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

[Sheryl Nome]

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.

It literally cannot be clearer in the decision.

"In this Court, EMTS contends that the court of appeals applied an erroneous standard regarding the damages element of its claim—the court measured the evidence by whether EMTS produced evidence of the specific amount of damages the disclosures caused instead of properly determining whether EMTS produced prima facie evidence that the disclosures simply caused it some damages."

The question is not 'how much damage' it was 'was there damage'

So long as the damage flows from Ron in some way, which there's sufficient proof of, that should satisfy a prima facie case of TI

 

[AnOminous]

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.

There is no way that he is Tom Cruise or is recognized wherever he goes. He is at most a limited public figure. Very, very few people are general purpose public figures.

 

[DinkyCowSow]

It literally cannot be clearer in the decision.

"In this Court, EMTS contends that the court of appeals applied an erroneous standard regarding the damages element of its claim—the court measured the evidence by whether EMTS produced evidence of the specific amount of damages the disclosures caused instead of properly determining whether EMTS produced prima facie evidence that the disclosures simply caused it some damages."

The question is not 'how much damage' it was 'was there damage'

Yeah it does seem to read like this. There are a few things that might work against Ty if Chupp wanted to give him a hard time though:

"Elliott claims that EMTS did not establish that it was damaged by the disclosures causing it to lose profits. In considering that claim, we note that EMTS was not required to provide evidence sufficient to allow an exact calculation of the lost profits. See Owen, 115 S.W.2d at 1098. Rather, it was only required to present evidence sufficient to support a rational inference that Elliott’s actions caused it to lose some specific, demonstrable profits. "

This says you don't need to do an exact calculation, but that might imply you do need to do at least some calculation. Adding in "specific, demonstrable", Ty could have saved Vic's ass by including at least one number somewhere of a real cost Vic paid for the KamehaCon cancellation.

Document also suggests that EMTS laid out how much money they made currently from the program and that they wouldn't be able to make that money anymore. That would suggest that they lost as much as they were previously making (Jury could decide if it was more or less based on other facts later). Vic's unsworn declaration in this filing does include how much he made at Kamehacon, but not how much he was supposed to make before he was accused or how much he had to pay in extra security unless I am missing something. So, all we have is "I made less than before." Judge can say, "Not specific enough, dismissed."

 

[lawtwitterthrowaway]

There is no way that he is Tom Cruise or is recognized wherever he goes. He is at most a limited public figure. Very, very few people are general purpose public figures.

Granted. That said, Chupp explicitly recognized him as a LPPF, so it brings in actual malice as a standard to overcome anyways.

 

[Urbanmech]

There is no way that he is Tom Cruise or is recognized wherever he goes. He is at most a limited public figure. Very, very few people are general purpose public figures.

awww cmon everyone know's Vic, I mean I came to know this case because....oh wait I found out about it because of Shane's mess of a debate with Nick trending on Reddit. No idea who Vic was until I researched the case.

 

[AnOminous]

Granted. That said, Chupp explicitly recognized him as a LPPF, so it brings in actual malice as a standard to overcome anyways.

Did he? Or did he just say he was flat out a public figure? In any event his reasoning was thin at best. I also seriously doubt that contention. Voice actors aren't known by the vast majority even of people who are actually fans of the medium. Applying this kind of standard to a group of people who are only known to an inner circle of core fans would make anyone who has even limited professional success, such that a smattering of industry people know who they are, a public figure.

I'm pretty sure defamation law doesn't countenance that only a completely obscure failure known to nobody enjoys any protection from defamation.

 

[Sheryl Nome]

Dub watchers aren't people anyways so they shouldn't be counted

 

[lawtwitterthrowaway]

Did he? Or did he just say he was flat out a public figure?

It's part of the twitter threads and I can't be arsed searching them, but IIRC he cut Lemoine short by outright saying that he recognized Vic as a LPPF after having heard Johnson's presentation regarding the issue, forcing him to skip several slides in his Powerpoint.

In any event his reasoning was thin at best.

Like I said, we're likely to get his actual reasoning in the ruling, but everybody who was in court recognized the "I don't get that many people in here" thing as a joke.

I also seriously doubt that contention. Voice actors aren't known by the vast majority even of people who are actually fans of the medium.

Hard disagree there. Voice actors are often talked about in regards to the anime industry, especially the dub scene. And among those voice actors, Vic is definitely one of the very famous ones. Like I said, you don't make a living doing public appearances as a private figure.

 

[DinkyCowSow]

Did he? Or did he just say he was flat out a public figure? In any event his reasoning was thin at best. I also seriously doubt that contention. Voice actors aren't known by the vast majority even of people who are actually fans of the medium. Applying this kind of standard to a group of people who are only known to an inner circle of core fans would make anyone who has even limited professional success, such that a smattering of industry people know who they are, a public figure.

I'm pretty sure defamation law doesn't countenance that only a completely obscure failure known to nobody enjoys any protection from defamation.

I think the LPPF argument is really strong. I didn't know who Vic was until I heard about the lawsuit - but after that I said, "Oh, he voiced Edward?" (don't blame me, manga > subs > dubs). On the other hand, I can't name all the members of Queen (are any still alive???), but they might even qualify as GPPFs.

But, Samantha James was found to be a public figure, and she's a belly dancer. Who here knew the name of any belly dancers before just now? Vic is almost certainly a LPPF for anything to do with the voice acting industry and his convention appearences.

I'll say that I took the judge saying he was a LPPF because of the amount of people there as a joke. I think he probably read the filings and didn't want to sit there listening to arguments about whether a guy who admits to making hundreds of thousands of dollars for his public appearences was a real public figure.

 

[TheClappening]

To be a LPPF you need to insert yourself into some public controversy. Outside of a few apology tweets, or maybe talking about it at anime con panels, Vic's been dead silent.

And if you want to say the existence of the defamation and lawsuit makes him a limited public figure... nah. Otherwise defending yourself would make you a LPPF and make it harder to defend yourself.

Nick's arguably a LPPF in the context of this lawsuit.

 

[AnOminous]

It's part of the twitter threads and I can't be arsed searching them, but IIRC he cut Lemoine short by outright saying that he recognized Vic as a LPPF after having heard Johnson's presentation regarding the issue, forcing him to skip several slides in his Powerpoint. Like I said, we're likely to get his actual reasoning in the ruling, but everybody who was in court recognized the "I don't get that many people in here" thing as a joke. Hard disagree there. Voice actors are often talked about in regards to the anime industry, especially the dub scene. And among those voice actors, Vic is definitely one of the very famous ones. Like I said, you don't make a living doing public appearances as a private figure.

He's not appearing before general audience but before niche audiences of fans of a very specific and very small fandom.

I think the LPPF argument is really strong. I didn't know who Vic was until I heard about the lawsuit - but after that I said, "Oh, he voiced Edward?" (don't blame me, manga > subs > dubs).

And you'd recognize Edward, the character. Not the actor. There could have been a dozen actors for a given anime character.

Nick's arguably a LPPF in the context of this lawsuit.

Nick is definitely an LPPF for the purposes of this lawsuit, as he has quite intentionally injected himself into the controversy with the purpose of affecting its outcome. I fail to see how Vic has deliberately inserted himself into this controversy. He has made three tweets about it, almost all simply defending himself, denying accusations against him, and discouraging people from imaginary harassment literally because the defendants asked him to do so.

 

[DinkyCowSow]

To be a LPPF you need to insert yourself into some public controversy. Outside of a few apology tweets, or maybe talking about it at anime con panels, Vic's been dead silent.

And if you want to say the existence of the defamation and lawsuit makes him a limited public figure... nah. Otherwise defending yourself would make you a LPPF and make it harder to defend yourself.

Nick's arguably a LPPF in the context of this lawsuit.

Defending yourself does not make you a public figure. Also, the news cannot make him a public figure just by talking about him.

But, even your small town basketball coach can count as a public figure for things related to basketball in their town.

 

[TheShortWaveCerealKiller]

And you'd recognize Edward, the character. Not the actor. There could have been a dozen actors for a given anime character.

This right there should be everything you need. I would implore someone to pick someone like say Dekus(From Boku No Hero) dub VA or hell even his Japanese VA out in a crowd. I can tell you right now I couldn't. I could maybe recognize his voice if he somehow did it in the crowd but, outside of that I couldnt pick him out from the dude who works at Taco Bell. Hell even anime fans would have a hard time doing that. Which shrinks the pool even more.

 

[lawtwitterthrowaway]

This right there should be everything you need. I would implore someone to pick someone like say Dekus(From Boku No Hero) dub VA or hell even his Japanese VA out in a crowd. I can tell you right now I couldn't. I could maybe recognize his voice if he somehow did it in the crowd but, outside of that I couldnt pick him out from the dude who works at Taco Bell. Hell even anime fans would have a hard time doing that. Which shrinks the pool even more.

I'm going to give that one a resounding 'meh'. VAs often don't get famous for the work they do while a show's still running. They get famous after it's over, and they come to another show, and give another great performance. Vic isn't famous just for Edward (though being Edward is the one everybody knows). Chris Sabat isn't just Vegeta. Steve Blum isn't just Spike. Crispin Freeman isn't just Itachi. JYB isn't just Ichigo. Yuri Lowenthal isn't just Sasuke. They have roles and roles and roles and roles. Now Justin Briner (the guy you're referring to) has had a bunch of roles, sure, but Deku is his first major one. Whether he succeeds or fails comes from what he parlays the fortune of having that role into.

But that's how fame works. It's all about consistency...

 

[AnOminous]

I'm going to give that one a resounding 'meh'. VAs often don't get famous for the work they do while a show's still running. They get famous after it's over, and they come to another show, and give another great performance. Vic isn't famous just for Edward (though being Edward is the one everybody knows). Chris Sabat isn't just Vegeta. Steve Blum isn't just Spike. Crispin Freeman isn't just Itachi. JYB isn't just Ichigo. Yuri Lowenthal isn't just Sasuke. They have roles and roles and roles and roles. Now Justin Briner (the guy you're referring to) has had a bunch of roles, sure, but Deku is his first major one. Whether he succeeds or fails comes from what he parlays the fortune of having that role into.

Before a few months ago I hadn't heard of a single one of those people. I wouldn't recognize them. If you showed me pictures of any of them and asked me who they were, I'd have no clue. If you told me who they were when they were standing next to me, I'd shrug and not care. They would have been complete nonentities to me.

It's like if you told me someone was the key grip on The Empire Strikes Back. Or any other famous movie. And then told me that made them a celebrity. And your only argument was that I'd obviously heard of The Empire Strikes Back.

 

[Urbanmech]

Before a few months ago I hadn't heard of a single one of those people. I wouldn't recognize them. If you showed me pictures of any of them and asked me who they were, I'd have no clue. If you told me who they were when they were standing next to me, I'd shrug and not care. They would have been complete nonentities to me.

It's like if you told me someone was the key grip on The Empire Strikes Back. Or any other famous movie. And then told me that made them a celebrity. And your only argument was that I'd obviously heard of The Empire Strikes Back.

Yea the only ones I knew off the top of my head are the ones with Movie stars in them: Macross Plus, Vampire Hunter D Bloodlust and the Ghibli Disney Dubs have quite a lot in them.

 

[lawtwitterthrowaway]

Before a few months ago I hadn't heard of a single one of those people. I wouldn't recognize them. If you showed me pictures of any of them and asked me who they were, I'd have no clue. If you told me who they were when they were standing next to me, I'd shrug and not care. They would have been complete nonentities to me.

It's like if you told me someone was the key grip on The Empire Strikes Back. Or any other famous movie. And then told me that made them a celebrity. And your only argument was that I'd obviously heard of The Empire Strikes Back.

And if you asked me about boy bands, K-pop, or BET, I couldn't tell you jack shit. There's a whole fuckton of culture out there, and nobody can keep track of it all. Your anecdote is only that.

 

[AnOminous]

And if you asked me about boy bands, K-pop, or BET, I couldn't tell you jack shit. There's a whole fuckton of culture out there, and nobody can keep track of it all. Your anecdote is only that.

You're literally saying he doesn't fit the definition of a public figure. Nor does some random K-pop person nobody ever heard of.

Either you're a general purpose public figure or a limited purpose public figure because you have voluntarily injected yourself into a controversy, and the definition of a general purpose public figure is exceedingly narrow.

"Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part, those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment." Gertz v. Robert Welch.

This is not a description of any person who has ever been heard of by another person.

And if not, what controversy has he publicly injected himself into?

 

[TheClappening]

Here's another one:
Mignogna is an odd looking name, right? Casey couldn't even pronounce it right.

Here's another weird looking name: Schwarzenegger. I bet that one doesn't get mispronounced.

One of them belongs to a general purpose public figure (and ignoring the fact Arnie used to be a government official).

 

[Fougaro]

Dub watchers aren't people anyways so they shouldn't be counted

"It depends on the dub...doesn't it?"