Nov 8 • 32M

'taint tortious interference, 'taint actual malice, 'taint unregistered agency

Ken and Josh walk through the four 'taints of the week, including how 'taint a good time to be an accountant at the Trump Organization.

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Josh Barro
Ken White
An irreverent podcast about the law from Josh Barro and Ken White.
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Dear listeners,

We have a new episode of Serious Trouble for your listening pleasure this Election Day. Ken and I discussed:

  • An order granting the New York Attorney General’s request for a monitor to oversee Trump Organization financial activity, and some troubles the Trumps face in this civil action that they would not face in a criminal case.

  • An acquittal on all counts for Tom Barrack, a businessman and associate of Donald Trump’s who was accused of acting as an unregistered agent for the United Arab Emirates. Barrack’s spent a week on the stand testifying in his defense — this was an alleged offense where proving criminality would have required establishing why Barrack took various actions that were helpful to the UAE, and Barrack made a sufficiently convincing case that his reasons weren’t the criminal ones.

  • The dismissal of Barstool Sports founder Dave Portnoy’s defamation case against my former employer, Insider, over Insider’s reporting on allegations regarding his sexual behavior. Before even getting to the fact-finding stage, a federal judge found Portnoy had not alleged actual malice — that is, even if everything in Portnoy’s complaint (get it?) was true, it would not have established that Insider knowingly published false statements, or published them with reckless disregard for the truth.

  • Elon Musk’s offhand allegation that people trying to pressure companies to pull their ads off Twitter are engaged in “tortious interference” with Twitter’s business. Ken goes through the relevant precedent — tortious interference is a common-law tort, but it can’t be used to penalize First Amendment-protected activity.

We hope you find this interesting and diverting as you wait for this week’s election results to start coming in.

Josh

Episode links and references

Click here for a transcript of this episode.

Here’s the order from Judge Engoron establishing a monitor for the Trump Organization. Ouch.

When we discussed Trump’s lawsuit against New York State Attorney General Letitia James, we referred to this story from the New York Times. And here is the suit.

Here’s reporting from the Wall Street Journal on the acquittal of Tom Barrack, which is a pretty serious blow to the DOJ, and another story from when Barrack was on the stand.

Here’s a Mediaite story on the judge dismissing Dave Portnoy’s defamation suit against Insider — the opinion is embedded as well.