The Ninth Circuit Offers Prenda Law A Brusque Bench-Slap

The notorious gang of crooked fraudsters and copyright trolls Prenda law — documented extensively here — continues to face bad fortune. Last month we learned that the FBI is investigating them. Now, the United States Court of Appeals for the Ninth Circuit has affirmed the apocalyptic sanctions order that marked their turning point — Judge Wright's geek-reference-laden death blow sanctions order.

We shouldn't be surprised, as the Ninth Circuit oral argument more than a year ago went very badly for Prenda. The Ninth Circuit's languidly decided opinion is worse. You can read it here. It's unpublished, suggesting that the judges didn't view it as presenting sufficiently novel issues to merit publication. It's also relatively brief and informal, suggesting the panel didn't think that any of it presented a close call. It accepts Judge Wright's conclusions as well-supported by the record and repeats them to brutal effect:

Based on the myriad of information before it—including depositions and court documents from other cases around the country where the Prenda Principals were found contradicting themselves, evading questioning, and possibly committing identity theft and fraud on the courts—it was not an abuse of discretion for Judge Wright to find that Steele, Hansmeier, and Duffy were principals and the parties actually responsible for the abusive litigation. Similarly, it was not an abuse of discretion for Judge Wright to find that the Prenda Principals were indeed the leaders and decision-makers behind Prenda Law’s national trolling scheme.

. . .

The Prenda Principals have engaged in abusive litigation, fraud on courts across the country, and willful violation of court orders. They have lied to other courts about their ability to pay sanctions.

Prenda's dead. The courts are bouncing the rubble and the FBI is ambling out to slit the throats of the wounded.

Good riddance.

Hello! You've Been Referred Here Because You're Wrong About The First Amendment.

Welcome! Someone has referred you to this post because you've said something quite wrong about the First Amendment.

I apologize for this impersonal approach to your mistake. I would prefer to offer you an artisanal response to your wrongness, something that would respect and celebrate the unique ways that you've taken one of the most fundamental aspects of our mutual civic heritage as Americans and shat your ignorance upon it. Unfortunately, there are quite a few of you and only one of me, and I'm busy, and lazy. Also, quite frankly I feel that if I have to explain these things to just one more person, I may go quite mad. I don't mean mad in the vaguely amusing, sympathetic, relatable ways that people expect from me. I mean mad in an uncouth and alarming sense that will likely result in my calamitous misuse of some implement residing in the dark marchlands between tool and weapon, such as an adze.

So. Constrained as we are by this impersonal medium, let's discuss why you are completely wrong.

If you said something like "The First Amendment says 'Congress shall make no law,' and Congress isn't involved here, so it's not a First Amendment issue."

Congratulations! You've read the First Amendment. Even if you've ignored the last century of discourse about it, this raises you above most of the populace, particularly on the Internet.

You're right that the plain language of the First Amendment only limits Congressional power. But you've ignored some American history. Don't worry: you've only ignored a century and a half of it. The Bill of Rights was originally understood to limit the power of the federal government without limiting the states. But in 1868, after some recent unpleasantness, we amended the Constitution to add the Fourteenth Amendment, which includes this language: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." By its own terms, the Fourteenth Amendment forbids the states from infringing certain rights.

But which rights? Well, in the early 20th Century, the United States Supreme Court decided that certain fundamental rights enumerated in the Bill of Rights are included in the concept of liberty identified in the Fourteenth Amendment and therefore protected from infringement by "due process of law." This process — under which the court decided that the Fourteenth Amendment incorporated by reference rights from the Bill of Rights and made them enforceable against the states — is called incorporation, and the notion is called the incorporation doctrine. The Supreme Court has decided that most, but not all, rights from the Bill of Rights are incorporated by the Fourteenth Amendment and therefore protected from infringement by states. The Supreme Court decided — or, to be more accurate, assumed — in a 1925 decision that freedom of speech under the First Amendment is one of the rights enumerated in the Bill of Rights that the states may not infringe because it is incorporated by the due process clause of the Fourteenth Amendment.

Therefore, the First Amendment does apply to actions by states and their political subdivisions (cities, counties, state agencies, etc.), and has for more than ninety years. You're wrong. Please stop being wrong and asking other people to be wrong with you.

If you said something like "the First Amendment only stops the government from censoring you so it doesn't apply to this civil case, which is one individual suing another."

Welcome back! You're still wrong. The First Amendment limits your ability to sue people.

Civil lawsuits employ government power in two ways. First, they are premised on laws passed by legislatures. A defamation lawsuit is a lawsuit based upon a defamation law enacted by a state, which is an action by the state. On occasion, they're based on a nebulous collection of non-statutory precedents called common law, which are nonetheless recognized and enforced by the government through the courts. Second, civil lawsuits employ government power to force you to come to court and force you to pay any resulting judgment against you.

So in 1964, faced with an Alabama defamation judgment against the New York Times for running an advertisement about abuse of civil rights protesters by local officials, the Supreme Court noted that the First Amendment obviously applies to private civil actions that employ state power. "The test is not the form in which state power has been applied but, whatever the form, whether such power has, in fact, been exercised." Because civil lawsuits aimed at speech invoke state power to attack speech, they are limited by the First Amendment. That doesn't mean that all civil lawsuits attacking speech are absolutely barred. It means that First Amendment analysis applies to them, and may or may not provide a defense to them.

If you think about it even a little, this is the only sensible interpretation. Under a contrary interpretation, a state could pass a law saying that private parties could sue you for offending them, or annoying them, or for expressing certain political views the state disfavors. People could then use the coercive power of the courts to sue you based on those laws. Although I admit there is a certain appeal to a regime under which I may ask a judge to compel you to pay my bar tab if you say stupid and ignorant things about the First Amendment, I recognize that it is not consistent with ordered liberty.

So: you're wrong, stop trying to spread wrong like gonorrhea in the Theater Department, try to be right, etc etc etc.

Fault: It's Yours, But Not ONLY Yours

You are at fault for not educating yourself about how our most fundamental American rights operate. However, you are not the only one at fault. Wrongness is not a zero-sum game. I also blame your teachers, although I sympathize with them. Also, America's press could not do a worse job informing you about the First Amendment if it tried, which frequently I believe it does. If you would like to know more about some of the ways that the American media shares blame for you being wrong, consider these classic media free speech tropes. If you would like to observe some of the ways that the educational system has failed us, attempt conversation with a college student.

I bid you good day.

Lawsplainer: When Must Federal Judges Recuse Themselves, Anyway?

I have a question about Donald Trump.

Hell. I am in Hell. This is Hell.

Calm down. I just want to ask about his argument about that federal judge hearing the Trump University case.

Judge Gonzalo Curiel, the United States District Judge hearing two related cases against Trump and Trump University, which I wrote about last week?

Yes.

You couldn't retain his name for six whole days?

You're going to make this difficult, aren't you?

You have no idea.

I just want to know whether Trump has any law on his side. When do federal judges have to recuse themselves?

Fine.

There are two federal laws governing recusal. One is about procedure, the other is about substance.

Title 18, United States Code, section 455 governs substance. It starts with a catch-all:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Then it offers specifics:

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

So all federal judges are dudes?

Don't start with me.

That "might reasonably be questioned" is awfully broad. Doesn't that mean Trump is right?

Only if you pretend the last century of law didn't happen. Federal courts have ruled many, many times about what is a "reasonable" question and what isn't. "Reasonableness" is defined in the context of some fundamental assumptions about the legal system — especially that judges generally won't act like sectarians based on their race and religion. Moreover, courts recognize that all judges had lives before becoming judges, and those lives necessarily involved a wide range of affiliations. Plus, the test is based on the perception of a reasonable person, a "well-informed, thoughtful, and objective observer, rather than the hypersensitive, cynical, and suspicious person." So. Not a Trumpalo, not a Clintonista.

So Trump's argument that a "Mexican" can't hear is case is bogus?

Beyond the shadow of a doubt based on a century of law. Many courts have considered and rejected the argument that a judge of a particular ethnicity, gender, or religion is inherently biased because of the nature of the case. In fact, the argument has been so repeatedly and thoroughly rejected that it's sanctionable to make it.

What other kinds of arguments have federal courts rejected?

You want me to do a lot of research, don't you? I'm going to cheat and summarize straight from the Rutter Guide: federal courts have rejected arguments that judges' impartiality could reasonably be questioned based on their pre-judicial law practice focus, their special expertise, their memberships in groups prior to appointment, their political views discussed prior to appointment, their giving lectures or writing on the topics involved in the case, their expression of opinions about propositions of law, their political donations before appointment, which President appointed them, where they went to school, and their chosen political party.

Wow. It sounds hard to force recusal. When have courts required it?

Again I cheated by looking at Rutter! Courts have ruled that judges should have recused themselves when they had pending employment offers from a party's law firm, when they had a close personal relationship with counsel for a case, when they had a close personal relationship with a party or witness, when the court's staff was employed by or very close to a party, when a close family member is a lawyer at a party's law firm, when the judge was a trustee of an entity that is a party, when the judge previously worked on the case as an attorney, when they had recently been a losing defendant in a lawsuit by a party, or when the judge has personal knowledge of disputed facts in the case as a witness.

In addition, sometimes a judge's comments about a case can require recusal when they show bias.

Really? But Trump says that Judge Curiel's rulings show bias. Doesn't that require recusal?

No. Bias has to be extrajudicial. That means that you can't recuse a judge just because the judge has concluded and expressed that your case is weak or that your lawyer is acting like a jackass in court. You absolutely can't recuse a judge because they ruled against you. Recusal is only required when a judge displays bias arising from knowledge or grounds from an inappropriate source, not from sitting on your case. To require recusal based on the judge's comments about his or her observations of the proceedings, the comments have to be truly extreme — "such a high degree of favoritism or antagonism to make a fair judgment impossible."

So: a wartime judge who says that "[o]ne must have a very judicial mind, indeed, not to be prejudiced against German Americans because their hearts are reeking with disloyalty.” That's extrajudicial bias requiring recusal. Saying that the evidence shows that the defendant behaved badly, or that the plaintiff's arguments lack merit? That's not.

But can't judge Curiel's impartiality be reasonably questioned now that Trump has repeatedly attacked him?

No. It's extremely well established — as well-established as anything in federal law — that you can't judge-shop by being a douche. A party's insults, criticisms, and even threats are not a valid basis for recusal. Otherwise you could judge-shop by attacking judges until you found one you liked.

What about Judge Curiel's membership in a Latino organization?

Leaving aside for the moment whether the attack is deliberately dishonest because it conflates a bar association with a political advocacy group, membership before becoming a judge isn't grounds for recusal. Moreover, membership in a religious organization is not grounds for recusal. Membership in bar associations and legal associations like the one at issue here has repeatedly been found not to require recusal. That's not just for ethnic organizations. So, for instance, membership in the Guild of Catholic Lawyers was not a basis for recusal in a suit against the New York Archdiocese. Hoatson v. New York Archdiocese, 280 Fed.Appx. 88 (2nd Cir. 2008).

I will note that calling an organization "the race," even if you don't mean it that way and the phrase has been used to mean other things and it's history is totally different and it's not the same thing at all so shut up, is kind of asking for trouble.

Even if one argues that Judge Curiel's membership in a Latino attorney organization might show bias, Trump's lawyers would have a problem: they'd be arguing that the alleged bias didn't arise until long after Judge Curiel started hearing the case. Trump's argument, to the extent it can be nailed down, is that Trump wants to build a wall and Judge Curiel is a member of a Latino organization and therefore Judge Curiel is biased. But Trump didn't start talking about building a wall until Judge Curiel had already been hearing the case for years. In general, a party can't manufacture bias through new conduct after the judge has been assigned. That stops parties from judge-shopping. So, for instance, if I don't like how my case is going before a Turkish-American federal judge who is a member of a Turkish-American group, I can't force a judge-switch by becoming a loud advocate for official recognition of the Armenian Genocide.

So Judge Curiel was right to refuse to recuse himself?

Judge Curiel hasn't refused because Trump's lawyers haven't made a motion for recusal, because they know it's without merit. Recusal motions are governed by Title 28, United States Code, section 144. If you make such a motion, the targeted judge looks at it to make sure it is timely and generally legally sufficient — that is, not facially ridiculous. If it clears that low hurdle, it goes to a different judge for determination, and the case is stayed in the meantime. Trump's made no such motion.

Do you think his attorneys will make such a motion?

No.

So what's Trump doing?

Posturing and playing to crowds who don't like judges, or "Mexicans," or especially "Mexican" judges. Puerile "Alpha" bullshit.

Can't Judge Curiel just say "fuck this noise, I'm out" and recuse?

No. Federal judges have an affirmative obligation not to recuse themselves except for legally sufficient grounds. That stops the reverse of judge-shopping: ditching unpleasant, boring, or otherwise undesirable cases.

Maybe Trump and his supporters don't agree with this legal precedent?

Maybe they don't. But as far as I know Trump never got upset about federal recusal law until he ran for President. And I haven't heard him, or his supporters, argue that he's being oppressed by a century of wrongly-decided law; I've heard them make uninformed or deliberately false statements about what the law requires.

Libertarianism as Ten Questions Rather Than Ten Answers

Gary Johnson, Libertarian Party candidate for President, is polling extremely well for someone who isn't a Republican or Democrat. That will likely revive the questions "what is the Libertarian Party," anyway?" and "what is a libertarian, anyway?" It is traditional for those questions to be answered snidely, contemptuously, or with a disturbing degree of uncombed mania.

I'm not very interested in the first question. I'm a sort-of small-l libertarian, not a large-L Libertarian. And I'm deeply uncomfortable about labeling myself as even a small-l libertarian. I've explained why before: I think that embracing political labels leads to bad behavior. I ought to support something because I have thought it through and think it's right, not because members of my tribe support it and insecurity and cognitive dissonance will set in if I disagree with them.

That makes it awfully difficult to explain what libertarianism is when people ask because they're wondering if there's some sort of alternative to the horror show the major parties have served up this year. Nobody wants to sit through my discourse on what I think on a long series of issues, and then stick around while people bicker over whether that's libertarian or not. Yet I believe there are values underlying "libertarianism" that are worth promoting, and that the label might be a useful shorthand for defending them. So what to do? Accept a label with the baggage and thought distortions and compromises that it brings, or abandon concise and effective advocacy?

Maybe there's another way.

I'd like to propose presenting libertarianism as a series of questions rather than a series of answers or policy positions. Even if I don't agree with people's answers to these questions, getting them to ask the questions and confront the issues reflected in the questions would promote the values that I care about.

These are all questions that I think ought to be asked whenever we, as a society, decide whether to task and empower the government to do a thing.

Does the United States Constitution permit the government to do this?

This is the fundamental question. The Constitution is the rulebook. If it doesn't give the government power to do something, or doesn't let it do something to you, then we shouldn't do it unless we amend the Constitution first. You might think that's obvious. It's not. Taking the question seriously is important even when we don't agree on the answer or even the methodology. The norm is to invoke the Constitution only when you don't like a proposed law, and to scorn constitutional inquiry when it's an impediment.

What would this power look like if it were expanded dramatically in scope or in time?

Power given to the government tends to grow, not shrink. Folks don't give up power or money easily. What does the power you offer to the government look like if government actors fight to widen its scope?

Tell me if this sounds familiar: terrorists attack, citizens are killed, property is destroyed, the nation's confidence is severely shaken, and leaders propose a law dramatically expanding the power of the state temporarily to address the crisis. I'm not talking about 2001 and the PATRIOT ACT. I'm talking about 68 B.C. and the lex Gabinia, proposed to give Pompey extraordinary powers to fight pirates. That power led, some assert, to the fall of the Roman Republic and the rise of Imperial Rome.

Laws passed "temporarily" are often not temporary at all. Laws passed ostensibly for one purpose are often twisted to other purposes.

What would this obligation look like if exercised indifferently by unaccountable people?

We owe a debt to our veterans and the proposition that we're responsible for their health care is an appealing one, particularly when their health problems result from their service to our country. The question is how to provide that health care. Should we make the government a direct provider? Well, what would it look like if we charged a gigantic government bureaucracy to provide it, and maintained a civil service political and legal culture that made the bureaucrats almost completely unaccountable for how they run it? It turns out we already know the answer to that one.

What would your worst enemy do with this power?

Aye, there's the rub. Think of the politician you hate and mistrust most. Do you want that politician administering enforcement of the law you propose, particularly in a time when other branches of government are aligned or weak?

Does this power make a choice about morals, ethics, or risk that individuals ought to make?

Consider C.S. Lewis:

My contention is that good men (not bad men) consistently acting upon that position [imposing “the good”] would act as cruelly and unjustly as the greatest tyrants. They might in some respects act even worse. Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under of robber barons than under omnipotent moral busybodies. The robber barons cruelty may sometimes sleep, his cupidity may at some points be satiated; but those who torment us for their own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to heaven yet at the same time likely to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on the level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.

Does your proposed law empower the government to make the sort of moral, ethical, or risk-assessment decisions that individuals ought to be making for themselves? To combine this question with the last one: if you are empowering the government to make moral, ethical, or risk-assessment judgments for you, are you comfortable with that power being wielded by people with moral, ethical, and risk viewpoints you hate?

Here's another way to ask this question: how does this law treat you with respect to your ability to make decisions, and are you happy with the government constantly treating you that way with respect to other decisions?

Does this power represent the government putting its thumb on the scales to prefer some competitors over others, perhaps based on their relative power and influence?

Or, to use a specific example: if you make monks who hand-carve wooden caskets to support themselves take years of training to learn how to embalm bodies even though they don't have anything to do with dead bodies, are you working for the common good, or are you the puppet of mortuary owners seeking to manipulate the law to discourage competition?

Does this power set up a conflict between laws and rights?

The Constitution creates negative rights — things the government can't do to us. Laws sometimes create positive rights — our privilege to demand something from the government or each other. Does this proposed power set up a conflict between those rights? Does the law purport to give me the power to demand something from you that you have the right not to give?

Are we giving this power to the right level of government?

If we must give the government the power to do this, what part of the government should get it?

Are we acting out of fear, anger, or self-promotion?

Is this law named after a dead kid? Is it named in a way calculated to suggest somebody is awful and we're a-gonna kick their asses? Is it named to promote a politician? Is it named to promote our self-esteem? Is this law the equivalent of grocery shopping when we're hungry? Is it the equivalent of liquor shopping when we just caught our significant other in bed with our best friend? Are we too angry, tired, or scared to think clearly about this law right now? is the person proposing this law in a difficult re-election contest?

Is there any evidence the government is any good at this?

Say you've got a problem at work and you need someone to fix it. You'll probably give some thought to who is best suited for the job. If the server's down you're not going to send Ethel at reception who once tried to send an email from the fax machine. If you need someone to calm the boss down you're not going to send Wayne from sales who prides himself on "saying what people think." You give a shit about how it's going to turn out so you evaluate who has the skillset.

Often we don't do that with the government. We assume, based on habit or ideology, that if there's a problem that the government ought to solve it. Should we? Possibly. But not obviously, not definitely. So ask: what's the specific, evidence-and-experience-founded basis for thinking the government will make this better rather than worse?

Even if people don't agree with my answers to these questions, I think that the country would be a lot more libertarian — as I like to use that term — if people got interested in asking them.

David French For President

I stand with David French.

I don't stand with him on social issues, at least not most of the time. I don't stand with him on many geopolitical issues — though I note that he's willing to back up his views by volunteering for military service rather than merely sending other people to risk their lives to advance them.

I stand with him as someone I respect, admire, and trust.

I met David in 1991 at Harvard Law School. He stood out. In a class awash in people from Princeton and Stanford and Yale, he came from a small private college in Nashville, but was manifestly intellectually qualified to be there. He was open about his faith in a positive and friendly way. He was unapologetic, firm, but polite about his political views, which were very substantially to the right of Harvard's rather unreflectively lefty ethos. These were the days of the Clarence Thomas hearings and the run-up to the 1992 elections, and political discourse mostly consisted of expressing disdain and disbelief at the existence of different viewpoints. David got hissed in class — that's what people did before there was Twitter — by the usual suspects.

Yet David, unlike some people with strong political beliefs, was generally well-liked because his strong beliefs were accompanied by an air of decency, humility, and friendliness. Friends — people with a wide array of political beliefs and social, ethnic, and religious backgrounds — used to joke that David was the reasonable man of legal lore. When we studied the tort of intentional infliction of emotional distress — which traditionally imposes liability when someone's conduct is so terrible that it would cause a reasonable member of the community to exclaim "outrageous!" — we relied heavily on David. We'd explain the facts to him, and if he exclaimed "OUTRAGEOUS!" we felt comfortable in concluding that's how a decent, normal American would react.

Since then, David has led FIRE, one of my favorite organizations, to fight for the free speech, assembly, and worship rights of students. Faced with a war he believed in, and faced with the sacrifices of others, he joined and served honorably in a war zone rather than supporting conflict without personal sacrifice. Like me, he adopted a child into his family, and like me recognized that the opportunity to adopt a child is an incredible blessing upon the family that should inspire parents to feel profound thankfulness.

I disagree with David quite often. For instance, I think he's too uncritical of our international military agenda. I think his criticisms of the cultural left too often characterize the whole based on the bad behavior of the few and too often indulge in the sort of gratuitous rhetoric that doesn't live up to the rest of his persona. But I respect him because I know he got where he is based on principle and that, if I argued with him over it, he'd listen to me and discuss it with me like a grown-up (and perhaps give me more attention than my antics deserved). I trust him more than I trust the vast majority of politicians, even when I agree with those politicians' apparent stated positions of the moment.

This week's attacks on him annoy me. They annoy me because so many are careless, puerile and uninformed. They annoy me almost (almost) to the point of reflection — is that how I sound when I reject candidates out of hand?

I don't know if David will decide to tilt at this windmill. I do know that it would be a pleasure to vote for someone whose integrity and decency I trust, and for whom I have abiding respect, even if I don't share all of his views.

Lawsplainer: Is There Anything Unusual About Judge Curiel's Orders In The Trump University Case?

Where have you been?

Busy. Lawyering. Parenting. Playing Stellaris. Thus and such.

You have obligations!

You have genital warts.

Hey! Be nice. So, what's up with this crazy judge?

You'll have to be far more specific.

You know, the judge who has it in for Donald Trump.

Oh. United States District Judge Gonzalo Curiel, the federal judge that has Trump's jimmies all berustled? This guy?

The trial, they wanted it to start while I am running for President. The trial is going to take place sometime in November. There should be no trial. This should have been dismissed on summary judgment easily. Everybody says it, but I have a judge who is a hater of Donald Trump. He’s a hater. His name is Gonzalo Curial. And he is not doing the right thing. I figure what the hell? Why not talk about it for two minutes. Should I talk about it? Yes? [cheers and applause] so we should have won. . . .

I am getting railroaded by a legal system, and frankly they should be ashamed. I will be here in November. Hey, if I win as president, it is a civil case. I could have settled this case numerous times. But I don’t want to settle cases when we are right. I don’t believe in it. When you start settling cases, do you know what happens? Everybody sues you because you get known as a settler. One thing about me, I am not known as the settler.

And people understand with this whole thing, with this whole deal with the lawyers, class action lawyers are the worst. It is a scam. Here is what happens. We are in front of a very hostile judge. The judge was appointed by by Barack Obama – federal judge. [Boos]. Frankly he should recuse himself. He has given us ruling after ruling, negative, negative, negative. I have a top lawyer who said he has never seen anything like this before. So what happens is we get sued. We have a Magistrate named William Gallo who truly hates us.

Yeah, that guy. Is he biased against Trump? Are his rulings outrageous or unusual?

No. I mean, I'm biased against Trump. But Judge Curiel's rulings in the case do not seem extraordinary.

What's the case about, anyway?

There are actually two relevant cases before Judge Curiel.

The first is a purported class action filed in 2010, asserting that Trump and Trump University violated California's ridiculously overbroad and malleable unfair business practices law, California's consumer protection laws, California's false advertising laws, that they breached Trump U's contracts, and that they defrauded students, among other things.

The second case is a 2013 purported class action by the same lawyers with the same purported classes of student plaintiffs asserting that Trump and Trump University violated RICO laws.

Wait a second. Don't you always say that civil RICO is bullshit?

Yes. In general, if the defendants don't have "the" in their names, civil RICO is overwrought bullshit. A purported RICO claim split into a separate complaint smells like particularly obvious bullshit. More on that later.

So why didn't Judge Curiel get rid of this at summary judgment, like Trump says?

First you've got to understand what summary judgment is. It's not "my evidence is stronger."

Here's how it works. One side files a motion attacking the complaint, or certain causes of action in the complaint, or maybe a defense, and points out to the court (usually by attaching evidence from discovery) that there is no evidence supporting the other side's position. Then the burden shifts to the other side to come forward with admissible evidence supporting their claim or defense.

So, for instance, say you sue me for copyright infringement for posting your art on Popehat. I could make a motion for summary judgment supplying my declaration that I never posted your art on Popehat. The burden would then shift to you to come forward with admissible evidence — say, a declaration from you, with screenshots — to show that there is a dispute of material fact. That means you have to offer evidence that there's a factual dispute about a fact that's meaningful to the claim at issue.

And then the judge decides who is right?

To be more precise, the judge then evaluates whether there is any evidence to support the attacked claim or defense.

The judge doesn't weigh evidence or determine credibility. If I have 20 declarations saying that your art never appeared on Popehat, and you have one declaration saying that it did, then you win the motion because there is some evidence supporting your claim. But if you can't supply admissible evidence — say, if you can only offer hearsay that someone told you they saw your art on Popehat — then I win.

So what happened here?

In the 2010 case, Donald Trump filed one motion for summary judgment and Trump University filed another.

Trump's own motion argued that he didn't make any of the alleged misrepresentations about Trump University that plaintiffs claim and therefore couldn't be held liable for them, and that the law didn't allow them the damages they demanded. Trump University argued that the law doesn't allow the plaintiffs the damages and injunctions they are asking for. The plaintiffs opposed both motions, arguing they had offered admissible evidence creating factual disputes about Trump's personal liability and Trump University's liability.

So Judge Curiel shot Trump down?

Partially, but not completely. Judge Curiel issued a very detailed 44-page order analyzing the arguments. The order has a good review of the evidence that the plaintiffs offered to support their case.

Ultimately he granted the motions in part and denied them in part. He threw out all of the demands for injunctive relief against Trump University, but kept the demands for restitution and other forms of monetary relief. He based that order on an earlier ruling limiting the class action claims. As to Donald Trump himself, Judge Curiel found that plaintiffs had offered admissible evidence creating a genuine dispute about whether Trump "hand-picked" Trump University instructors as he claimed, that they had offered enough evidence to create a dispute about whether Trump was responsible for Trump University advertisements because he reviewed them personally, and that they had offered enough evidence to create a factual dispute about whether plaintiffs relied to their detriment on false representations for which Trump could be held responsible. The court granted Trump's motion to throw out claims for injunctive relief against him.

The end result was that the demands for damages stayed alive, but demands for injunctions — which really didn't drive the case — got thrown out.

What about summary judgment in the 2013 case?

It hasn't been decided yet. Trump didn't file his Motion for Summary Judgment until April 2016 and it's not even set for hearing until July 2016.

So does the summary judgment order suggest Judge Curiel is a partisan biased against Trump?

No.

Look, in the modern political climate I could burn ten thousand words on this and people who support Trump wouldn't buy it and people who oppose Trump would buy it even if the only word was "dildo." But in my judgment, Judge Curiel's partial denial of the summary judgment is pretty straightforward and well within the range of normal federal judicial decisions on summary judgment.

First, keep in mind Judge Curiel hasn't given plaintiffs everything they wanted — not by a long shot. The point of a class action is to get your individual plaintiffs to represent a huge class of people, so you can prove their individual cases but get damages to cover hundreds or thousands or tens of thousands of people. It's a huge force multiplier and carries the potential for ruinously gigantic damages. Judge Curiel didn't certify the class on all the claims that plaintiffs wanted. That is, as to some of their claims, he said they could only seek their own personal damages, not damages on behalf of everyone who went to Trump University. For instance, he allowed the plaintiffs to represent classes under state consumer laws, but not under state common law claims like breach of contract and fraud.

Later, on Trump's motion, Judge Curiel decertified the class in part. That means that he granted Trump's motion to take away part of their class representative status and modified how they must prove their cases. Specifically, Judge Curiel ordered that (1) the case would have a separate trial on liability and then a separate trial on damages only if plaintiff prevailed (which defendants generally like because it keeps plaintiffs' damages sob stories out of trial and keeps the jury from being prejudiced by big damages numbers or by evidence of how much money the defendants have); (2) rather than assuming if plaintiffs won that all class members would get a full refund, Trump and Trump University would be able to litigate how much value they got and how much or little of a refund they should get.

On summary judgment, he gave the plaintiffs much of what they wanted — he knocked out the demands for injunctions, but those are insignificant compared to damages. But his analysis of the evidence was pretty straightforward. Judges aren't supposed to grant summary judgment if evidence is weak. They're only supposed to grant if if there's no dispute of fact. Here, the plaintiffs offered evidence which, if believed, would show that Trump was responsible for false statements and the students relied on those statements. I don't think it's a particularly notable decision.

Does that mean you think the plaintiffs should win?

I don't have an opinion on that.

It sure sounds like Trump University made false statements and promises. But from what I've seen, the best defense (though not necessarily the one that Trump will follow) is that anyone minimally rational would have recognized that all of the Trump University sales patter was puffery, trumpery, and bullshit, the equivalent of saying your coffee shop offers the most amazing coffee in the universe. But that's a jury question on these facts. Trump's gigantic successes in the Republican primaries demonstrates that many Americans may not share my view that most of what he says is obviously not to be taken seriously. Also, the RICO claim is rather clearly overcharged nonsense, like the vast majority of civil RICO claims. Congress needs to do something about RICO so it's not used as an exclamation point any time anyone sues for fraud. Judge Curiel may yet grant summary judgment on that second case — though Trump's motion in that case is curiously narrow.

So does the record support that Judge Curiel is in the tank for the plaintiffs and outrageously biased against Trump?

No. I don't think it does. However, to reach that conclusion, you need to actually read stuff and have a vague idea of what you're talking about, so I don't expect it to take hold, frankly.

FBI Actively Investigating Prenda Law Team For Fraud

The Federal Bureau of Investigation's Minneapolis office is conducting an active investigation of the principals of Prenda Law, the notorious team of crooked copyright trolls that I've spilled so much e-ink over here.

Today I spoke with two sources who confirmed receiving a letter from the FBI inquiring about their experiencing with Prenda and seeking information about Prenda's activities. The letter — which I have reviewed — has been sent out on a large scale to attorneys who have represented targets of Prenda's litigation. Here's what the letter reveals:

  • The FBI is looking at the various entities Prenda Law used, including Steele Hansmeier PLLC, LW Systems, Livewire Holdings, AF Holdings, Ingenuity13, and Guava LLC.
  •  Though the letter does not name individual targets, the context makes clear that the FBI is investigating the principals of Prenda Law (with the exception of Paul Duffy, I suppose).
  • The FBI has devoted substantial resources to soliciting victim impact in a systematic way, and based on its questions about availability to testify is contemplating prosecution.
  • The FBI is focusing on "a fraudulent scheme known as 'trolling'" — which may indicate that the FBI has concluded that Prenda Law principals themselves uploaded their pornography to BitTorrent sites in order to sue people who downloaded it.

Based on my 21 years in the federal criminal justice system, I believe the letter reflects an active, determined investigation in its later stages.  The letter represents an abandonment of operational security and confidentiality; it suggests the FBI no longer sees a need for stealth.  That, in turn, suggests that the FBI believes it's already developed the evidence it needs to prove the substance of its case (that Team Prenda committed wire and/or mail fraud) and is just identifying as many victims as possible for potential witnesses and to establish the amount of damages.   Bear in mind that under the Federal Sentencing Guidelines, the more money wrongdoers made, the more time they're facing.

I'll report more as I learn more.  But as I often say — the wheels turn slowly, my friends. But they turn. Team Prenda needs federal criminal defense attorneys, and needs them right now.

Popehat's Old Friend Bill Johnson Turns Up, This Time As A Donald Trump Delegate, of Course

Long-time Popehat readers probably remember good ol' Bill Johnson.

I first wrote about Mr. Johnson in 2008, when he ran for a seat on the Los Angeles County Superior Court. Mr. Johnson used to go by the name James O. Pace, under which name he advocated repealing the 14th and 15th Amendments and replacing them with the "Pace Amendment":

No person shall be a citizen of the United States unless he is a non-Hispanic white of the European race, in whom there is no ascertainable trace of Negro blood, nor more than one-eighth Mongolian, Asian, Asia Minor, Middle Eastern, Semitic, Near Eastern, American Indian, Malay or other non-European or non-white blood, provided that Hispanic whites, defined as anyone with an Hispanic ancestor, may be citizens if, in addition to meeting the aforesaid ascertainable trace and percentage tests, they are in appearance indistinguishable from Americans whose ancestral home is in the British Isles or Northwestern Europe. Only citizens shall have the right and privilege to reside permanently in the United States.

He lost, despite some woefully clueless press coverage. But you can't keep a white nationalist down. Mr. Johnson has returned again and again. He managed to get on Ron Paul's endorsement list until he was thrown off, perhaps on the theory that such racial ideas belong in newsletters written in Paul's name but not in judicial candidates. He became "chairman" of the "America Third Position," which is more or less what you'd guess it is. He got the Los Angeles County Bar Association to put him on their lawyer referral list.

And now, proving that there are not only second acts but near-infinite acts in American life, Mr. Johnson has been accepted as a Donald Trump delegate in California. Mother Jones reports:

Johnson applied to the Trump campaign to be a delegate. He was accepted on Monday.

I actually doubt that the Trump campaign knowingly chose Johnson because he's a known white nationalist. But I doubt they particularly care. Bill Johnson has come home.

Edited to add: Josh Harkinson, author of the Mother Jones piece, pokes a bit of fun at Bill Johnson for his taste in food:

As we sat next to a table of immaculately coiffed Korean Air flight attendants, I mentioned that some might find it surprising that a guy who wrote a book advocating the creation of an all-white ethno-state was eating a plate of bulgogi beef with kimchee. "Koreans don't have to make Korean food," he said matter-of-factly. "One of the best Chinese restaurants I went to in the Bay Area is owned by a Mormon and cooked by a Mormon. Really great Chinese food."

One hears this a lot: how can a racist like Korean food? How can that guy be a bigot when he once dated a black girl? (That one was a defense in a civil rights case I prosecuted in the '90s). How can she be racist if she has Latina friends?

All of those arguments depend upon a hidden premise: that racism is rational, and therefore can be expected to operate rationally. It isn't and it doesn't.

Popehat Signal Update: Awesome Team Gets Great Appellate Result in Frivolous Case By AIDS Denier

Way back in 2013 I lit the Popehat Signal to get pro bono help for J. Todd Deshong, a blogger and HIV-positive AIDS activist. Woo merchant and AIDS denialist Clark Barker filed a frivolous lawsuit against Deshong, claiming that Deshong's critical web sites defamed him and infringed his trademark. A legal Dream Team assembled swiftly and formidably, and in 2014 that Dream Team got the frivolous complaint dismissed.

So far so good. But you can't fight vexatious litigants just by winning motions; you have to inflict upon them the costs of their actions. The Dream Team sought attorney fees under the Lanham Act, which allows a prevailing party to get fees in an "exceptional" case. The federal district court denied the request, saying that there wasn't enough evidence that the plaintiff acted in bad faith.

But that's not the right question, the Dream Team asserted. Today, the United States Court of Appeals for the Fifth Circuit agreed. They reversed the refusal to award fees and sent it back for the trial court to decide under the right standard:

We merge Octane Fitness’s definition of “exceptional” into our interpretation of § 1117(a) and construe its meaning as follows: an exceptional case is one where (1) in considering both governing law and the facts of the case, the case stands out from others with respect to the substantive strength of a party’s litigating position; or (2) the unsuccessful party has litigated the case in an “unreasonable manner.” See Octane Fitness, 134 S. Ct. at 1756. The district court must address this issue “in the case-by-case exercise of their discretion, considering the totality of the circumstances.” See id.

This standard is much friendlier to the targets of frivolous lawsuits. It doesn't require an inquiry into subjective bad faith (which judges are often loath to find) and allows consideration of both the objectively meritless nature of the claims and the methods used to litigate. That will make it easier for other Dream Teams to get attorney fees when censorious plaintiffs abuse the legal system to suppress speech.

Congrats to Paul Alan Levy and Gill Sperlein for this appellate win.