Victor Mignogna v. Funimation Productions, LLC, et al. (2019) - Vic's lawsuit against Funimation, VAs, and others, for over a million dollars.

[ES 195]

Hmn. I'll have to look through more, I guess. I was just wondering because I remember Nick saying that Chupp told Ty he didn't need his and was just going to use the one the defense gave him. Which sounded awful. But I also saw a few kiwis that were at the trial say they didn't recall that moment.

The whole thing reads to me like he's had it with all of them. Not even just Ty. I wonder what all has happened.

I'm actually really annoyed reading this. Ty uses a lot of the same language and inferences Johnson does but is apparently called out for having missing pieces of his argument. I obviously can't hear them or see the language but there is clearly some kind of favoritism or something of the sort going on.
I was hoping Chupp told Ty off for an actual good reason but he seems to just go after him due to some kind of prejudice. I can only assume Chupp has seen post deadline filling abuse before or something but even then it seems a bit silly.

EDIT: But holy shit, every time Chupp tries to give Ty a chance Mr.Beard puts his foot in his mouth. It really was a bad day for him, it's kind of hard to read.

 

[Garm]

I'm actually really annoyed reading this. Ty uses a lot of the same language and inferences Johnson does but is apparently called out for having missing pieces of his argument. I obviously can't hear them or see the language but there is clearly some kind of favoritism or something of the sort going on.
I was hoping Chupp told Ty off for an actual good reason but he seems to just go after him due to some kind of prejudice. I can only assume Chupp has seen post deadline filling abuse before or something but even then it seems a bit silly.

EDIT: But holy shit, every time Chupp tries to give Ty a chance Mr.Beard puts his foot in his mouth. It really was a bad day for him, it's kind of hard to read.

I think anyone would be flummoxed if they entered a court room to find the judge proactively trolling them.

 

[ES 195]

I think anyone would be flummoxed if they entered a court room to find the judge proactively trolling them.

That's true but I'm on page 50 and I've seen this situation 3 or 4 times already:

Chupp: You got the evidence?
Beard: Yeah.
Chupp: Lesse.
Beard: Um actually we don't. What I meant was-
Chupp: ffs

 

[Sheryl Nome]

Chupp ruled that they weren't going to accept the second amended petition because it was filed too late, and that's where Ty originally puts in the information about the discord.

As for damages, Chupp ruled the damages didn't matter for most of those conventions because Ty didn't put forward any evidence that the defendants had contacted those conventions. Ty showed some evidence for elements of 1) the existence of a contract and 4) actual damages, but he didn't have evidence for 2) willful and intentional interference or 3) that interference caused the harm to Vic. Ty attempted to say that "If they called one convention, we can infer they also called every single other convention that cancelled", but Chupp did not accept that argument.

You're confusing the elements for TI with existing contract with TI with Prospective Business Relations. The elements were clearly there for TI w/ existing contract. The discussion you're quoting about about TI w/ prospective business relations.

for TI w/ prospective business relations he does not in fact, have to establish that the defendants contacted a specific business, only that there was a reasonable probability that the business relationship would be entered, the defendants acted with a desire to prevent the relationship or knew their interference was likely to, that the conduct was independently tortious, there was proximate causation to the injury suffered, and the damage was actual.

The evidence that they interfered with Kameha-con and therefore could have interfered with other cons should be enough to make out a prima facie case, as the evidence of one interference makes it likely there was additional interference. That satisfies the other elements. If they were claiming Vic had committed a crime and would soon be facing charges as they made those calls, there would be an underlying tort, and since the defamation is per se and should easily get past the TCPA, there's a rational inference to be pulled there as well.

Keep in mind, at this point Vic must only provide a bare amount of evidence that one could draw a rational inference from.

You can say 'Chupp did not accept that argument', but given all questions of FACT are to be viewed in the light most beneficial to Vic, its more than possible that his failure to accept that argument was in fact, erroneous.

 

[Immaculate Ape]

That's true but I'm on page 50 and I've seen this situation 3 or 4 times already:

Chupp: You got the evidence?
Beard: Yeah.
Chupp: Lesse.
Beard: Um actually we don't. What I meant was-
Chupp: ffs

The problem was Ty didn't have the specific thing Chupp was asking for in his first amended petition.

He had a lot of it at his fingertips in the 2nd amended petition, because he added exhibits that would clarify/show context. A lot of that was missing in the first and Chupp wouldn't consider it at the time, and Ty boomer'd the fact that Marchi's defense counsel included the most damning 4 pages of allegations in the tweet that Johnson used, a point he tried to bring up after being notified by his co-counsel, but it was too late.

 

[BigDuckEnergy]

The evidence that they interfered with Kameha-con and therefore could have interfered with other cons should be enough to make out a prima facie case, as the evidence of one interference makes it likely there was additional interference. That satisfies the other elements. If they were claiming Vic had committed a crime and would soon be facing charges as they made those calls, there would be an underlying tort, and since the defamation is per se and should easily get past the TCPA, there's a rational inference to be pulled there as well.

Everybody also seems to forget that the Slatosh texts, Ron outright says "Monica's agent is contacting other cons," it's reasonable to assume that could mean both cons that have already contracted with Vic and cons that possibly might contract with Vic.

 

[Gehenna]

This all does give me hope for the letter of reconsideration. Once the decision actually comes OUT, everyone will know what evidence was actually admissable, and everyone involved can write out a much prettier, more detailed, and much more CONCISE case.

 

[ES 195]

The problem was Ty didn't have the specific thing Chupp was asking for in his first amended petition.

He had a lot of it at his fingertips in the 2nd amended petition, because he added exhibits that would clarify/show context. A lot of that was missing in the first and Chupp wouldn't consider it at the time, and Ty boomer'd the fact that Marchi's defense counsel included the most damning 4 pages of allegations in the tweet that Johnson used, a point he tried to bring up after being notified by his co-counsel, but it was too late.

I'm not even talking about evidence and stuff. Any time Chupp asks Ty a yes or no question Ty will start off with yes and when asked immediately switch to no. It's embarrassing. He should have just responded differently similar to how Johnson did as J managed to pull off the same thing but using different language. A few "not quite"s and "We have evidence to support" would have went way farther than "yes but actually no" imo. I think people were right saying Ty and the Judge weren't on the same wavelength.

 

[Long-time Lurker]

The problem was Ty didn't have the specific thing Chupp was asking for in his first amended petition.

He had a lot of it at his fingertips in the 2nd amended petition, because he added exhibits that would clarify/show context. A lot of that was missing in the first and Chupp wouldn't consider it at the time ...

I'm not even talking about evidence and stuff. Any time Chupp asks Ty a yes or no question Ty will start off with yes and when asked immediately switch to no. It's embarrassing. ... I think people were right saying Ty and the Judge weren't on the same wavelength.

One of the most difficult things for the transcript to get across is how long the pauses were between statements. Ty & co. were very, very slow with evidence at the beginning of the hearing but got faster with time.

Consider the possibility that Ty was absolutely convinced he could use the second amended petition. He would not be prepared to use the 1st amnd. pet. + the TCPA response. So his gut response would be based on the 2nd amnd. pet., but then he would notice the material's source and be forced to alter his response.

I don't believe that covers all the backtracks, such as Judge Chupp asking Ty about a number for damages and Ty responding with, "oh I can totally do that! ... lol j/k." Perhaps a combination of losing the 2nd amnd. pet. and being on the wrong wavelength is what made the first half of the hearing so painful / lol-filled.

 

[DinkyCowSow]

You're confusing the elements for TI with existing contract with TI with Prospective Business Relations. The elements were clearly there for TI w/ existing contract. The discussion you're quoting about about TI w/ prospective business relations.

for TI w/ prospective business relations he does not in fact, have to establish that the defendants contacted a specific business, only that there was a reasonable probability that the business relationship would be entered, the defendants acted with a desire to prevent the relationship or knew their interference was likely to, that the conduct was independently tortious, there was proximate causation to the injury suffered, and the damage was actual.

The evidence that they interfered with Kameha-con and therefore could have interfered with other cons should be enough to make out a prima facie case, as the evidence of one interference makes it likely there was additional interference. That satisfies the other elements. If they were claiming Vic had committed a crime and would soon be facing charges as they made those calls, there would be an underlying tort, and since the defamation is per se and should easily get past the TCPA, there's a rational inference to be pulled there as well.

Keep in mind, at this point Vic must only provide a bare amount of evidence that one could draw a rational inference from.

You can say 'Chupp did not accept that argument', but given all questions of FACT are to be viewed in the light most beneficial to Vic, its more than possible that his failure to accept that argument was in fact, erroneous.

You are actually confusing what Ty was arguing for. Page 100 to 101:

MR. BEARD: Your Honor, you don't have to do that. All we have to do is produce the minimum quantum of evidence necessary to support a rational inference. What you've got to find is that it is rational of me to say if they tried to interfere with Kameha Con, they might well have done so with the other conventions, and I'll point to those conventions that canceled him as evidence of that.
THE COURT: But that can be prospective contracts. That's not a current contract.
MR. BEARD: No, Your Honor, Mr. Mignogna testified that in many cases he did have contracts with them, verbal contracts.

So, Ty is the one who made it about existing contracts.

On to rational inference: a lot of people here seem to be misunderstanding what applies to. Rational inference is primarily used to tie together the elements of the tort. If you can provide clear and specific evidence they called a convention, and you can provide clear and specific evidence the convention cancelled on Vic because they called, and you can provide clear and specific evidence Vic suffered damages, then you can draw a rational inference that Vic suffered damages because the defendants. Providing clear and specific evidence that the defendants contacted one convention is not clear and specific evidence that they contacted another. The judge has to accept your evidence is true without considering other evidence from the defendants, but he doesn't have to accept that it is proof of things it is not. Contacting con A is not clear and specific evidence of contacting con B.

Ty should have had a detailed conversation with Vic listing out every single convention he was planning to go to that got cancelled. He should have established which ones were just prospective contracts, and which were established contracts (verbal or written or otherwise). Each one of those is a separate instance of a tort, and each one should have had evidence for them. Instead we got Ty arguing for a handful of contracts that he swears are mostly existing, but not providing the clear and specific evidence that the defendants contacted them.

 

[Sheryl Nome]

You are actually confusing what Ty was arguing for. Page 100 to 101:

MR. BEARD: Your Honor, you don't have to do that. All we have to do is produce the minimum quantum of evidence necessary to support a rational inference. What you've got to find is that it is rational of me to say if they tried to interfere with Kameha Con, they might well have done so with the other conventions, and I'll point to those conventions that canceled him as evidence of that.
THE COURT: But that can be prospective contracts. That's not a current contract.
MR. BEARD: No, Your Honor, Mr. Mignogna testified that in many cases he did have contracts with them, verbal contracts.

So, Ty is the one who made it about existing contracts.

On to rational inference: a lot of people here seem to be misunderstanding what applies to. Rational inference is primarily used to tie together the elements of the tort. If you can provide clear and specific evidence they called a convention, and you can provide clear and specific evidence the convention cancelled on Vic because they called, and you can provide clear and specific evidence Vic suffered damages, then you can draw a rational inference that Vic suffered damages because the defendants. Providing clear and specific evidence that the defendants contacted one convention is not clear and specific evidence that they contacted another. The judge has to accept your evidence is true without considering other evidence from the defendants, but he doesn't have to accept that it is proof of things it is not. Contacting con A is not clear and specific evidence of contacting con B.

Ty should have had a detailed conversation with Vic listing out every single convention he was planning to go to that got cancelled. He should have established which ones were just prospective contracts, and which were established contracts (verbal or written or otherwise). Each one of those is a separate instance of a tort, and each one should have had evidence for them. Instead we got Ty arguing for a handful of contracts that he swears are mostly existing, but not providing the clear and specific evidence that the defendants contacted them.

I don't think its actually necessary to Ty to produce evidence that they contacted every single convention, he merely need to provide a rational inference that they probably did.

This is why the clear and specific evidence line in the TCPA is so bad, you don't need clear and specific evidence for every element, you need evidence that is clear and specific that is enough to support rational inferences.

Asking for hard evidence of every contact at this stage is asking the impossible, and is obviously not the intention of the TCPA.

 

[DinkyCowSow]

I don't think its actually necessary to Ty to produce evidence that they contacted every single convention, he merely need to provide a rational inference that they probably did.

This is why the clear and specific evidence line in the TCPA is so bad, you don't need clear and specific evidence for every element, you need evidence that is clear and specific that is enough to support rational inferences.

That is where you have it wrong.

Ty needs to provide, for each instance of a tort, clear and specific evidence that supports a prima facie case for every element of every tort Vic is accusing someone of. That is what the TCPA requires. This evidence is allowed to be circumstantial evidence. So, he doesn't need the other conventions to say "Yes, she called us and that's why we cancelled." It could be as simple as a log showing she called the convention. Or a tweet from one of the conventions saying they had talked to the defendant. If you had that, followed by the convention cancelling, you would have enough to draw a rational inference.

Ty's "clear and specific" evidence that they contacted all the other conventions was that they contacted one convention. The court has to accept he called the first convention, it does not have to accept that he called any others.

 

[Sheryl Nome]

That is where you have it wrong.

Ty needs to provide, for each instance of a tort, clear and specific evidence that supports a prima facie case for every element of every tort Vic is accusing someone of. That is what the TCPA requires. This evidence is allowed to be circumstantial evidence. So, he doesn't need the other conventions to say "Yes, she called us and that's why we cancelled." It could be as simple as a log showing she called the convention. Or a tweet from one of the conventions saying they had talked to the defendant. If you had that, followed by the convention cancelling, you would have enough to draw a rational inference.

Ty's "clear and specific" evidence that they contacted all the other conventions was that they contacted one convention. The court has to accept he called the first convention, it does not have to accept that he called any others.

I'm actually saying that your understanding of clear and specific evidence is wrong

Clear and specific evidence does not actually mean hard evidence for each one. It means enough evidence to support a rational inference.

The clear and specific evidence of a contact to one con being called and interfered with, does infact provide a basis for a rational inference that they contacted other cons that dropped vic. That should pass the TCPA.

Whether each con was actually interfered with is a matter for Discovery, but since the TCPA is a pre-discovery motion, its not reasonable to have the plaintiff exhaustively list out evidence, especially expecting him to get it from parties who may be hostile (cons who broke contracts).

Please remember that under Lipsky, Circumstantial Evidence is enough. I mean just look at this line. "We accordingly disapprove those cases that interpret the TCPA to require direct evidence of each essential element of the underlying claim to avoid dismissal. "

 

[Garm]

It appears to me that the point of a TCPA is that if the evidence is laid out before a random layman, would the layman say "this is suspicious, we need to investigate further."

On defamation, I would think the sheer number of Ron's tweets trying to imply Vic is a pedophile and a rapist should raise a red flag. It was a sustained effort over several weeks. Monica is in a similar position. Funimation had a single tweet thread but it could be considered defamitory. What Marchi lacked in volume she made up for in viciousness.

Conspiracy will be difficult to prove until you can conduct discovery. But we seem to have emails where Monica asked Funimation to make a statement. That should be a red flag.

Tortuious Interference has text messages as well as an affidavit stating "they called, we cancelled the contract." This should be a giant red flag.

The problem I have with Chupp's ruling on TI is that it makes it more difficult to sue someone for interfering with a business contract. Right now it seems like if a contract gets cancelled but you renegotiate it with penalties for yourself just to save the contract, technically you didn't lose a contract. This seems like it would be bad for "average" people as well small businesses because they may have "only" one contract.

I know Chupp is wrong on the facts of the case. I know that. I'm just pointing out that right now the logic behind throwing out Tortious interference is problematic if applied any where else.

This is the abstract situation I'm looking at. The lawyer types can go back to arguing about the finer details.

 

[Sheryl Nome]

It appears to me that the point of a TCPA is that if the evidence is laid out before a random layman, would the layman say "this is suspicious, we need to investigate further."

Essentially yes, that is the point of the TCPA, its literally 'Could a jury see any merit in this claim whatsoever'

 

[Markorian]

That is where you have it wrong.

Ty needs to provide, for each instance of a tort, clear and specific evidence that supports a prima facie case for every element of every tort Vic is accusing someone of. That is what the TCPA requires. This evidence is allowed to be circumstantial evidence. So, he doesn't need the other conventions to say "Yes, she called us and that's why we cancelled." It could be as simple as a log showing she called the convention. Or a tweet from one of the conventions saying they had talked to the defendant. If you had that, followed by the convention cancelling, you would have enough to draw a rational inference.

Ty's "clear and specific" evidence that they contacted all the other conventions was that they contacted one convention. The court has to accept he called the first convention, it does not have to accept that he called any others.

You are referring to a preponderance of the evidence, which is what would be needed in trial. Overcoming the TCPA, in terms of the spirit of the law, is to say "ok, can you show that there is a reasonable chance that you might find evidence in discovery, and you're not just doing this to cause financial burden to shut someone up?"

 

[Gehenna]

That is where you have it wrong.

Ty needs to provide, for each instance of a tort, clear and specific evidence that supports a prima facie case for every element of every tort Vic is accusing someone of. That is what the TCPA requires. This evidence is allowed to be circumstantial evidence. So, he doesn't need the other conventions to say "Yes, she called us and that's why we cancelled." It could be as simple as a log showing she called the convention. Or a tweet from one of the conventions saying they had talked to the defendant. If you had that, followed by the convention cancelling, you would have enough to draw a rational inference.

Ty's "clear and specific" evidence that they contacted all the other conventions was that they contacted one convention. The court has to accept he called the first convention, it does not have to accept that he called any others.

I explained to you, at length, what Clear and Specific evidence means. Stop. Using. It. Wrong.

 

[Sheryl Nome]

I explained to you, at length, what Clear and Specific evidence means. Stop. Using. It. Wrong.

I mean if he had read Lipsky at all he would have seen the key line I just quoted at him. Direct evidence for each claim is not required.

 

[DinkyCowSow]

I am not claiming direct evidence. Some of you don't seem to know what direct and circumstantial evidence mean. Yes, circumstantial evidence is allowed.

Direct evidence means evidence that, if unchallenged, is enough to establish the crime/tort/element. For instance, in this case, "I talked to [defandant] and because of that decided to cancel the contract," would be direct evidence that proves one of the elements (more than enough to surpass TCPA). Circumstantial evidence is evidence that supports the claim, but even if unchallenged does not establish the thing without rational inference. Circumstantial evidence that the defendants cancelled the contract might be the existence of a phone call between the convention and the defendants (it would not be enough to prove the contents, but it is circumstantial evidence that qualifies for the TCPA). The classic example of circumstantial evidence is "we found the defendant's fingerprints at the crime scene." Does this provide evidence that the defendant did the crime? Yes. Is it enough on it's own? No. Lots of peoples fingerprints might be at a crime scene who didn't do the crime.

Ty essentially attempted to argue that the confession of a single murder is circumstantial evidence that every other unsolved murder in the town was by the same person. That is not circumstantial evidence, and it is not a rational inference. I get some of you think that it is in fact a rational inference, but I think the judge is absolutely correct on this element.

 

[Sheryl Nome]

I am not claiming direct evidence. Some of you don't seem to know what direct and circumstantial evidence mean. Yes, circumstantial evidence is allowed.

Direct evidence means evidence that, if unchallenged, is enough to establish the crime/tort/element. For instance, in this case, "I talked to [defandant] and because of that decided to cancel the contract," would be direct evidence that proves one of the elements (more than enough to surpass TCPA). Circumstantial evidence is evidence that supports the claim, but even if unchallenged does not establish the thing without rational inference. Circumstantial evidence that the defendants cancelled the contract might be the existence of a phone call between the convention and the defendants (it would not be enough to prove the contents, but it is circumstantial evidence that qualifies for the TCPA). The classic example of circumstantial evidence is "we found the defendant's fingerprints at the crime scene." Does this provide evidence that the defendant did the crime? Yes. Is it enough on it's own? No. Lots of peoples fingerprints might be at a crime scene who didn't do the crime.

Ty essentially attempted to argue that the confession of a single murder is circumstantial evidence that every other unsolved murder in the town was by the same person. That is not circumstantial evidence, and it is not a rational inference. I get some of you think that it is in fact a rational inference, but I think the judge is absolutely correct on this element.

You are so, so fucking stupid. Honestly at this point I'm just flabbergasted. How can you not think its a rational inference that Ron called other cons? The only answer is that your personal biases prevent that.

You're pretending like these cons cancelling is like an unsolved murder. Its not. Its absolutely not. The big distinction is that we can draw a line from everything in Vic's case. Accusations come out, cons start cancelling on vic, we get evidence that at least one con was called. Thats enough to provide a rational inference that maybe more than one con was called.

Its not like there were cons cancelling prior to the accusations coming out and we're trying to link that, which is what your 'unsolved murder' analogy tries to do.

Your asking for the phonecall is literally asking for direct evidence. Its not circumstantial. The existence of a phonecall would be DIRECT evidence of TI, regardless of what was said, while we can only draw an inference from fact that one was called, and its more than possible others were called.