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

[Imperial Agent]

Because why would anyone pay thousands of dollars for them if they didn't need them for an appeal?

I’m pretty sure on Twitter somewhere there was a crowdfund for it.

 

[DinkyCowSow]

And, I am shocked, SHOCKED, to see that the Texas Supreme Court has already ruled that you must do more than just assert that damages exist to satisfy the clear and specific prima facie case for damages (source):

"Lipsky also argues that the trial court should have dismissed Range's defamation claim because no evidence established that his remarks caused the company specific damages. The court of appeals again disagreed. It concluded that the affidavit from Range's senior vice president, which discussed Range's losses in very general terms, was sufficient to defeat Lipsky's TCPA motion to dismiss. See 411 S.W.3d at 547. As we have already determined, the vice president's affidavit was insufficient proof of Range's special damages for purposes of the TCPA."

There is of course a caveat: this case is talking about proving damages in a defamation case. So, it does not apply to the claims of defamation per se in this case. However, it almost certainly applies to having to prove damages from TIEC as well.

For those of you who think that defamation per se without any underlying specific damages will be enough for Vic to recover millions of dollars above and beyond his TCPA costs? You should look up what nominal damages are.

 

[2lolis1cup]

And, I am shocked, SHOCKED, to see that the Texas Supreme Court has already ruled that you must do more than just assert that damages exist to satisfy the clear and specific prima facie case for damages (source):

"Lipsky also argues that the trial court should have dismissed Range's defamation claim because no evidence established that his remarks caused the company specific damages. The court of appeals again disagreed. It concluded that the affidavit from Range's senior vice president, which discussed Range's losses in very general terms, was sufficient to defeat Lipsky's TCPA motion to dismiss. See 411 S.W.3d at 547. As we have already determined, the vice president's affidavit was insufficient proof of Range's special damages for purposes of the TCPA."

There is of course a caveat: this case is talking about proving damages in a defamation case. So, it does not apply to the claims of defamation per se in this case. However, it almost certainly applies to having to prove damages from TIEC as well.

For those of you who think that defamation per se without any underlying specific damages will be enough for Vic to recover millions of dollars above and beyond his TCPA costs? You should look up what nominal damages are.

Defamation is where the majority of the money will come from. TIEC is literally proven with kamehacon and will likely be proven for some of the other cons.

If you want to see what calling somebody mean things and running them out of business looks like. Then look at Gibson bakery vs Oberlin College. 33 million dollars in PUNITIVE damages. That was for being called a racist and harassing the family and business.

Now try to imagine if you able. A conservative Texas Jury finds no merit to Vic being a child molester, rapist, abuser and sexual deviant.

This conservative Texas Jury finds out this ex-police officer is a devout christian. That this man held bible studies at some Japanese cartoon conventions. That this man is a Republican that supported Trump. Imagine fan after fan giving testimony about how their story or picture with Vic was used to smear him. How they have nothing for love for Vic and he has shown nothing but kindness to them.

Now here is the important part for why Vic might get more than a million dollars like Gibson's Bakery. Now imagine that same jury is shown evidence and testimony of the defendants hating Vic for everything I just stated. Imagine the defendants being openly hostile behind Vic's back to his faith, amount of fans, politics and ability to work. Imagine almost all of them pretending to be his friend while plotting behind his back. Imagine if they were told the company that did this is a part of Sony. Sony that was ranked 97th on the 2018 Fortune Global 500 list.

That is how punitive damages will be used to hammer against a company with massively deep pockets. Nominal damages will be a lot for a ruined name in any career let alone a "celebrity" career. I can easily see a Jury finding a multinational corporation's money a good remedy for it's employee's horrifying misconduct.

 

[Lord of the Large Pants]

So I'm confused about something relating to TCPA and appeals. Tell me if I have this right.

A.) A TCPA puts a hold on discovery.
2.) An appeal doesn't allow discovery because it doesn't allow the introduction of new evidence
D.) Therefore, a plantiff who successfully appeals a TCPA ruling still can't have the benefit of any kind of discovery that they would normally have when making their actual case, because fuck you, that's why.

Is that actually how it works or am I missing something obvious?

 

[HTTP Error 404]

And, I am shocked, SHOCKED, to see that the Texas Supreme Court has already ruled that you must do more than just assert that damages exist to satisfy the clear and specific prima facie case for damages (source):

"Lipsky also argues that the trial court should have dismissed Range's defamation claim because no evidence established that his remarks caused the company specific damages. The court of appeals again disagreed. It concluded that the affidavit from Range's senior vice president, which discussed Range's losses in very general terms, was sufficient to defeat Lipsky's TCPA motion to dismiss. See 411 S.W.3d at 547. As we have already determined, the vice president's affidavit was insufficient proof of Range's special damages for purposes of the TCPA."

There is of course a caveat: this case is talking about proving damages in a defamation case. So, it does not apply to the claims of defamation per se in this case. However, it almost certainly applies to having to prove damages from TIEC as well.

For those of you who think that defamation per se without any underlying specific damages will be enough for Vic to recover millions of dollars above and beyond his TCPA costs? You should look up what nominal damages are.

Oh jesus christ this fucking shit again. I can't tell if you're just quoting the fuckwits from Law Twitter or if you are a fuckwit from Law Twitter come to try and dunk on us heaten laypeople who dared listen to the evil drunk blackface lawyer on Youtube wot makes money talkin' about law and not merely earning Popehad asspats like he's supposed to.

That's the start of In Re Lipsky 3 b 2, and the entire section talks about how it's talking about the special damages part of Defamation. And that they already talked about special damages earlier in the document.

Wait, earlier in the document? That sounds important. What did they say? In 3 A, a few paragraphs above, it talks about the Vice President's affidavit:

The court of appeals disagreed. It concluded that an affidavit from Range's senior vice president was sufficient proof of Range's damages, at this stage, to defeat Lipsky's motion to dismiss. See 411 S.W.3d at 547 (noting that the affidavit "provided the trial court with minimum but sufficient facts, at this stage in the litigation, to raise a rational inference, and therefore serve as prima facie proof" of Range's losses).

Range's vice president averred in general terms that Lipsky's statements caused Range to suffer "direct pecuniary and economic losses and costs, lost profits, loss of its reputation, and loss of goodwill in the communities in which it operates . . . in excess of three million dollars."12 The court of appeals concluded that the affidavit, "by stating that Range had suffered direct economic losses and `lost profits,'" was sufficient "to raise a rational inference. . . that Range lost `trade or other dealings' as a result of statements made by Steven Lipsky." Id. (quoting Hurlbut, 749 S.W.2d at 767).

The Special Damages they rejected were covered in the Business Disparagement (Injurious Falsehood) -- their stance is, effectively, that general statments aren't good enough. Except Slatosch didn't state general statements. He gave specific ways Vic was harmed. Security. A shittier room. No panels. Legal fees. But hey, you also missed the next paragraph in 3 b 2, and it's important.

Range argues, however, that it did not have to submit proof of special damages as part of its defamation claim because Lipsky's statements were defamatory per se. When an offending publication qualifies as defamation per se, a plaintiff may recover general damages without proof of any specific loss. Hancock, 400 S.W.3d at 63-64. Thus, if Lipsky's remarks concerning Range are actionable per se, then any failure in proof as to special damages is irrelevant. In other words, if such losses are not an essential element of Range's defamation claim, they can have no bearing on Lipsky's dismissal motion under the TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.005(c).

Calling Vic a criminal is Defamation per se. But as long as there are damages ABOVE the special damages, even if you can't prove the special damages right off, the general damages were enough to defeat the TCPA.

But to recap, they even include that in 3 B, a few paragraphs above:

Defamation per se refers to statements that are so obviously harmful that general damages may be presumed. Hancock, 400 S.W.3d at 63-64. General damages include non-economic losses, such as loss of reputation and mental anguish. Id. Special damages, on the other hand, are never presumed as they represent specific economic losses that must be proven. Id. at 65-66. And even though Texas law presumes general damages when the defamation is per se, it does not "presume any particular amount of damages beyond nominal damages." Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex.2012) (per curiam). Any award of general damages that exceeds a nominal sum is thus reviewed for evidentiary support. Burbage, 447 S.W.3d at 259; see also Bentley, 94 S.W.3d at 606-07 (criticizing award of mental anguish damages in defamation per se case [460 S.W.3d 594] because it was excessive and beyond any figure the evidence supported).

Calling Vic a pedophile who has raped 100s of women across cons for 20 years is defamation per se.

But if we go to the bottom of the section you're quoting, 3 b 2, you'll actually see:

Pleading and proof of particular damage is not required to prevail on a claim of defamation per se, and thus actual damage is not an essential element of the claim to which the TCPA's burden of clear and specific evidence might apply. Although Range's affidavit on damages may have been insufficient to substantiate its claim to special damages, it was not needed to defeat Lipsky's dismissal motion because Range's defamation claim was actionable per se. The trial court accordingly did not abuse its discretion in denying Lipsky's motion to dismiss.

Range was the plaintiff. He didn't provide enough proof to prove special damages. But he didn't NEED to prove special damages to overcome TCPA, because it was defamation per se and damages are presumed. Thus, Lipsky requesting the appeals court to dismiss via TCPA was rejected, and it was supposed to.

But hey, to be absolutely fucking clear, all this means is that TCPA was defeated.

This has ABSOLUTELY NOTHING TO DO WITH ANY DAMAGES, INCLUDING SPECIAL DAMAGES, BECAUSE THOSE ARE FACT FINDING QUESTIONS THAT ARE BY DEFINITION OUTSIDE OF THE TCPA.

Yeah, the affidavit wasn't enough to prove special damages for the TCPA. But it didn't need to. And the TCPA does NOTHING to affect the trial after it's defeated. And additional evidence can be raised that WOULD prove special damages.

(Here, have some yellow text because I edited this in and wanted to make sure it stands out. The special damages not getting past TCPA doesn't mean shit. The TCPA doesn't cover damages, at all, and the TCPA doesn't affect the trial after it's defeated.)


BUT HEY WAIT WE'RE NOT DONE WITH LIPSKY YET

Because Law Twitter keeps trying to dunk on people I watched 3 or 4 people actually point out just how full of shit they are. Here's an interesting quote from the court's opinion -- the Summary:

Some courts hold that only direct evidence is relevant when considering a motion to dismiss under the Act, while others have concluded that relevant circumstantial evidence must also be considered. The court of appeals here considered circumstantial evidence, and we agree that clear and specific evidence under the Act includes relevant circumstantial evidence. 411 S.W.3d 530, 546 (Tex.App.-Fort Worth 2013). We further agree, generally, with the court of appeals's disposition of the proceedings below and accordingly deny all relief requested here.

Circumstantial Evidence is clear and specific + prima facie for the TCPA. "I had all these conventions, they started calling conventions, and then they started canceling me" is circumstantial evidence of TI. Which defeats TCPA per in re lipsky.

Later, at the end of Section 2, describing the TCPA (and trying to figure out the clusterfuck of "Clear and Specific," which is legally undefined, and "Prima Facie," which is):

Though the TCPA initially demands more information about the underlying claim, the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence. In short, it does not impose a higher burden of proof than that required of the plaintiff at trial. We accordingly disapprove those cases that interpret the TCPA to require direct evidence of each essential element of the underlying claim to avoid dismissal. With that understanding of the Act's requirements, we turn to pleadings and evidence in this case.

See that bold section there?

Let me translate that for ya.

Chupp fucked up, and like Law Twitter, he has this ass backwards.

So I'm confused about something relating to TCPA and appeals. Tell me if I have this right.

A.) A TCPA puts a hold on discovery.
2.) An appeal doesn't allow discovery because it doesn't allow the introduction of new evidence
D.) Therefore, a plantiff who successfully appeals a TCPA ruling still can't have the benefit of any kind of discovery that they would normally have when making their actual case, because fuck you, that's why.

Is that actually how it works or am I missing something obvious?

Yes.

a) A TCPA puts a hold on discovery
b) An appeal doesn't allow discovery
c) A successful appeal restarts the case at the point the TCPA was raised
d) Discovery time!

 

[Lord of the Large Pants]

Yes.

a) A TCPA puts a hold on discovery
b) An appeal doesn't allow discovery
c) A successful appeal restarts the case at the point the TCPA was raised
d) Discovery time!

Ah, okay. That makes a lot more sense.

 

[General Relativity QM]

Let's make this less personal.

Plantiff Alice, who is a motivational speaker, comes to court with a complaint saying defendant Bob called the president of a company, for whom she was contracted to perform a speaking engagement, informing the president that Alice has charges pending for sexual assault, pedophilia (implying that some inappropriate or illegal conduct had occurred, hence the pending charges), and making false statements under oath accusing others falsely of sexual harassment and assault (Alice is dishonest and untrustworthy is what Bob implies). The president breaches the contract. Alice and her lawyer call the president to threaten legal action due to the contract breach. The president reconsiders, but makes new stipulations. Alice's speaking event must now be 18+, she must hire someone to verify the ages of the attendees, and since she is speaking to a crowd with restrictions, she must be in an isolated area away from most of the other speakers and crowd. Alice agrees because some money is better than no money. She doesn't blame the president; she blames Bob for his actions.

Bob responds to the lawsuit. He immediately files TCPA since he argues that it is his 1st Amendment right to speak on matters of public interest regarding pedos and assault. Alice gathers an affidavit from the president of the company that originally breached the contract with her stating the facts - but for Bob's phone call, he would have honored the original contract. Bob argues that since there was a second contract, even if he did interfere, there were no losses. Alice cites the cost of her attorney, the hiring of the ID checker, and the tangible, but as of now unquanified, amount of lost sales of her book at her speaking engagement. Alice also believes that a few engagements that didn't pan out may have been due to Bob's influence.

Alice argues that she has both parties of the contract to agree that Bob's actions caused one party to breach. She shows that the new contract (which is also testified to and verified as accurate by the other party) is not the same exact contract; it is less favorable to Alice. In other words, on the record, you have both contracts. You have the sworn testimony of the breaching party saying that but for Bob's actions he would have honored the original contract.

You're telling me that prima facially there is no tortious interference because Alice didn't allege and prove an exact dollar amount of damages at the opening bell? Most lawsuits wait until damages to figure out the exact dollar amount, but TCPA MUST have a dollar amount? Because you can't argue that you don't have testimonials from the breaching party detailing why they breached because we have that. You can't be arguing that there are no damages because you have two contracts that are different, and the second is obviously less favorable to Alice. So, it must be the dollar amounts are not specific enough. However, if there are damages, and at least some of it the court can remedy, then the amount is an issue that can be decided at a later point in the trial.

So, I am confused if you would argue that Alice doesn't have a strong case for tortious interference. She at least has a prima facie case strong enough to survive TCPA, but you would argue Alice doesn't because of what evidence is she required to have without discovery? The dollar amount? "You argued and showed there are damages, but you didn't say how much exactly. TI is dismissed." That doesn't make sense to me. At most, the judge should give the parties an opportunity to answer that question before the ruling. "The Plantiff can submit an amended response to the TCPA, and defense can respond. Response deadline is xx day."

Yeah, counsel should be ready for a hearing, but the record as a whole must be considered. It is one reason that oral arguments at the Supreme Court of the United States is not a good indication of how the justices will vote. A bad oral argument will not sink your case.

I don't think Lipski is requiring a dollar amount. Lipski is suggesting that the Plantiff must show damages. Alice shows damages by the affidavit and the second contract. While she does not have an exact amount, she does show she was harmed, which is consistent with Lipski.

Basically, I am not sure what evidence would suffice for your argument, unless it is a quibble over alleging the exact amount of money. As others have pointed out, ANY amount should be sufficient to survive TCPA. Again, Alice shows beyond clear and convincingly - almost beyond a reasonable doubt.

 

[DinkyCowSow]

The Special Damages they rejected were covered in the Business Disparagement (Injurious Falsehood) -- their stance is, effectively, that general statments aren't good enough. Except Slatosch didn't state general statements. He gave specific ways Vic was harmed. Security. A shittier room. No panels. Legal fees. But hey, you also missed the next paragraph in 3 b 2, and it's important.

He listed specific ways, but did not provide clear and specific evidence of it. He lists the ways he was harmed, but includes absolutely zero information estimating damages. That is not clear and specific. If, for instance, Chupp was to require him to show exact damages, that would be in violation of the TCPA. If Chupp were to require him to demonstrate exactly what percentage of the damages he could show came from this specific phone call rather than from the general negative attention directed at Vic, that would be in violation of the TCPA. You can use reasonable inference to connect both of those things. What Chupp absolutely can do is require that you put forward some evidence that you were harmed beyond the statement "I had to pay for things." He can require you show some evidence of the things you are claiming.

Range was the plaintiff. He didn't provide enough proof to prove special damages. But he didn't NEED to prove special damages to overcome TCPA, because it was defamation per se and damages are presumed. Thus, Lipsky requesting the appeals court to dismiss via TCPA was rejected, and it was supposed to.

But hey, to be absolutely fucking clear, all this means is that TCPA was defeated.

This has ABSOLUTELY NOTHING TO DO WITH ANY DAMAGES, INCLUDING SPECIAL DAMAGES, BECAUSE THOSE ARE FACT FINDING QUESTIONS THAT ARE BY DEFINITION OUTSIDE OF THE TCPA.

Yeah, the affidavit wasn't enough to prove special damages for the TCPA. But it didn't need to. And the TCPA does NOTHING to affect the trial after it's defeated. And additional evidence can be raised that WOULD prove special damages.

(Here, have some yellow text because I edited this in and wanted to make sure it stands out. The special damages not getting past TCPA doesn't mean shit. The TCPA doesn't cover damages, at all, and the TCPA doesn't affect the trial after it's defeated.)

Yes, as I have said repeatedly, Vic won't have to prove damages to get past the TCPA for any defamation per se claims. He just instead needs to be able to prove the the false statements of fact were in fact claims of criminal wrongdoing. However, he will have to prove specific damages for all the tortious interference claims. The TCPA requires you to provide "clear and specific evidence a prima facie case for each essential element of the claim in question". The tort of Tortious Interference has an essential element of "caused actual damages or loss".

 

[Red Wizard]

Both lines of thinking here are likely correct interpretations. The TCPA doesn't require you to show exact damages, just that there were damages.

Chupp believes that you need to physically show him damage as a result of the TI for clear and specific. A quote for security, for instance.

Ty's team believes that you can reasonably infer actual damages based on the difference in the two contracts. The fact he has to get additional security, implies that he has to pay for it, which is damage.

Both are likely correct, IMO, depending on the judge at the time. Looking at Chupp's history of handling personal injury claims, he's going to go with "show me the actual damage" because he's likely seen shenanigans from lawyers involving the second. He doesn't reasonably infer anything, because someone could get additional security without paying, for instance.

 

[General Relativity QM]

I believe the drafting of a new contract, with less favorable conditions for Vic, helps here. He would simply need to provide a receipt for the additional security or a quote for the cost of additional security per the new contract.

Da Faque you talking about? Vic didn't have that at the hearing. TI dismissed. Everyone knows that the hearing is your one and only shot at getting everything right. The judge has 30 days to rule. Chupp can't read a few receipts. He has 5000 other pages to read. /sarcasm

 

[DinkyCowSow]

Let's take make this less personal.

Plantiff Alice, who is a motivational speaker, comes to court with a complaint saying defendant Bob called the president of a company for whom she was contracted to perform a speaking engagement informing the president that Alice has charges pending for sexual assault, pedophilia (implying that some inappropriate or illegal conduct had occurred, hence the pending charges), and making false statements under oath accusing others falsely of sexual harassment and assault (Alice is dishonest and untrustworthy is what Bob implies). The president breaches the contract. Alice and her lawyer call the president to threaten legal action due to the contract breach. The president reconsiders, but makes new stipulations. Alice's speaking event must now be 18+, she must hire someone to verify the ages of the attendees, and since she is speaking to a crowd with restrictions, she must be in an isolated area away from most of the other speakers and crowd. Alice agrees because some money is better than no money. She doesn't blame the president. She blames Bob for his actions.

Bob responds to the lawsuit. He immediately files TCPA since he argues that it is his 1st Amendment right to speak on matters of public interest regarding pedos and assault. Alice gathers an affidavit from the president of the company that originally breached the contract with her stating the facts - but for Bob's phone call, he would have honored the original contract. Bob argues that since there was a second contract, even if he did interfere, there were no losses. Alice cites the cost of her attorney, the hiring of the ID checker, and the tangible, but as of now unquanified, amount of loss sales of her book at her speaking engagement. Alice also believes that a few engagements that didn't pan out may have been due to Bob's influence.

Alice argues that she has both parties of the contract to agree that Bob's actions caused one party to breach. She shows that the new contract (which is also testified to and verified as accurate by the other party) is not the same exact contract; it is less favorable to Alice. In other words, on the record, you have both contracts. You have the sworn testimony of the breaching party saying that but for Bob's actions he would have honored the original contract.

You're telling me that prima facially there is no tortious interference because Alice didn't allege and prove an exact dollar amount of damages at the opening bell? Most lawsuits wait until damages to figure out the exact dollar amount, but TCPA MUST have a dollar amount? Because you can't argue that you don't have testimonials from the breaching party detailing why they breached because we have that. You can't be arguing that there are no damages because you have two contracts that are different, and the second is obviously less favorable to Alice. So, it must be the dollar amounts are not specific enough. However, if there are damages, and at least some of it the court can remedy, then the amount is an issue that can be decided at a later point in the trial.

So, I am confused if you would argue that Alice doesn't have a strong case for tortious interference. She at least has a prima facie case strong enough to survive TCPA, but you would argue Alice doesn't because of what evidence is she required to have without discovery? The dollar amount? You argued and showed there are damages, but you didn't say how much exactly. TI is dismissed. That doesn't make sense to me. At most, the judge should give the parties an opportunity to answer that question before the ruling. The Plantiff can submit an amended response to the TCPA, and defense can respond. Response deadline is xx day.

Yeah,counsel should be ready for a hearing, but the record as a whole must be considered. It is one reason that oral arguments at the Supreme Court of the United States is not a good indication of how the justices will vote. A bad oral argument will not sink your case.

I don't think Lipski is requiring a dollar amount. Lipski is suggesting that the Plantiff must show damages. Alice shows damages by the affidavit and the second contract. While she does not have an exact amount, she does show she was harmed, which is consistent with Lipski.

Basically, I am not sure what evidence would suffice for your argument, unless it is a quibble over the alleging the exact amount of money. As others have pointed out, ANY amount should be sufficient to survive TCPA. Again, Alice shows beyond clear and convincingly - almost beyond a reasonable doubt.

You claim that Alice showed damages by the affidavit and the second contract. Did Alice submit the second contract to the court or did she merely claim that a second contract exists and that it is different? I am not saying Alice must prove exact damages. I am also not saying that Alice must prove that all of her damages came from Bob. I would say that an Affidavit from the president of the company stating that Bob's phone call was the only reason he cancelled the original contract is not only enough to meet the burden for at the TCPA stage, but barring some other contradictory evidence coming out later in discovery it is enough to meet the burden for "a willful and intentional act of interference with the contract" and "that proximately caused the plaintiff's injury" at the general trial as well.

However, to prove actual damages or loss, Alice must provide some evidence to the court of these costs other than claiming they exist. This can be done in several ways. Submitting the second contract that has different terms would clearly meet that burden. Showing the contract for hiring security to check ages (dated after the thing you are suing for) would be a great help. Heck, even showing that her sales were less than previous years could be helpful here (she does not need to show that 100% of the difference came from the contract being changed, just that it was lower).

I believe the drafting of a new contract, with less favorable conditions for Vic, helps here. He would simply need to provide a receipt for the additional security or a quote for the cost of additional security per the new contract.

And here is the issue. Where is the second contract in the filing? Where are the receipts or quotes with costs of additional security? Where is any evidence submitted to the court beyond "because I said so"?

 

[Sheryl Nome]

He listed specific ways, but did not provide clear and specific evidence of it. He lists the ways he was harmed, but includes absolutely zero information estimating damages. That is not clear and specific. If, for instance, Chupp was to require him to show exact damages, that would be in violation of the TCPA. If Chupp were to require him to demonstrate exactly what percentage of the damages he could show came from this specific phone call rather than from the general negative attention directed at Vic, that would be in violation of the TCPA. You can use reasonable inference to connect both of those things. What Chupp absolutely can do is require that you put forward some evidence that you were harmed beyond the statement "I had to pay for things." He can require you show some evidence of the things you are claiming.


Yes, as I have said repeatedly, Vic won't have to prove damages to get past the TCPA for any defamation per se claims. He just instead needs to be able to prove the the false statements of fact were in fact claims of criminal wrongdoing. However, he will have to prove specific damages for all the tortious interference claims. The TCPA requires you to provide "clear and specific evidence a prima facie case for each essential element of the claim in question". The tort of Tortious Interference has an essential element of "caused actual damages or loss".

Its incredible how you manage to say the same thing and contradict yourself. Oh my god you are so fucking stupid.

He doesn't need to provide the specific costs. You know this. It was just explained, and yet you're here thinking that 'Clear and Specific' means a specific number. Thats not what it means you absolute mental midget.

 

[HTTP Error 404]

He listed specific ways, but did not provide clear and specific evidence of it. He lists the ways he was harmed, but includes absolutely zero information estimating damages.

The TCPA very specifically doesn't deal with damages.

That is not clear and specific.

Yes it is. See quotes above.

If, for instance, Chupp was to require him to show exact damages, that would be in violation of the TCPA. If Chupp were to require him to demonstrate exactly what percentage of the damages he could show came from this specific phone call rather than from the general negative attention directed at Vic, that would be in violation of the TCPA. You can use reasonable inference to connect both of those things. What Chupp absolutely can do is require that you put forward some evidence that you were harmed beyond the statement "I had to pay for things." He can require you show some evidence of the things you are claiming.

"I had to pay for things because of the defendants actions" is literally the fucking definition of damage.

And hey let me bring that quote back for ya since you love Lipsky so much:

Though the TCPA initially demands more information about the underlying claim, the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence. In short, it does not impose a higher burden of proof than that required of the plaintiff at trial. We accordingly disapprove those cases that interpret the TCPA to require direct evidence of each essential element of the underlying claim to avoid dismissal. With that understanding of the Act's requirements, we turn to pleadings and evidence in this case.

He doesn't have to show damages at this point, since that's a fact question for a jury and specifically outside the realm of the TCPA. He also doesn't have to show "direct evidence each essential element of an underlying claim to avoid dismissal." In other words, Chupp is not allowed to dismiss the TI claim because Ty didn't have evidence of damages.

Yes, as I have said repeatedly, Vic won't have to prove damages to get past the TCPA for any defamation per se claims. He just instead needs to be able to prove the the false statements of fact were in fact claims of criminal wrongdoing. However, he will have to prove specific damages for all the tortious interference claims. The TCPA requires you to provide "clear and specific evidence a prima facie case for each essential element of the claim in question". The tort of Tortious Interference has an essential element of "caused actual damages or loss".

Though the TCPA initially demands more information about the underlying claim, the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence. In short, it does not impose a higher burden of proof than that required of the plaintiff at trial. We accordingly disapprove those cases that interpret the TCPA to require direct evidence of each essential element of the underlying claim to avoid dismissal. With that understanding of the Act's requirements, we turn to pleadings and evidence in this case.

The TCPA requires you to provide "clear and specific evidence a prima facie case for each essential element of the claim in question," but this can be circumstantial evidence, and courts are not to ask for direct evidence of each essential element of each claim. The tort of Tortious Interference has an essential element of "caused actual damages or loss," but that doesn't matter because again, the courts are not to ask for direct evidence of each essential element of each claim to avoid dismissal.

Slatosch, Paragraph 14.

Hey look, actual damages.

Slatosch, Exhibit A, Section 2.2.1

Hey look, even more actual damages.

Back to Law Twitter.

 

[General Relativity QM]

You claim that Alice showed damages by the affidavit and the second contract. Did Alice submit the second contract to the court or did she merely claim that a second contract exists and that it is different? I am not saying Alice must prove exact damages. I am also not saying that Alice must prove that all of her damages came from Bob. I would say that an Affidavit from the president of the company stating that Bob's phone call was the only reason he cancelled the original contract is not only enough to meet the burden for at the TCPA stage, but barring some other contradictory evidence coming out later in discovery it is enough to meet the burden for "a willful and intentional act of interference with the contract" and "that proximately caused the plaintiff's injury" at the general trial as well.

However, to prove actual damages or loss, Alice must provide some evidence to the court of these costs other than claiming they exist. This can be done in several ways. Submitting the second contract that has different terms would clearly meet that burden. Showing the contract for hiring security to check ages (dated after the thing you are suing for) would be a great help. Heck, even showing that her sales were less than previous years could be helpful here (she does not need to show that 100% of the difference came from the contract being changed, just that it was lower).


And here is the issue. Where is the second contract in the filing? Where are the receipts or quotes with costs of additional security? Where is any evidence submitted to the court beyond "because I said so"?

Here let me help you out with that.

She shows that the new contract (which is also testified to and verified as accurate by the other party) is not the same exact contract; it is less favorable to Alice. In other words, on the record, you have both contracts. You have the sworn testimony of the breaching party saying that but for Bob's actions he would have honored the original contract

I wrote that both contracts were on the record. So, yes she did.

If both parties, Alice and the president swear in affidavits that there is a second contract that is materially different (maybe they had an oral agreement as to the new terms of the second. Meaning it is the same as the first but I am doing x, y, and z that are not according to the terms of the original contract are oral changes) and those changes were carried out would that be sufficient?

Receipt or it didn't happen...?

 

[Red Wizard]

And here is the issue. Where is the second contract in the filing? Where are the receipts or quotes with costs of additional security? Where is any evidence submitted to the court beyond "because I said so"?

The second contract was agreed upon by both parties, and both parties put forth affidavits of its existence. Neither party was arguing the existence of the new contract, or the contents of it. Therefore, per the rules of evidence for the purpose of TCPA, the plaintiff gets the benefit of the doubt here that the new contract was indeed less favorable.

I made some edits above to my original comment, and it looks like Judge Chupp does not want to infer anything regarding contracts. That being said, that's a higher burden than the TCPA puts forth

 

[HTTP Error 404]

And here is the issue. Where is the second contract in the filing? Where are the receipts or quotes with costs of additional security? Where is any evidence submitted to the court beyond "because I said so"?

"I said so" is evidence. In fact, it's clear and specific -- very much so -- and prima facie.

He doesn't have to show ANY of that shit. No quotes. No receipts. No second contract. He doesn't have to show it at the TCPA hearing.

Slatosch specifically stated that the contract was breached. He specifically showed that damages, in general, were caused. The actual numbers beyond "not zero" are irrelevant -- and what's even more important, the Supreme Court of Texas specifically stated judges aren't supposed to be asking for them.

Both lines of thinking here are likely correct interpretations. The TCPA doesn't require you to show exact damages, just that there were damages.

Chupp believes that you need to physically show him damage as a result of the TI for clear and specific. A quote for security, for instance.

Ty's team believes that you can reasonably infer actual damages based on the difference in the two contracts. The fact he has to get additional security, implies that he has to pay for it, which is damage.

Both are likely correct, IMO, depending on the judge at the time. Looking at Chupp's history of handling personal injury claims, he's going to go with "show me the actual damage" because he's likely seen shenanigans from lawyers involving the second. He doesn't reasonably infer anything, because someone could get additional security without paying, for instance.

"Reasonably infer" means circumstantial evidence. Which Lipsky specifically states meets both Clear and Specific and Prima Facie. What that means is all Ty has to do is show there was a scenario where damages MIGHT HAVE HAPPENED, and ta-da, TCPA defeated. Except, as we saw, Chupp fumbled.

But even without paying, Vic would still have to spend time to get free security. That too, is damages, because it's an opportunity cost -- He could have been doing something else with that time. He could have not had to deal with the stress of having to do so. Etc etc. Of course, those are questions for a jury, not a TCPA motion, which is why they're not supposed to be asked at the TCPA motion.

 

[Spectre_06]

And here is the issue. Where is the second contract in the filing? Where are the receipts or quotes with costs of additional security? Where is any evidence submitted to the court beyond "because I said so"?

For the purposes of TCPA, the affidavit is enough to show breach of contract/tortious interference because of Rial and Toye (and this was established as legitimate in Kahn v. Whatever the Fuck the Chair Force LtCol's Name Is But Seriously She's a Cunt).

 

[DinkyCowSow]

For the purposes of TCPA, the affidavit is enough to show breach of contract/tortious interference because of Rial and Toye (and this was established as legitimate in Kahn v. Whatever the Fuck the Chair Force LtCol's Name Is But Seriously She's a Cunt).

I've said like 6 times, yes, the affidavit is enough to show that the contract was breached as a result of the defendant's actions. It is not enough to show the final element of actual damages.

"Although Khan's statements may constitute some evidence that he suffered harm or damage as a result of the failure of the WHAM transaction to go forward, these statements are not sufficient to establish a prima facie case of actual harm or damage under the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). The supreme court has instructed us that “general averments of direct economic losses and lost profits”—even when a dollar amount is specified—do not satisfy the minimum requirements of the TCPA. Lipsky, 460 S.W.3d at 593. More than mere recitation of estimated damages is required. Id."

Ty did not even recite estimated damages. He just cited affidavits that said there were damages.

 

[HTTP Error 404]

For the purposes of TCPA, the affidavit is enough to show breach of contract/tortious interference because of Rial and Toye (and this was established as legitimate in Kahn v. Whatever the Fuck the Chair Force LtCol's Name Is But Seriously She's a Cunt).

Van Der Linden vs Khan, I think. I haven't read this one as much as I have Lipsky due to Law Twitter being literally addicted to reading Lipsky wrong.

VAN DER LINDEN v. KHAN | 535 S.W.3d 179 (2017... | 20171113334| Leagle.com

OPINION BONNIE SUDDERTH CHIEF JUSTICE. I. INTRODUCTION In four issues Appellant Kathryn Van Der Linden brings this interlocutory...20171113334

www.leagle.com

Nick mentioned Khan on twitter, though, when one of the Law Twitter faggots started spamming it at him, DEMANDING he address his hot take.

Twitter / Account Suspended

From breaking news and entertainment to sports and politics, get the full story with all the live commentary.

twitter.com

https://archive.fo/jvTEm

I don't know "what was missing in Khan," but it might be this:

"We agree with our sister court's approach in Serafine. Applying those principles here, absent from the record is any evidence of what obligation Sheldon undertook pursuant to the verbal agreement that Khan described. Aside from Khan's unilateral labeling of it as a "verbal agreement," whatever type of business arrangement Khan had with Sheldon is unclear in this record. For our purposes here, however, Khan failed to offer any proof—clear, specific, or otherwise—that it constituted a valid contract."

(Slatosch showed a valid contract.)

"While Khan states generally that after Van Der Linden sent the Message, Sheldon "decided not to operate under that agreement," "[did] not want to do business with [Khan]," "would not go forward with that plan," and "stated that he could not proceed with the plan," these statements do not evidence a breach of contract. At best, these statements provide evidence that a business deal between Khan and Sheldon did not go forward, but they provide no evidence that Sheldon breached an oral contract. Thus, these statements fall short of demonstrating, by clear and specific evidence, that Sheldon's action or inaction constituted a breach of any contractual obligation."

(Slatosch paragraph 14 pointed out the breach existed.)

"Thus, to the extent that these statements were offered to prove that Sheldon refused to go forward with a contract with Khan, these statements would be admissible to prove the operative fact of breach of contract.6 Whether these statements may be used as proof that Sheldon's decision to breach the alleged contract was proximately caused by Van Der Linden's Message is a separate question, which will be discussed later.

As to the paragraph stating "I received a telephone call from Sheldon Murphy who, in an excited manner, exclaimed to me `What the f____ is going on!' Mr. Murphy stated he had just received the false and defamatory statement and then stated that he could not proceed with the plan," at least the first sentence of the paragraph would appear to fall within the excited utterance exception to the hearsay bar. See Tex. R. Evid. 803(2). Whether Sheldon was still in an excited state when he made the second statement is unclear, but for purposes of our analysis it does not matter, as set out below."

(Slatosch exhibit B shows Ron Toye's own words, his affidavit covers Monica's)

"Khan did not offer affidavit testimony from Sheldon, the one person who personally knew why he refused to go forward with the alleged contract. So, once the impermissibly speculative evidence from Khan's affidavits is disregarded, there is simply no evidence, let alone clear and specific evidence, that but for the Message, any contract between Khan and Sheldon would have gone forward."

(Vic did offer affidavit testimony from Slatosch, who stated it was due to MoRon's actions.)


But we can also see what Ty presented to the judge in his pleadings... which the Judge didn't cover, which... is an error.

Vic can establish a prima facie case of tortious interference.

a. Tortious Interference with a Contract & Prospective Contract

To satisfy his burden of establishing a prima facie case of tortious interference with a contract, Vic must produce the minimum quantum of evidence supporting a rational inference that the following allegations are true: (1) he had a contract; (2) a Defendant knowingly and intentionally interfered with this contract (causing an actual breach is not necessary); (3) the interference was a proximate cause of his damages; and (4) actual damage. See Cuba v. Pylant, 814 F.3d 701, 717 (5th Cir. 2016).

To satisfy his burden of establishing a prima facie case for tortious interference with prospective business relations, a plaintiff must establish (1) a reasonable probability the plaintiff would have entered into a business relationship with a third party, (2) the defendant acted with a conscious desire to prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of its conduct, (3) the defendant’s conduct was independently tortious or unlawful, (4) the defendant’s interference proximately caused the plaintiff’s injury, and (5) as a result the plaintiff suffered actual damage or loss. See Day v. Federation of State Medical Boards of the United States, Incorporated, 04-18-00605-CV, 2019 WL 2605634, at *8 (Tex. App.—San Antonio June 26, 2019, pet. filed).

Chuck Huber, Chris Slatosch and Vic all testify that the Defendants knew of his agreements with cons and invitations from cons, pressured conventions to cancel or not do business with Vic, and succeeded. Vic and Slatosch both testify to actual damages Vic suffered.

(Vic's testimony for actual damages are probably paragraphs 18, 19.

20 is circumstantial evidence that TI occurred, as well.

)

 

[Gehenna]

I've said like 6 times, yes, the affidavit is enough to show that the contract was breached as a result of the defendant's actions. It is not enough to show the final element of actual damages.

"Although Khan's statements may constitute some evidence that he suffered harm or damage as a result of the failure of the WHAM transaction to go forward, these statements are not sufficient to establish a prima facie case of actual harm or damage under the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). The supreme court has instructed us that “general averments of direct economic losses and lost profits”—even when a dollar amount is specified—do not satisfy the minimum requirements of the TCPA. Lipsky, 460 S.W.3d at 593. More than mere recitation of estimated damages is required. Id."

Ty did not even recite estimated damages. He just cited affidavits that said there were damages.

Perhaps you should read those decisions before quoting them....

The court in Lipsky not only didn't find what you just said they did, they explicitly found that simply stating there were damages was sufficient for the TCPA. The defendants did win their appeal, but do to a different element of making a prima facie case. Lipsky, in other words, doesn't only not prove your point, it proves it wrong.

Edit: Looking a bit more into the case... I think the bird above is ignorant as to the difference between Damages and Special Damages.

FYI, Birdie. Special damages are, as the name implies, special. They do not apply in this case, as neither Beard nor Mignona have requested special damages.

Edit to the Edit:
"Although Poole's affidavit is concise, we conclude that by stating that Range had suffered direct economic losses and “lost profits,” it provided the trial court with minimum but sufficient facts, at this stage in the litigation, to raise a rational inference, and therefore serve as prima facie proof, that Range lost “trade or other dealings” as a result of statements made by Steven Lipsky. See Hurlbut, 749 S.W.2d at 767;see also Hines, 252 S.W.3d at 501 (explaining that ordinarily, defamation claims require proof of damages). Poole's affidavit is clear and specific about the facts included within it, even if it is not elaborate. SeeTex. Civ. Prac. & Rem.Code Ann. § 27.005(c). For all of these reasons, we conclude that the trial court did not abuse its discretion by denying Steven Lipsky's motion to dismiss Range's defamation and business disparagement claims against him."