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

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Immaculate Ape

It was ME... DIO!
kiwifarms.net
Really starting to question how much of this had to do with Ty's preparation.

Have been researching Anti-SLAPP appeals. This one is in the news right now:


The trial judge affirmed the motion to dismiss under an Anti-SLAPP statue, it was appealed, the appeal court overturned the judge. Notice this sentence on the first page: "The complaint meets the low burden of alleging facts supporting a minimal plausible inference of bias."

Not at the point where I'm ready to present any conclusions, but I'm looking at a few others like this. The common thread is the standard of evidence used in hearing the Plaintiff's evidence, that's the grounds for many successful appeals.

On the one hand, yes, attorneys REALLY need to wrap their evidence up with shiny paper and put a bow on it to get past an Anti-SLAPP hearing. Even then, Anti-SLAPP decisions get appealed frequently by both the Plaintiff and the Defendant who have reasons for wanting to pursue them. I've spoken with 3 attorneys who handle defamation suits that won't take a case unless the Plaintiff budgets for appeals on Anti-SLAPP motions. They are not always concerned about losing the Motion, sometimes they are worried about Defendants appealing the decision - who will invest a lot of money to prevent discovery and reach a settlement.

On the other hand, judges seem to have a hard time applying Anti-SLAPP laws correctly. I'm looking for analytics around appeals and finding a wide range of estimates on the number that succeed. While it's pretty to get metrics around criminal convictions for various US courts, it's hard to collect data about Anti-SLAPP appeals because there are many definitions for what constitutes a success. I've heard numbers as low as 30% and as high as 80% of Anti-SLAPP appeals succeed on at least one claim, which is really weird to think about. Even if just one-third of all appeals go through, isn't that a really high number?

Will be presenting some metrics at some point, but as regards this case: feels like we're just seeing the process play out. Ty's presentation may have been flawed, but my sense is that doesn't matter as much as defects in the application of the law itself.
The major issue I'm seeing with anti-SLAPP is that you're asking Judges, who are in the position they are to make decisive actions, to come into court to not make a decisive action.

You're basically asking the Judge, "Hey, we don't think they actually have a legit case. So can you just dismiss it so we can all avoid more work?"

Even some lawyers can't wrap their heads around the bare minimum required because it sounds so stupid and illogical.

The question should be, can the plaintiff show that they have any claim at all? Some (especially law twitter and Chupp) seem to think the standard is "How much evidence and how good is it?" which, according to literally everything I've been seeing about anti-SLAPP and TCPA, is too high a standard.
 

Ivan Shatov

Ceterum autem censeo Carthaginem esse delendam
kiwifarms.net
Yeah and I'm such a KV supporter as mentioned above. I posted jamie marchis possible DUI and forcible entry, Sean Schemmels second sexual accusation, and a bunch of other anti-KV stuff but nah I fucking love KV.
Listen, no one knows your motivations, nor does anyone really care. That's nice you had some trash about Jamie and Sean but it takes more than sharing to make friends on KiwiFarms.

It takes heart.

We are a caring, diverse, inclusive community who welcomes all perspectives and prioritizes those of marginalized communities. The KickVic people have our attention only because find their eccentricities shocking. We're put off by their white supremacist beliefs, the wife beating, the serial bankruptcies, the drugs, the overtly sexualized environment maintained in that den of sin called Funimation, the sham investigations and HR actions, their penchant for elevating accusations from brain-damaged unfortunates to the level of fact, the pedophelia, the doxxing, the dental reconstruction, the casting couches, the diseased lungs, the objections to form, and everything else that's so perfectly flawed about them. Their example teaches us how not to live our lives, and we just try to share what we observe.

Everyone at the Farms cares about the KickVic players and we hope they take some time off to get right with themselves. We want them to be able to participate in the community fully, freshly and without victimizing those around them with the toxic environments they create. And maybe they all hire a PR person. It's funny, for every accusation Jamie has made, there's a YouTube video directly contradicting her words. How is someone supposed to feel in the face of that level of encephalopathy? We don't want discuss eugenics as a solution, but their actions really force one to consider the merits of sterilization as a means of protecting future generations.

I mean, do you want to see these people having contact with children or figuring out how to reproduce? Would it shock you to know a few already have, and it wasn't asexual?

Your posts come off as aggressive. Don't get me wrong, I appreciate the fact you took the time to create an account. I just get the sense you share to impress, not to contribute to this safe, welcoming environment. Take the time to learn how to participate in our community and channel the love we share for each other and the world. Don't seek conflict with the long-time Kiwis, they've been exposed to a lot and deserve a little extra latitude. Dealing with new accounts is always stressful, we don't want our mojo messed with.

I always say: eyeballs, not ego. We watch, we don't participate. Peace.
 

AnOminous

Really?
True & Honest Fan
Retired Staff
kiwifarms.net
it sounds like in trying to put in the Anti-Slapp laws they basically made something that could be solved with a Judge's common sense into a gigantic cluster fuck that only benefits the lawyers who get paid to untangle it.
The problem is if the decision requires "common sense," rather than just mechanically applying a formula, as the anti-SLAPP laws are drafted, that's the kind of thing generally left to a jury. That's not just a suggestion, but a constitutional right. The language of anti-SLAPP laws, and their drafters, often insist they aren't meant to dismiss meritorious cases yet, time and again, that's exactly what judges do when presented with these cases.
 

lawtwitterthrowaway

kiwifarms.net
That's no way to earn useless stickers, friend.



I am going to assume that, within legal threads, we can say if we are lawyers or not because that's relevant to the conversation as opposed to "power-leveling". Are you a lawyer?

IANAL. However, let's take a look at T.R.C.P. Rule 63.
Parties may amend their pleadings, respond to pleadings on file of other parties, file suggestions of death and make representative parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.
It makes sense to give the other side time to read, prepare, and respond to material you file. This rule seems to be legalese on some subset of how to make sure that happens.

With that text in mind, consider the following exchange:
MR. BEARD: But, I mean, we always intended to file an amended petition with everything attached. It wasn't -- if I had known that our amended petition was required by the Rule 11 agreement, we would have gotten it in.

It really simply just re -- you know, reshuffles the information that's already there. It did -- it did add some exhibits and stuff, that's true, but again, we're -- we're allowed to -- I always thought we were allowed to amend our pleadings.

THE COURT: Yeah, I mean, how soon -- can you amend them the day of trial without leave?

MR. BEARD: Not a trial, but this isn't a trial. This is a hearing.

THE COURT: Well, this is -- this could dismiss your case, and at some point you've got to stop amending pleadings so they can actually file a motion to dismiss on this. And that has to happen at some point in time, doesn't it?

MR. BEARD: I think it does, but if they could claim they were surprised, I would suppose so. But they're not surprised. We've been wrangling about this --

THE COURT: Well, I think they're surprised about the content more of your petition, than the affidavits. You actually have more complaints in your petition than you did the other one.

MR. BEARD: Your Honor --

THE COURT: Is that not true?

MR. BEARD: Well, I -- you'll have to ask them. I --

THE COURT: I'm asking you.

MR. BEARD: No, I don't think it's true at all.

THE COURT: Okay. So they're the exact same petition, the first amended and the second amended, except they're --

MR. BEARD: There are some exhibits added that actually show the emails rather than quote them. That's the main difference. We did -- we did use unsworn declarations, because by the time we put that together, we were aware that the affidavits had a problem. Your Honor, amended pleadings are routinely used to defeat summary judgment and dismissal hearings. I mean, it's --

THE COURT: They don't -- they won't defeat a summary judgment. Amended pleadings will not defeat a summary judgment. You can allege a new cause of action, or you can remove a cause of action, but if you've got a cause of action within your pleading, a summary judgment requires a response with evidence.

MR. BEARD: Right.

THE COURT: It's not your pleading that's going to support your summary judgment motion.

MR. BEARD: Right, Your Honor, but the -- the difference here is this is a TCPA action where the pleadings --

THE COURT: You brought up summary judgment. You don't need to tell me the difference. I didn't bring it up.

MR. BEARD: Well, I'm trying to analogize, I guess.

THE COURT: Okay.

MR. BEARD: What I'm saying is that it's routine to amend pleadings before trial outside of -- not within seven days without permission. There's no -- this is a hearing. There was no reason to assume that we were under any particular burden. We got it in as quick as we --

THE COURT: Let me ask you this. So if you were always intending to file a second amended petition, why did you wait until September 2nd to get them to sign these unsworn declarations?

MR. BEARD: Because I found out that the -- what would have happened is the defective affidavits would have gone into it, but we found out about it. Opposing counsel notified us. I checked into it, and went, you know, so I mean, that's -- that's why we did it.

THE COURT: Okay. Point me to the evidence that says that a statement by Marchi related or referred to the plaintiff. I want to see his name in something that you filed with regards to either your response or your first amended petition.
Is the TCPA hearing a trial or not? Does the seven day window apply? Did the 2nd. amnd. pet. surprise the defense? We can explicate that they are discussing T.R.C.P. Rule 63 pretty easily.

The TL;DR version:
THE COURT: Is there anything new in the second amended petition other than swapping out the affidavits for unsworn declarations?

MR. BEARD: No. Well, a little.

THE COURT: Okay, well, we can bypass all the legalese. This is a surprise to the defense, so I'm not allowing it.
Ta-da! Now it doesn't matter if the TCPA hearing is a trial.

Listen, yesterday I followed the references back to a case. (I'm not going to link it, do your own research for this one.) This case didn't reference others when talking about Rule 63. The way it referenced Rule 63? The rule clearly didn't apply for a specific reason to something happening in summary judgment. Somehow this is translated to the rule definitely treating summary judgment as a trial. No logician is going to buy that shitty argument, but who is going to argue with an appeals court?

Again, as a layperson? I suspect that decision is just so there's a clear rule and they can avoid wasting time with constant appeals.

I hope you two are enjoying this argument. Judges appear to do everything in their power to avoid arguments like this, to the point where they make rules up and hope no one challenges them. Me, I think "the law" is hilariously disorganized, chaotic, and bogus ... but seems to work okay enough to avoid a revolution.
Not a lawyer either, as it happens. But I follow law issues on twitter often enough that I pick up things here and there. Things like judges being very unhappy when parties don't stick to their filing schedules, or how easy it is to lose a case when you've pissed off a judge. Frankly, this case has been an education! Fer instance, I now know several things about motions, evidence, and the TCPA I wouldn't have had any reason to ever learn but for my curiosity regarding it.
 
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DinkyCowSow

kiwifarms.net
The major issue I'm seeing with anti-SLAPP is that you're asking Judges, who are in the position they are to make decisive actions, to come into court to not make a decisive action.

You're basically asking the Judge, "Hey, we don't think they actually have a legit case. So can you just dismiss it so we can all avoid more work?"

Even some lawyers can't wrap their heads around the bare minimum required because it sounds so stupid and illogical.

The question should be, can the plaintiff show that they have any claim at all? Some (especially law twitter and Chupp) seem to think the standard is "How much evidence and how good is it?" which, according to literally everything I've been seeing about anti-SLAPP and TCPA, is too high a standard.
I would disagree with this. Chupp is clearly aware of the TCPA standard. He just disagrees that Ty presented actual evidence to meet some of his claims.

"THE COURT: I don't think you have any evidence, is your problem. You want no standard, that's the problem."

Repeatedly Ty tried to make the claim that direct evidence of one crime should count as circumstantial evidence for another, independent crime. That is not what circumstantial evidence is. Ty *might* have been able to walk the judge through the Slatosch affidavit and gotten some direct evidence of the other cases of Tortious Interference, but he didn't. Combined with the fact that Ty included Vic's entire deposition, where Vic states he can't think of any other cons that cancelled on him, means he didn't even submit clear and specific evidence that the cons actually cancelled on him, because his own evidence was contradictory.
 

BimWitted

kiwifarms.net
He's confused. He's used to spending time around people who live in constant denial of the truth, and who DFE every time something embarrassing comes up about them.
I had that experience with a lawtwitter person. Suggested I could just delete my tweet to avoid embarrassment.
 
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Immaculate Ape

It was ME... DIO!
kiwifarms.net
Please, elaborate once more on how I am wrong, so there's one more post you have to try and delete once Vic either loses or does not pursue an appeal.
Nobody is interested in having a circular argument with you. You had facts and evidence provided and choose to ignore them, and because you got BTFO'd out of one thread doesn't mean you can shit up other ones with the same nonsense and expect to get a different result.

Have fun eating your own shit.
 

AnOminous

Really?
True & Honest Fan
Retired Staff
kiwifarms.net
This may be late and gay but...

Since Marchi is completely dismissed, can they move to appeal those rulings now?
You don't move to appeal, you just do it. Also, you can but the appeals court is considerably less likely to deign to hear it because it will be an interlocutory appeal, which is an appeal before the case is over with respect to all causes against all parties.

I had that experience with a lawtwitter person. Suggested I could just delete my tweet to avoid embarrassment.
That in a nutshell is exactly what is wrong with these shitty people. They're vastly more interested in looking smart than actually being right, and vastly more interested in appearing as if they agree with the right people than actually doing the right thing.
 

Gehenna

With every step, my Autism grows.
kiwifarms.net
Nobody is interested in having a circular argument with you. You had facts and evidence provided and choose to ignore them, and because you got BTFO'd out of one thread doesn't mean you can shit up other ones with the same nonsense and expect to get a different result.

Have fun eating your own shit.
Have I been summoned by the powers of Autism?
 

MadPanda

Pay up gay boys
kiwifarms.net
That in a nutshell is exactly what is wrong with these shitty people. They're vastly more interested in looking smart than actually being right, and vastly more interested in appearing as if they agree with the right people than actually doing the right thing.
That and they believe you should delete post or tweets if you are wrong instead of just admitting you made a mistake and owning up to it(can even edit that you were wrong in the op). I guess when you only hang out DFE type people, that is the mindset you have.

These people never own up to a mistake without blaming someone else for it
 

BimWitted

kiwifarms.net
That in a nutshell is exactly what is wrong with these shitty people. They're vastly more interested in looking smart than actually being right, and vastly more interested in appearing as if they agree with the right people than actually doing the right thing.
That's exactly it. It's about "winning" the discussion, regardless of truth. And, as I keep saying about them, doing it with a smug "I'm always right" tone.
Also he cared more about defending the eternally dumb threadnought than actually discussing the arguments I made against his points.
 
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