Cookie giant Crumbl, sued by Warner Music Group over ‘massive scale’ copyright infringement for social media posts - Ep. 65 - Litigation Nation

Episode Transcript
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Danessa Watkins (00:09):
Welcome to Litigation Nation. I'm your
host, Danessa Watkins. Here aremy cohost, Jack Sanker. As a
reminder, this is the show wherewe give you a wrap up of the fun
and interesting legal news fromacross the country. So, Jack,
what do you
have for us today?

Jack Sanker (00:23):
Couple of things. When we're gonna start with
putting this on everyone'sradar, there's hearings that are
upcoming before the US SupremeCourt regarding labor court's
abilities to issue nationalinjunctions on federal actions.
This has become kind of apolitical issue. You may have
heard about this in the newswith respect to the immigration
policy and a couple of other,examples you could think of

(00:47):
coming out of the White House inthe past couple of weeks. I'll
be talking about that as well asa couple of fun ones towards the
end of the episode regarding thethe dragon lawyers out of
Michigan Mhmm.
Which which some of you may haveseen all over social media, and
then another group of lawyersgetting in in hot water over
misuse of AI and draft anddrafting legal documents.

Always an AI issue. Okay. Great. I'm going to
cover the recent lawsuit filedagainst the cookie company,
Crumble, for their use ofcopyrighted music in their
social media. As a note for ourlisteners, we are recording this
episode remotely as Jack and Iare both traveling for the

(01:34):
positions and work and whatnot.
So apologies in advance if ouraudio is not as clean as normal.
Please bear with us. So all thatand more. Here's what you need
to know. Alright.
On to a cookie story. Jack, haveyou ever tried crumble cookies?

Of course. They deliver.

Oh my gosh. They're so good. Yes. So,
unfortunately, our good friendsat crumble are being sued. They
are out of Logan, So they'rebeing sued in the Utah federal
court by Warner Music Group,WMG.
This lawsuit was just filed onApril twenty second of twenty

(02:20):
twenty five, so just about aweek ago from our recording date
here. And WMG is claimingcopyright violations. So this
company, it's actually made upof a bunch of different record
groups, so, like, Atlanta recordAtlantic Records, Bad Boy
Records, among various others.And then Crumble, their company

(02:45):
operates currently at more thana thousand locations across the
country. I saw a note.
I didn't look into it, so don'tquote me on this, but it looks
like they're looking for abuyer. I don't know if that has
anything to do with this lawsuitor something they were pursuing
earlier. But since they cameout, they what? I think they

(03:06):
incorporated in, like, 2017.They've been very aggressive on
the social media front, so thathas been a huge marketing tool
for them.
And they put out a lot of videoson TikTok and Instagram, which
has certainly been a realprogression in their their
growth as a company. Lateststats I found were 9,800,000

(03:31):
followers on TikTok and6,100,000 on Instagram. And what
they're doing is building thisbrand by putting popular music
promotions behind their contenton on these two platforms. And
according to WMG, they were aredoing that without paying for

(03:52):
the privilege of the use ofthose music rights. So they're
claiming that Crumble'sinvestment in social media
advertisements and the Crumblevideos in particular have been
critical to this their success,but they are not paying the
rights to the artists and thepublishers that, you know, they

(04:16):
wouldn't be successful without,essentially.
They've got, I would say, goodmarketing in that they pair
songs like Blueberry Fago by LilMosey to promote a blueberry
cheesecake cookie. They have aKentucky butter cake cookie that
was promoted with the songbutter by BTS. All of these are

(04:37):
mentioned in the lawsuits, aswell as some of the popular
artists through WMG who whosemusic is allegedly being swiped,
and that is Taylor Swift, ArianaGrande, Selena Gomez, Bruno
Mars, Beyonce. So the heavyhitters for sure.

Mhmm.

Interesting to me was that, apparently, WMG
sent a cease and desist letterto Crumble almost exactly two
years before they filed thislawsuit. And allegedly, Crumble
didn't respond to the cease anddesist, but they did post a
video on TikTok that stated,quote, legal said we can't use

(05:20):
any any trending audios, end

quote. So,

clearly, they received the cease and desist.
They understood it, and thenthey continued to post
infringing videos after that.WMG in their complaint, also
mentioned previous lawsuitswhere Crumble has gone after its
competitors for trademarkinfringements. So the idea

(05:47):
being, like, Crumble understandsthis area of law. They
understand the gravity ofinfringing on the rights of
others, and yet here they aredoing it themselves.
So there are three differentclaims of infringement being
brought. One is directinfringement, meaning Crumble
itself is putting out its brandwith these videos that are

(06:10):
copyright infringement. Thesecond is contributory. So
influencers of Crumble arereposting these infringing
posts, so it only essentiallyfurthers the infringement and
and this the reach of the harmthat's that's being cast here.
And then the third type isvicarious.

(06:32):
So WMG is claiming that Crumbleis responsible for its
influencer partners who theythemselves are taking are taking
music that isn't copyrighted inorder to promote Crumble's
brand. The idea being thatCrumble has the ability to
control what these influencerare posting. They could, you

(06:54):
know, warn them not to use copycopyrighted materials that they
don't have the rights for ortell them to even take stuff
down once they realize thatthere is a violation and they
are not doing that. So theyshould be held vicariously
liable. Now this is, you know, aserious amount of money that

(07:17):
they're asking for.
It looks like they're asking forup to a hundred and 50,000 per
infringed work. They also want apermanent injunction, but they
are estimating that there are a50 songs so far that they've
infringed on. So we're lookingat about $24,000,000 without
adding in legal fees.

Can I jump in? How how is this different than using
music on TikTok or Instagramthat everyone else already does?

So, yeah, I looked into this a little bit
because it is an interestingissue, and, obviously, it's
been, you know, an issue for awhile. So I'm kinda surprised
that we haven't seen morelawsuits like this. So it's a
little bit tricky. So there aredifferent licenses that are
required for different types ofusers, content, and companies.

(08:10):
Certain social media platforms,they will they will have
licenses, obviously, for fordiff you know, with, like, Sony
or Universal or Warner, andthose licenses allow for
everyday people to use it fortheir personal use.

So Not commercial use then. I see.

Right. Right. So that's why we're able to add
songs to the, you know, cutevideos of our kids and whatnot
so you don't hear them, youknow, screaming. But once you
cross that line and you'reselling a product, you know,
promoting a brand even forinfluencers, which I'll get to
in a moment, then certainplatforms will have a commercial

(08:52):
library. So there are gonna becertain licenses that they've
already acquired for you, andyou can use those songs for
commercial purposes.
But without that separatelicense and I have to admit,
I've never in, like, certain youknow, using Instagram, for
example, I've never seen somedifferentiation between, yeah,

(09:12):
I'm gonna use this song forcommercial purposes. So I'm not
totally sure how that works onthe platform itself, but there
are some commercial libertiesthat, like TikTok or Instagram
will allow for. How you findout, you know, which which songs
fall into that, I'm not sure.But there's also it's it's not

(09:34):
universal. Right?
So and this is where I was gonnaget into the influencer stuff.
So we do represent influencerclients clients in my practice,
and we have to warn them. Youknow? Just because you are
promoting a product on Instagramthat you know Instagram may have
the license for, that songthat's behind, you know, your
video of you carrying thispurse, you can't just

(09:57):
automatically share that toanother platform because that
platform may not allow for thatcommercial use. So so you have
to be careful on that front.
Another thing that's come up inmy practice is employees. You
may not realize as an employerthat your employee can be
considered an influencer. So ifthey are promoting your brand

(10:20):
online, like, you know, day inthe life of, you know, whatever,
associate for Amiri or, youknow, some some company, and
they're, like, pushing yourproducts, even if you have a
policy against that, you know,you as an employer could find
yourself getting wrapped up in alawsuit, and you would have to

(10:41):
prove that, no. No. You know,this employee was acting outside
the scope of their employmentand and yada yada.
But it is something to be awareof for for our employer
listeners to to make sure youhave sound policies on what your
employees do with their socialmedia, especially when just in
particular when it when itinvolves your product that
you're selling. So, yeah, Imean, you know, $24,000,000

(11:09):
lawsuit, the right to recoverattorney's fees. I gotta imagine
that they're gonna try to settlethis, and we'll probably never
hear about it again. But it it'sdefinitely, you know, setting
the bar going forward for forthe next, lawsuit, I would say.

(11:30):
I can't imagine.

It's amazing that there this wasn't something that
was I mean, Crumble's not asmall company. Mhmm. They you
know, they're they're they havecounsel. They they I'm sure they
do. Mhmm.
So I'm just like, I don't know.You know, they're especially
posting to Instagram ishilarious, to to be like, oh,

(11:54):
they told us we couldn't dothis. You know? Like, okay.
Yeah.
That's very funny to me. And butI you know, quite risky, to do
that.

It was a little reckless. Yeah.

Yeah.

So I and, well, the thing that came to my mind
right off the bat, but it is nowthat I've looked into it, it is
something totally different. Itwas remember when Peloton got
sued? Was it, like

I think

it was, like, it was pre pandemic.

For the for the music in their workout classes?

Yeah. Yeah. Oh. I was wondering if that had any,
you know, connection, but it isit is, like, a totally different
area. It's they're calledsynchronization rights, sync
rights.
And for them, that's an evenmore like, it's very difficult
to get that. You have to go toeach publisher. So a song may

(12:51):
have, like, 10 differentpublishers that all have rights
to one song, and you have to getapproval from all of them before
you can use that song in your ifyou're, like, pairing it with a
visual, like, obviously, Pelotonis. Their their product is
visual. So once you pair thatsong with it, yeah, you have to

(13:12):
have the rights of of everyone.
So, you know, they've got, like,what, thousands of songs, and
the the whole point of it isthat they stay up to date and,
you know, they're pushing thepopular new music. So just
imagine, like, their legal teamand what they have to go through
to to be able to do that. Do youmind blowing?

Especially, in this case when, you know, according
to Crumble, they were they wereadvised not to do this, and they
did it anyways. Yeah. I couldjust, like I could see their in
house counsel just, like,hanging his head in his hands
like, ugh. Why'd you do this?

Well and I haven't gone to their their
page, so I don't I'm not sure,like, how many of these videos
they have out. I guess, youknow, the lawsuit says a hundred
and 59. That's not that much.You know? Like, you couldn't and
that's probably over over thecourse of I don't know.
I mean, they sent a c they senta cease and desist two years
ago. So, yeah, I feel like theyhad the time to reach out and to

(14:10):
get the licenses they needed.But

If you're in a situation where your in house
counsel is telling you not to dosomething and you think it's a
great idea to, you know, to usethat as content, you know, like,
my my lawyer told me I shouldn'tdo this. Isn't that funny?

Yeah. Like, here's a screenshot of my lawyer
telling me. Yeah. Don't Caughtit out.

Don't don't do that. That's some free free
legal advice to the audience.

Yes. I will back that. I think we can give
that advice.

Okay. So this is an issue that has not yet been
argued in front of the SupremeCourt, but it'll be something we
go back to once we hear moreabout the arguments and whether
there's a ruling. But puttingthis on everyone's radar now,
the Supreme Court is going tohear the argument on three
consolidated cases on May 15regarding lower court's
abilities to issue nationwideinjunctions over, federal

(15:07):
actions. The question of lowercourt's ability to issue
national injunctions against theimplementation of national
policy, usually, you know, anact of congress or an executive
action, is is being arguedbefore the Supreme Court on the
fifteenth. The cases relaterelate to the question of
birthright citizenship under thefourteenth amendment, which is
frankly an issue for anotherepisode.

(15:29):
Don't get me started on that.But the issue on appeal is a
narrow question of whether lowercourts can issue nationwide
injunctions, on theimplementation of federal policy
or whether their injunctionshave to be limited to the
specific claimants that arebefore the court. These kind of
this is all this is gonna beheard before the Supreme Court

(15:49):
on emergency applications orarguments on emergency
applications are pretty rare.And this has been a politicized
issue lately with the GOP kindof rank and files, taking issue
with lower courts frequentblocking of national policy,
everything from immigrationorders to border security,

(16:09):
things like that. And it'sparticularly relevant because
there's a couple of high profilecases that are going to be,
affected by this as well as, youknow, national policy and
everything else.
But, also, there are some folkson the court that are
sympathetic, to the argumentthat this that the lower courts
should not be able to issuethese national injunctions,

(16:32):
specifically justice Gorsuch. In2019, for example, he wrote,
quote, the real problem here isthe increasingly common practice
of trial courts ordering reliefthat transcends the cases before
them. Later, he went on,equitable remedies are meant to
redress the injury sustained bya particular plaintiff in a
particular lawsuit. But when acourt goes further than that,
ordering the government to takeor not take some action with

(16:55):
respect to those who arestrangers to the suit, it is
hard to see how the court couldbe acting in the judicial role
of resolving cases andcontroversies. It has become
increasingly apparent that thiscourt must, at some point,
confront these importantobjections to this increasingly
widespread practice.
Universal injunctions havelittle basis in traditional
equitable practice.

The is the idea, sorry to cut you off, but
is the idea that they're sort ofjudges are crossing over into
the legislative role?

Is that Yeah. As I get to that, and then and
they're also stepping outside oftheir jurisdiction to resolve
actual cases in controversy. Soyou know? And by the way, the
injunctions are are typicallybeing issued on constitutional
grounds. So, you know, forexample, if the, I'll I'll talk

(17:44):
in a moment about, animmigration example.
And this is the, Abrego Garciacase that we'll get into in a
minute. But the, what puts inthat you know, the reason that
people are upset about this isbecause a particular, action by,

(18:05):
you know, the federal governmentis found to be, you know, in
either in violation of federallaw or in violation of, you
know, the US constitution. Andthen as it relates to the
particular claimant that isbefore that court, if it's only
one plaintiff, for example, thecourt will nonetheless issue an
injunction that enjoins thefederal government from pursuing

(18:25):
that policy nationwide on thegrounds that, you know, the
policy as a whole is, you know,unlawful for one reason or
another. So Mhmm. You know,despite the fact that that's
only one claimant before thecourt, the policy itself is
unlawful.

Interesting.

Yeah. And, you know, it's, I'm not well enough
steeped in the, specific legalarguments on I I from from
Gorsuch's writing, you could seethat he's priming it for, like,
a standing argument. Okay. And,you know, a separation of powers
argument as well. I can't, youknow, I can't really speak to

(19:01):
that super intelligently.
I could tell you that that thisis an issue so so much now
because there have been, Ithink, roughly 200 or so
injunctions that have beenissued by lower courts against,
the White House and its mostrecent you know, a lot of its

(19:22):
immigration Mhmm. Deportations,things like that. And they're
frustrated with that. They don'tthey don't like that. And so it
you know?
I mean, we don't have to getinto the overall, you know,
political arc towards, I wouldsay, demonizing the judiciary,
which I think is, you know, ishappening. But that pendulum, I

(19:44):
think, does swing both ways.But, you know, currently, like,
there is the example of theWisconsin judge who was, who was
just arrested Mhmm. By federalagents. And I and I actually you
know, I I I don't know whetheror not there's specific grounds
for that or whether it was, youknow, merited or not.

(20:06):
I I can't speak to that. I justdon't know. It is shocking
nonetheless Right. That ithappened, you know, regardless
of whether it should have ornot. It's just like, woah.
You don't hear about that veryoften. Mhmm. So that's, like,
the political background to it.And in a larger context, you
know, there is the big case of,of Rego Garcia who is, an

(20:31):
individual from state ofMaryland, but originally from,
El Salvador. He's been here inThe United States, undocumented
illegally for the past fourteenyears.
He was deported to El Salvador,quote, unquote, mistakenly,
without following the kind offull deportation processes. He

(20:52):
was supposed to have hearings ona couple of things that he had
claimed, political asylum for.For example, you know, he said
if he was deported back to ElSalvador, he would be persecuted
by, you know, certain gangfactions or or whatever. Again,
you know, not expressing anopinion on as to the merits of
that or anything else other thanit is settled and it is clear

(21:15):
that, under federal law passedby Congress, before the
deportation happens, there hasto be hearings as to those
matters, period.

Yeah. Due due process. Yeah.

Yeah. And due process is a sliding scale. You
know, it there how much processis due depends on the person and
the kind of category ofindividual. You know, we know
this. Immigrants, people thatare here undocumented, things
like that, are are due lessprocess than citizens.

(21:49):
And, I mean, that has alwaysbeen the case. And that's like,
you don't have to strain to seeother examples of that. You
know, for example, children orpeople that are, you know,
mentally unfit for trial or ahundred other scenarios you
could think of where the theprocess that is prescribed by
law to those individuals is lessthan, you know, a mentally
competent yeah, US citizen.Right? Right.

(22:13):
But nonetheless, like, it isclear that some process was
afforded to Garcia by federallaw, and the administration, in
in so many words, admitted tothe fact that they they deported
him while skirting those rules.And, in doing so, they they flew
him off to El Salvador, andhe's, by all accounts, currently

(22:33):
sitting in one of those ElSalvador, like, super max, like,
insane hellish mega prisons.

Yeah. And You've seen the photos? It's
like

Yeah. They they look it looks like hell. It it
truly does. And, you know,that's that's one thing. The a a
lower court, ordered Garcia tobe returned to The US after
this, this mistake and thisskirting process rules, was was

(23:05):
found.
The administration, in so manywords, admitted that it violated
those processes. This matterwent up before the Supreme
Court, about four weeks ago,which ordered the White House
to, quote, unquote, facilitatethe return of Garcia to undergo
the proper deportation courtproceedings. Now it seems like

(23:27):
and what the White House and,proponents of this policy have
said is, look. He's gonna goback, go through the court
hearings, and then be deportedanyways. Because, you know, he
was in violation of, you know, xy z immigration rules, and, and
the hearings would be, you know,kind of pro form a at that point
anyways.
Again, I don't know whetherthat's true or not, but that's

(23:50):
one of the arguments they'rethrowing up in defense of these
actions. What's what'sinteresting is, the the White
House, Trump specifically, andthe rest of the kind of foreign
policy people in the WhiteHouse, have said that, well,
Garcia is out of the countrynow. The court is ordering, the
president to, enact foreignpolicy to go get him back from

(24:13):
El Salvador, and the courtcannot do that. The the courts
have no or little to noauthority over presidential
actions as it relates to foreignpolicy. And since he's no longer
in the country, can't order usto bring him back even though,
you know, setting aside the factthat, yeah, we we sent him
there, you know, mistakenly orwithout going through the proper
hearings, which has, you know,interesting, externalities if

(24:40):
you if you sit and think aboutit for a moment.

That's yeah. Serious concerns. Yeah.

No. Right. It's like I mean, yes, he was, by all
accounts, you know, accused tobe an illegal immigrant. I I
don't from what I've seen, that,you know, very much seems to be
the case, and he very well mayhave ended up being deported
anyways. But the reason

thought and I I mean, we don't have to because I
certainly have not read up onall the facts in it, but I
thought that he had been grantedasylum and that as so long as he
didn't, you know, break the thelaw or something, wasn't that
was that the issue with him? Andthen there were some accusation
that he was part of

MS thirteen.

MS thirteen. And but, you you know, the there
are people that are gonna speakon his behalf, I think, that
will say, like, well, no. Hejust had an associate who was
involved in it or a cousin. Idon't know. Again, I don't know
the specific facts, but was thatthat's this case.
Right?

I I think so. I to be honest, I get things confused
because there's so many, and Iand I I know.

It's hard to keep track. But

I can't I can't dwell on them all. But

But but either way, like, the idea being no
matter whether you're, you know,born in this country, born
somewhere else, granted asylum,there has to be some process
before the government just shipsyou off to especially a place
where you fled from and weregranted asylum from for your
safety. So even if it even ifit's I I'm just, like, making a

(26:07):
bigger policy argument here forYeah. Yeah. Yeah. But even if it
turns out that he gets broughtback, goes through the process,
and they find, well, yeah, we weshould have deported him, Fine.
You're sending, like, a largermessage, though, that, like, we
have rules here, and we're gonnafollow those rules. And it's
just interesting how quicksometimes people, you know, are

(26:31):
like, oh, well, that's a wasteof money. Well, okay. But
imagine it's your loved one.Imagine it's your sister, your
brother.
It's you. You know? Don't youdon't you wanna have that
opportunity to, like, plead yourcase?

Yeah. And and, also, like, you know, the the
the larger implication of andthis is kind of outside the
scope of the upcoming SupremeCourt hearings, but it's all
related. The larger issue of,you know, once you're shipped
off to another country, theWhite House doesn't have to do
anything to get you back.

Right. It's like a loophole.

Yeah. Well, that's, I mean, that's I think expressly
what their position is is like,you know, We got you there.
Mhmm. And, you know, and, like,sure, maybe you don't think
that, undocumented or illegalimmigrants, you know, should
have this level of process orwhatever, at which point I would
say lobby, you know, yourcongress to change the the laws

(27:24):
in that regard. Or if you don'tlike how long that process
takes, which I mean, I get it.
It's you know, there's theimmigration courts are backed up
to the gills. Seemingly, people,you know, people that wanna come
in legally aren't able to do it.People that are being are that
are supposed to be deportedlegally aren't able to be, you
know, done quickly because ofthe backlog and everything else.

(27:45):
I mean, so much aboutadministration of justice in
this country, in my opinion,boils down to lack of resources
for for administering justice,meaning courts, judges,
prosecutors, defenders, youknow, all those things, which,
you know, if you double theamount of judges or whatever,
you would you would see thesethings move faster, but you
don't see people talking aboutthat. The and I again, without

(28:10):
getting too far into the weedson this, you know, if you could
just be thrown off to anothercountry without process or
whatever, say you're a greencard holder or or even a and by
the way, you know, green cardholders have been being
deported, by the government inrecent, weeks.

(28:31):
It's not so much you're beingdeported. You know, that's one
thing. Right? Being deportedback to your country of origin
is one thing. What's happeninghere is, in El Salvador, he's
being sentenced effectively tolife in prison in, you know, in,
like, the the prison from thethird Batman movie.

(28:54):
Like, that's like a that's likea hole where Bane comes from.
That's basically where they'regoing. And they're and they're
gonna go there and and live therest of their lives, which I
imagine will be shortened,dramatically by being there. So
it's not so much as let's reportthem back to their country.
Whatever.
It's like, we're going tocondemn this person to, like,
probably suffer and die Mhmm.Without due process.

And Right.

You know, if you think that the slope is not
slippery enough to go fromillegal immigrant to green card
holder to, maybe, you know,nationalized citizen to you
know, on this question ofbirthright citizenship that is

(29:39):
now also being working its waythrough the courts. You know, if
you were if you were born here,but your parents aren't
American, you know, are you infact a citizen, or are you not
under the fourteenth amendment?I mean, that that slope looks
slippery enough to me where youcould see chipping away at, you
know, normal citizenship rules.And Right. And, like, you know,

(30:03):
I'm not trying to be alarmist oranything else, but it it if if
you give a mouse a cookie, itwill Yeah.
Yeah.

I, Jack, we need to be alarmists at this
point, I think.

Yeah. I I I I use the give a mouse a cookie
argument in in my in my, my my,briefing practice fairly often.
And and it's because it'sbecause if you give a mouse a
cookie, it's gonna ask for aglass of milk. You know? It's
Yeah.
If you pry the store open alittle bit, there's going to be

(30:33):
a next step. So, so with respectto Garcia, I mean, again,
without getting into a questionof whether he should or
shouldn't be deported orwhether, you know, deportation
is appropriate in this contextor anything like that, you
should be concerned that there'sthere's rules in place that were
ostensibly put in place for areason through the democratic

(30:54):
process, you know, by congressto do this thing for one reason
or another, which if youdisagree with those laws, repeal
them, change them, whatever youwanna do. And, the
administration says, you knowwhat? We're gonna just dump them
in prison in El Salvador to die,which is the reality here, and,
you can't do anything about it.So this relates to, you know,

(31:16):
the larger outrage aboutnational injunctions and whether
supreme courts or whether, youknow, district courts, trial
courts can can issue those thatare gonna enjoin the federal
government from doing x, y, andz.
And and, I mean, in this case,government didn't care. They
just did anyways.

So to go back to what the the kind of, like,
broader issue is here. So theythere was a court that found,
that the government is enjoinedfrom deporting people of a
certain citizenship classwithout due process. That was
the injunction?

So the Garcia case, I I understand that it was it
was limited to to him. So that'sI mean, this is Okay. This kind
of, you know, story that I'mtalking about.

Example. Yeah.

Yeah. But there are a dozen or so cases that have
enjoined the government fromdoing certain types of
deportations and certain typesof immigration actions and
everything else at a nationallevel, and that's what everyone
on on that side of the fence is,you know, complaining about. And
Yeah. And, you know, I I don'tknow. Again, on like, regarding

(32:28):
the standing issues, separationpowers issues, and all those
things, you know, that supremecourt is gonna, you know, hear
in a couple weeks here, I don'tknow.
There may be something there.That might be the case. But, you
know, let's let's not miss theforest from the trees here. The
reason why it's all of a suddenan issue and and why people care

(32:51):
about this issue all of a suddenis because the White House is
being enjoined from carrying outthese Garcia type deportations.
That's the reason anyone caresright now.
So don't if you're thinkingabout this and like, well, you
know, maybe he was hereillegally and and, you know, who
cares? He's gonna get deportedanyways. You're missing the

(33:13):
point. What matters is and, youknow, same thing with the the
standing arguments with respectto the the the power to enjoin
at a natural level. You'remissing the point.
The reason why people care is,because there are folks that
want broader, immigrationenforcement and deportation,
less rights for those goingthrough that process, including

(33:37):
up to, so far at least, greencard holders. And at the same
time, the same people arechipping away at birthright
citizenship. So this is all partof an a larger, you know,
political and, legal, movement,if you will, to kind of change

(34:01):
the way that that we do thingsin that regard. And you could
support that or not. I'm thatthat's fine.
But, you know, I'm not so muchinterested in the nitty gritties
of the specific arguments oneway or the other, which I
imagine the Supreme Court isgonna focus on. They'll focus on
standing. They'll focus onseparation of powers. They'll
focus on, you know, personaljurisdiction, those things. I am

(34:22):
not so much interested in thatas I am the larger
ramifications.
I I should know, by the way, andif I if I've said this before,
maybe Kevin cut this, but I Ishould have that the Supreme
Court did order the White Houseto bring the guy back. They said
the word facilitate. And Right.And the word facilitate now is
being litigated. Like, what doesfacilitate mean?

(34:43):
You know? But we we you know, wewe're not stopping him from
coming back, I think, is aposition that they're taking.
They're like, he could comeback. I mean, we're not telling
him he can't. You know?
It's it's just he just sohappens to be in a, you know, in
the bang prison. And, well,nothing we could do about that
now. And

And they don't wanna release him. So yeah. So
we're trying to do. Yeah.

And the, the president of El Salvador was in
The United States, like, two orthree weeks ago, and he was
like, well, I'm not gonnarelease him. The president says
that he's part of a terroristorganization. Why would I let
him out of prison? Okay. So, youknow, they could lock you away.
Under certain interpretation ofthis, they could lock you away
and throw away the key as longas it's in a it's in a different
country. Mhmm. And, no one cando anything to get you out. You

(35:28):
know? So whether you think thatthat's you know, I'm being
chicken little here and arguingthat the sky is falling or
whatever, and whether you thinkthat this administration would
do something so brazen or not.
Maybe they would, maybe theywouldn't, but maybe someone
would down the line. And Yeah. Alot more reasons. Yeah.

We need to remember it. Like, that's how
our our system works. It's weset set the precedent for the
future. So that's why our lawmoves so slow typically Right.
Until now.
But and not to, like, dumb itdown, but I do think it's kind
of important to think about,like so what what is happening

(36:07):
that is different from the norm?So, like, normally, you would
have plaintiff come before you,say, you know, this is against
my constitutional rights, andthe court may enjoin the
government from acting againstthat individual. And then the
government can appeal if theywant to appeal or not, and
everyone goes along with theirlives. It seems like what's

(36:29):
happening here, though, is thecourt is saying not only am I
joining the government fromacting this way towards this
particular individual, but allsimilarly situated individuals.

Yeah. Or or or the specific policy, like, you know

Or the policy. Yeah. Yeah.

An executive order or something like that. Yeah.

And I don't see I mean, I'm because I always, I
guess, resort back to state lawsbecause this happens more often
in that context where, a new anew state provision will come
out, and then it'll getchallenged as unconstitutional.
And but but that process, itstill allows for the court to

(37:09):
look at it. Like, is thisunconstitutional on its face, or
is it or is it unconstitutionalin this specific instance of
this person? But they're allowedto make that decision. Mhmm.
And and I get that it's adifference between state court
and federal court, but that'show I kind of equate it is,
like, now you have fed I I wouldimagine US district federal

(37:31):
courts saying, no. Thisexecutive order is
unconstitutional. I just to me,that seems like the same thing.
Like, why wouldn't you able beable to make that facial versus

I mean, I think I think that they can, and I I but
I think that the, I one, I thinkthat the the issue, it's a you
know, the the grounds forissuing a preliminary or an
emergency injunction, are thestandards for issuing an

(38:03):
injunction before there's atrial on the merits, are lower
for a reason, typically, thanthe the, you know, I god. It's
been a while since I've I've hadto deal with this, so I don't
have the specific factors infront of me. But there has to be
a risk of irreparable harm, andthere has to be a substantial
likelihood of success on themerits. So, you know, if you

(38:25):
were, for example, enjoined fromcollecting payments on
something, you know, as a resultof, like, a contract dispute or
whatever, or if you wanted toget an injunction in that
regard, you're not gonna succeedbecause, like, payments, the
collection of money, money isfungible, which means you can go
ahead and, like, collect yourmoney later, or you can get your
money from, you know, someoneelse or whatever. Like, money is

(38:46):
a fungible, remedy.
Whereas, you know, beingdeported to, know, to prison,
for the rest of your life, isnot. It's it's a it's
nonfungible. It's irreparable.If it if you go there, the harm
you suffer is going to besomething that can't be
redressed with, you know, forexample, money. So courts give

(39:08):
greater leeway leeway for, youknow, preliminary injunctions,
which are kind of extraordinaryremedies because the court is
ruling in such a way beforethere's a full hearing and a
full trial, on the merits.
But it's because the risk ofthat harm is so serious that,
you know, you can't wait to getto that point. And that's what I
mean, that's one of the thingsthat will be addressed, I'm

(39:28):
assuming, in this argument onthe fifteenth is, you know, has
that process been abused bylower courts? But, again, you
know, whether those thoseprocesses can or should be
curtailed, whether districtcourts have expanded that, their
ability to do this, whether somedistrict courts are abusing
that, one way or the other, keepin mind that that's not the

(39:52):
reason why we're talking aboutthis. We are talking about this
because of what theadministration wants to do and
what it views as a hurdle, to toaccomplishing those things. And
that is one of them is, youknow, preliminary injunctions,
like, full stop.
So if you find yourself gettingbogged down in the weeds on, you
know, well, it's and and as and,again, I'm I know I know the

(40:16):
supreme court is going to do,You are missing the point. So,
we'll we'll circle back on thatwhen the arguments happen and
when we have something more toreport, but this type of thing
is something that, you know,we'll keep our eye on. Couple of
short kind of fun stories hereto close out the episode. The

(40:40):
first one is, you know, anotherinstance of, lawyers getting in
trouble over misuse of AI. Inparticular, this is involving
the CEO of MyPillow, MikeLindell, who, you know, if you
don't know, is a bit of a crank.

(41:00):
And he's kind of seeminglycaught up in, like, really
insane legal issues. This isinvolving the, Dominion voting
machine, lawsuits. He was one ofthe folks that was, you know,
spreading, conspiracy theoriesabout the voting machines being,
you know, hacked or, controlledto steal the election in 2020

(41:23):
from Donald Trump and and all ofthat. Dominion has so far,
legally crushed its opponents inthese lawsuits, including Fox
News, Alex Jones, you know, thethe whole gamut of of those
people that were tied up withthat. Mike Lindell seems to be
next on deck.
So this is a defamation case,regarding that. The and the

(41:48):
reason he's in the headlinesagain is because, his lawyers
have been caught by the districtcourt, in some of their
briefing. Point the districtcourt's pointing out 30
different citations in thebriefing that, you know, were
either phony, miss missedcitations, fake quotes, or just

(42:08):
citations to cases that just,you know, flatly don't exist.
Mhmm. Yeah.
You know, asking ChatGBT towrite your brief and then not,
you know, checking it oranything else. Another instance
of generative AI, you know,hallucinating things that it
thinks, you wanna hear. So,presumably, you know,

(42:30):
hallucinating the assistance offavorable case law because as
the user, you know, that'sthat's that's what you want,
and, despite the fact that thatcase law doesn't exist. So the
lawyers were held in the court,and they were kind of after
sheepishly being, you know,questioned by the court. They
admitted they used AI.
I didn't check before filing.And, you know, now they're

(42:51):
they're I I believe there'ssanctions that are that are
being weighed by the court. Thisis in in addition to a a long
list of a couple examples thathave made the national news.
There were a couple of folks inTexas that have done this. We
covered a few you know, I thinkway back in '20, 2024.
As lawyers have started to usethis technology, many of whom,

(43:15):
are not using it eitherethically or, really smartly
and, and just kind of lettingthem write their briefs for
them. And, you know, this isthis is where they are. So,
another reminder, folks, if youare gonna be using this
technology, please, please,please check the work. And it
and you shouldn't be relying onit because every time that you

(43:37):
open the news and read aboutthis stuff, someone else is
getting in trouble for it.

It's so interesting that the AI is,
like, spitting back what itthinks you want to hear because
isn't isn't that, like, youknow, legal writing one zero
one? Like, you can't like, as anethical matter, you can't
present one side. Like, ifthey're I mean, you you're
obviously gonna argue, but atthe same time, like, you can't

(44:02):
mislead the court to believethat everything is one-sided.
Like, you have to admit whenthere are, hurdles in your
argument or in the law, and thenyou have to distinguish them.

Yeah. Or you can't, you know, make up cases that
never happen.

Well, that too. Yeah.

Yeah. That's, I mean, you know, I from my
perspective, like, yeah, itwould be great if, like, I could
punch in. You know? Hey. Findme, you know, law that supports
this position I'm taking in thislawsuit.
It spits it out, and I couldjust, you know, copy and paste
that into a brief and then bang,you know, get the brief out that
much quicker. Seems like we'requite far away from that,

(44:40):
though. Mhmm. And you know? Soif you're seeing any products
out there, by the way, that arepromising to be able to do that,
a healthy level of skepticism,is warranted.

For sure. Refreshing that, judges are are
actually checking the the casesites, though.

That's At least the judge read the brief. Right?
That is

Love it.

Not not always happening. And then I will, and
we could jump to the last onehere just because this is the
one that, like, really tickledme throughout the week and and
people had a lot of fun with.But, Vanessa, did you see the,
Dragon Lawyers? And do you seethem on social media and, like,

(45:23):
kind of the story floatingaround?

Literally couldn't miss it. Yes.

Amazing. I I, we're gonna try to put the image in
the show notes or put it outwith this episode because it's
it's so good. But, there is acircuit court judge in the
Western District Of Michiganthat's, like, lost patients with

(45:48):
a firm there called Dragon LawPC, which, has been filing
documents in in the courts withthese colorful watermarks that
are on each page. And the onethat, you know, is that made it
onto Twitter and kinda wentviral is a, on the front page of
the complaint. And I believe onevery subsequent page of the

(46:08):
complaint, there is a Mhmm.
Full page watermark that is a,let me describe the image. It's
a giant, purple cartoon dragonwearing a suit with its arms
crossed. It looks very stern andvery serious, but it is a purple
dragon. And it that apparentlyis the logo of this firm called

(46:31):
Dragon Law PC. This is put onevery page of their pleadings.
And, you know, the court, uponreceiving this, I think,
appropriately responded with,like, what are you doing? It
also kinda raises other issues.Like, imagine what you're
spending on ink here. You know?Assuming, like, there's there's
some paper documents that getfiled or whatever.

(46:52):
Or if the court wants to printthis out, you know, or if the
opposing counsel wants to printit out or read it on the train
or whatever, they gotta printout this stupid dragon
watermark. And but, I mean,setting aside that, like, for
those of you who don't know,local courts have a of rules
about formatting and, what youcan and can't do in something
that you file, like, you know,down to the margins on the paper

(47:13):
or the type or the size font orthe type of font that you that
you use, things like that that,you know, are grounds for the
court to strike or sanction alawyer for disobeying them.
Here, the the court ruled,quote, use of this dragon logo
is not only distracting. It'sjuvenile and pertinent. The

(47:33):
court is not a cartoon.
Accordingly, it is ordered thatplaintiff's complaint is
stricken. Plaintiff is directedto file an amended complaint
containing the same allegationsas the original complaint
without the dragon cartoon. Isfurther ordered that plaintiff
shall not file any otherdocuments with the Dragon
cartoon or other inappropriatecontent. So, after this kinda

(47:54):
went all over Twitter, peoplewere having fun with it on
social media. Some people wentand looked at, you know, the
website for this firm.
I don't mean to drag, you know,these poor lawyers here, but,
you know, their website is

gets already blown up. Yeah.

Their website is also hilarious. There's,
inexplicably, there is acheckout mechanism at the top so
you can, like, add things toyour cart. I have no idea.

What?

Yeah. It's like a it's like a Shopify type setup.
Of course, front page of thewebsite, giant dragon, you know,
right away.

We're like Of course.

We're letting you know. We're the dragon warriors.
They're you've come to the rightplace. And then there's just,
like, vague mention of, like,AI. Like, we use AI.
And and, so but it's also beengoing on, by way, for a couple
years now. This is not a newthing. And, so, it's they've

(48:49):
seemingly been getting away withthis for a couple years, and,
you know, finally someone'sdropping the hammer. And, yeah,
I I I will see if if the Dragonlawyers are, are gonna roll over
on this, if they're gonna fightfor their right include Cartoon
Dragons in their filings. And,if anything happens, we'll

(49:11):
update you.

Okay. So interesting. Yeah. We need to
find our own logo. I think weshould bring this to Chicago.

You know, even, like, using, like, photos and
things like that in filings,like, some judges don't don't
like that. Right. And then, likeyou know, but if you wanna, like
for example, you know, there's aa scene of an accident and you
have a picture of the accidentand you wanna cut and paste that
into complaint, like which is, Ithink, more and more common now.
But even sometimes the judge islike, no. Don't do that.

(49:39):
You could submit it as anattachment or an exhibit or
whatever. Mhmm. So so maybe theycould get away with that is,
like, ex you know, we are dragonlawyers. Plan us for a lawyer.
See exhibit a, giant picture ofdragons.
Alright, everyone. That's ourshow. As a reminder, you can
listen to us everywhere that youget your podcasts, Apple
Podcast, Spotify, YouTube,wherever. We release new

(50:03):
episodes, every two weeks, andwe will talk to you then.

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}Cookie giant Crumbl, sued by Warner Music Group over ‘massive scale’ copyright infringement for social media posts - Ep. 65