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Good evening #threadnought -
Let's knock out the last of the transcript from the TCPA hearing. Why not. It's a beautiful evening. I could doing so many other things - but how can I stop watching when there are so many train cars flying through the air?
Sorry if my enthusiasm level is down a bit on this one - Ty's performance so atrocious that it's been literally draining to wade through the disaster. So so much cringe.
When we left off last night, Judge Chupp had elected to move on to the Funimation case, leaving defamation and conspiracy still to be determined for Toye and Rial.
Volney steps up to the same starting position as the others - confirming, because Ty is a crappy lawyer who is incapable of drafting a coherent petition, the claims against his client. In Funimation's case, there are a total of two tweets that were allegedly defamatory.
The first is the tweet telling the world that #stillfired Vic had been fired; the second is the "harassment is bad, m'kay" tweet.

Of the two, only the second could even remotely carry a defamatory meaning - but I'm sure we'll get there shortly.
I should note that Volney isn't 100% up to speed on the background material, although in fairness to him details like the ones Judge Chupp was asking about there aren't really important at this stage of the proceedings.
Volney has a fairly easy lift with regard to the defamation claims - or should, anyway. The first statement is clearly true, and the truth argument on the second isn't terribly difficult either.
He's playing it a bit conservative, actually - he's focusing on the intent of the second message being to discourage harassment across the board. Given the affidavits in the record regarding their investigator finding various allegations to be credible...
...I was kind of surprised that he didn't argue, at least as an alternative, that even if the statement is viewed as being about Vic, it's still a true statement.

However, there may be a number of reasons for his approach, so take that as an observation, not a criticism.
One of the reasons may be that the lack of actual malice is so clearly fatal to Vic's claim here that there's no need to take on any risk by making that alternative argument.
It would appear that Judge Chupp is on the same page as Volney, at least to an extent, given that he does seem highly skeptical of the idea that the press release, in particular, could be defamatory.
You know, it's really almost like Ty is trying - and I mean actively trying - to make just the most legendarily bloody stupid claims that could be made. WTF?

I had no idea that Ty thinks he's suing Funi for "implicitly" calling Vic a pedo or saying he committed sexual assault.
I was going to try to get through tonight's thread fairly quickly - I'm tired, I'm grumpy, I've got my entire outline to re-write tomorrow, I've only just (don't judge) discovered Brooklyn 99 and am going to binge a season - but let's take a minute to explore this one for a sec.
How is it even possible that I didn't know Ty's claims against Funi included "implicitly claiming that Vic is guilty of sexual assault and is a pedo?" I legitimately didn't.

(Also, how many times has Ty the SEO expert done stuff that puts "Vic" and "pedo" in 1 sentence?)
Here's how it's possible:
The petition is supposed to provide reasonable notice as to the claims - nothing in there, as far as I can tell, indicates that this is the plaintiff's theory. Nor does anything in anything else that they've filed hint that this is their theory.
And it's a fucking dumbass theory thought up by fucking dumbasses. Defamation by implication can be a thing, and I thought it was an interesting approach - but I thought they were just going on the theory that the 2nd Funi tweet implied that Vic had committed sexual harassment.
That would at least have been supported by the wording of the tweet, and might even - but for the fact that the shit that Vic has admitted doing could get you fired for sexual harassment anywhere and even Vic thought he was getting put on probation - have been a workable theory.
The level of whatthefuckyousmoking at BHBH needed to try to shoehorn sexual assault and pedo into that defamation by implication claim is so through the damn roof that it didn't even cross my mind. It was literally inconcievably dumb even when I was trying to think like Ty.
Anyway, that's one rant over. I'm really looking forward to discovering what the next one will be - I'm sure it'll happen in the next few pages.
But this is the hill Ty has chosen to assault, so I guess we're going there.
To be clear: in at least some places, that series of statements about CPS could be actionable as false light. And I could see trying to make an argument based on the "we don't condone harassment" statement. But there's just no way that gets you "sexual assault" or pedo.
(repost; broke thread)
The argument gets so confusing that the judge isn't sure what the claim is anymore, which is always a good sign.

But anyway, Ty's theory seems to be that it was defamatory for Funimation to not explicitly say that Vic isn't a pedo. Or something like that.
And Ty really doesn't know when to shut up - here he very helpfully corrects the judge in a totally irrelevant manner because he just can't keep from shooting his own feet.
In fact, Ty really doesn't know when to shut up - when the Judge says "I heard you," it's not an invitation to keep going.
Arguing that there was a duty to clarify is kind of breaking new ground. It's an interesting argument. I think it's wrong, but sometimes groundbreaking stuff works.

Of course, it usually works better if you're using a jackhammer instead of a plastic spork.
And I'm sure everyone in the room was very excited that Ty decided to go on back into his conspiracy theme. Especially Judge Chupp.
About this bit:
(1) I saw a lawyer at oral argument ask the court to let her get back to her point.
(2) The rest of her argument was a disaster greater than the start of her argument, which was bad.
(3) Ty was already doing so much worse than that I don't think it matters.
Also - I'm starting to think Ty might actually believe the bullshit he's using to decorate the walls. Which is even sadder than the idea that he's just selfish, lazy, and mendacious.
Anyway, Ty keeps on going with the string and sharpie, and Judge Chupp is still basically "ummm none of that's defamation why isn't this a breach of contract thing?"
I'll be honest. I can't follow this exchange very well. I'm not sure if it's just me, but it's like law isn't really what's being discussed anymore.
I mean, it seems like Judge Chupp is trying valiantly to find some way of getting the stuff that Ty keeps talking about to fit - somewhere, anywhere, but fit - into the case because it clearly doesn't go where Ty thinks it does, but Ty is fighting him every step of the way.
And this shit is every bit as craptastically stupid as it was when they stuffed it into their written response. No Ty, no Nick, the court doesn't have to believe that Vic knows everything about what Funi investigated; how stupid do you have to be to think that's how Khan works?
At this point, when I read "write down a number," I hear "Ty, you bumblefuck, did you do any damn work at all?"

Seriously - the things that Judge Chupp is asking Ty about are things any competent attorney would know.
I guarantee you that Judge Chupp will never hear the words "conspiracy theory" again in his life without thinking of Ty Beard, Mensa Esquire.
Sorry for the delay in the thread - I read this part and I knocked over my soda and had to stop and clean up. And I think that says it all, really.
You know something? This might sound a bit like a nonsequitur, but reading this I can't help but think that Judge Chupp probably does better than most judges with pro se litigants.
It's a good, simple breakdown there. It's taking time, but he's pusing Ty to get to the right areas of the case. I'm kind of impressed.
When the judge says, "they didn't plan to do it," your conspiracy case is in trouble. I thought I'd say that again, because it's sure starting to look like Ty is a slow learner when conspiracy is involved.
Ty has been doing horribly the entire hearing; this bit gives us a sense of why:

He's so disorganized that he is not thinking in terms of causes of action; he's thinking in terms of the whole incident. That's understandable for a non-lawyer; unforgivable for a lawyer.
There's no "general bad stuff" tort. You've got to take the incident apart and carefully break it down into causes of action. That's how this stuff works.
This takes me back to watching the Smothers Brothers when I was a kid - "Thank you." "That was not a complement."
Ty then dives back into conspiracy. Again. With evidence - Monica has friends and someone having friends is apparently evidence of conspiracy. Also, Monica talked to Funi after Vic was fired.

Of course, "conspiracy after the fact," like "attempted TI," isn't a thing.
Judge Chupp doesn't seem to be embracing this idea of conspiracy after the fact - and uses language that would produce an immediate apology from most lawyers. And when I say "most," I mean "all those with more of a grasp of their surroundings than a meth-addled muskrat."
(Taking a quick break - back soon.)
It looks like Judge Chupp gave Ty every chance possible here - and when I say "every" chance, I don't just mean "every chance to present evidence;" I mean "every chance to come back to Planet Earth."

It didn't work, so it's off to vicarious liability.
You know, getting called out by opposing counsel for completely misrepresenting the record is the kind of thing that can totally crater a lawyer's credibility with the court. But that's not really a problem for Ty anymore.
Amazingly, Ty Beard - a man whose entire TCPA response was submitted late - still wants the other side's stuff struck for being late.
Also, I don't know what the gain is for Ty on that. It's not like he can honestly say that they don't claim that she's an independent contractor - they did, even if they didn't submit evidence prior to the deadine. I don't get what he's trying to accomplish here.
Ohfuckohfuckohfuckohfuck - Ty. I mean. Owwwww.
So apparently Ty was so convinced that he was going to win the motion to strike that he didn't bother to become familiar--

No. I'm sorry. I'm being unfair to Ty. He doesn't know his own client's case; I can't reasonably expect him to know the opposing case.
I mean -
I'd expect a good lawyer to know the whole case, including anything that might come in. I'd expect the same of a bad lawyer. I'd expect it of a moot court competitor, and I'd expect it of a 2nd semester 1L.

But Ty isn't really any of those things. He's sui generis.
WHATTHEFUCK -
Ty. You utter- you utter- you complete, massive, weapons-fucking-grade waste of protoplasm - you're supposed to be a lawyer. IT'S A QUESTION OF LAW!!!! ARGUE IT YOU IDIOT!!
For crying out loud - hell, there have been Nickbeards and KiwiFarmers arguing that Vic and the other VAs are employees not contractors for months. Their arguments are insanely stupid, but at least they're FUCKING WELL TRYING and it's not even their job. It's your damn job, Ty.
I can't begin to imagine what Judge Chupp is thinking by this point. Whether or not the VAs are contractors is critical to the plaintiff's case; how the everliving fuck can you possibly be unwilling to argue this? Ty should have been thrilled to get that question.
And-holyfuck-it gets worse?????
It looks like Judge Chupp is giving Ty another bite at the apple - he's taking Ty by Ty's little pro-se-like hand and walking him through why this is what lawyers call im-port-ant.

But Ty still craps his pants. He mentions two (wrong) tests, and then tries to apply either.
I'm recruiting for a moot court team over the next couple of weeks. Any prospective team member who finds this thread:
(1) good initiative.
(2) don't ever let me hear you use the phrase "my own opinion" during an argument or practice. It won't end well.
And there was a typo earlier - Ty didn't try to apply EITHER of the wrong tests. That would have been merely bad. He tried to apply NEITHER, because apparently the force of the disbelief radiating from everyone in the room was contagious and he stopped believing he's a lawyer.
"I kind of think he was." My god. He said that. No analysis. No argument. "Was your client" - your client, Ty, the one you owe a fucking duty of competence - "an employee." And the best you got is "I kind of think he was?"
So, in a nutshell, Ty's evidence for vicarious liability is that, despite being fucking called out for lying to the court when he said there's no evidence she wasn't an employee, he's still saying there's no evidence she wasn't an employee.
Seriously. I'm just - Ty, the judge said you were lying the last time you said that. Do you think it's going to work as evidence now?

And it's an irrational inference anyway. Again.
One note - I highlighted a line in Judge Chupp's exchange with Volney that is another rattlesnake rattle moment. Think we're starting to head toward the ALL patience for EVERYONE has been exhausted threshold. Quickly.
Volney did a good job there of making a clear record that Ty is either a lying little ratweasel or so incompetent that he doesn't have a damn clue what's happening in the case he brought. Not really much to say about it, to be honest. It's professional and well-argued.
Volney then goes back to the defamation claim - and you have no idea how much I appreciate these little islands of sanity - and makes it clear that (1) the defamation being alleged is a stretch; and (2) there's no actual malice anyway.
Ty's response basically boils down to "my client didn't know what he was talking about in his deposition."

And, because he's a moron, the guy who submitted all of his stuff after his deadline keeps insisting that nobody else gets to submit stuff late.
And, being tired of it all, Judge Chupp decides to part the Brown Sea and point out (as the lawyers here did months ago) that even if they're employees, that's not enough - scope of employment still matters.
And at this point, Ty's arguments continue down Stupid Street, to such an extent that he manages to muck up an attempt to concede a point.
It seems possible that Ty is starting to understand that "rational inference" isn't a magic phrase. Just not why.

But there's not a lot of patience left, so it's kind of a missed teaching moment there.
Anyway - basically what happens is this: Judge Chupp lets Ty ramble on for a couple of more minutes, then issues a ruling on most of the charges against Funi and ends the hearing.

It was a bit abrupt, but I suspect that's down to time pressures. And maybe patience.
Notes:
(1) I don't think there was oral argument on TI for Funi. It was still dismissed. That's not an issue - the lack of evidence in the papers more than sufficiently supports that course of action.
(2) It's clear that Judge Chupp has some things he wants to work through before making his decision on the remaining causes of action. It's not entirely clear to me from his questions what those are; presumably he did ask the questions he needed to.
(3) Ty needs to not do oral argument in the future, except he maybe doesn't have any choice unless fees and sanctions are handled on the papers. Because I don't think anyone else is lining up to take the hit for him.
(4) Based on the tweets and other reports, I thought the hearing had gone incredibly poorly for Ty; until I saw the transcript I had no idea how bad it really had been.
(5) Between the hearing and the Week of the Hellfiling, I think it's clear that Ty is lazy. In no instance did he display anything close to adequate preparation.
(6) Both his brief and oral argument were in the range where his ability to pass a 1L practice course is in serious doubt.
Anyway, it's been fun, and hopefully it will be a while before there's another hearing or filing in this case. I'm open to suggestions on what else to work on - let me know if there's stuff you'd like to see me cover.

/fin
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