There's implied conspiracy.
JC: Stop. Please start with defamation.

Another aside: there's quite a bit of fumbling by Beard here, and it seems like he only gets through about half a sentence at a time. In my opinion, not a great look/composure for this time/place. (You can get away with a lot more on a conference call, for example.)

Beard jumps into Huber then Slatosh then to TI. There's no real organization to this argument, and it certainly isn't staying on point for defamation like was requested.

(Para)
JC: Do you have any breach of contract cases?
Beard: No.
JC: Then there are no damages.
Beard: He was cancelled elsewhere.
JC: You have to have a contract. What contracts were breached because of defendants?
Beard: We infer there are others because of KamheaCon. (Cont)

(Cont/Para)
JC: There is no cause of action for what they might have done.
Beard: This is a rational inference!
JC: Stop.

Beard says Vic doesn't remember who he had contracts with. He's speculation on potential value, saying they were all handshake agreements and he can't produce any actual contracts. Beard has now cited two different values, for the same agreements, but then calls it a range.

Aside number who knows: I seem to remember a number of people pointing out the absence of actual agreements was a problem. I also remember certain other people hand waving it with "notice pleading." Guess what? IT WAS A PROBLEM.

Oh boy. Beard said that there is no breach of contract claims because the cancellations were done "legally." Also claiming he couldn't gather any evidence because of the discovery stay. JC says that's a made up excuse for not contacting the con owners.

All TI claims dismissed for Monica. Moving on to Ron. JC asks if there's anything beyond KamheaCon, and Beard's response is (yet again) "rational inference." (Note: I feel like Beard is treating this like Nick's show, not court.)

(Para)
JC: Show me the contracts.
Beard: They're all verbal.
JC: Any evidence of Toye interfering with something other than KC?
Beard: It's all circumstantial. The stuff I already said.
JC: These are not the only 3 people on the internet. You have to show some causation.

Here's the big one:

Judge Chupp to Ty Beard: Your real problem is you have no evidence.

Beard tries to deflect with "discovery abuse" and JSL responds with: 1 Kahn says proximity is not causation; 2 how can you prove terms for a breach or value of a verbal contract?

(Para)
Beard: He (Toye) did contact other people.
JC: Prove it. You have offered no evidence that Toye has contacted anyone other than KamheaCon, where there were no damages. TI against Toye dismissed.

The other issues were put on hold (Ron/Monica defamation and conspiracy) and VL still doesn't apply. So updating the score:
Beard: 0/9
Defense: 9/9
Unsettled: 11/20

JV's turn (yes...we're still going. This went past 2 hours.) He also had a Powerpoint. Taking a cue from the earlier discussions, he skips a lot of the repeat stuff. For Funimation, this is about 2 tweets. Tweet 1 is true and Vic agreed. Tweet 2 is also true.

(Para) JV: Neither statement is defamatory and there's no evidence anywhere of actual malice.
JC: Are those really the tweets? A company has a right to issue a press release. What's defamatory?
Beard: It implies Vic is guilty.
JC: It doesn't say that.

Beard mentions that they didn't deny Rial's comments, and JC says that we're not discussing VL yet. Beard continues on his implied statement line, and insists they should have clarified. He also says RoosterTeeth isn't being sued because their statement didn't imply anything.

Some discussion of what damages Vic has, where Beard says that announcing the firing could be TI with contracts, and defamation per se. JC says that defamation could cause the loss of a contract as a side comment. Then we move to conspiracy.

(Para)
JC: Investigation of an employee/contractor accusation by a company isn't a conspiracy.

Beard is somehow alleging that emails after the investigation show planning a conspiracy after the fact. JC isn't following this at all.

Judge Chupp to Ty Beard: "You have to figure this stuff out."

And back to VL. Beard tried to say the Marchi and Rial independent contractor agreements weren't included. JV gets up to point out they were. JC was not amused: "You have no evidence they aren't independent contractors."

Beard is arguing Vic was an employee. JV brings up the Mika affidavit, which shows Rial/Marchi were contractors and Vic's depo (p 273-274) where Vic says he's a contractor.

JV says that defamation by implication by omission (that is, Funimation not saying something else) isn't a real thing.

(para)
Beard: Don't let them add evidence to their filing!
JC: But I let you.

Ouch.

(Para)
JC: If Monica does something that Funimation doesn't like, their recourse is to fire her. It's not her job to post stuff about co-workers online, so even if she's an employee, this isn't in the scope of her employment. VL dismissed.

And here was the quick remaining dismissal. TI against Funimation was dismissed, as was conspiracy. Judge Chupp said he'd issue a ruling on defamation for Funimation, Ron, and Monica.

As we were way over time, he was very quick which led to some confusion (not everyone agreed what was said) on the Ron/Monica conspiracy claim. Let's just assume that will be clarified by the record or the ruling.

So, final score from the hearing:
Beard: 0/16
Defense: 16/16
Remaining Issues: 4/20

I'd put very low odds on anything surviving the ruling.

That's all I've got in my notes.

Just another important point, the Ron/Monica conspiracy only survives if their defamation does. It needs an underlying tort.

Corrected final Score:
Beard: 0/15
Defense: 15/15
Remaining Issues 5/15

Noting that Ron/Monica conspiracy will require success on defamation.

(The miscount was me counting that as 1 rather than 2; my bad. But it's likely both or neither.)

Oh a couple conclusory thoughts:
Vic lost every Tortious Interference with Existing Contract claim because he produced zero written agreements that were breached. That's it. It has nothing to do with Ty'd fumbling over damages or anything else.

The KC agreement? Even if there was a breach, it was mitigated. If you can't still sue for breach, TI is foreclosed because you've already foreclosed the damages.

Beard said "rational inference" about a million times. I'm not sure he fully understands the concept (or maybe he does and he was just working with what he had) but rational doesn't mean "remotely possible."

I think the lack of provable actual malice will kill the rest of this, but we'll see.

Other lawyers can chime in about appeals if they want. That's not really my thing.