Thread by @AkivaMCohen

OK, as promised, a thread on the flaming bag stuffed with feces Mike Lindell and his excellent lawyers at @BTLawNews left on the electronic doorstep of the Minnesota federal court yesterday

And yes, I tagged @BTLawNews (and am tagging their other practices @BTLawLE @BTLawTrade @BTLawDC) for a reason. I'm not sure they understand how rapidly this filing is torpedoing their reputation; I've already seen GC's on here pledging never to send them any business

And that's well deserved. Not only did @BTLawNews @BTLawLE @BTLawTrade @BTLawDC sign up for a morally repugnant assault on American democracy, *but they did a craptastic legal job doing it*. In-house counsel thus gets to stay away for both moral and practical reasons

It's one thing to have zero moral compass beyond "hey, we're going to get paid a pile of money for doing this," @BTLawNews @BTLawLE @BTLawTrade @BTLawDC. It's another thing entirely to torch your moral reputation while *also* informing the world you stink at "law" stuff, too

Let me be as clear as I possibly can: If I saw this quality of work from @BTLawNews @BTLawLE @BTLawTrade @BTLawDC on ANY case - even pro-bono representation of literal saints - I'd advise any client who asked to run away, not walk. This is capital-S shoddy on substance.

OK, with that preliminary out of the way, and knowing I need to head to a doctor's appointment soon so there'll be an intermission, let's get to substance

The complaint is here storage.courtlistener.com/recap/gov.usco…

Look, this is a morning-after thread, and I know @questauthority and others have already done walkthroughs. So lets do something unusual and jump ahead to see what the actual claims are before we look back at the preliminary material supporting them

Oh. Oh no.

First of all, it took scrolling all the way to page 66 of this monster complaint to get to the causes of action? That's a LOT of throat clearing up front. And it took 66 pages to get to paragraph 122? That's less than two paragraphs per page! That's crazy - and shoddy as hell

Part of your job when drafting a complaint is to force the other side to admit key facts you think are not subject to reasonable dispute, or to clearly deny things you can trip them up on later. To do that, you ideally want to keep your paragraphs short and sweet.

That's because when the opposing party files its answer, it will admit, deny, or say "yeah, that's not info I have, so I don't know whether that's true or not" on a *paragraph by paragraph basis*. So complaint paragraphs should have no more than 1 or 2 distinct fact claims each

Make your paragraphs more complicated than that, and you give your adversary wiggle room to creatively deny things they would otherwise have to admit, simply because of the interplay between the elements you shoved into a single paragraph.

It's ok to have some more "story-telling" paragraphs at the outset of the complaint, to set the narrative and tone, but when you get into the meat of the complaint it should be really really staccato. One-sentence paragraph after one-sentence paragraph. Maybe 2 if super necessary

So to be on page 66 and only at paragraph 122? Is, again, a substantive failure at this whole "law" thing by @BTLawNews @BTLawLE @BTLawTrade @BTLawDC

And then on the substance. An *abuse of process* claim? That's basically a claim that a party to a legal proceeding is using legal process (a subpoena, a complaint, etc.) for a reason that it was not intended to be used.

For example, if I really want to know how much money you have in the bank, so I can tailor an offer to buy something from you or leverage you on a deal, so I engineer a default judgment against you on a bogus claim (like by not serving you and claiming I did) and then ...

subpoena your bank records as part of "collecting" on a judgment I know is false and will be vacated - that's an abuse of process. I'm using legal process not for the reason it was intended (to actually collect on a judgment) but purely for an ulterior reason (to get info).

Key to any abuse of process claim under DC law - where the Dominion suit against Lindell is (and therefore the law governing this claim) is that the party using the process had NO intention of achieving the goal the process was meant for. KNEW the suit was bogus, did it anyway

Here's a writeup of a recent DC case that makes that point:

"The Court agreed ... that there is no action for abuse of process when the process is used for the purpose for which it is intended, even though there is an incidental motive of spite or an ulterior purpose ..."

Writeup here, sorry couldn't fit the attribution in the prior tweet

jordancoyne.com/district-of-co…

BTW - the subject of the case being written up? A claim that a defamation suit was used for the ulterior motive of shutting the plaintiff up. As the court pointed out: Well, yeah. That's what defamation suits are specifically intended to do! (see that writeup for detail)

So as a matter of DC law, Lindell's claim for abuse of process based on the defamation suit is dead as a fucking doornail unless he can prove Dominion never believed it had a viable case against him (and I doubt he alleges that, but we'll see).

Again, something the genius law-doers at @BTLawNews @BTLawLE @BTLawTrade @BTLawDC apparently never thought about "researching". Guys, you may want to add this "research" thing to your law-doing checklist moving forward!

Also, I hate to say it @BTLawNews @BTLawLE @BTLawTrade @BTLawDC but you may want to mute or block me because I'm planning on blowing up your mentions with reference to each of you each time you guys substantively fucked up in this pile of crap, and ... um ... that's a lot.

Oh

So ... we can add "choice of law" to the list of things that @BTLawDC @BTLawNews @BTLawLE @BTLawTrade just don't understand, then?

Guys, you CANNOT claim that Dominion is bound by *Minnesota* abuse of process law when it sued in Washington DC. Where jurisdictions' laws conflict, courts weigh which jurisdiction has the most connection to the dispute, which has more of an interest in seeing its laws apply, etc

Here, Washington DC obviously has a paramount interest in ensuring that its abuse of process laws apply to suits filed in Washington DC. And parties to DC lawsuits are entitled to rely on DC law governing what process they choose to serve. Plus Lindell was subject to jurisdiction

in DC. I see no reasonable way that a court assessing whether a particular suit was an abuse of process would apply the law of the state where the plaintiff lives rather than the law of the state where the lawsuit was filed.

BTW, #lawtwitter, if you disagree on this, let me know. Would love to hear contrary arguments.

And yes, the Minnesota law - at least as written up by Plaintiff in the complaint - seems meaningfully substantively different. Lindell's lawyers seem to think "primary purpose" is enough to get them over the hump under Minnesota law, where it would fail in DC

On the other hand, they did allege that Dominion was making "willfully false" claims in the DC suit. But, uh, guys?

If your entire claim is based on the allegation that "claims currently being litigated in a prior suit filed in a different court are knowingly false" ... this court is NOT going to hear that claim. No way, no how, no chance

At best - at BEST - @BTLawNews @BTLawLE & @BTLawTrade are going to end up having this claim transferred to the DC court (@BTLawDC, you're up!) to be heard as a counterclaim in the main action. More likely, the MN district court will abstain in this case and tell Lindell to go

file whatever counterclaims he wants in DC. There's just no way that a Minnesota district court is going to allow parallel litigation, in two different federal courts, about the validity of Dominion's allegations in its case against Lindell.

It's not going to happen, and @BTLawNews @BTLawLE @BTLawTrade @BTLawDC have taken complete leave of their fucking senses to have ever thought otherwise

OK, got to head to that doctor's appointment, will pick this up when I get back

And we're back, and on to the second cause of action, which is for ... <checks complaint> Defamation? Really really?

Oh, this should be fun

Oh my freaking God. What the hell are you thinking, @BTLawNews @BTLawLE @BTLawTrade @BTLawDC ?

Let's count the ways that this is fucking stupid

1) Lindell is a public figure, and even if he wasn't a general public figure these are issues of public controversy into which Lindell voluntarily injected himself, so he's at least a limited purpose public figure. Those of you who've followed me understand what that means

It means that as a plaintiff in a defamation suit, Lindell has to allege "actual malice", which does NOT mean "Dominion tried to hurt me"; it means "Dominion made statements that they subjectively knew were false or at least subjectively thought were probably false"

This funnels directly into number 2, which is that Lindell is only alleging that his statements about Doiminion machines' VULNERABILITY to hacking were substantively true. But - you stupid goddamn donkey lawyers - Lindell's not being sued for claiming they were vulnerable.

Dominion is suing him for defamation because Lindell has been going around claiming: (1) that the machines were specifically designed to allow election theft (Hugo Chavez, remember?); (2) Dominion was part of a conspiracy to steal the election from Trump; and (3) the election was

*actually and in fact* stolen from Trump via manipulation of Dominion (and Smartmatic) voting machines.

This complaint does not even allege that THOSE claims (the ones he's being sued for) were true, let alone come close to alleging Dominion knows they were true

3) Calling someone a "liar" and a purveyor of the "Big Lie" isn't defamation. Liar is an opinion ("I don't believe the things you are saying are true and I think you know they're not true") and "Big Lie" is a nickname for "claim the election was stolen"

And, again, Lindell isn't even bothering to allege that his claims about election theft are actually true! So ... he's basically conceding that he was a liar (or at least not accurate) on his most important public claims. What is he doing?

4) It's definitely not "defamation per se" - "you lied about politics" is not "defaming MIKE LINDELL in HIS business, profession, trade, office, or calling"

Mike Lindell is a pillow salesman. Though *he* may have forgotten it, being a fascist devotee of America's worst president and attacking American democracy is not his trade or calling. So accusing Lindell of lying about politics literally *can't* be defamation per se under MN law

Again, these are the types of substantive goofy-goober mistakes that ought to have whoever at @BTLawNews @BTLawLE @BTLawTrade @BTLawDC signed off on this nonsense seriously thinking about committing seppuku to save their partners' careers

5) If that weren't enough, has NOBODY at @BTLawNews
@BTLawLE @BTLawTrade @BTLawDC heard of litigation privilege? You literally CANNOT sue someone for defamation for saying bad things about you in a legal filing in a lawsuit. It can't be done.

This isn't some esoteric rule of law, by the way. Any lawyer with any passing familiarity with litigation HAS to know this, because it's a rule that impacts every litigation. And yet, @BTLawNews @BTLawLE @BTLawTrade @BTLawDC went ahead and pled "they defamed me in their lawsuit"

OK, so that's two causes of action that are DOA. What's next? I'm not holding out hope that it can be better but there's no way it can be worse, right?

*Me, scrolling down to the next count and seeing it's a RICO claim*

*Also me struggling not to tag Popehat in here, because I'm sure he's gotten about 42,000 of those from you animals since this dropped*

I have not yet looked at the claim. What fucking predicate acts are they planning to allege? RICO isn't a catch-all for "I think people did bad things together" - you have to allege that: (1) a group of people; (2) working together for a common illegal purpose; (3) engaged in ...

multiple violations of very specific federal statutes ("predicate acts"); and (4) that those violations DIRECTLY harmed you IN YOUR WALLET.

Even if I wanted to imagine that Lindell's nonsense election fraud claims were (1) true; and (2) involved actual predicate acts ...

In what conceivable universe could anything they did on the "election fraud" front have hurt Lindell's business or property?

Let's dig in and see what they say

This, btw, is not a terribad summary of what RICO requires, except: (1) they don't bother explaining what "racketeering activity" is (that's those predicate acts) and (2) it's not just any "purpose" - it has to be for an *illegal* purpose

Or, to put it another way, my friends and I don't become a fucking RICO enterprise when we decide we want to take the next 3 months off from work to go see a game at every baseball stadium in the country, even though we have a common purpose, relationships, and longevity

Which is why this, on the other hand, is *DEFINITIONALLY* terribad, @BTLawNews @BTLawLE @BTLawTrade @BTLawDC. You can't support a claimed "association in fact" by pleading facts showing two companies have been doing legal business together for years.

You idiots.

Also, I hate to break it to you, but "suppressing criticism of your business" is NOT an illegal act at all, let alone a violation of any RICO predicate statute I can think of off the top of my head. (Let's see if they get specific and identify one). So even if they literally ...

sat in a back room and conspired about how to make people less inclined to criticize them, that still wouldn't be the fucking RICO.

They next have a paragraph alleging Dominion & Smartmatic engage in interstate commerce, which is both true and irrelevant; for RICO to apply the predicate act has to impact interstate commerce & the geniuses at @BTLawNews @BTLawLE @BTLawTrade @BTLawDC haven't identified it yet

Oh no

These stupid stupid motherfuckers

Their predicate act ... is "extortion"

Oh dear God.

Let's talk RICO. The definition of "racketeering activity" in RICO - the list of predicate acts - is set by statute. 18 USC § 1961(1). As you can see, it's a long list that mentions "extortion" exactly 3 times

The first one is "extortion punishable as a felony under state law"

NO state that I know of makes sending a frivolous cease and desist letter a felony - let alone a viable C&D (and Dominion's were clearly viable, because their lawsuit wasn't dismissed)

So we can scratch that one off the list.

Next is "extortionate credit transactions" (i.e. loan-sharking) which pretty obviously doesn't apply.

How about the third one, 18 U.S.C. § 1951 (interference with commerce, robbery, extortion)?

Again, I'd like to invite @BTLawNews @BTLawLE @BTLawTrade @BTLawDC to include "research the fucking statute before you file a claim" in its process from now on. My fucking God. BTLaw frens, do you see the problem now?

I mean, yes, there are multiple problems here. Yes, you're going to have a hell of a time proving that those C&Ds affected interstate commerce. BUT LOOK AT THE FUCKING DEFINITION OF EXTORTION YOU STUPID GODDAMN DUMBSHIT MOTHERFUCKERS (thanks, @offspring)

Your allegation is "Dominion's C&D extorted us into not speaking up."

The statutory definition of extortion requires Dominion to have "obtained property" from you.

"They got me to not talk" is NOT, under any reading of the statute, "obtaining property"

At this point, the only conceivable explanation for this mess is that the good "lawyers" at @BTLawNews @BTLawLE @BTLawTrade @BTLawDC have effectively decided they want to open a China office the way we all did as kids: by digging straight through the center of the earth

Seriously, I wouldn't trust this firm with a dog-bite case after this. Let alone a big ticket litigation, or a deal, or anything at all. Read the applicable fucking rule is day 1, step 1 of "learning to law". And they can't do it. Just flat refuse. How can I hire them?

Also, you fucking clowns, HOW? In what way did "being too terrified to keep talking about the litigation on pain of being sued" harm Mike Lindell in his business or property?

More importantly, Lindell never once shut up. So how was he injured by the attempted 'extortion'?

I am just absolutely staggered by how gigantic of a flaming trashpile these guys filed, and that's despite having walked into reading this with appropriately "Mike-Lindell-filing low" expectations

Update for those not watching the replies: The partner who signed this pile of shit has been defenestrated with remarkable speed, and the firm claims he never got approval to sign their name.

Note: I have my serious doubts. No biglaw partner signs an engagement without first

going through the firm's conflict clearance process. No doubt the firm authorized him to represent Lindell but is saying they didn't realize what the substance would be. But there's no way the firm didn't accept the *client*

No, seriously, I can't.

1) You weren't sued for "supporting President Trump"
2) You weren't sued for "advocating against the use of electronic voting machines in the 2020 election" (my dude, I know you've floated free from the bonds of reality, but linear time is a thing)

3) You weren't injured in your person. Neither reputational harm nor threats on your life are physical injuries, and those threats didn't come from the people you sued, so how could they even conceivably be relevant?

4) You weren't injured in your property: people choosing not to buy pillows from your company because of your batshit insanity is not the type of property damage the statute contemplates; nor is "I had to defend a defamation suit"

5) You weren't deprived of your right to free speech; you are still more than capable of saying whatever the fuck you want. You just are gonna get sued if you defame people.

What the everloving fuck? How can this continue to get crazier? How?

I ...

I don't even know what to say, here. Dominion is not a state actor or acting under color of law when they file a lawsuit against you. And even if they were, "being hit with a C&D and a suit" isn't an equal protection or due process violation.

I ... how?

No. No, Dominion is not "acting under color of state law" when it sells voting machines to the state and that the state then has state employees use to run elections. (BTW, "designing and selling voting machines" isn't a traditional state function)

And what does this have to do with your claim about their "lawfare"?

OMG. I was really hoping they were going to go the *less* stupid route of alleging that Dominion participated in election fraud and thereby harmed his right to vote.

Reader ... they chose the stupider road

Look, even if it is a state actor in "running elections" (it isn't, b/c it doesn't, but even if) that doesn't make it a state actor in everything else it does. When they go pitch Montana on bringing their machines in, that's not "State Action" by the states already using them

By the same token, when they sue a crazy pillow salesman who got all hopped up on meth and crystallized fascism and went on a defamatory campaign against them, that's not state action. It's just not, no matter what else Dominion does for the state

And no, "we're suing the people leading the accusations that we participated in election fraud" is not "viewpoint discrimination" or an equal protection violation even if Dominion *were* a state actor. It's not your "conservatism" that's the issue here, you loon

Oh good, they've pled civil conspiracy, which is basically "you guys conspired to do a bunch of unlawful stuff"; I'm not bothering with this one since it's just a rehash of all the reasons the rest of it is batshittery

And that's it for the substance.

I'm sorry, guys, but I'm not going to read through the first 66 pages of nonsense when the legal claims are this goddamned stupid, and I have to go do some actual work. /fin