Spending a day and a half at the Bar without having a drink

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This is a value for value post: see the explanation in the footer.

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I flew pretty much to the opposite side of the world with my friend and partner in crime-fighting, @apshamilton. By Google's measurements it's 15,325 km and that's about 75% of half the circumference of the world. Not far off the opposite side of the world.

Crypto Class Action

The short version is that in 2018 Facebook (now Meta) then Google and then most of the biggest names in online advertising, all banned any advertising from the entire cryptocurrency industry: hardware, software, wallets, ICOs anything. Andrew, drawing on his experience as an in house lawyer for Australia's former public telecoms company Telstra, recognised this as cartel conduct.

After a lot of work, Andrew filed the case against Meta and Google (the Respondents) in Australia's Federal Court in August 2020 representing himself as lead plaintiff in a class action. This is somewhat unusual but not unprecedented though the scale of this case and the resources and power of the Respondents makes it rather special. More details can be found on @jpbliberty.

Fast forward to now

It took two years and multiple appearances before two judges, all conducted via Microsoft Teams usually at 2am from Israel. I was figuratively at Andrew's side for every one (in my own home office) with him a few kms away in Tel Aviv. He appeared, spoke, answered the Judges' questions and then we waited.

Eventually in June 2022 we got the first judgement: Andrew could serve the case on Meta and Google at their head offices in California. This was a big deal: we aren't suing paper subsidiaries in Australia, we're only interested in the parent companies.

Just so you understand, the Australian Government (in the form of the Office of the Australian Information Commissioner) has been fighting through multiple levels of the court system to bring Meta Inc into court in Australia over the Cambridge Analytica scandal for years and still hasn't succeeded.

Interlocutory Motions

Having had the court to ourselves to make our case to the Judge, now we had two top law firms hired by the Respondents in Australia. They immediately filed motions asking for the case to be immediately dismissed: a "permanent stay". Failing that they asked for a "de-classing": this would leave Andrew fighting the case just for himself and of course remove both the potential for huge damages and any reason for someone to invest in the case to help us run it.

The Judge set out for us to exchange rounds of paperwork and eventually hear the case on February 2nd and 3rd 2023. So that's why we flew to Australia. Whilst a two hour hearing in the middle of the night is possible, two full days would be silly.

Their case

The long and the short of their case for this hearing is they believe Andrew won't do a very good job representing our class because he has "conflicts of interest". Meta and Google now care so deeply about the 650 people they've damaged, and who've signed up to allow us to bring a case on their behalf, that they would be better off with NO representation than by being represented by Andrew.

What happened?

First of all I am not a lawyer but other than Andrew, the Judge and the lawyers on the other side, I'm probably the only person to have read just about everything filed or said in this case.

Permission to sit at the Bar

Just so you understand the formality of this: before the hearing Andrew had to formerly request permission for me to sit next to him. In a case such as this Meta and Google both have top law firms. The law firms have appointed Barristers who are independent (a Senior Counsel and a Counsel) for them. It will be the Barristers who speak. At the Federal Court level they don't wear wigs, in the UK I believe they would. At higher courts in Australia (the High Court in Canberra) I think they would.

These Barristers sit at "the Bar" which is really the desk at the front of the court directly facing the Judge. The various lawyers all sit at rows behind them. Andrew, who is a qualified Australian solicitor, would sit at the Bar too, and having received permission, I got to sit next to him.

The Documents

The case so far has generated a prodigious amount of documents. For Andrew and myself, these are all in gigantic PDF files: 7,300 pages of court authority or cases either side has referred to and 1,300 pages of evidence and pleadings.

The Barristers for Google and Meta had these printed out in gigantic files. Amazing. Even the Judge seemed to be working mostly from electronic copies.

The batting order

The hearing started exactly at 10:15 with the court called to order by the Judge's associate. We all stand as she walks in and bow to each other. First up everybody who was going to speak stood up and introduced themselves and their client.

And then it was straight over to Meta's Barrister, Mr Darke. He led us through his clients case against Andrew being able to bring this case. That took a couple of hours. He stayed mostly on script going through the written submissions we'd exchanged already.

In the week before the hearing, Andrew had submitted an emergency motion attacking the very basis of their case (that he as lead Plaintiff owes a "fiduciary duty" to class members). I'll let Andrew discuss this but it led us into a very technical legal discussion within areas which are not settled in Australian jurisprudence.

I can't remember if Mr Darke spoke past or up to lunch, but he was followed by Mr Yezerski representing Google. He spoke for less time, supplementing Meta's case. It's clear that Google's team are allowing Meta's to take a lead (and indeed Mr Darke is a more experienced barrister than Mr Yezerski).

But just remember, this is Andrew (and me sitting largely silent and useless scribbling dozens of pages of hand written notes) vs 12 or 13 top lawyers.

And then Andrew spoke

Andrew got to speak toward the end of the last day. Again I'm giving flavour here, Andrew will fill in on the details but he kicked it off with a bit of dig at Meta. He started off by referring to Page 229 / 1,240 of the "Court Book" where Meta's lead lawyer had sworn an affidavit concerning "Paul Stuart Alexander Hamilton". Unfortunately for the credibility of Meta's lawyers, Andrew's full name is Andrew Paul Stuart Hamilton (now you know where @apshamilton comes from!).

He used that to then quote from not Alexander Hamilton, but another famous lawyer, Andrew Hamilton who was deeply involved in the creation of the US's 1st Amendment. He'll tell you all about that.

Andrew spoke until the close at around 16:15 and then the Judge told him he could have 1hr 45m the next morning.

Day two

Andrew concluded on the second morning, using his full allotment. Unlike Google and Meta he expanded on his written case and also brought up some uncomfortable items for the other side (such as the banning of a contributor to our case, @israellycoolblog from Facebook). No answer about that but we wanted it to be raised and left hanging.

And then quite quickly before lunch both Meta and Google got to reply to Andrew and when Mr Yezerski for Google concluded a few minutes past the normal time for lunch, the Judge (wearing quite an informal looking sun dress) happily declared the case heard and reserved her judgement.

That means in weeks or months we will get a call telling us a time to join another (for us) online hearing where she will hand down her judgement.

What might happen

The reality is we don't know. It could range from disastrous for us to a complete win. A complete loss would be being ordered to pay the costs of both sets of lawyers on the other side, and case shut down. A total win would be a dismissal of their motions and them ordered to pay our costs (we can't claim Andrew's time doing legal work, but we probably can claim travel and expenses which would be a big deal for us).

But there are other options in between and we just won't know until the Judge tells us. And then there can be appeals. That's what this kind of case means.

Long haul

This isn't a quick process, but it needs to be done and Andrew's picked up the bat and I'm happy to be standing at the other end of the crease and running the runs when he swings and hits.

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