TCPA Hearing 9/6/19 - Marchi ran from the Law, TI crumbles, conspiracy still on the table, and collective autism from all sides.

[Urbanmech]

I will repeat this until the supreme court states otherwise (source):

"[The] cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication."

"'Reckless disregard,' for these purposes, means conduct that is heedless and shows a wanton indifference to consequences; it is conduct which is far more than negligent. There must be sufficient evidence to permit the inference that the defendant must have, in fact, subjectively entertained serious doubts as to the truth of his statement."

"For example, in Beckley Newspapers Corp. v. Hanks, it was established that a mere failure to investigate cannot constitute reckless disregard for the truth. In St. Amant v. Thompson, the Court ruled that the actual malice test must be a subjective one; therefore, the question is not what the defendant should have thought but only what he actually thought. "

Actual Malice is a lawsuit killer. Go ahead and find a case where a public figure won a defamation case. There are a few, but I won't be doing the homework for you (iirc, a public figure in NJ won a few decades ago, but he didn't have a lawyer representing him). You'll find the common thread is the person either admitting they lied or outside facts showing they must have lied.

Back on TIEC. This part is not going to be easy for some people to accept, but this is from the Texas Supreme Court (source):

"We have held that the affirmative defense of justification can be based on the exercise of either: (1) one’s own legal rights; or (2) a good-faith claim to a colorable legal right, even though that claim ultimately proves to be mistaken. "

"Although the court of appeals agreed that the nature of PSC’s business relationship with REAP was undisputed, it concluded that PSC could not establish the defense on summary judgment absent a contract 'or other basis of a legal right to interference.' We hold that the court of appeals erred on this issue."

We don't have the contracts. This article suggests that truth is in fact a defense against TIEC in Texas.

Further, imagine that you are punched by a person you work with. Under the standard a few of you are suggesting, you could be sued for trying to get them fired from your workplace because they have an employment contract.

You may want to read the Judgement instead of an article, especially page 40-44. The article got it wrong, the appeals court didn't bother testing the "Truth Tort" because PSC had a legal right to do what it did., so Truth is still out on TI-EC.

 

[DinkyCowSow]

You may want to read the Judgement instead of an article, especially page 40-44. The article got it wrong, the appeals court didn't bother testing the "Truth Tort" because PSC had a legal right to do what it did., so Truth is still out on TI-EC.

Cool, that's one reason why it might not be. Now do the other reasons.

 

[Urbanmech]

Cool, that's one reason why it might not be. Now do the other reasons.

At this point why bother, your not even getting your own research right. Hell the authors of your article aren't either. I mean this is from the summary of the PSC section:

"Although the court of appeals properly held that the trial court could not grant PSC’s motion for summary judgment on no-evidence grounds, the court of appeals erred by reversing the trial court’s summary-judgment order based on a mistaken impression that PSC had not conclusively established its justification defense. Therefore, we need not reach PSC’s arguments relating to qualified privilege and privilege based on truthful information."

It's like the author didn't even get to the background before writing this shit up and your using the article as evidence, awesome job dude.

 

[AnOminous]

Go ahead and find a case where a public figure won a defamation case.

Sheriff Tyrone Lewis recently won one.

Former Hinds County Sheriff Tyrone Lewis wins defamation case against ex-wife, others

Abuse and paternity allegations made during 2015 re-election by ex-wife and others prompted defamation lawsuit.

www.clarionledger.com

Also Tom Cruise won a libel lawsuit against some guy who called him gay. That probably doesn't count as it was a default judgment and he never had to overcome an actual malice standard.

Most times a celebrity actually has a really solid libel suit, though, it's against some tabloid and it's ultimately a business decision to settle it at some point. More than one has gone past summary judgment, but it almost invariably settles at that point.

Also James Woods sued a Twitter user to death, then pissed on his grave. Again, he didn't have to overcome an actual malice standard.

In any event, that should also be in any interlocutory appeal if it goes up for one because the decision was clearly erroneous and so ridiculous that it appeared to be a joke.

 

[DinkyCowSow]

At this point why bother, your not even getting your own research right. Hell the authors of your article aren't either. I mean this is from the summary of the PSC section:

"Although the court of appeals properly held that the trial court could not grant PSC’s motion for summary judgment on no-evidence grounds, the court of appeals erred by reversing the trial court’s summary-judgment order based on a mistaken impression that PSC had not conclusively established its justification defense. Therefore, we need not reach PSC’s arguments relating to qualified privilege and privilege based on truthful information."

It's like the author didn't even get to the background before writing this shit up and your using the article as evidence, awesome job dude.

I said that the article suggests it. The article does exactly that. There's a reason why I didn't say the supreme court of texas had said that, and it's because I haven't had time to read the entirety of the source material on that particular claim. I get that's it's really easy to pick a single thing out and focus on it to dismiss everything. This is an opportunity for me to do some more reading and appease my spectrum.

None of this invalidates that Ty didn't include any contracts in the lawsuit. None of this overrules that we don't have any of the details of the verbal contracts. This means the defendants can argue that they had a right to interfere with the contracts. It's all moot anyways - Ty poorly prepped Vic for this deposition and Vic admitted that he couldn't think of any conventions other than Kameha Con that cancelled after being contacted by the defendants. Clear and specific evidence is GONE.

 

[Commander]

I can't tell what's more exceptional. The speds posting on here after making their account 1 day after the TCPA hearing or the people giving a damn to argue with them. Do you honestly think they are going to change their mind on anything? Honestly?

 

[TheClappening]

In any event, that should also be in any interlocutory appeal if it goes up for one because the decision was clearly erroneous and so ridiculous that it appeared to be a joke.

I know generally in a TCPA appeal, the plaintiff can't appeal until the end (either it's dismissed pre-trial, or they lose at trial), and I know defendants can file one immediately. If the defendants do an appeal, can the plaintiff then cross appeal, or does he still have to wait?

 

[Urbanmech]

I said that the article suggests it. The article does exactly that. There's a reason why I didn't say the supreme court of texas had said that, and it's because I haven't had time to read the entirety of the source material on that particular claim. I get that's it's really easy to pick a single thing out and focus on it to dismiss everything. This is an opportunity for me to do some more reading and appease my spectrum.

None of this invalidates that Ty didn't include any contracts in the lawsuit. None of this overrules that we don't have any of the details of the verbal contracts. This means the defendants can argue that they had a right to interfere with the contracts. It's all moot anyways - Ty poorly prepped Vic for this deposition and Vic admitted that he couldn't think of any conventions other than Kameha Con that cancelled after being contacted by the defendants. Clear and specific evidence is GONE.

It's simple because you chose poorly instead of at least checking the summaries of the verdict, at least as a minimum. "This is an opportunity for me to do some more reading and appease my spectrum." BULLSHIT!!!!, your just trying to prove your right with anything then make others do ALL THE WORK to prove you wrong. If you were really here to learn you would be asking questions instead of stating facts like you have been.

Here is a question for ya, Where in Texas/Federal laws does it say you need more than one contract broken for TI-EC? Ya know like Jude Chupp ruled.

 

[ElAbominacion]

Sheriff Tyrone Lewis recently won one.

Former Hinds County Sheriff Tyrone Lewis wins defamation case against ex-wife, others

Abuse and paternity allegations made during 2015 re-election by ex-wife and others prompted defamation lawsuit.

www.clarionledger.com

Also Tom Cruise won a libel lawsuit against some guy who called him gay. That probably doesn't count as it was a default judgment and he never had to overcome an actual malice standard.

Most times a celebrity actually has a really solid libel suit, though, it's against some tabloid and it's ultimately a business decision to settle it at some point. More than one has gone past summary judgment, but it almost invariably settles at that point.

Also James Woods sued a Twitter user to death, then pissed on his grave. Again, he didn't have to overcome an actual malice standard.

In any event, that should also be in any interlocutory appeal if it goes up for one because the decision was clearly erroneous and so ridiculous that it appeared to be a joke.

Do public figures in the U.S. not have the right to image? Because it seems a little backwards that someone accused of grave misconduct by his peers, who has had someone actively interfere in his business dealings through pressure, among other things, would not have a case before the courts.

Also, yeah, it is absolutely fucking retarded to expect people to do research for you so they can prove you wrong over a fucking internet argument. What a godawful waste of time.

 

[AnOminous]

I know generally in a TCPA appeal, the plaintiff can't appeal until the end (either it's dismissed pre-trial, or they lose at trial), and I know defendants can file one immediately. If the defendants do an appeal, can the plaintiff then cross appeal, or does he still have to wait?

In the cases we've seen on appeal, it's often been an appeal by the defendant and a cross appeal by the plaintiff.

This article discusses practice considerations:

Motion Granted: If a TCPA motion is aimed at the entirety of claims in the suit and is granted in full, thereby disposing of all claims and parties, then it results in a final judgment from which a regular appeal may be pursued. If the motion is granted in a manner that dismisses only some of the pending claims, then it is interlocutory, and there is no express right to pursue an interlocutory appeal of the partial grant. See, e.g., Pulliam v. City of Austin, No. 03-17-00131-CV, 2017 Tex. App. LEXIS 3325, at *2–3 (Tex. App.—Austin Apr. 14, 2017, no pet.).

Nevertheless, if an order partially grants and partially denies a TCPA motion, and the movant appeals from the portion of the order denying its motion, then the nonmovant should consider perfecting a cross-appeal from the portion of the order granting the motion. See Pickens v. Cordia, 433 S.W.3d 179, 183 (Tex. App.—Dallas 2014, no pet.) (court had jurisdiction over appeal, which challenged partial denial of motion to dismiss, and cross-appeal, which challenged partial grant of motion to dismiss), disapproved of on other grounds by Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017). But see Horton v. Martin, No. 05-15-00015-CV, 2015 Tex. App. LEXIS 6003, at *7–8 (Tex. App.—Dallas June 15, 2015, no pet.) (court lacked jurisdiction over attempted interlocutory appeal of an order granting a motion to dismiss).

Nonmovants can also consider pursuing permissive appeals or petitions for writ of mandamus to seek review of
an interlocutory order granting a TCPA motion. See CPRC § 51.014(d); Tex. R. App. P. 28.3; Tex. R. Civ. P. 168; In re
Spex Grp. US LLC, No. 05-18-00208-CV, 2018 Tex. App. LEXIS 1884, at *6 (Tex. App.—Dallas Mar. 14, 2018, orig.
proceeding, pet. dism’d).

I think it is highly likely that should the defendants appeal, the appeals court would exercise jurisdiction over the cross appeal as well. I think it is also possible, but slightly less likely, that the abuse of discretion and/or clear error is manifest enough that the appeals court might do so even in the absence of a defense appeal, because it flies in the face of cases recently made by that very same court.

Do public figures in the U.S. not have the right to image? Because it seems a little backwards that someone accused of grave misconduct by his peers, who has had someone actively interfere in his business dealings through pressure, among other things, would not have a case before the courts.

He shouldn't be considered a public figure. "There are people in the court" isn't evidence of record and is completely irrelevant to the standard. This is particularly bad because it's a finding of law that the court actually does get to make and jury instructions will be issued in accordance with it.

But even a public figure would have a case in such a case.

 

[TheClappening]

In the cases we've seen on appeal, it's often been an appeal by the defendant and a cross appeal by the plaintiff.

This article discusses practice considerations:

Motion Granted: If a TCPA motion is aimed at the entirety of claims in the suit and is granted in full, thereby disposing of all claims and parties, then it results in a final judgment from which a regular appeal may be pursued. If the motion is granted in a manner that dismisses only some of the pending claims, then it is interlocutory, and there is no express right to pursue an interlocutory appeal of the partial grant. See, e.g., Pulliam v. City of Austin, No. 03-17-00131-CV, 2017 Tex. App. LEXIS 3325, at *2–3 (Tex. App.—Austin Apr. 14, 2017, no pet.).



I think it is highly likely that should the defendants appeal, the appeals court would exercise jurisdiction over the cross appeal as well. I think it is also possible, but slightly less likely, that the abuse of discretion and/or clear error is manifest enough that the appeals court might do so even in the absence of a defense appeal, because it flies in the face of cases recently made by that very same court.

Interesting.

Since the case was dismissed in its entirety against Marchi, can there be an appeal filed against her? Or is it an all or nothing kind of deal, with all the defendants?

 

[DinkyCowSow]

It's simple because you chose poorly instead of at least checking the summaries of the verdict, at least as a minimum. "This is an opportunity for me to do some more reading and appease my spectrum." BULLSHIT!!!!, your just trying to prove your right with anything then make others do ALL THE WORK to prove you wrong. If you were really here to learn you would be asking questions instead of stating facts like you have been.

Here is a question for ya, Where in Texas/Federal laws does it say you need more than one contract broken for TI-EC? Ya know like Jude Chupp ruled.

You have no idea how much I enjoy this kinda stuff. Talking about and researching legal stuff is my bread and butter.

TI-EC does not say you need more than one contract broken. I'd be interested in where Chupp said that. I can see in some of the unofficial transcripts he asks if there are any additional TI-EC claims, but that does not appear to be him requiring more than one, rather him denying the first one and asking if there are any more that need to be decided. This would be because for each individual claim of TI-EC, you must provide clear and specific prima facie evidence for that claim - so if the judge didn't think the first contract met this burden, he was asking if they had any other contracts that did.

I don't have the full official transcript yet, so maybe I'm wrong on that.

 

[Sheryl Nome]

You have no idea how much I enjoy this kinda stuff. Talking about and researching legal stuff is my bread and butter.

TI-EC does not say you need more than one contract broken. I'd be interested in where Chupp said that. I can see in some of the unofficial transcripts he asks if there are any additional TI-EC claims, but that does not appear to be him requiring more than one, rather him denying the first one and asking if there are any more that need to be decided. This would be because for each individual claim of TI-EC, you must provide clear and specific prima facie evidence for that claim - so if the judge didn't think the first contract met this burden, he was asking if they had any other contracts that did.

I don't have the full official transcript yet, so maybe I'm wrong on that.

But his (chupp's) argument for that there not being a claim is that vic went to the con, ignoring that the original contract was cancelled, and a new one was entered only after a fucking lawyer started making threats on behalf of Vic, the contract was highly modified, pretending there's no damages from that TI is deeply erroneous.

 

[Allanon]

The reason public figure lawsuits rarely end in 'success' is because sane people, when they realize they're losing, go to the plaintiff and seek settlement. It's entirely possible that Vic's case will also end in settlement as well. The only difference is that in this case we'll likely know some of the terms of that settlement, whereas normally it's just assumed settlement involves money.

Also I find it amusing that in criminal trials when the issue is settled, the public just assumes 'obviously the defense is guilty' but then apparently for the purpose of this subject, in civil trials we're meant to assume a settlement means 'obviously the plaintiff couldn't win'.

 

[Zero Day Defense]

You have no idea how much I enjoy this kinda stuff. Talking about and researching legal stuff is my bread and butter.

That's unfortunate.

 

[DinkyCowSow]

But his (chupp's) argument for that there not being a claim is that vic went to the con, ignoring that the original contract was cancelled, and a new one was entered only after a fucking lawyer started making threats on behalf of Vic, the contract was highly modified, pretending there's no damages from that TI is deeply erroneous.

You may have a point here. It could be argued that this doesn't meet the clear and specific burden, however, as no numeric value is brought up. Not sure, anyone have any info on what qualifies as clear and specific for monetary damages in Texas?

Perhaps the judge was just entertaining the unsworn declarations to see if they actually had a more solid case, as they were not legitimate when first filed and then only actually filed with the court 3-4 days after the response was due?

If I were the judge and wasn't sure I had legitimately dismissed some claims and thought I might get overturned, I'd probably save myself from being embarrassed and declare everything Ty filed in response to be null and void because it was late. The American legal system loves its technicalities and beaurocracy, even if they ruin somebody. It's quite scary like that.

 

[AnOminous]

Interesting.

Since the case was dismissed in its entirety against Marchi, can there be an appeal filed against her? Or is it an all or nothing kind of deal, with all the defendants?

That's an interesting argument but one I'd prefer to leave to Sam Johnson. If the defendants appeal, I'd bet they also appeal as to Marchi. I'd imagine Johnson would argue, if he's faced with such a situation, that if the appeals court grants permissive jurisdiction as to the other defendants, who have filed appeals they have a right to file pursuant to § 51.014(12), that it shouldn't with relation to Marchi, who hasn't.

Even though the case is essentially decided with finality with respect to Marchi, it's still interlocutory with respect to the case itself, as it hasn't been dismissed as to all causes of action against all parties. The argument would be that there would be no prejudice to holding off on it until after the rest of the case and it would deprive Marchi of the benefit of the statute. After all, why litigate this now when it could be litigated later and, Johnson would argue, is likely never to need to be litigated at all?

This speculation is completely moot, of course, if Judge Chupp just goes ahead and dismisses everything with respect to everyone. Then it just goes to a straight appeal.

 

[Sheryl Nome]

You may have a point here. It could be argued that this doesn't meet the clear and specific burden, however, as no numeric value is brought up. Not sure, anyone have any info on what qualifies as clear and specific for monetary damages in Texas?

Perhaps the judge was just entertaining the unsworn declarations to see if they actually had a more solid case, as they were not legitimate when first filed and then only actually filed with the court 3-4 days after the response was due?

If I were the judge and wasn't sure I had legitimately dismissed some claims and thought I might get overturned, I'd probably save myself from being embarrassed and declare everything Ty filed in response to be null and void because it was late. The American legal system loves its technicalities and beaurocracy, even if they ruin somebody. It's quite scary like that.

He doesn't have to show a specific value of monetary damages, thats for the jury to determine

 

[lawtwitterthrowaway]

He shouldn't be considered a public figure.

Come now. You and I both know that whatever Chupp's reasoning might have been (and it's highly likely that his reasoning will be included in his ruling), Vic was always going to get hit by the public figure label. You don't make your living going to conventions for people to gawk at and talk to and try to pretend to be a private figure.

 

[DinkyCowSow]

He doesn't have to show a specific value of monetary damages, thats for the jury to determine

Interesting. While the jury of course will be the one to determine actual damages if the case every makes it that far, this seems to suggest that offering how much you made before and after is enough to allow a rational inference and get past a TCPA.

However, this case only has an unsworn declaration saying that there were additional costs, with no actual numbers - it only includes the amount Vic made before as far as I can tell. I guess the judge could argue that isn't clear and specific? Or he could just throw out all the declarations. We'll probably find out soon.