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ersatz_cats
10-29-2020 at 06:01 AM
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What the recent Billy Mitchell lawsuit rulings mean, and what they don't mean

Howdy! So it's been a frustrating week so far, covering this Billy Mitchell case. Not because of the court rulings; those have actually been GREAT, for the most part (as I'll explain). What's been frustrating has been the abundance of misinformation, and in some cases (as often happens in matters pertaining to Billy) outright misrepresentation. Even worse, corrections have been hard to come by.

ANTI-SLAPP

First, let's establish a couple things most people active in the dispute thread already know. There were two key motions being ruled on this week: A motion for "undertaking", and the anti-SLAPP motion. Anti-SLAPP laws are there to stop frivolous lawsuits whose sole purpose is to harass people and suppress free speech, and this lawsuit of Billy's surely applies. Billy had every opportunity to present evidence in the TG dispute thread, but was ultimately unable to present a meaningful defense for his scores. (Which, frankly, is because there is no meaningful defense, just "My friends all swear they saw me do it.") Twin Galaxies ruled accordingly, and Billy responded with legal threats followed by lawsuits. This current lawsuit is retaliation against TG for simply announcing, not even that Billy "cheated" per se, but that the tapes used to authenticate his scores could not have originated as claimed, which is a thoroughly justifiable statement (hence why the lawsuit is frivolous and could only be intended to stifle free speech).

Billy did prevail on anti-SLAPP - his only victory of the week - allowing the case to proceed on its way to trial. But Billy only prevailed on anti-SLAPP because A) the rules of evidence favored him entirely, and B) he outright lied through his teeth to bolster his case.

The court was basically forced to take him at his word, to assume he was telling the truth, and to accept his case in the best possible light. The judge, in their ruling, wrote the following on page 10:

"Prima facie" is legal-speak for "at first sight" or "on the face of it". Basically, if it looks at first blush like he might possibly have a case, then it has to be assumed that he does. The ruling states outright, in citing case law from Sweetwater, that the court "does not weigh evidence or resolve conflicting factual claims" (when addressing anti-SLAPP). If that wasn't clear enough, the judge then says (again quoting Sweetwater) "[C]laims with the requisite minimal merit may proceed."

The judge reiterates this basic concept later on, on page 15:

Translation: "Welp, both sides dispute the facts, and we're not allowed to resolve that right now. We can only judge whether Billy's claims add up to possibly having a case. And since we can't acknowledge the proof that Billy is lying, we therefore can't just declare that Billy is, in fact, lying."

Probably the most Billy-favorable bit of rhetoric comes when the judge breaks down the claim of "malice" on the part of Twin Galaxies in their statements (something which Billy has to establish to win his case at trial). Here the judge starts on page 17:

In other words, Jace was not interested in witnesses for the mortgage brokers score, because witnesses wouldn't have been able to sufficiently tell that the performance was valid the way an examination of the permanent tapes could. The judge agrees with TG, which is great! Unfortunately, the judge then refers to the bit about the Nintendo "verification" of the PCB, and wonders why TG didn't pursue that angle further. (It's because there are no real assurances that the tapes were produced from that PCB, but it was concluded they could not have been produced from an authentic unmodified arcade board.) The judge considers this an "avoidance of information, rather than a failure to investigate". (In other words, a deliberate choice rather than an error.) The judge also believes that TG's rules about requiring evidence be posted to the dispute thread does not exempt TG from liability. This relates to something Billy said in his 2018 SFGE panel - "A judge will think differently!" - which I would link, except (as noted earlier in the post-dispute thread) Billy had his friends take that video down, because he hates evidence.

So in fairness, Billy got a bump from that bit of rhetoric. But the judge goes right back to talking about how Billy's claims are addressed and contested by TG, while reiterating that he's not allowed to consider that counter-evidence at this time, and must by law allow the case to proceed anyway:

So Billy's case was "sufficient to overcome the burden of 'minimal merit'." Wow! Talk about an overwhelming endorsement!! "Billy's 'bout to drop some minimal merit on all you haters!!"

Now, I know it's disappointing that this case was not tossed out at anti-SLAPP, and in a just world, it would have been. But it's worth keeping in mind that the rules were simply stacked against TG in that motion. In my home state of Washington, our once healthy anti-SLAPP law was struck down because our state supreme court decided it violated plaintiff's rights to due process, i.e. the right to a trial. (I actually have a personal connection to the case where that law was unfortunately struck down, but that's a story for another time.) And it is a difficult balance to strike, defending the plaintiff's right to a trial while dissuading the use of courts as harassment. I'm not a lawyer, so please correct me if I'm wrong, but to my knowledge the best bet for TG prevailing on anti-SLAPP was either A) Billy simply failing to sufficiently establish the minimal basis for one of the necessary criteria (like failing to show anything indicating TG acted with malice), or B) that the judge saw that the bullsh*t being fed to him was so completely outrageous that he simply could not allow the case to continue (and thus would likely be setting new precedent and case law in the process, and would be risking being overruled on appeal). Now, I have personally seen judges forge their own paths and make their own rulings, and I have also seen those rulings shot down on appeal. But in this case, neither happened. The judge followed the law as written, and Billy has successfully lied his way past this stage of the lawsuit. But it's important to remember that's all he has accomplished so far.

MOTION FOR UNDERTAKING

Circling back around to Billy's many lies, we've been over the specifics in the dispute and post-dispute threads many times, and I won't fully reiterate it all today. TG's attorney posted a good summary, which I examined here:

http://donkeykongforum.com/index.php?topic=2752.msg42352#msg42352

Those screenshots were from a filing in support of TG's motion for undertaking - the one to require Billy to pay a deposit to the court, to be used in the event TG is awarded legal fees later down the line. I'd like to draw attention to one paragraph in particular:

TG's lawyer even acknowledges that A) the court is bound by rules with regard to consideration of evidence for anti-SLAPP, while pointing out that B) those rules do NOT apply to the undertaking motion.

Guess which motion TG prevailed on. You guessed it - the one where the court was allowed to consider all the evidence fairly.

But TG didn't just win on the motion for undertaking: They won BIG.

When this motion was filed, it came with a declaration from TG's lawyer, David Tashroudian, outlining the various legal costs associated with litigating this case: $7,500 to depose Guinness World Records in England, $4,000 to depose Robert Childs, $2,500 to depose Richard Mallion, $1,350 for filing fees, that sort of stuff. That total came to $73,350. But in addition to that, TG specifically cited another figure, which it will cost to disprove specific lies from Billy:

Again, the judge read TG's argument that it will cost this much to disprove these specific lies, and the judge agreed, and granted the amount requested. That $7,875 gets added to the previous $73,350, to bring us to our final total: $81,225. The judge was at liberty to grant any portion of the whole request, or all of it, or none of it. The judge granted the whole thing. He effectively looked at that and said "Yup, it'll cost that much to disprove this guy's bullcrap, so that's what I'm allocating." (Again, this is not awarded to TG at this time. It's being set aside, in case TG is awarded legal fees later down the line.) While I have not litigated or covered a case quite like this myself, I've been told it's rare for a judge to grant the entire amount requested for undertaking.

In Wednesday's ruling, the judge added to the language announced on Monday granting TG's motion for undertaking. Remember the rather tepid endorsement of Billy's position earlier, in a context where the court had to consider his position as favorably as possible? Remember TG's lawyer pointing out that "Mitchell does not enjoy any presumption with respect to this motion"? Here was what the court had to say when considering the two cases together:

Boy, that doesn't sound good for Billy at all, does it? Granted, the judge refers to TG's requirement here as a "low burden", but remember, the judge granted the entire amount requested for undertaking. Low as the burden of proof may have been, TG's case was compelling enough to greatly exceed those requirements.

At any rate, overall, this week has been great for TG. Yes, it's unfortunate the case wasn't tossed outright, but it was an exceptionally high bar to do so, with Billy's and his witnesses' willingness to commit perjury making that hurdle that much more difficult. But TG got literally everything else they asked for. There will likely be appeals, both of the undertaking ruling against Billy and of the anti-SLAPP ruling against TG, but aside from that, if Billy wants to continue this case, he'll have to pony up a fat stack of cash which he may or may not ever see again. (Let's see if Billy can talk his gullible buddies and followers into putting up some of that money for him.)

MISREPORTING

So the news is great! The problem is, that's not how any of this was reported this week. Even people with good intentions propagated the wrong story, and of course Billy was out there setting his own narrative as usual.

Let's start with Billy's Twitter announcement (simultaneously posted to Facebook), where he didn't hesitate to declare this an unqualified victory:

"I beat them."

As you can see, Billy relies on people's ignorance of what the term "prima facie" means. The way he frames it, you might think it means "stone cold", as opposed to the more honest "barely adequate". (For that matter, he also seems to rely on people not realizing that "probability" in this context means "literally any chance greater than zero".) Billy makes no mention of the fact that the rules governing anti-SLAPP motions were entirely favorable to him. (Though honestly, ask yourself, if Billy managed to win a gaming tournament where he got special privileges over every other competitor, would you not expect him to still go around bragging about his "victory"?) Billy also obviously does not mention that his only means of succeeding at the anti-SLAPP stage was to lie through his teeth in his legal declarations. Rather, this "victory" is presented as a testament to his determination and his willingness to "Never Surrender", or whatever.

Oh, and of course Billy makes no no no mention whatsoever of losing badly on the undertaking motion. You would never know that the court just ordered him to pay an $80,000 deposit to continue the lawsuit, based in part on how likely TG is to win and recoup legal fees. Gosh, I'd love to see the contingency announcement image Billy had prepared and ready to go for that one. Womp womp.

At any rate, there are no shortage of sycophants and suckers who are willing to praise Billy on his great "victory". Remember East Side Dave? He took to Twitter to announce that Billy "deservedly won his court case today", declaring that "Justice has been served":

So I guess that means the case is over, right?

We've all come to expect that sort of nonsense from Team Billy. At this point, it wouldn't be worth more than a mere acknowledgment that it had happened. But unfortunately, there was a large amount of misreporting from many angles, which deserves a further look (and some corrections).

This misreporting circled primarily around a court memo, published on Monday, referencing that the court had reached a decision (yet to be announced) on the anti-SLAPP motion, while also confirming that the motion for undertaking was granted in full:

However, this was presented by many people as if the court had granted TG's anti-SLAPP motion, and had ordered Billy to pay TG $80k right now. This is problematic if, for no other reason, then because it gave many people the impression that this whole lawsuit was a done deal, when it very much is not. Granted, the memo itself is poorly worded, and is likely to give one that impression, if one does not recognize the $81,225 amount as the amount requested for undertaking (or, if one is not aware there was a motion for undertaking in the first place).

I don't know exactly the first instance of this erroneous reporting. I know of one Twitter post which gained a bit of traction (and was later deleted when the inaccuracy was pointed out). You can find a lot of remaining tweets, likely inspired by this first reporting, but with much less attention.

But the most prominent misreporting was probably on the speedrun Subreddit.

https://www.reddit.com/r/speedrun/comments/jislr9/ruling_on_billy_mitchell_vs_twin_galaxies/

In a now-locked post, Monday's memo was presented under the title "Ruling on Billy Mitchell vs Twin Galaxies." Many "ELI5" questions were raised in the comments below, and many well-intentioned people with passing familiarity with the case incorrectly answered that this was a ruling on the anti-SLAPP motion, and that Billy now owes TG $80k. Everyone meant well, but the information was all bad. Karl Jobst and myself both posted replies correcting the matter, but the damage had been done.

Wednesday evening, I sat down to write a new quick update for Reddit, an accurate one, which I'd hoped would gain new attention to that day's news while also setting the record straight for everyone about the Monday memo. I posted it to the subreddit that evening, only to discover minutes later that it had been removed by the moderators. I shot them a message, and in the meantime, I edited my reply to the previous post to include the new text, so I could at least link to that text somewhere. Upon doing so, I discovered that reply of mine, on the previous post, had ALSO been "removed". (I do not know if it had previously been mod-removed, or if my attempt to edit a comment under a locked post automatically changed the comment's status to "removed". All of this material still appears to me as normal when I'm logged in.) Thankfully Karl's correction is still under that post, if you scroll a ways down to look for it.

Now, this alone wouldn't be worth complaining about. Okay, sometimes there are technical snafus. Not everyone has to hear about my daily frustrations. But what happened next was especially disappointing. Remember how I said I'd reached out to the subreddit mods? Here was the message I sent:

Howdy! I did a quick update on the Billy Mitchell case today, and it got removed. I don't know if it fell victim to an auto-mod? Unfortunately, the post that was allowed a couple days ago was misleading, and likely led a lot of people to believe the case is over, when it is very much not, and that correction and clarification is worth posting. Plus, there was more news today! I know it's not exactly "speedrun" related, but this lawsuit has major ramifications to gaming adjudication. I've been following it very closely, and have endeavored to only post updates when necessary. At any rate, I hope this can get rectified. Thank you for your time!


After getting some fresh air and returning, I saw the following response:

I don't think we'll be approving it. These Mitchell posts are more annoying than they're worth to moderate, especially for something that isn't even about speedrunning any more.


While I can appreciate the fact that controversial posts can be hard to moderate, and thus it would be fair to limit them in number, the end result of this choice was to allow the misleading posts and comments to stand, and to take down the accurate post providing the corrections both to the previous post from two days ago and to the Billy P.R. being strewn around social media that day. This is especially frustrating given that this is coming from people who, one would think, would be on our side. The speedrun community does not take kindly to cheaters. And like it or not, this case has major legal ramifications with regard to competitive gaming adjudication, making this as important a story to speedrunners as it is to high score gamers.

For those who still want to read my removed Reddit post, I did eventually reformat it for Donkey Kong Forum and post it to the end of a lawsuit thread, just to have somewhere to link to it:

http://donkeykongforum.com/index.php?topic=2752.msg42460#msg42460

The misinformation didn't stop with Reddit or Twitter. Popular legal YouTuber Rekieta Law released a video "lawsplaining" (his word) these rulings, while unfortunately misrepresenting them in the process.


Rekieta starts by exaggerating the relevance/prominence of the court's ruling against anti-SLAPP, which again simply had to accept Billy's case at face value. At 10:50, Rekieta says Billy had to "prove" TG made a statement about Billy. At 11:40, Rekieta says Billy has to "prove" the statement was false. At 12:30 he says Billy had to "prove" he suffered damages. At 13:30, he says Billy has to "prove" the statement was done with malice, while suggesting that Billy accomplished exactly this. But Billy did not do this, nor did Billy have to "prove" any of these things to overcome the anti-SLAPP motion, as Rekieta wrongly suggests to his viewers. In fact, with some of these items, Rekieta explicitly claims Billy HAD to "prove" that element of the case right now at the anti-SLAPP stage, and that Billy successfully did so. (Spoiler: Billy did not.) One could think maybe Rekieta was confusing contexts, as Billy will have to prove these things at trial, but this discussion was strictly in the context of the anti-SLAPP motion, which Rekieta makes clear.

At the end of the video, Rekieta mentions the undertaking motion, almost as an afterthought. With regard to that motion, Rekieta also cites only the fact that Billy lives out of state, and not the fact that TG was found to be likely to prevail (which was required), nor the fact that the judge granted the entire undertaking requested:

(Rekieta also calls Jace Hall "Dan" multiple times, which is interesting, given that the document he's commenting on and which he surely read prior to his video referred to Mr. Hall as "Jace" or "Jason" multiple times.)

Karl Jobst raised many of these very points in a reply, which Rekieta since pinned:

Reportedly, Rekieta has agreed to have Karl on his show in the near future to discuss the matter, so stay tuned for that.

CONCLUSION

In short, this was a good week for Twin Galaxies, a bad week for Billy Mitchell, and a worse week for the truth.

Look, I get it. Deep down, we all want this story to go away. Truthfully, the people researching it and covering it (including myself) want this to go away as much as anyone. I would be having fun playing games right now if I wasn't committed to seeing this through. I want to be writing on this as a piece of historical interest, not as a current event with an uncertain outcome. But this simply has to be addressed and reported on as the current event that it is. This isn't just directed at Reddit mods, or anyone on social media. I've seen the "Can't this story go away" sentiment from many people. I've even literally had people tell me they'd rather TG and Guinness just give Billy his records back than see anyone get sued over it. (I assume these are the type of people who give an unruly child whatever they want in the hope that it somehow teaches them to be well-adjusted and behaved.)

Like it or not, within the context of our shared hobby, this is important. The leaderboards by which all competitive gamers measure themselves become meaningless when someone can simply bully their way into recognition for honors they did not earn. Twin Galaxies is making a significant sacrifice in choosing to fight this on behalf of those of us who don't have the resources to. We do TG (and other leaderboards) absolutely no favors by pretending this is not happening, or getting angry that it's being reported on, or blindly irate that Billy has not yet f**ked off for good. This is a story that deserves and needs ongoing (and accurate) reporting. If we don't provide that reporting, and ensure a platform for it, believe me, others will.

One thing Billy is good at is, he fights the public relations battle well. He puts out a wildly misleading statement, his believers repeat it, and the side of the truth is left to play catch-up. Thus, Billy's story often becomes the narrative. In some respects, that's to be expected when dealing with people like Billy. But a big part of the frustration here comes from the misreporting from well-intentioned parties, and from the obstruction of attempts to set the record straight. I totally understand that not everyone can dedicate the time and energy required to keep up on every detail of this case, and I don't wish to be too hard on people who thought they had the details right and thought they were helping spread good news. We need positivity, and we need people to take such interest in the outcome of this case. But we also need to get the facts right. We need the truth to have a better platform than mistakes do. Due to this week's misreporting, right now, some people out there think the case is over and Billy won, while some others think the case is over and TG won. The truth is that the case is continuing, in a way that may drag out for several months or even years. But at the end of the day (or the week), the facts - both the facts of the case and the facts of these court rulings - bode very well for Twin Galaxies and Jace Hall going forward... that is, if Billy even bothers to pony up that $80k deposit to continue this lawsuit.

Comments
  1. Almighty Dreadlock's Avatar

    I don't get why TG tried to stop this from going to court. The prospective entertainment value is virtually limitless.

    LikesKelly Kerr liked this post
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