u/Phantomsplit

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Judgemental Gildea's behavior is starting to go beyond the pale if you ask me. He demands that Read's attorneys supplement their motion to compel Tully for his deposition, and in the process leaves out important language disclaiming that Read's team knew they were making some presumptions. Yet Judgemental Gildea affirmatively states an attorney is behind whatever "leak" happened. Seemingly ignoring the possibility he has a Becky Hill in the court staff, or that the "leaker" got the medical info from elsewhere. For example, perhaps from an acquaintance of Proctor or somebody who perhaps saw Proctor going to or from whatever it is he is going to or from. Say Proctor did check in to a mental health facility in Florida. Maybe the leak is Proctor's Uber driver or something? Kearney tweeted 5 hrs ago that if it was his tweet then he did not get it from anyone in Read's or the O'Keefe's "camp."

Judgemental Gildea puts Proctor's deposition and related discovery on indefinite suspension unless the attorneys essentially send him a 'voluntary' gag order. A sanction which definitely, definitely, definitely hurts one side more than the other. But without actually finding that any violation occurred or that anyone should be sanctioned. And he warns everyone that the discovery deadline is looming, implying both sides (cough cough Karen Read's team cough) need to send this 'voluntary' gag order to him quickly or else lose the opportunity to continue their deposition of Proctor.

Oh, Judgemental Gildea is not sanctioning Read's attorneys or anything. But he is making Alan Jackson get a last minute plane ticket from Los Angeles to Boston which probably cost an amount similar to a personal sanction, as well as probably wasting a day or more of his time. And then has the gall to wish them all a happy 4th of July weekend. All for a hearing that could have been an email, and essentially was an email once everyone filed their affidavits.

Judgemental Gildea never clearly stated Read's team is behind the supposed leak of impounded information. And, I mean, I am being more cautious than the judge with my language here. Because the judge says info was disclosed from the impounded filings, while I am saying info was perhaps disclosed from the impounded filings. But Gildea is clearly holding it against Read's team without making a finding of such or anything at all really. Although Judgemental Gildea never says one side or the other is behind this, all of his behavior is primarily punishing Read's team and he's made up his mind that Read's team is behind this "leak," without actually determining an attorney was responsible for the "leak" at all.

TL;DR Most of the YouTubers' complaints will almost certainly get past the "motion to dismiss" stage. And that means PayPal will have to start turning over a lot of records about Honey to the plaintiff YouTubers. In my opinion PayPal probably really does not want to turn over their records; especially about "stand down." At the same time PayPal seems to have some big bargaining chips themselves when it comes to determining what the "class" is for this progressing "class action" suit.

I am not a lawyer, this post is only the opinion of a layperson with an interest in the U.S. civil and criminal justice systems.

#Background

I made a post in February sharing PayPal's motion to dismiss the second amended complaint in the Honey scandal. The "Background" section of that post includes a 6 paragraph recap on the situation up to that point, including discussion on MegaLag's original video on Honey, the ensuing lawsuit, the first dismissal of that lawsuit without prejudice, MegaLag's Part 2 and 2.5 videos on Honey, and the second amended lawsuit which incorporated the "stand down" issues with Honey that MegaLag addressed in his part 2.5 video.

That above February post is about the arguments that PayPal was trying to make to get the suit thrown out again and hopefully--from their point of view--for good. I also provided my opinion on how strong I thought some of those arguments were. I'm pretty proud to say I think I was pretty close to the mark.

Since then the plaintiffs filed a "response" attempting to defend their complaints and explain why the lawsuit should go forward. And PayPal filed a "reply" to attempt to answer any points the YouTubers brought up. I didn't think these were important enough to make a post on.

This process of motion->response->reply is a fundamental part of the U.S. criminal and civil justice systems. From there (or at other stages in this process) the judge could have just ruled their decision. But for something like this the judge will typically have "oral arguments," allowing both sides to try and respond to any problems the judge may have. And the oral arguments for the motion to dismiss occurred this morning.

The hearing started with the judge pointing out her sticking points so that both sides actually argue about the important things she is undecided or skeptical of. Just like with motion filing, oral arguments also go in the order of moving party's motion -> response -> reply. So PayPal moving to have the case dismissed presented their arguments first, the YouTubers' attorneys went second, and then PayPal got the final word. The hearing was about 90 minutes long.

As a reminder a "motion to dismiss" is a relatively low bar, where all the plaintiffs must do is show that--if everything in their complaint is assumed to be true and accurate, whether that is actually the case or not--the plaintiff at the least has a tangible injury that could go forward. There is basically no critical analysis of the evidence at this stage of proceedings. But it is also an important stage because typically "discovery" does not start til you get past this stage (and/or a response to the complaint). "Discovery" is where both sides have to turn over documents to one another relevant to the issues being disputed, and sit for sworn depositions. I guarantee PayPal does not want to get into discovery, so if the YouTuber plaintiffs can get past this stage then it probably starts looking tempting for PayPal to offer a big sum of money to make the case go away. Possibly bigger than this case is worth (in my opinion), given how limited I think the class may end up being in this case. More on that later.

#Judge's Initial Impressions

Before I get started here, I want to applaud the judge. I was really impressed. As the judge expressed her concerns at the start of the hearing it was very clear she did her research, looked at a lot of case law, and was very familiar with the filings and their attachments, and pointed out nuanced disputes or gripes with both sides' filings. She was so well prepared, well spoken, and reasonable; that even if I feel the case has merit and should proceed; if the judge ends up ruling that no part should proceed then I would be surprised, but trust the decision and be curious how she reached it.

I trust her. I mostly follow criminal cases, and there have been some cases where trust in the judge was quickly lost. Examples include cases like Karen Read, Richard Allen, and Aaron Spencer's first judge. But this judge today built trust with me.

As mentioned in the "Background" section of this post, the judge let both sides know her lingering concerns. And I would say the judge's overall theme was (paraphrase) "The plaintiffs argument should succeed past this phase, but I have concerns worth discussion."

From the start the judge was basically letting PayPal know they near certainly weren't going to succeed at getting all of the case dismissed. The judge made it pretty clear at the start that she was inclined to allow the claims under California's "Computer Fraud and Abuse Act" (CFAA) and some Contractual Interference claims against PayPal go forward. But the biggest issue the judge had was the YouTuber's Unjust Enrichment claim. That was the one the judge thought from the onset of this hearing may not go forward. And this is complicated.

One thing that stuck out to me is that the judge closed these opening remarks by saying she was not inclined toward another complaint and motion to dismiss, and that she would need to be "convince[d]" to require another complaint. We didn't have video of this hearing, but I think this was directed at counsel for PayPal given the context and subsequent discussion.

By the end of the hearing, my vibe was that the judge was more confident on letting the Fraud and Contractual Interference claims proceed, but still seemed uncertain on the Unjust Enrichment claim. A lot of what they were arguing on Unjust Enrichment went over my head, but that was my personal vibe. As the hearing proceeds, the judge's most commonly used word when addressing PayPal was probably "but," and when addressing the Plaintiffs it was probably "uh-huh." When the judge finished her remarks and invited PayPal's lawyer to start their argument, the lawyer thanked the judge for outlining her concerns, to which the judge kinda joked that PayPal likely is not "winning" this motion to dismiss.

But withall of that said, the YouTubers will still have some difficult battles ahead, even if the judge rules in alignment with what I believe she will rule. I think PayPal will still hold some cards.

#Topic 1: Standing

I'll try to go through the topics I viewed as of most importance, and how both sides argued them and what the judge hinted may be her thoughts.

The main reason the first complaint was dismissed was because of the lack of "standing." Basically the YouTubers did not definitively show in the initial complaint that they were owed any commission, let alone one PayPal allegedly stole. They needed to show contract language. In the second amended complaint they did provide some explicit contract language, focusing mostly on an agreement between Justin Tech Tips and Dell. And from this they also demonstrated how Honey would "steal" the commission when buying a DisplayPort cable. Since this was the main reason the last complaint was dismissed, I think it is the most important one to address first.

PayPal repeatedly pointed out that of the nearly dozen plaintiffs, only one of them had a contract with Dell. So PayPal was throwing some shade at these other plaintiffs that may not have much of a claim if the only contract language the YouTubers are basing their argument on comes from Dell, and that only applies to just one of the plaintiffs.

And the judge agreed with PayPal here. She was not thrilled by the lack of contract specifics in the lawsuit as they may apply to more plaintiffs. But the judge also hinted that based on similar Capital One and RetailMeNot cases, that this one detailed example of Dell contract language and sale where Honey "stole" the commission was likely enough to get over the line of plaintiff standing for the motion to dismiss stage. However the judge expressed concerns that the plaintiffs are going to have big problems when they try to establish an injured class or get past a judgement of acquittal stage, unless they get more relevant details here.

Basically the judge seems to be leaning towards acknowledging standing for now at the Motion to Dismiss stage and its lack of critical review of any claims, but that serious problems could arise for plaintiffs on this point going forward.

#Topic 2: Honey's Behavior Pre-complaint

In my February post, I brought this topic up as a footnote basically. It was something the plaintiffs alluded to once or twice, and PayPal never even acknowledged, so I thought it might be a nothingburger in the court's eyes too. But to me it was important. However much to my surprise, I would say this is the topic the judge brought up the most in these oral arguments.

Basically prior to the first amended complaint, the plaintiffs claim that if somebody closed out of Honey without activating it to search for coupons or cash back (basically the Consumer sees the Honey pop-up and immediately closed out), then Honey would still stuff their cookie. After the lawsuit was filed (or shortly before), Honey changed its behavior so it would no longer do that.

PayPal/Honey's biggest defense in this entire case has been that they are "legitimate" competition to the YouTuber affiliate marketers. The judge kept bringing this issue of cookie stuffing when the consumer simply closes out of the pop-up again and again as she confronted both PayPal and the YouTubers. To PayPal she would ask if cookie stuffing in this instant closing of the pop-up scenario was "legitimate" competition. And to the YouTubers she would ask if Honey is not simply a legitimate competitor in the affiliate marketing industry...when they actually provide a benefit, rather than the Consumer closing out of Honey without activating it yet Honey still cookie stuffs anyways.

I think this is an issue that cuts both ways. Because for PayPal trying to shut this lawsuit down at the motion to dismiss stage, this kind of scummy behavior cripples their arguments. But if the judge keeps with this line of thought that Honey is only liable when they basically commit illegitimately competitive behavior (like cookie stuffing after somebody tried to ignore Honey), then that probably greatly reduces the amount of damages the YouTubers can argue for.

#Topic 3: "Last Click" Definition

The YouTubers keep arguing that "last click" can only means external links that bring you to the Merchant's website. Honey/PayPal keeps arguing "last click" can mean any affiliate program that helps drive the sale, and that includes Honey with its cash back rewards program and potential coupons.

The judge basically discarded both of these arguments and said "last click" means whatever is in the contract. And I think that makes sense, and can definitely be a double edged sword that can but both PayPal and the YouTubers depending on the contract language.

But in the context of the Dell contract language that is the current focus of this case, the judge sees this as predominantly cutting against PayPal. And this is the one point in the entire hearing where I disagree with the judge. I really think the Dell contract language supports PayPal's arguments and not the YouTuber's. The Dell language says it "permits qualifying links to originate from any media channel, including software." From the judge's oral discussion it was pretty clear she looked at this more than me, and is a judge with--you know--legal experience and qualifications. Unlike me. So I defer to her analysis that this in context of other parts of the contract, that this cuts against PayPal more than the YouTubers. But I hope to see this thought process explained in her upcoming order.

#Topic 4: CAFF (Computer Fraud) Claims

It feels kinda bad to put this all the way down at #4, but I am doing so because the judge started off the hearing indicating she was already inclined to side with the YouTubers. However I also think this was the biggest shift in stance by the judge, because by the end of the hearing it sounded like she was absolutely convinced to let this important claim proceed.

I could double this post's length talking about the detailed discussion on this particular topic. So please recognize I am leaving out a lot that I as a layperson recognized, and probably a lot more nuance that I do not recognize. But in quick summary the plaintiffs are alleging Honey is a trojan horse. Honey tells consumers that it scours the Internet for coupons, but what it actually does is delete data (i.e. an affiliate YouTuber's commission cookie) to insert its own data (Honey's own affiliate cookie).

PayPal tried to argue this tort should be thrown out, because for users to use Honey they need to give permissions for the extension to access that data. And they argue that deleting a cookie does not "damage" the consumer.

The judge wasn't a fan of the discussion on lack of permissions. She made a metaphor that if she gives somebody permission to go to a San Francisco Giants game, that does not mean they have permission to go to the locker room and interview the players. But she seemed uncertain on the "damages" issue necessary as part of this claim.

The plaintiffs' attorney who argued this point did an amazing job, and I can't do him justice. But his main point was that the deletion of the consumer's data constituted "destruction" or "damage" of the consumer's property. He cited other cases that allegedly support this stance. And the "injury" caused by this "damage" was to the plaintiff YouTubers.

Assuming the YouTuber's attorney's arguments here were substantially supported by the case law they referred to, the judge seemed to be very compelled by the arguments. And PayPal on rebuttal did basically nothing to shut this argument down.

#Topic 5: Unjust Enrichment

I am saving this topic for so late for multiple reasons. First, the judge started off the hearing by saying she did not seem inclined to let this claim proceed. Second, even the YouTubers' counsel seemed to agree it is not a claim that often succeeds.

And third, a lot of this argument went over my head. By a mile. The judge was still saying "uh-huh" here a lot in response to the YouTubers' attorney's arguments, so maybe I am wrong on what I am about to say. But after the head-spinning conversation on this topic, I still don't see why it is that this claim by PayPal (i.e. that the YouTubers should be suing the Merchants for not fulfilling their contracts with the YouTubers, rather than suing PayPal) is incorrect. The Merchants offered commissions to both PayPal and the YouTubers, but would at times only compensate PayPal. Seems to PayPal like the YouTubers should be suing the Merchants for not fulfilling the contract.

If this claim goes forward, I think it will be because PayPal deletes the YouTuber affiliate cookie when they insert their own making it impossible for the Merchant to pay the YouTuber. Since history of the YouTuber referral is deleted by PayPal. Even if these claims proceed, I think it could really depend on the language in each contract and how "last click" attribution works in that specific contract. But I could still certainly see these claims being dismissed, as the judge discussed at the top of the hearing.

#Topic 6: Stand Down

The Stand Down issue brought up by MegaLag in his part 2.5 video was a small part of this hearing. On the one hand, PayPal pointed out that of all the affiliate marketing agencies the only one that enforced stand down behavior prior to the lawsuit was Rakuten. So if PayPal violating stand down is an issue, it should only be for merchants that used Rakuten, and not all the other affiliate marketing agencies that later more strictly codified stand down policy after this scandal blew up.

On the other hand, the YouTubers point out that the millions of people who uninstalled Honey, and all the affiliate marketing agencies that implemented strict stand down procedures, indicates stand down was a well-established industry policy that almost didn't need to be written til PayPal/Honey so blatantly violated it with a "defeat device."

I don't think this is a big part of the case right now, but I think the discovery concerns for PayPal on this topic could be the most important topic going forward.

#Conclusion

It seems to me 99.9% certain that the case is now going to get past the motion to dismiss stage. Meaning more discovery and documents from PayPal to the YouTubers, unless PayPal decides to settle first.

If the judge indeed denies the motion to dismiss, then I think how scared PayPal is of discovery will be the big issue as mentioned in Topic 6. But at the same time, PayPal has made some convincing arguments so far that the class size and amount of damages they may be liable for are severely constrained, as I discussed in topics 1, 2, 3, and 5.

The judge's order is at a minimum a couple weeks out, as she will need to research these additional arguments, contemplate them, make her decision, and express it in an order. Maybe even a month or two. But I hope this helps update you all on what to expect.

TLDR; Please comment what difficulty mods you like. This could be stuff that increases enemy stats, adds more enemies, or more non-conventional things like d20 initiative or loot randomizers.

When it comes to mods in this subreddit, we allow build discussion and recommendations when using specific mechanics focused mods specified by the poster, but--per rule 1--do not allow posts requesting which mods they should use. And we require posts that rely on mods to be flared with the "in-game mods" or "external mods" flair as appropriate. I have allowed three mod showcases for specific mods that I think this community would be very interested in, only after discussion between myself and the mod author who gained approval before posting. But otherwise that is the standard.

There has been an unofficial rule, however. Around half the time, I let a "what difficulty mods should I use" post stay up. However going forward I would like to phase that out, and instead make a post highlighting some favored difficulty mods, and then include that post in the Hall of Fame post.

So with that in mind, what difficulty mods did you enjoy or recommend?