The time when Andrew said "slimeball ambulance chaser" in a courtroom of lawyers
This is a value for value post: see the explanation in the footer.
I wrote up a big post about @apshamilton's appearance in court in Australia and Andrew wrote up his own account. But I need to give some more flavour.
The Rhetorical Flourish
Andrew mentioned in his post how he began the case with an "oratory introduction". This really isn't done in Australia to the degree you might expect if you were brought up on US TV legal dramas. Andrew has done this before in our first substantive hearing with this Judge when explaining the broad background of how he came to see the actions of Facebook and Google in the light of what he had learened as a telecoms lawyer 20 years ago.
Andrew included in his post the following four overarching points about what the Respondents (Meta and Google) are trying to do with the interlocutary motions and how they're trying to stop the case.
Only viable means of securing damages for the harms done to them
When Andrew got half way through the first point about "only viable means" the Judge actually stopped him.
Up until this point we'd already had hours of Meta and Google's barristers trying to make a case that the way in which we are bringing this case, is so hopelessly bad for our "group members", that we should be stopped and the group memebers should all go and find "proper" lawyers and either mount their own legal challenges to Meta and Google individually or form a "proper" class action case with $10,000,000 or more in funding and a respectable Australian Law firm to watch out for their interests.
Our group members (remember they're talking about you people on Hive and anyone else damaged in 2018 and onwards by their clients) should prefer to fight your own cases or manage to find someone else to fund a regular class action brought in the "normal" way. Not one man and his friend in court with a few thousand dollars we've raised with the help of our crypto friends and no large investors.
So when the Judge stopped Andrew because of his statement "only viable means" she pointed out that the other side had told us what other viable means we had to bring the case!
Saying the unsaid things
In this phase of the battle, we were defending against their attacks. That somewhat constrains what we can bring up and so it hadn't really been appropriate to talk about the efforts we made to bring this case in a "normal" way all through 2018 and up to 2020 when we filed the case. The Judge's statement gave Andrew a reason to explain how we tried to bring the case.
Normal Venture Capital
Normal in this case means building a "book", i.e. a long list of class members with significant financial claims (we actually did manage this quite well) but then taking that book to the Legal equivalent of Venture Capital firms. They look at the case, the size of the potential payout and the legal costs to get there. They consider the liklihood of settlement along the way and if they see good prospects, they invest money in return for a share of the winnings.
It's very similar in structure to early stage investing in start ups. But this whole industry is not without controversy and it hasn't been accepted as the way to do these things for very long, especially in the legal systems of Australia, UK and Canada. But it is done.
And that was how we tried to fund the case for nearly two years. The reason you need mega-bucks up front is because you need a "security for costs" deposit. If the other side wins, we would have to pay their legal costs so straight out of the gate we'd need a bank guarantee for somewhere up to $10,000,000!
Whlist we did get some interest in the case, everybody we spoke to was nervous about suing two of the richest companies in the world who would clearly outspend anyone.
The No Costs Order
It was only after a change in the Australian law which gave us the option to ask for a "no costs order": an order where we wouldn't have to pay the other side's legal costs if we lost and they would not pay OUR legal costs if we won, that changed the situation completely!
This was the change which gave Andrew the shot at bringing the case all by himself without the need for expensive lawyers or a huge bank balance. The relatively small amount we had raised already, combined with Andrew and my labour has been enough so far.
The costs of court
The reality is that if you are your own lawyer and you know what you're doing, going to court is astonishingly cheap! The actual direct costs of bringing this case are a filling fee and that wasn't all that significant.
If you're not paying fancy law firms and barristers by the hour, this doesn't cost so much. We have (before the change in approach to our current way of running the case) paid for significant legal advice once: that cost us as much as our trip this to Australia!
The heart of THEIR case
At the heart of Meta and Google's attempts to stop us, is the claim that Andrew will not fulfil a "fiduciary duty" toward the "unfunded class members".
Suddenly Meta and Google are so concerned that our class members need the very best representation possible, and Andrew won't be able to do that because "reasons".
There's quite a bit to unpack here. First up Andrew is acting in a few different roles all combined. Andrew is first and foremost the "lead plaintiff" for the case. It is HIS claim that these companies broke Australian law and caused him harm upon which this all hangs.
Lead Plaintiff
His claim is the representative claim for all the others we want to represent. The way the law works is that Andrew pursues his claim and if he succeedes in establishing they did break Australian law (a finding of "liability") then we start the discussion about how that affects other people with varrying and similar claims. Basically that starts the process of arguing about how much damage they did.
Self representing
But that's not his only rôle. In additon, Andrew is acting as a self representing plaintiff. In other words he hasn't hired a big law firm and the big law firm hasn't hired a barrister and as a result, Andrew and I sat at the bar in the court without a league of lawyers behind us!
There is a nuance here: Andrew is not representing me or any other class members. I and the other class memebers can't consider Andrew to be OUR lawyer, he's just pursuing his claim and I certainly feel that this is the correct way to give ME and all the other class members, the best chance we have of getting justice.
Fund raising
Andrew is also the owner of the funding company which is paying for the case to be brought. In this case that is @jpbliberty and that entity paid for our flights and expenses for going to court. But JPB Liberty did NOT pay Andrew for being a lawyer.
Conflicts of interest
Somehow, the lawyers for the other side managed to take all of that, throw it in a mixer and come out with a claim that Andrew might make decisions in the future that our class members would have taken differently.
Let's ask the audience!
For some reason known only to themselves, the other side's lawyers decided to stick a whole load of historical posts from Hive made by Andrew into evidence. They didn't really refer to them much but we did. You see they also included screenshots of all the comments under the posts.
They were making the case that some of our class members might not like what Andrew does in the future: so Andrew decided to show that in the past he's had a lot of support. They were also trying to make a case that unfunded class members think they have some kind of lawyer client relationship with Andrew.
You'll notice that these statements are accompaniged by CB and a page number. CB is the "court book", a 1,300 page monster with all the evidence and pleadings in it. And you can also see that while we have had majority support, we didn't want to mislead the court: of course there have been some negative comments though we had to hunt a bit for one from this particular commenter which didn't drop F bombs!
And yes, Andrew read that out in court: it was the closest we got to any kind of chuckle from the crowd.
They don't want this fight
Because at the end of the day, nobody but Andrew saw a way to bring this case.
Nobody else is going to point out what a pair of monopolists these two companies are and how they ride roughshode over national laws.
There is an undercurrent that Andrew is only doing this for the money and he's looking to rip off people who've only given him a signature. What a load of nonsense.
For both him and me, no matter how much we might gain at some unspecified point in the distant future, this is about curtailing the power of these monsters. It's about taking the Internet back from Web 2.0 and returning we the people to a position of power over ourselves and delivering us out of bondage and servitude to big tech.
They'll do anything to stop our case proceeding because they know it is a strong case. Let's hope the Judge sees this the way we do.
- Unfunded class members are people who we represent but haven't paid anything up front, but agreeded that a portion of damages if these ever
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