Cookie giant Crumbl, sued by Warner Music Group over ‘massive scale’ copyright infringement for social media posts - Ep. 65
Welcome to Litigation Nation. I'm your host, Danessa Watkins. Here are my cohost, Jack Sanker. As a reminder, this is the show where we give you a wrap up of the fun and interesting legal news from across the country. So, Jack, what do you
Danessa Watkins:have for us today?
Jack Sanker:Couple of things. When we're gonna start with putting this on everyone's radar, there's hearings that are upcoming before the US Supreme Court regarding labor court's abilities to issue national injunctions on federal actions. This has become kind of a political issue. You may have heard about this in the news with respect to the immigration policy and a couple of other, examples you could think of coming out of the White House in the past couple of weeks. I'll be talking about that as well as a couple of fun ones towards the end of the episode regarding the the dragon lawyers out of Michigan Mhmm.
Jack Sanker:Which which some of you may have seen all over social media, and then another group of lawyers getting in in hot water over misuse of AI and draft and drafting legal documents.
Danessa Watkins:Always an AI issue. Okay. Great. I'm going to cover the recent lawsuit filed against the cookie company, Crumble, for their use of copyrighted music in their social media. As a note for our listeners, we are recording this episode remotely as Jack and I are both traveling for the positions and work and whatnot.
Danessa Watkins:So apologies in advance if our audio is not as clean as normal. Please bear with us. So all that and more. Here's what you need to know. Alright.
Danessa Watkins:On to a cookie story. Jack, have you ever tried crumble cookies?
Jack Sanker:Of course. They deliver.
Danessa Watkins:Oh my gosh. They're so good. Yes. So, unfortunately, our good friends at crumble are being sued. They are out of Logan, So they're being sued in the Utah federal court by Warner Music Group, WMG.
Danessa Watkins:This lawsuit was just filed on April twenty second of twenty twenty five, so just about a week ago from our recording date here. And WMG is claiming copyright violations. So this company, it's actually made up of a bunch of different record groups, so, like, Atlanta record Atlantic Records, Bad Boy Records, among various others. And then Crumble, their company operates currently at more than a thousand locations across the country. I saw a note.
Danessa Watkins:I didn't look into it, so don't quote me on this, but it looks like they're looking for a buyer. I don't know if that has anything to do with this lawsuit or something they were pursuing earlier. But since they came out, they what? I think they incorporated in, like, 2017. They've been very aggressive on the social media front, so that has been a huge marketing tool for them.
Danessa Watkins:And they put out a lot of videos on TikTok and Instagram, which has certainly been a real progression in their their growth as a company. Latest stats I found were 9,800,000 followers on TikTok and 6,100,000 on Instagram. And what they're doing is building this brand by putting popular music promotions behind their content on on these two platforms. And according to WMG, they were are doing that without paying for the privilege of the use of those music rights. So they're claiming that Crumble's investment in social media advertisements and the Crumble videos in particular have been critical to this their success, but they are not paying the rights to the artists and the publishers that, you know, they wouldn't be successful without, essentially.
Danessa Watkins:They've got, I would say, good marketing in that they pair songs like Blueberry Fago by Lil Mosey to promote a blueberry cheesecake cookie. They have a Kentucky butter cake cookie that was promoted with the song butter by BTS. All of these are mentioned in the lawsuits, as well as some of the popular artists through WMG who whose music is allegedly being swiped, and that is Taylor Swift, Ariana Grande, Selena Gomez, Bruno Mars, Beyonce. So the heavy hitters for sure.
Jack Sanker:Mhmm.
Danessa Watkins:Interesting to me was that, apparently, WMG sent a cease and desist letter to Crumble almost exactly two years before they filed this lawsuit. And allegedly, Crumble didn't respond to the cease and desist, but they did post a video on TikTok that stated, quote, legal said we can't use any any trending audios, end
Jack Sanker:quote. So,
Danessa Watkins:clearly, they received the cease and desist. They understood it, and then they continued to post infringing videos after that. WMG in their complaint, also mentioned previous lawsuits where Crumble has gone after its competitors for trademark infringements. So the idea being, like, Crumble understands this area of law. They understand the gravity of infringing on the rights of others, and yet here they are doing it themselves.
Danessa Watkins:So there are three different claims of infringement being brought. One is direct infringement, meaning Crumble itself is putting out its brand with these videos that are copyright infringement. The second is contributory. So influencers of Crumble are reposting these infringing posts, so it only essentially furthers the infringement and and this the reach of the harm that's that's being cast here. And then the third type is vicarious.
Danessa Watkins:So WMG is claiming that Crumble is responsible for its influencer partners who they themselves are taking are taking music that isn't copyrighted in order to promote Crumble's brand. The idea being that Crumble has the ability to control what these influencer are posting. They could, you know, warn them not to use copy copyrighted materials that they don't have the rights for or tell them to even take stuff down once they realize that there is a violation and they are not doing that. So they should be held vicariously liable. Now this is, you know, a serious amount of money that they're asking for.
Danessa Watkins:It looks like they're asking for up to a hundred and 50,000 per infringed work. They also want a permanent injunction, but they are estimating that there are a 50 songs so far that they've infringed on. So we're looking at about $24,000,000 without adding in legal fees.
Jack Sanker:Can I jump in? How how is this different than using music on TikTok or Instagram that everyone else already does?
Danessa Watkins:So, yeah, I looked into this a little bit because it is an interesting issue, and, obviously, it's been, you know, an issue for a while. So I'm kinda surprised that we haven't seen more lawsuits like this. So it's a little bit tricky. So there are different licenses that are required for different types of users, content, and companies. Certain social media platforms, they will they will have licenses, obviously, for for diff you know, with, like, Sony or Universal or Warner, and those licenses allow for everyday people to use it for their personal use.
Jack Sanker:So Not commercial use then. I see.
Danessa Watkins:Right. Right. So that's why we're able to add songs to the, you know, cute videos of our kids and whatnot so you don't hear them, you know, screaming. But once you cross that line and you're selling a product, you know, promoting a brand even for influencers, which I'll get to in a moment, then certain platforms will have a commercial library. So there are gonna be certain licenses that they've already acquired for you, and you can use those songs for commercial purposes.
Danessa Watkins:But without that separate license and I have to admit, I've never in, like, certain you know, using Instagram, for example, I've never seen some differentiation between, yeah, I'm gonna use this song for commercial purposes. So I'm not totally sure how that works on the platform itself, but there are some commercial liberties that, like TikTok or Instagram will allow for. How you find out, you know, which which songs fall into that, I'm not sure. But there's also it's it's not universal. Right?
Danessa Watkins:So and this is where I was gonna get into the influencer stuff. So we do represent influencer clients clients in my practice, and we have to warn them. You know? Just because you are promoting a product on Instagram that you know Instagram may have the license for, that song that's behind, you know, your video of you carrying this purse, you can't just automatically share that to another platform because that platform may not allow for that commercial use. So so you have to be careful on that front.
Danessa Watkins:Another thing that's come up in my practice is employees. You may not realize as an employer that your employee can be considered an influencer. So if they are promoting your brand online, like, you know, day in the life of, you know, whatever, associate for Amiri or, you know, some some company, and they're, like, pushing your products, even if you have a policy against that, you know, you as an employer could find yourself getting wrapped up in a lawsuit, and you would have to prove that, no. No. You know, this employee was acting outside the scope of their employment and and yada yada.
Danessa Watkins:But it is something to be aware of for for our employer listeners to to make sure you have sound policies on what your employees do with their social media, especially when just in particular when it when it involves your product that you're selling. So, yeah, I mean, you know, $24,000,000 lawsuit, the right to recover attorney's fees. I gotta imagine that they're gonna try to settle this, and we'll probably never hear about it again. But it it's definitely, you know, setting the bar going forward for for the next, lawsuit, I would say. I can't imagine.
Jack Sanker:It's amazing that there this wasn't something that was I mean, Crumble's not a small company. Mhmm. They you know, they're they're they have counsel. They they I'm sure they do. Mhmm.
Jack Sanker:So I'm just like, I don't know. You know, they're especially posting to Instagram is hilarious, to to be like, oh, they told us we couldn't do this. You know? Like, okay. Yeah.
Jack Sanker:That's very funny to me. And but I you know, quite risky, to do that.
Danessa Watkins:It was a little reckless. Yeah.
Jack Sanker:Yeah.
Danessa Watkins:So I and, well, the thing that came to my mind right off the bat, but it is now that I've looked into it, it is something totally different. It was remember when Peloton got sued? Was it, like
Jack Sanker:I think
Danessa Watkins:it was, like, it was pre pandemic.
Jack Sanker:For the for the music in their workout classes?
Danessa Watkins:Yeah. Yeah. Oh. I was wondering if that had any, you know, connection, but it is it is, like, a totally different area. It's they're called synchronization rights, sync rights.
Danessa Watkins:And for them, that's an even more like, it's very difficult to get that. You have to go to each publisher. So a song may have, like, 10 different publishers that all have rights to one song, and you have to get approval from all of them before you can use that song in your if you're, like, pairing it with a visual, like, obviously, Peloton is. Their their product is visual. So once you pair that song with it, yeah, you have to have the rights of of everyone.
Danessa Watkins:So, you know, they've got, like, what, thousands of songs, and the the whole point of it is that they stay up to date and, you know, they're pushing the popular new music. So just imagine, like, their legal team and what they have to go through to to be able to do that. Do you mind blowing?
Jack Sanker:Especially, in this case when, you know, according to Crumble, they were they were advised not to do this, and they did it anyways. Yeah. I could just, like I could see their in house counsel just, like, hanging his head in his hands like, ugh. Why'd you do this?
Danessa Watkins: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, you know, the lawsuit says a hundred and 59. That's not that much. You know? Like, you couldn't and that's probably over over the course of I don't know.
Danessa Watkins:I mean, they sent a c they sent a cease and desist two years ago. So, yeah, I feel like they had the time to reach out and to get the licenses they needed. But
Jack Sanker:If you're in a situation where your in house counsel is telling you not to do something and you think it's a great idea to, you know, to use that as content, you know, like, my my lawyer told me I shouldn't do this. Isn't that funny?
Danessa Watkins:Yeah. Like, here's a screenshot of my lawyer telling me. Yeah. Don't Caught it out.
Jack Sanker:Don't don't do that. That's some free free legal advice to the audience.
Danessa Watkins:Yes. I will back that. I think we can give that advice.
Jack Sanker:Okay. So this is an issue that has not yet been argued in front of the Supreme Court, but it'll be something we go back to once we hear more about the arguments and whether there's a ruling. But putting this on everyone's radar now, the Supreme Court is going to hear the argument on three consolidated cases on May 15 regarding lower court's abilities to issue nationwide injunctions over, federal actions. The question of lower court's ability to issue national injunctions against the implementation of national policy, usually, you know, an act of congress or an executive action, is is being argued before the Supreme Court on the fifteenth. The cases relate relate to the question of birthright citizenship under the fourteenth amendment, which is frankly an issue for another episode.
Jack Sanker:Don't get me started on that. But the issue on appeal is a narrow question of whether lower courts can issue nationwide injunctions, on the implementation of federal policy or whether their injunctions have to be limited to the specific claimants that are before the court. These kind of this is all this is gonna be heard before the Supreme Court on emergency applications or arguments on emergency applications are pretty rare. And this has been a politicized issue lately with the GOP kind of rank and files, taking issue with lower courts frequent blocking of national policy, everything from immigration orders to border security, things like that. And it's particularly relevant because there's a couple of high profile cases that are going to be, affected by this as well as, you know, national policy and everything else.
Jack Sanker:But, also, there are some folks on the court that are sympathetic, to the argument that this that the lower courts should not be able to issue these national injunctions, specifically justice Gorsuch. In 2019, for example, he wrote, quote, the real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Later, he went on, equitable remedies are meant to redress the injury sustained by a particular plaintiff in a particular lawsuit. But when a court goes further than that, ordering the government to take or not take some action with respect to those who are strangers to the suit, it is hard to see how the court could be acting in the judicial role of resolving cases and controversies. It has become increasingly apparent that this court must, at some point, confront these important objections to this increasingly widespread practice.
Jack Sanker:Universal injunctions have little basis in traditional equitable practice.
Danessa Watkins:The is the idea, sorry to cut you off, but is the idea that they're sort of judges are crossing over into the legislative role?
Jack Sanker:Is that Yeah. As I get to that, and then and they're also stepping outside of their jurisdiction to resolve actual cases in controversy. So you know? And by the way, the injunctions are are typically being issued on constitutional grounds. So, you know, for example, if the, I'll I'll talk in a moment about, an immigration example.
Jack Sanker:And this is the, Abrego Garcia case that we'll get into in a minute. But the, what puts in that you know, the reason that people are upset about this is because a particular, action by, you know, the federal government is found to be, you know, in either in violation of federal law or in violation of, you know, the US constitution. And then as it relates to the particular claimant that is before that court, if it's only one plaintiff, for example, the court will nonetheless issue an injunction that enjoins the federal government from pursuing that policy nationwide on the grounds 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 the court, the policy itself is unlawful.
Danessa Watkins:Interesting.
Jack Sanker:Yeah. And, you know, it's, I'm not well enough steeped in the, specific legal arguments on I I from from Gorsuch's writing, you could see that he's priming it for, like, a standing argument. Okay. And, you know, a separation of powers argument as well. I can't, you know, I can't really speak to that super intelligently.
Jack Sanker:I could tell you that that this is an issue so so much now because there have been, I think, roughly 200 or so injunctions that have been issued by lower courts against, the White House and its most recent you know, a lot of its immigration Mhmm. Deportations, things like that. And they're frustrated with that. They don't they don't like that. And so it you know?
Jack Sanker:I mean, we don't have to get into the overall, you know, political arc towards, I would say, demonizing the judiciary, which I think is, you know, is happening. But that pendulum, I think, does swing both ways. But, you know, currently, like, there is the example of the Wisconsin judge who was, who was just arrested Mhmm. By federal agents. And I and I actually you know, I I I don't know whether or not there's specific grounds for that or whether it was, you know, merited or not.
Jack Sanker:I I can't speak to that. I just don't know. It is shocking nonetheless Right. That it happened, you know, regardless of whether it should have or not. It's just like, woah.
Jack Sanker:You don't hear about that very often. 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 individual from state of Maryland, but originally from, El Salvador. He's been here in The United States, undocumented illegally for the past fourteen years.
Jack Sanker:He was deported to El Salvador, quote, unquote, mistakenly, without following the kind of full deportation processes. He was supposed to have hearings on a couple of things that he had claimed, political asylum for. For example, you know, he said if he was deported back to El Salvador, he would be persecuted by, you know, certain gang factions or or whatever. Again, you know, not expressing an opinion on as to the merits of that or anything else other than it is settled and it is clear that, under federal law passed by Congress, before the deportation happens, there has to be hearings as to those matters, period.
Danessa Watkins:Yeah. Due due process. Yeah.
Jack Sanker:Yeah. And due process is a sliding scale. You know, it there how much process is due depends on the person and the kind of category of individual. You know, we know this. Immigrants, people that are here undocumented, things like that, are are due less process than citizens.
Jack Sanker:And, I mean, that has always been the case. And that's like, you don't have to strain to see other examples of that. You know, for example, children or people that are, you know, mentally unfit for trial or a hundred other scenarios you could think of where the the process that is prescribed by law to those individuals is less than, you know, a mentally competent yeah, US citizen. Right? Right.
Jack Sanker:But nonetheless, like, it is clear that some process was afforded to Garcia by federal law, and the administration, in in so many words, admitted to the fact that they they deported him while skirting those rules. And, in doing so, they they flew him off to El Salvador, and he's, by all accounts, currently sitting in one of those El Salvador, like, super max, like, insane hellish mega prisons.
Danessa Watkins:Yeah. And You've seen the photos? It's like
Jack Sanker: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 to be returned to The US after this, this mistake and this skirting process rules, was was found.
Jack Sanker:The administration, in so many words, admitted that it violated those processes. This matter went up before the Supreme Court, about four weeks ago, which ordered the White House to, quote, unquote, facilitate the return of Garcia to undergo the proper deportation court proceedings. Now it seems like and what the White House and, proponents of this policy have said is, look. He's gonna go back, go through the court hearings, and then be deported anyways. Because, you know, he was in violation of, you know, x y z immigration rules, and, and the hearings would be, you know, kind of pro form a at that point anyways.
Jack Sanker:Again, I don't know whether that's true or not, but that's one of the arguments they're throwing up in defense of these actions. What's what's interesting is, the the White House, Trump specifically, and the rest of the kind of foreign policy people in the White House, have said that, well, Garcia is out of the country now. The court is ordering, the president to, enact foreign policy to go get him back from El Salvador, and the court cannot do that. The the courts have no or little to no authority over presidential actions as it relates to foreign policy. And since he's no longer in the country, can't order us to bring him back even though, you know, setting aside the fact that, yeah, we we sent him there, you know, mistakenly or without going through the proper hearings, which has, you know, interesting, externalities if you if you sit and think about it for a moment.
Danessa Watkins:That's yeah. Serious concerns. Yeah.
Jack Sanker:No. Right. It's like I mean, yes, he was, by all accounts, you know, accused to be 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 may have ended up being deported anyways. But the reason
Danessa Watkins:thought and I I mean, we don't have to because I certainly have not read up on all the facts in it, but I thought that he had been granted asylum and that as so long as he didn't, you know, break the the law or something, wasn't that was that the issue with him? And then there were some accusation that he was part of
Jack Sanker:MS thirteen.
Danessa Watkins:MS thirteen. And but, you you know, the there are people that are gonna speak on his behalf, I think, that will say, like, well, no. He just had an associate who was involved in it or a cousin. I don't know. Again, I don't know the specific facts, but was that that's this case.
Danessa Watkins:Right?
Jack Sanker:I I think so. I to be honest, I get things confused because there's so many, and I and I I know.
Danessa Watkins:It's hard to keep track. But
Jack Sanker:I can't I can't dwell on them all. But
Danessa Watkins: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 ships you off to especially a place where you fled from and were granted asylum from for your safety. So even if it even if it's I I'm just, like, making a bigger policy argument here for Yeah. Yeah. Yeah. But even if it turns out that he gets brought back, goes through the process, and they find, well, yeah, we we should have deported him, Fine.
Danessa Watkins:You're sending, like, a larger message, though, that, like, we have rules here, and we're gonna follow those rules. And it's just interesting how quick sometimes people, you know, are like, oh, well, that's a waste of money. Well, okay. But imagine it's your loved one. Imagine it's your sister, your brother.
Danessa Watkins:It's you. You know? Don't you don't you wanna have that opportunity to, like, plead your case?
Jack Sanker:Yeah. And and, also, like, you know, the the the larger implication of and this is kind of outside the scope of the upcoming Supreme Court hearings, but it's all related. The larger issue of, you know, once you're shipped off to another country, the White House doesn't have to do anything to get you back.
Danessa Watkins:Right. It's like a loophole.
Jack Sanker: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 illegal immigrants, you know, should have this level of process or whatever, at which point I would say lobby, you know, your congress to change the the laws in that regard. Or if you don't like how long that process takes, which I mean, I get it.
Jack Sanker:It's you know, there's the immigration 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 deported legally aren't able to be, you know, done quickly because of the backlog and everything else. I mean, so much about administration of justice in this country, in my opinion, boils down to lack of resources for for administering justice, meaning courts, judges, prosecutors, defenders, you know, all those things, which, you know, if you double the amount of judges or whatever, you would you would see these things move faster, but you don't see people talking about that. The and I again, without getting too far into the weeds on this, you know, if you could just be thrown off to another country without process or whatever, say you're a green card holder or or even a and by the way, you know, green card holders have been being deported, by the government in recent, weeks.
Jack Sanker:It's not so much you're being deported. You know, that's one thing. Right? Being deported back to your country of origin is one thing. What's happening here is, in El Salvador, he's being sentenced effectively to life in prison in, you know, in, like, the the prison from the third Batman movie.
Jack Sanker:Like, that's like a that's like a hole where Bane comes from. That's basically where they're going. And they're and they're gonna go there and and live the rest of their lives, which I imagine will be shortened, dramatically by being there. So it's not so much as let's report them back to their country. Whatever.
Jack Sanker:It's like, we're going to condemn this person to, like, probably suffer and die Mhmm. Without due process.
Danessa Watkins:And Right.
Jack Sanker:You know, if you think that the slope is not slippery enough to go from illegal immigrant to green card holder to, maybe, you know, nationalized citizen to you know, on this question of birthright citizenship that is now also being working its way through the courts. You know, if you were if you were born here, but your parents aren't American, you know, are you in fact a citizen, or are you not under the fourteenth amendment? I mean, that that slope looks slippery enough to me where you could see chipping away at, you know, normal citizenship rules. And Right. And, like, you know, I'm not trying to be alarmist or anything else, but it it if if you give a mouse a cookie, it will Yeah.
Jack Sanker:Yeah.
Danessa Watkins:I, Jack, we need to be alarmists at this point, I think.
Jack Sanker: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's because if you give a mouse a cookie, it's gonna ask for a glass of milk. You know? It's Yeah.
Jack Sanker:If you pry the store open a little bit, there's going to be a next step. So, so with respect to Garcia, I mean, again, without getting into a question of whether he should or shouldn't be deported or whether, you know, deportation is appropriate in this context or anything like that, you should be concerned that there's there's rules in place that were ostensibly put in place for a reason through the democratic process, you know, by congress to do this thing for one reason or another, which if you disagree with those laws, repeal them, change them, whatever you wanna do. And, the administration says, you know what? 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, the larger outrage about national injunctions and whether supreme courts or whether, you know, district courts, trial courts can can issue those that are gonna enjoin the federal government from doing x, y, and z.
Jack Sanker:And and, I mean, in this case, government didn't care. They just did anyways.
Danessa Watkins:So to go back to what the the kind of, like, broader issue is here. So they there was a court that found, that the government is enjoined from deporting people of a certain citizenship class without due process. That was the injunction?
Jack Sanker:So the Garcia case, I I understand that it was it was limited to to him. So that's I mean, this is Okay. This kind of, you know, story that I'm talking about.
Danessa Watkins:Example. Yeah.
Jack Sanker:Yeah. But there are a dozen or so cases that have enjoined the government from doing certain types of deportations and certain types of immigration actions and everything else at a national level, 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't know. Again, on like, regarding the standing issues, separation powers issues, and all those things, you know, that supreme court is gonna, you know, hear in a couple weeks here, I don't know.
Jack Sanker:There may be something there. That might be the case. But, you know, let's let's not miss the forest from the trees here. The reason why it's all of a sudden an issue and and why people care about this issue all of a sudden is because the White House is being enjoined from carrying out these Garcia type deportations. That's the reason anyone cares right now.
Jack Sanker:So don't if you're thinking about this and like, well, you know, maybe he was here illegally and and, you know, who cares? He's gonna get deported anyways. You're missing the point. What matters is and, you know, same thing with the the standing arguments with respect to the the the power to enjoin at a natural level. You're missing the point.
Jack Sanker:The reason why people care is, because there are folks that want broader, immigration enforcement and deportation, less rights for those going through that process, including up to, so far at least, green card holders. And at the same time, the same people are chipping away at birthright citizenship. So this is all part of an a larger, you know, political and, legal, movement, if you will, to kind of change the way that that we do things in that regard. And you could support that or not. I'm that that's fine.
Jack Sanker:But, you know, I'm not so much interested in the nitty gritties of the specific arguments one way or the other, which I imagine the Supreme Court is gonna focus on. They'll focus on standing. They'll focus on separation of powers. They'll focus on, you know, personal jurisdiction, those things. I am not so much interested in that as I am the larger ramifications.
Jack Sanker:I I should know, by the way, and if I if I've said this before, maybe Kevin cut this, but I I should have that the Supreme Court did order the White House to bring the guy back. They said the word facilitate. And Right. And the word facilitate now is being litigated. Like, what does facilitate mean?
Jack Sanker:You know? But we we you know, we we're not stopping him from coming back, I think, is a position that they're taking. They're like, he could come back. I mean, we're not telling him he can't. You know?
Jack Sanker:It's it's just he just so happens to be in a, you know, in the bang prison. And, well, nothing we could do about that now. And
Danessa Watkins:And they don't wanna release him. So yeah. So we're trying to do. Yeah.
Jack Sanker:And the, the president of El Salvador was in The United States, like, two or three weeks ago, and he was like, well, I'm not gonna release him. The president says that he's part of a terrorist organization. Why would I let him out of prison? Okay. So, you know, they could lock you away.
Jack Sanker:Under certain interpretation of this, they could lock you away and throw away the key as long as it's in a it's in a different country. Mhmm. And, no one can do anything to get you out. You know? So whether you think that that's you know, I'm being chicken little here and arguing that the sky is falling or whatever, and whether you think that this administration would do something so brazen or not.
Jack Sanker:Maybe they would, maybe they wouldn't, but maybe someone would down the line. And Yeah. A lot more reasons. Yeah.
Danessa Watkins:We need to remember it. Like, that's how our our system works. It's we set set the precedent for the future. So that's why our law moves so slow typically Right. Until now.
Danessa Watkins:But and not to, like, dumb it down, but I do think it's kind of important to think about, like so what what is happening 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, and the court may enjoin the government from acting against that individual. And then the government can appeal if they want to appeal or not, and everyone goes along with their lives. It seems like what's happening here, though, is the court is saying not only am I joining the government from acting this way towards this particular individual, but all similarly situated individuals.
Jack Sanker:Yeah. Or or or the specific policy, like, you know
Danessa Watkins:Or the policy. Yeah. Yeah.
Jack Sanker:An executive order or something like that. Yeah.
Danessa Watkins:And I don't see I mean, I'm because I always, I guess, resort back to state laws because this happens more often in that context where, a new a new state provision will come out, and then it'll get challenged as unconstitutional. And but but that process, it still allows for the court to look at it. Like, is this unconstitutional on its face, or is it or is it unconstitutional in this specific instance of this person? But they're allowed to make that decision. Mhmm.
Danessa Watkins:And and I get that it's a difference between state court and federal court, but that's how I kind of equate it is, like, now you have fed I I would imagine US district federal courts saying, no. This executive order is unconstitutional. I just to me, that seems like the same thing. Like, why wouldn't you able be able to make that facial versus
Jack Sanker:I mean, I think I think that they can, and I I but I think that the, I one, I think that the the issue, it's a you know, the the grounds for issuing a preliminary or an emergency injunction, are the standards for issuing an injunction before there's a trial on the merits, are lower for a reason, typically, than the the, you know, I god. It's been a while since I've I've had to deal with this, so I don't have the specific factors in front of me. But there has to be a risk of irreparable harm, and there has to be a substantial likelihood of success on the merits. So, you know, if you were, for example, enjoined from collecting payments on something, you know, as a result of, like, a contract dispute or whatever, or if you wanted to get an injunction in that regard, you're not gonna succeed because, like, payments, the collection of money, money is fungible, which means you can go ahead and, like, collect your money later, or you can get your money from, you know, someone else or whatever. Like, money is a fungible, remedy.
Jack Sanker:Whereas, you know, being deported to, know, to prison, for the rest of your life, is not. It's it's a it's nonfungible. It's irreparable. If it if you go there, the harm you suffer is going to be something that can't be redressed with, you know, for example, money. So courts give greater leeway leeway for, you know, preliminary injunctions, which are kind of extraordinary remedies because the court is ruling in such a way before there's a full hearing and a full trial, on the merits.
Jack Sanker:But it's because the risk of that harm is so serious that, you know, you can't wait to get to that point. And that's what I mean, that's one of the things that will be addressed, I'm assuming, in this argument on the fifteenth is, you know, has that process been abused by lower courts? But, again, you know, whether those those processes can or should be curtailed, whether district courts have expanded that, their ability to do this, whether some district courts are abusing that, one way or the other, keep in mind that that's not the reason why we're talking about this. We are talking about this because of what the administration wants to do and what it views as a hurdle, to to accomplishing those things. And that is one of them is, you know, preliminary injunctions, like, full stop.
Jack Sanker:So if you find yourself getting bogged down in the weeds on, you know, well, it's and and as and, again, I'm I know I know the supreme court is going to do, You are missing the point. So, we'll we'll circle back on that when the arguments happen and when we have something more to report, but this type of thing is something that, you know, we'll keep our eye on. Couple of short kind of fun stories here to close out the episode. The first one is, you know, another instance of, lawyers getting in trouble over misuse of AI. In particular, this is involving the CEO of MyPillow, Mike Lindell, who, you know, if you don't know, is a bit of a crank.
Jack Sanker:And he's kind of seemingly caught up in, like, really insane legal issues. This is involving the, Dominion voting machine, lawsuits. He was one of the folks that was, you know, spreading, conspiracy theories about the voting machines being, you know, hacked or, controlled to steal the election in 2020 from Donald Trump and and all of that. Dominion has so far, legally crushed its opponents in these lawsuits, including Fox News, Alex Jones, you know, the the whole gamut of of those people that were tied up with that. Mike Lindell seems to be next on deck.
Jack Sanker:So this is a defamation case, regarding that. The and the reason he's in the headlines again is because, his lawyers have been caught by the district court, in some of their briefing. Point the district court's pointing out 30 different citations in the briefing that, you know, were either phony, miss missed citations, fake quotes, or just citations to cases that just, you know, flatly don't exist. Mhmm. Yeah.
Jack Sanker:You know, asking ChatGBT to write your brief and then not, you know, checking it or anything else. Another instance of generative AI, you know, hallucinating things that it thinks, you wanna hear. So, presumably, you know, hallucinating the assistance of favorable case law because as the user, you know, that's that's that's what you want, and, despite the fact that that case 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.
Jack Sanker:I didn't check before filing. And, you know, now they're they're I I believe there's sanctions that are that are being weighed by the court. This is in in addition to a a long list of a couple examples that have made the national news. There were a couple of folks in Texas that have done this. We covered a few you know, I think way back in '20, 2024.
Jack Sanker:As lawyers have started to use this technology, many of whom, are not using it either ethically or, really smartly and, and just kind of letting them write their briefs for them. And, you know, this is this is where they are. So, another reminder, folks, if you are gonna be using this technology, please, please, please check the work. And it and you shouldn't be relying on it because every time that you open the news and read about this stuff, someone else is getting in trouble for it.
Danessa Watkins:It's so interesting that the AI is, like, spitting back what it thinks you want to hear because isn't isn't that, like, you know, legal writing one zero one? Like, you can't like, as an ethical matter, you can't present one side. Like, if they're I mean, you you're obviously gonna argue, but at the same time, like, you can't mislead the court to believe that everything is one-sided. Like, you have to admit when there are, hurdles in your argument or in the law, and then you have to distinguish them.
Jack Sanker:Yeah. Or you can't, you know, make up cases that never happen.
Danessa Watkins:Well, that too. Yeah.
Jack Sanker:Yeah. That's, I mean, you know, I from my perspective, like, yeah, it would be great if, like, I could punch in. You know? Hey. Find me, you know, law that supports this position I'm taking in this lawsuit.
Jack Sanker:It spits it out, and I could just, you know, copy and paste that into a brief and then bang, you know, get the brief out that much quicker. Seems like we're quite far away from that, though. Mhmm. And you know? So if you're seeing any products out there, by the way, that are promising to be able to do that, a healthy level of skepticism, is warranted.
Danessa Watkins:For sure. Refreshing that, judges are are actually checking the the case sites, though.
Jack Sanker:That's At least the judge read the brief. Right? That is
Danessa Watkins:Love it.
Jack Sanker:Not not always happening. And then I will, and we could jump to the last one here just because this is the one that, like, really tickled me throughout the week and and people had a lot of fun with. But, Vanessa, did you see the, Dragon Lawyers? And do you see them on social media and, like, kind of the story floating around?
Danessa Watkins:Literally couldn't miss it. Yes.
Jack Sanker:Amazing. I I, we're gonna try to put the image in the show notes or put it out with this episode because it's it's so good. But, there is a circuit court judge in the Western District Of Michigan that's, like, lost patients with a firm there called Dragon Law PC, which, has been filing documents in in the courts with these colorful watermarks that are on each page. And the one that, you know, is that made it onto Twitter and kinda went viral is a, on the front page of the complaint. And I believe on every subsequent page of the complaint, there is a Mhmm.
Jack Sanker:Full page watermark that is a, let me describe the image. It's a giant, purple cartoon dragon wearing a suit with its arms crossed. It looks very stern and very serious, but it is a purple dragon. And it that apparently is the logo of this firm called Dragon Law PC. This is put on every page of their pleadings.
Jack Sanker:And, you know, the court, upon receiving 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 get filed or whatever.
Jack Sanker:Or if the court wants to print this out, you know, or if the opposing counsel wants to print it out or read it on the train or whatever, they gotta print out 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 you can and can't do in something that you file, like, you know, down to the margins on the paper or the type or the size font or the type of font that you that you use, things like that that, you know, are grounds for the court to strike or sanction a lawyer for disobeying them. Here, the the court ruled, quote, use of this dragon logo is not only distracting. It's juvenile and pertinent. The court is not a cartoon.
Jack Sanker:Accordingly, it is ordered that plaintiff's complaint is stricken. Plaintiff is directed to file an amended complaint containing the same allegations as the original complaint without the dragon cartoon. Is further ordered that plaintiff shall not file any other documents with the Dragon cartoon or other inappropriate content. So, after this kinda went all over Twitter, people were having fun with it on social media. Some people went and looked at, you know, the website for this firm.
Jack Sanker:I don't mean to drag, you know, these poor lawyers here, but, you know, their website is
Danessa Watkins:gets already blown up. Yeah.
Jack Sanker:Their website is also hilarious. There's, inexplicably, there is a checkout mechanism at the top so you can, like, add things to your cart. I have no idea.
Danessa Watkins:What?
Jack Sanker:Yeah. It's like a it's like a Shopify type setup. Of course, front page of the website, giant dragon, you know, right away.
Danessa Watkins:We're like Of course.
Jack Sanker:We're letting you know. We're the dragon warriors. They're you've come to the right place. And then there's just, like, vague mention of, like, AI. Like, we use AI.
Jack Sanker:And and, so but it's also been going on, by way, for a couple years now. This is not a new thing. And, so, it's they've seemingly been getting away with this for a couple years, and, you know, finally someone's dropping the hammer. And, yeah, I I I will see if if the Dragon lawyers are, are gonna roll over on this, if they're gonna fight for their right include Cartoon Dragons in their filings. And, if anything happens, we'll update you.
Danessa Watkins:Okay. So interesting. Yeah. We need to find our own logo. I think we should bring this to Chicago.
Jack Sanker: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, like you know, but if you wanna, like for example, you know, there's a a scene of an accident and you have a picture of the accident and you wanna cut and paste that into complaint, like which is, I think, more and more common now. But even sometimes the judge is like, no. Don't do that.
Jack Sanker:You could submit it as an attachment or an exhibit or whatever. Mhmm. So so maybe they could get away with that is, like, ex you know, we are dragon lawyers. Plan us for a lawyer. See exhibit a, giant picture of dragons.
Jack Sanker:Alright, everyone. That's our show. As a reminder, you can listen to us everywhere that you get your podcasts, Apple Podcast, Spotify, YouTube, wherever. We release new episodes, every two weeks, and we will talk to you then.
