US Second Circuit Court of Appeals, Shull v. Sorkin et.al Oral Arguments, May 20, 2021
Friday, after arguments in our case against that TV show, a group of legal reporters wrote that the hearing clearly telegraphed our pending failure to win the appeal. IDK, I am not so sure these writers listened to the nuance in the questions from Chief Judge Debra Ann Livingston or Judges Robert Sack and Denny Chin. Between the moment or two of drama, they asked a series of great questions.
Judge Sack begins with “I’m particularly interested, myself, in the motion to amend the complaint and the denial of it….” [45 seconds]. This is the cornerstone of our appeal – that it’s only fair, right and a correct matter of law and legal norms to be able to submit at least one amended complaint. He continues with the fair question of: Would it be futile to hear an amended complaint? [1:50]
Judge Livingston soon adds: Is there any space for you … where an amended complaint would not be futile? [3:06] Avi Turkel, our lawyer, succinctly replies yes and refers to the voluminous evidence illustrating how many people see Wendy as me or what is known in legalese as ordinary observer confusion. Heck, I’ve even been accused on Real Vision of copying them! (My personal fave piece of evidence.)
Defendants’ attorney is shortly asked by Judge Sack: Did the court explain why it was futile or did it just dismiss it in that footnote? [8:26] Her eloquent response, with the repetition of “Denise and Wendy do not resemble each other in the slightest” disguises a simple NO.
Judge Chin appears to recognize her crafty answer when he asks: How do you respond to the reported evidence of confusion… emails saying this is you… how do you deal with that? [11:28] Deftly, she switches to a First Amendment defense– to which Turkel points out that you can’t say you didn’t copy, but if you did, you have a free speech right to do it. [17:35]
Defendants like to say that in my book, I am just a dry, academic empty suit – I am not a dominatrix and you know nothing about my love life. I bet, however, that if we could only get to the discovery stage, we’d find out that the whips and chains were added after the CNBC guy met the showrunners.
I mean, do the math!
We are both from Ohio. Our respective first coaching words in my book and their show are in the same order (eating, sleeping, exercising.) I’ll save you the trouble: it’s a .003 chance of both similarities randomly occurring together. (BTW, now we can stay tuned for the episode that makes a big deal of Wendy growing up in Boston, or Chicago or anywhere but Ohio!)
Finally, Judge Chin asks: Are you claiming that the concept of a female hedge fund performance coach is copyrightable? [18:29] I am so glad he did. Judge Daniels back in the SDNY leaned heavily on this (non)-claim in his dismissal below [p. 23 and 24]. Of course our attorney answered: Specifically NOT your Honor. (Really SDNY? Would I spend this much money to claim that?!)
I could go on. I could point out the misunderstanding of the word alpha in hedgefundland or a number of other analytical errors in the dismissal. I should outline the answer to Judge Sack’s issue re: Freud because, they called ME in for a reason and Modern (Spotnitzian) Psychoanalysis is different than Freudian but instead, I’ll close with CAN I PLEASE JUST GET MY ACTUAL DAY IN COURT? I’ve think I’ve earned it.
(References: ShullvSorkinetal Appeal Reply Brief, J Daniels Dismissal Oct 4. Annotated for Appeal arguments and 80 seconds on how it started.)
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