There’s an adage, attributed to George Bernard Shaw.
I learned long ago, never to wrestle with a pig. You get dirty, and besides, the pig likes it.
Shaw wasn’t a lawyer. Lawyers don’t always have the option not to wrestle with pigs, as even pigs are entitled to representation. That doesn’t mean the adage doesn’t hold true.
Marc Randazza* was never one of those guys who talked tough on the internet but was a meek, timid, moderated guy in real life. What you saw online was what he was in person, in his practice, in his dealing with Excelsior, Liberty Media, and Jason Gibson, the guy in charge of the gay video production company for which Randazza served as general counsel.
But it was more than that. The two were tight. They hung together, drank together, the way two close friends do. And as sometimes happens with close friends when one pushes the envelope of familiarity too far, they had a falling out.
For these two guys, it began with Gibson using Randazza’s personal office for a “shoot” without his actual knowledge or permission. It was a liberty too far, though for anyone who doubts just how close Gibson thought the two of them were, consider that he felt shooting on Marc’s desk was within the parameters of their friendship. Then there was the straw that broke the camel’s back in the backseat of Marc’s car. If you need the details, you have no imagination.
As is usually the way, the breakup of buddies who worked together ended up in need of financial resolution, and so Randazza refused Gibson’s offer to pay him a few hundred thou to keep his secrets and demanded arbitration.
Guys who are in the wrong don’t usually eschew a few hundred thou. Guys who are in the wrong don’t usually demand the airing of dirty laundry. Guys who do are confident that they have the goods, especially when they are seasoned lawyers who grasp what this entails. Guys who do are confident when they have a seasoned lawyer, one like Ken White, to represent them. Even so, they sometimes lose, because they’re wrestling with a pig.
Joe Mullin at Ars Technica bought into the pig’s story, because an arbitrator said so and, well, everyone knows how pure, naïve and pristine these gay porn producers are. I have a theory, and it’s grounded in how bizarrely over-the-top the arbitrator’s decision was in disparaging Randazza’s actions and motives at every turn, and how the arbitrator rejected, if not utterly ignored, all evidence to the contrary.
It’s not that Excelsior, Liberty Media and Gibson were likeable litigants, but that no one expects a pig to be anything other than a pig. In contrast, Marc Randazza was a lawyer, but a lawyer who used foul language, jokes, snark and all the other means that normally fly between close friends, in his emails. While Excelsior is expected to be offensive, Randazza was expected to behave with the faux dignity that makes those members of the guild with a rod up their ass feel comfortable.
But Randazza puts on no airs, and in the scheme of pig mud-wrestling, that made the mud on Randazza dirtier, more filthy, more wrong. Once he got a hate on Randazza for dirtying up his profession, there wasn’t an argument, a word, a fact, the arbitrator was going to accept. He burned Randazza and hugged the pig.
The details are sordid, and Mullin relishes smearing Randazza with each dripping bit of ooze. If you want to spend the time, read them. But was there anything Randazza did that Gibson wasn’t fully aware of, or didn’t Gibson’s total approval? Not between buds. And if there was, would Randazza give him a settlement agreement that spelled out that Randazza would get $75,000?
There were no fools here. Gibson was no naïve babe in the woods, and certainly Randazza is no idiot. As an expert explained at the hearing, there was an industry practice, an ugly practice, of upping the settlement amount by creating the appearance of a bribe so that the third-party pig (pigs like things that smell like garbage) felt comfortable that they were buying protection for the future rather than just settling past wrong.
Randazza never got a dime, and never would. But this practice was unseemly, though effective. Nor did Randazza ever compromise his buddy’s interests by conflicts, not merely because Gibson knew everything Randazza was up to, but because after claiming the opposite, Excelsior never took any action different than what they did when Randazza and Gibson were still tight.
Ken White, who also knows what sort of person, what sort of lawyer, Marc Randazza is, explained this:
We presented evidence that in these sort of negotiations — content providers suing (or threatening to sue) infringing sites — it was routine for the lawyers representing the sites to offer “bribes” to the threatening lawyer as part of the package — offers to hire them in the future, or retain them, so that the lawyer would not be able to go against that site again.
Mr. Randazza testified that all such negotiations were part of that culture — calculated to drive the settlement offer up and promote his clients’ interest, but not ever anticipated to come to fruition. Our expert testified that such offers/trends are known in some legal subcultures, and that this didn’t surprise her. There was no evidence that Marc ever received any sort of bribe or consideration — which we maintain shows that they were always hot air.
The truth is that I didn’t need Ken to tell me this, because I know Marc Randazza. I know his bluster, and I know his integrity. We’ve talked about things, and as with almost any lawyer, there were choices available which pitted a lawyer’s integrity against money he could make if he had a little larceny in his heart. Marco Randazza had integrity.
There is no question whatsoever in my mind that Marc Randazza would never screw his client because that’s not what he does, how he thinks, where his head goes.
So an arbitrator decided that the wrestling match with a pig was won by the pig? And even friends, people who enjoyed Randazza’s largesse when they were in need, lack the intelligence to read about this with enough skepticism, enough belief, that the lawyer who demonstrated total integrity toward them would somehow be the dirtier of the two as described by an arbitrator.
Ken White knew better. I know better. So Marc Randazza wrestled with a pig and lost. That changes nothing about who and what Randazza is. And if you can be so easily confused by what Ken called a “grotesquely unfair and unjust” decision, a “one-sided screed,” then go hang with the pig. I pick the lawyer with integrity, and a foul mouth. I am proud to stand with Marc Randazza.
*Full disclosure: Marc Randazza has been, is and will be my lawyer on all First Amendment matters.