Ep 208 — You Get A Show Cause Order! And You Get A Show Cause Order!

If every time one of these habeas cases gets filed, someone from DHS gets put under oath and risks being held in contempt, that's going to make it a lot more expensive for ICE to keep violating these orders. Yeah. And I think I think we're getting there with a lot of judges. I mean, I think it's a month too late. Yeah. But but now is a good time, too. Welcome to Law and Chaos, where the Trump administration is lawless and judges are about ready to throw some lawyers in jail. And Andrew Torres is going to teach us about fashion. We've got a lot to cover, so let's get after it. Happy Friday, Chaos Monkeys. I'm Liz Dye, and with me as always is Andrew Torres. Andrew, how are you? Liz, I am great. I'm looking fabulous. Yeah. Oh, yeah. Fabulous. Fashion icon. Thank you. Thank you. Correct answer. So, Liz, bit of a dilemma for you. If you had to choose between eating McDonald's at the White House or partying with Flava Flav in Las Vegas, which would you choose? At a Michelin-starred restaurant? I don't know. I have to think about that one. It's a conundrum for the ages. Yeah, for all our sports fans. That's a hockey question. Okay, we have so many stories today, but TLDR, judges are pissed at the Trump administration. All right, we're going to get into it, though. But first, Tuck It Alerts. OK, so let's start off by raising a glass to Janine Pirro, the unlikely U.S. attorney for the District of Columbia, who has finally realized that she is never, not ever going to indict those dastardly Democratic lawmakers for saying troops should not follow illegal orders, which they should not. I'll drink to that. Although I kind of feel like that's like congratulating someone for acknowledging the laws of gravity. I mean, when zero grand jurors vote to indict, you're not abandoning an actual criminal investigation. It's more like you're deleting a draft of your fantasy novel where you like wake up in a bathtub of gin with the gay hockey dudes. I mean, no kink shaming. It's whatever you're into. But like, keep that stuff on your own time, Janine. That took an odd turn. I mean. All right. In related news, the Defense Department has finally managed to appeal the injunction in Senator Mark Kelly's lawsuit. Remember, Pete Hegseth has been beating his chest in Senator Kelly's direction and threatening to reduce his rank and court-martial him and dock his retirement pay. On February 12th, Judge Richard Leon in D.C. issued a preliminary injunction and accused Hegseth of, quote, trampling on Senator Kelly's First Amendment freedoms and threatening the constitutional liberties of millions of military retirees. Yeah, I can't figure out if Hegseth is trying to make Mark Kelly the nominee for president, the Democratic nominee. That reminds me of the stunt that FCC chair Brendan Carr pulled with James Tallarico on Stephen Colbert's show. That Texas primary is next week, by the way, on Tuesday. If Tallarico squeaks out a win, he's been behind since the race began. I think it's going to be thanks to that jackass car. I mean, you know, I'm not mad either way. I like Tallarico. I like Jasmine Crockett. I do not like Ken Paxton, although I like him less than I like John Cornyn, which is amazing. Anyway. I'm not weighing in on that one. That's the let them fight that gif. Fair enough. Okay. Meanwhile, in New Jersey, the Justice Department is harassing Governor Mikey Sherrill for being mean to the poor defenseless ice goons. Oh, won't someone please think of the thugs? So for context, Pam Bondi has sued a bunch of blue states for failing to honor ice detainers. That is, if a non-citizen is held in a state jail and about to be released, DHS wants to be notified and in fact wants the state to continue to hold that person until DHS can come and pick him up. But saying no to that particular deal, to those detainers, is one of the core definitions of what they call a sanctuary jurisdiction. Right. And to be clear, states have every right to refuse that request. Courts have consistently ruled that local police do not have to cooperate with ICE. I mean, they can't obstruct federal law enforcement, but they don't have to help. See, the Tenth Amendment. That's the anti-commandeering doctrine. And also a generation of Supreme Court jurisprudence that says states may not be enlisted to enforce federal law. But that doesn't stop Bondi from filing the same stupid lawsuit against California, New York and Illinois about this, these detainers. And so when I saw that the Justice Department was suing New Jersey, I figured, you know, third verse, same as the first. But no, they found a new way to dare to be stupid. They have. So Pam Bondi is nothing but resourceful when it comes to wasting public resources. This performative lawsuit challenges an executive order Cheryl signed as one of her first official actions. That order bars federal immigration officers from using non-public areas of state property for the purpose of facilitating federal enforcement of civil immigration law. And except as authorized by a judicial warrant, it bars federal immigration officers using state property as a staging area, processing location or operations base for the purpose of facilitating federal enforcement of civil immigration law. So federal commandeering of state resources. The Constitution says no commandeering. Right. This is actually dumber than the detainer lawsuits. And they all failed. The legal rationale here, to the extent that there is one, is that state and municipal regulations seeking to bar private entities from doing business with ICE have failed. So, for instance, New Jersey statute, which barred the construction of an ICE detention center, was struck down on supremacy clause grounds. That is, the federal government is allowed to do things it needs to do to enforce federal law, and states can't stop it, which is true. I know I've said this twice already, but here's swing number three, right? Yeah, states can't interfere, but they do not have to help. Like, OK, here's just one of the dozens of fallacious allegations that are in this nonsense lawsuit. It says by obstructing and prohibiting arrests in non-public areas of state prisons, correctional facilities and state courthouses. the New Jersey executive order directly regulates the federal government by substantially interfering with a core federal function. I don't understand how seven lawyers put their names on this shit. Right. Their argument is it would be easier for the federal government to do what it wants if the feds could commandeer state resources. And like, I'm sure it would. But that's that's why we have a law about commandeering. And like, P.S., they misspelled Governor Sherrill's name like five times. And they forgot how to capitalize New Jersey. I mean, this is an embarrassing lawsuit. And more to the point, Liz, it's what you call, you know, performative. It's a lawsuit-shaped object. This is not going anywhere. Yeah. So, OK, two related stories. One of them is exceptionally horrifying and one is kind of great if it works. The first is another example of why no state law enforcement anywhere should be cooperating with ICE, particularly when it comes to these detainers. This involves a 58-year-old man in Buffalo named Nurul Amin Shah Alam. Shah Alam is a Rohingya refugee from Burma who speaks no English, is legally blind, and uses a curtain rod as a walking stick. A year ago, he got lost and he wandered onto private property and someone called the police. The cops showed up. They reportedly told him to drop the stick, which he did not understand because he doesn't speak English. So they tackled him and he was charged with assaulting police and spent much of the last year in jail. before taking a misdemeanor plea. But then the Erie County Sheriff's Office released him on February 19th, and CBP was waiting outside the jail to pick him up. But they couldn't deport him back to Burma because Rohingyas are horribly persecuted in Burma. So instead, they dumped him outside of Tim Hortons in Buffalo in February. Jesus. And then five days later, he was found dead nearby. CBP put out a statement saying, Border Patrol agents offered him a courtesy ride, which he chose to accept to a coffee shop determined to be a warm, safe location near his last known address rather than to be released directly from the Border Patrol station. He showed no signs of distress, mobility issues or disabilities requiring special assistance. They are such, Phil. Yeah, they are. So local officials are investigating this as a potential homicide, although they say that Shah Alam died of natural causes, not exposure. I mean, jail is very unhealthy. Being locked up for a year probably didn't help whatever was wrong with this man. Yeah. Okay. Well, aptly, this next story involves a new kind of law, which has been proposed in four states here in Maryland, in New Jersey, in Washington, and California. These statutes, if passed, would bar anyone who worked for ICE or CBP from state employment. Some would bar them from becoming teachers or cops. Some would bar them from any state job that the thinking is that these are people who have signed up to violate civil rights and inflict violence on people and they should be shunned in polite society. No argument there. The sooner we pass laws making clear that there will be consequences, the better. Yeah. Can we add lawyers to that list? You mean like not let them practice law? Yeah. Yeah. Wow. That's an interesting question. I'm not mad about that one either. Okay, finally, Kansas has passed a law invalidating driver's licenses for trans people and saying it will be illegal for them to drive until they come in and get new ones with their sex assigned at birth written on there. We are obviously monitoring this situation, and we know a lot of our listeners are too. This will clearly be challenged in court on equal protection and gender discrimination grounds. And I think we're going to wait until those lawsuits are filed to cover it in depth. But for our trans listeners, we see you, we're with you, and you deserve so much better than this shit. Hear, hear. And we're back. OK, so in our written post yesterday, we talked about a federal judge in Minnesota holding a DOJ lawyer in contempt over failure to obey court orders with regard to immigrant detainees. Specifically, Judge Laura Provenzino told Special Assistant U.S. Attorney Matthew Izajara that she was going to fine him $500 a day until Rigoberto Soto Jimenez got his ID back. Soto Jimenez was released on February 12th in El Paso with no identifying documents, despite an order from the court that ICE was to return him to his own in Minneapolis with his driver's license and all of his belongings. And the reason that Judge Provencino was so specific about that order was that ICE keeps not doing those things. Like, it's bad enough that immigrants are being detained on this crackpot theory of mandatory detention that courts have rejected hundreds of times. But on top of that routine and repeated violation of the law, when courts grant those habeas petitions, ICE routinely dumps people a thousand miles away from their homes without their identity documents and often without appropriate clothing for the weather. And to sometimes lethal effect, as we just discussed in the first segment regarding the rule, I mean, shalom. So judges now know that they have to put that into their orders, even though they shouldn't have to specify it. But but mostly ICE doesn't care. And that is putting the Department of Justice lawyers in this difficult position because it is a lot harder for judges to sanction DHS sort of in the abstract than it is to sanction the lawyers who are standing right there in front of them in their courtrooms. So DOJ lawyers risk getting held in contempt of court because, as we said, ICE doesn't care. And maybe more to the point, ICE knows that it's not their asses that are on the line. And then just today, there were three more court orders from furious judges telling the DOJ in no uncertain terms that if this routine defiance doesn't stop, courts are going to start holding line attorneys and their supervisors, more to the point, in contempt. Two of those orders were in Minnesota, but one was in New Jersey. So let's start there. That's a case involving a habeas petition for a Salvadoran national named Diana Cartagena Hueso, who was paroled into the U.S. in 2016. So what that means is the government said, well, we could deport you, perhaps not to your native country, but we're not going to do that. So stay out of trouble and don't forget to check in regularly, which she and her husband did for 10 years until February when they got locked up under this invented rationale that everyone without a green card has to be mandatorily detained. Yeah, we have been over that legal sleight of hand, the way that Homeland Security is pretending that an asylum statute that allows for temporary detention for one to seven days without a bond hearing for immigrants who show up at the border seeking asylum, seeking a credible fear hearing, that that's being twisted to justify mandatory detention for detainees who have been here for years, who are found anywhere in the country. We're not going to go over that analysis. You can re-listen to episode 204. The point is that every court outside of the Fifth Circuit have said not just that this isn't the law, but that this isn't close. This is deliberately misusing legal language. And that is hundreds of judges in hundreds of cases. And yet ICE keeps doing it, which is one of the reasons why federal courts are being stretched past their breaking point. They're just deluged with these habeas cases, and they know that if they are not absolutely vigilant, ICE is going to kidnap those detainees and put them under the jurisdiction of the Fifth Circuit. Which is exactly what happened to Cartagena Hueso. After being picked up in New Jersey, she was moved back and forth between Oklahoma and Texas for no apparent reason. So that case was assigned to Judge Zahid Quraishi, and he granted her habeas petition on the exact same legal grounds as all the other habeas petitions. But he also made it clear that he is done with this shit. He said, while the procedures for the government's immigrant arrests and detentions may have had the initial appearance of negligence, they have since slid downward into manifest recklessness. The well credibility once attached to that distinguished office that is the office of the U attorney in New Jersey is now a presumption that has been undeniably eroded The government continued actions after being called to task can now only be deemed intentional The undersigned will not stand idly by and allow this intentional misconduct to go on. It ends today. The U.S. Attorney's Office and the Department of Homeland Security are cautioned that further arrests and detentions under Section 1225B that come before the undersigns will likely trigger the issuance up in order to show cause and the scheduling of an in-person hearing requiring individuals with personal knowledge from the office, that is the U.S. attorney, and the Department of Homeland Security to testify under oath as to the specific facts and legal positions associated with the detention at issue. That is a very specific threat to haul in whoever is running the U.S. attorney's office in New Jersey and DHS officials and make them testify under oath, under penalty of perjury, in every single habeas case that comes before Judge Karachi on that wrong and deliberately wrong interpretation of Section 1225B. Judge Karachi is not going to take it out on the line attorneys. He's going to lean on the people in charge. He's going to bring in DHS, too. Think about the implications of this for just a minute. If every time one of these habeas cases gets filed, someone from DHS gets put under oath and risks being held in contempt, that's going to make it a lot more expensive for ICE to keep violating these orders. Yeah. And I think I think we're getting there with a lot of judges. I mean, I think it's a month too late. Yeah. But but now is a good time, too. We've talked a bit about Chief Judge Patrick Shelton, Minnesota, putting out that list of 96 violations of court orders in January alone. He pulled his brother in on the bench and they all kind of pulled their resources. Minnesota has been a particular shit show between the immigration crackdown and then the decimation of the U.S. Attorney's Office after the entire leadership quit in disgust because, among other things, the investigations into the victims in the shootings of Alex Peretti and Renee Good. And those offices, to be clear, weren't very big anyway. So they've got hundreds of habeas cases, very few experienced lawyers, and ICE routinely ignoring court orders. And on top of that, they've parachuted in all these inexperienced lawyers like JAGs and immigration court attorneys who don't know how to practice in federal court and can barely find the men's room or ladies room. Remember that woman, Julie Lee? She was the immigration lawyer who like lost her shit in court and asked the judge to hold her in contempt so she could get arrested. Yeah. So apparently Daniel Rosen, who is the U.S. attorney for Minnesota, he was big mad about Judge Schultz's letter. And in a stirring, I don't take legal advice from a podcast, but in a stirring example of what not to do when a judge is already angry with the way your office is behaving, he wrote to the judge and said he'd looked at a, quote, statistically strong sample from Judge Schultz's list of 96 violations. violations, by which he meant the first 12 on the list. Rosen said that he remathed it, and there weren't so many errors. Lots of them were just missed deadlines. So what's the big deal, right? Here is actually what he said to a sitting federal district judge. In writing. Yeah. Judge, please pardon me for being so direct, but your order of January 28th did not merely contain some errors as you anticipated it may. Assuming the statistical sample we chose is, as representative as the whole as I believe it likely is, the information compiled by others for your order was far beyond the pale of accuracy for an order that would be wielded so publicly and so sharply. The lawyers in my civil division didn't deserve it. So Schiltz went back and recalculated the whole list, and he said while there were some errors, they cut both ways. And by the time he finished counting, the total number of violations was 97, not 96. He said the judges of this district have been extraordinarily patient with the government attorneys, recognizing that they have been put in an impossible position by Rosen and his superiors in the Department of Justice, leading many of those attorneys to resign. What those attorneys didn't deserve was the administration sending 3000 ICE agents to Minnesota to detain people without making any provision for handling the hundreds of lawsuits that were sure to follow. And then Judge Schultz attached a second appendix of another 113 violations. He said, if anything's beyond the pale, it's ICE's continued violation of court orders. Quote, the court is not aware of another occasion in the history of the United States in which a federal court has had to threaten contempt again and again and again to force the United States government to comply with court orders. This court will continue to do whatever is required to protect the rule of law, including, if necessary, moving to the use of criminal contempt one way or another. ICE will comply with this court's orders. Wow. Yeah. And let's be clear, adding in the language about criminal contempt, we have already discussed this on the show previously, but that is saying opening up prosecution of those individuals who have come before the court and willfully lied. The federal rules provide that if a referral is made to the Department of Justice and and obviously the DOJ is not going to prosecute its own lawyers, that the court can appoint an independent prosecutor and move forward. So that's a real threat. And if you are Daniel Rosen, you've got to look at that and take that pretty seriously. Yeah. And civil contempt, no picnic either. Right. I mean, that's right. Like the order against Disahara was $500 a day. That's coming out of his pocket. He's a JAG lawyer, right? Like, I know I certainly would want to have to pay $500 a day to the court. Yeah, it's funny since you bring him up. I was not going to talk about him, but I do want to say one thing, which was that Judge Provenzino was really hard on him. And maybe we didn't kind of understand. We were like, well, that's he doesn't know what he's doing. Poor guy. But actually, Lawfare got the transcript of that hearing, the show cause hearing as to why he should be held in contempt. He behaved so disgracefully. Yeah. So disgracefully and, you know, blowing off orders and saying, well, I saw that you said that I needed to have a status report, but I figured we'd be there within 48 hours. So you probably just want to hear from me in person is like, what the hell, man? Are you out of your mind? And I agree with you that you infer willfulness there because every lawyer, I don't care what your political affiliation or background or view on life is. You have been raised since day one of law school. You do not talk to a judge that way. You know, not in, you know, Sheriff Buford T. Justice's backwoods court like that. No, not an administrative court. Definitely not to an Article 3 federal judge. Yeah. OK, so as long as we're talking about Minnesota, let's look at the third order on our list, which was issued today by Judge Jeffrey Bryan. He has scheduled a contempt hearing for next Tuesday, March 3rd. The issue here is that ICE is routinely stealing from detainees even when it releases them. Tell me you're surprised. His order says the property at issue includes personal belongings such as cash, cell phones, jewelry, driver's licenses, work permits, passports, clothing and other identification and immigration documents. So Judge Bryan gave Homeland Security until yesterday to file documentation in some number of cases proving that they had returned valuable possessions to detainees. We can't see that document since it's an immigration case and it's sealed. But we know that in at least 28 of those cases, DHS failed to comply. So now the aforementioned Daniel Rosen and David Fuller, the head of the civil division at the U.S. attorney's office in Minnesota, and someone from ICE are required to show up and explain to Judge Brian under oath why they should not be held in civil and or criminal contempt. For not giving back their stuff. Although I should note that all they have to do to avoid being held in contempt is give these detainees back their stuff and stop stealing from them. So this is yet another judge saying, I am going to hold you lawyers in contempt. But I think it's really interesting that all of these judges understand that the line attorneys aren't really the ones at fault, that this is going to fall on Daniel Rosen and maybe the supervisors in those offices. And what we wrote about in our piece was DHS putting DOJ in the firing line, right? DHS, ICE, and CBP are constantly violating these orders. And yes, some of it's getting screwed up because you have lawyers who don't know what the hell they're doing. But most of the screw-ups are ICE just refusing to comply with very increasingly specific orders that have, They all say, give these people back all of their stuff, bring them back here, make sure that they're dressed warmly. Don't push them out in the middle of the night in Minnesota in February. Don't impose additional conditions because ICE keeps trying to extort agreement to comply with more frequent check-ins or whatever. These orders are all saying the same. They all impose this list of conditions because ICE is not not complying. And that's putting the lawyers in these habeas cases in a terrible spot. And you can see all of these judges across multiple jurisdictions moving to say, we're not going to put up with this shit anymore. You're not going to break our court and we are going to hold the lawyers responsible, but we're going to try not to make this fall onto the line attorneys. We're going to try and make this fall onto the supervisors. And of course, there is no U.S. attorney in the state of New Jersey. Right. There's that triumvirate of dubious value. Right. But all of those political appointees are going to be the ones in the line of fire. And I think that's really responsible. I wish that they had done it a month ago. Yeah, I agree with all of that. I think the post that you wrote for our blog was really, really good. I would layer one thing on top of that, and that is from the very beginning, we have seen one of the reasons that I think that the judges are not coming down on the line attorneys is they don't really want to come down on any of the attorneys. This harkens back to the first JGG order that came out from Judge Boasberg in which he said, I'm going to initiate contempt proceedings. That being said, I don't need to do that if you just bring these folks home. And this administration refused to do that. And you see that in all of these orders. All of them end with similar language that say, if you just follow the law, then you don't have to show up. And I really like that. Right. Like it is. Yeah. It is putting this administration to the test of saying, hey, you know, you can you can stop breaking the law and stop this actual human cost on the most vulnerable out there. Or we're going to hold you in contempt. Yep. OK. We're going to take a quick ad break unless you're a subscriber at long cast pod dot com or patreon dot com slash law and chaos pod. And when we get back, Andrew Torres is going to talk to you about Ugg boots and the brand Quinn. Yeah. and we're back okay liz as you have been teasing since the intro i have a big trump free story uh it this is a fascinating lawsuit it is captioned last brand inc versus Decker's Outdoor Corporation. It is really, as you said before the break, Quince versus Uggs. Yeah, put it in my veins. Also, hi, Quince. You should sponsor us. You should? I have Quince t-shirts. Okay, Quince markets itself as making luxury clothing sustainably and affordably priced. And here's the part that I've never seen in a lawsuit before. What Quince is arguing is that the brand that owns Uggs, Decker's Outdoor Corporation, is using its monopoly power to overwhelm all of its competitors, including Quince, with frivolous lawsuits. There's just so much here. So let's start with the underlying lawsuits. Liz, you know what a dupe is? Yes, I know what a dupe is. Have you heard, fellow children? Look, I think we all know it's an imitation of a designer product that's exactly the same. So right now, Lululemon has sued Costco, alleging that Costco is copying, particularly its leggings, and selling imitations. Oh, I love Costco. I could really go for $1.50 hot dog right about now. Okay. But more to the point, the harm to Lululemon is that Costco knockoffs are obviously cheaper. Lululemon's ABC pants cost $130, and the Costco dupe is $20 or something. And it's that fine when all the people who like the pants enough to pay $130 for them and their association with the premium brand will buy them at Lulu? I'm an athletic girl myself, but whatever. The point is, if you convince the Lulu ladies that the Costco pants are exactly the same, that they just have a different ticket in them, then some of the people willing to pay $130 will just buy them for $20 when they're out getting their Kirkland Signature Malbec or whatever. Yeah. So this is another area where there isn't a perfect fit between the law and the practice. So these are trademark cases. And trademark cases are fundamentally consumer protection cases. The perceived harm was that you as the consumer might accidentally buy a knockoff thinking that you were buying the real thing. You know, Rolex with two L's, right? The implicit assumption is that a consumer would not buy the knockoff on purpose, right? And part of the harm to the original manufacturer, in addition to losing that sale, is the perceived lower quality of the knockoff diminishing the public appreciation for their brand. But if you were on TikTok, you would know that that's not the problem with dupes. I am not on TikTok. No. I mean, neither am I. But the point is that hashtag dupe videos have literally billions of views because today neither of those assumptions about brand association are true, right? Gen Zers love dupes and they're proud of spotting bargains that are just as good as the real thing. It's not a point of shame. It's a point of pride. And like if you figure out that Trader Joe's is selling Tatcha face cream under its private label, you're going to tell everyone on the internet about your amazing discovery. So Costco isn trying to fool people into thinking they buying actual Lululemon pants The pants say Kirkland Signature on the label And they not really making an argument that like this is the same quality as Lululemon because like it athleisure wear right You wear them to yoga you wear them around the house whatever They not it not a life or death product It not a performance product One of these costs four times more than the other and it fine You know, we might call what Costco is doing a good faith dupe, right? Like that they are knocking off Lululemon, no question. But I don't think they're trying to trick anyone. And that's going to make it difficult for Lululemon to win, I think, because the operative U.S. law is Section 43A of the Lanham Act, that is 15 U.S.C. Section 1125. And it says that there is liability for any person who causes confusion or mistake or misleads consumers about a product. And right, the paradigmatic case, we've talked about this before. One of my favorite examples is from the Eddie Murphy movie, Coming to America. But, you know, you had McDowell's hamburgers. They've got the golden arcs and they sell the big Mick, right? That is direct trademark infringement. You've named your product something confusingly similar to another product to try and mislead consumers. Right. And it's not like Costco's labeling these pants Lululeme or whatever. They're Kirkland Signature Pants. But in addition to the trademark name of your product, the Lanham Act also protects what's called trade dress, which is everything else about the look of your product, the shape, the packaging, the colors, everything that makes it jump off the shelf and identifies it to consumers like the red sole on those, you know, Louboutin shoes. And the important thing is that you don't have to fake the name to steal the look. Andrew, if I ask you what tennis shoe has three diagonal stripes, you'd say, my Adidas. So back in the 90s, Payless shoes made a bunch of cheap knockoff tennis shoes that all had diagonal equidistant stripes. And they didn't infringe on the Adidas name, but a federal court ruled that the overall look infringed on Adidas's trade dress. And then a jury awarded Adidas $300 million in damages. And now you don't see Payless in the mall anymore, do you? I don't think those are related. I mean, that's hung on for a lot longer. Yeah, but it does make you take notice, right? And I should say, Adidas is a pretty easy case. I mean, they used to run ads calling themselves the brand with the three stripes. Like, you know, but I do take your point, which is that trade dress serves the same purpose as a trademark name. It's broader, but again, same purpose to identify your product and differentiate it from your competitors. And that leads to a counterintuitive legal result, which is that if something about your product is very, very distinctive, but it is also functional, that's the legal term, then it isn't protectable as trade dress, which, to be fair, seems kind of weird. Yeah, I think the best way to understand this is by looking at how Samsung straight up copied the design of the iPhone. There's no debate there. When the Galaxy S came out in 2010, CNET described it as the front of the Galaxy S is a spitting image of the iPhone. It has similarly rounded corners, a stainless steel trim, and a central home key below the touchscreen. And yet, when Apple sued Samsung, it lost on its trade dress claims because the federal court ruled that the distinctive look of the iPhone was not a protectable trade dress. Yeah. And that's because of this doctrine of functionality. I mean, Samsung did round off the corners of its phone. But while rounding off the corners does indeed make your phone look more like an iPhone, it also makes the phone work better for consumer. It doesn't get caught on your pocket as easily going in and out. If you drop your phone on the corner and it's less likely to break than if it's more squared off and, you know, little advantages like that. So that's the lens through which these trade dress cases get evaluated. Something that is completely distinctive but does nothing for the inherent function of the product, right, like the three Adidas stripes, that's protectable trade dress. That is just to identify your product. If you pull off the Adidas stripes or, you know, paint over them, the shoes are still the shoes, right? But if any part of the distinctive look of your product actually makes it work better, like round corners on the phone, that's not protectable. Right. So that's what makes these cases complicated and fact-intensive, right? Are the look and feel of Lululemon pants functional? I mean, I guess we're going to find out in discovery. But this is a song about Ugg boots. Remember Ugg boots? So Liz, did you know Uggs are indeed named for being ugly? I did not know that. I'm going to link to an article in the show notes from an outfit called Everything Australia. Now, with a caveat that they do sell their own boots, so, you know, consume at their own risk. But, like, their recollection of the history of the Ugg boot seems to check out. So there's a fun backstory about sheep shearers and World War II pilots in Australia. It's great. But the commercial story comes from this surfer dude, a guy named Shane Stedman, who trademarked Ugg boots UGH back in the 1970s. 1970s. Apparently, surfers liked wearing UGG boots because they're water resistant and they're warm and water's cold. Right. So one of those surfers moved from Australia to the US and he bought Stedman's trademarks and started selling the UGG holding companies, UGG boots. And then in the 90s, the guy sold UGG holdings to a giant conglomerate called Decker's Outdoor Corporation for $14.6 million, which seems crazy low to me, although I guess people weren't buying them then. You want to spend the rest of your life surfing. Fifteen million bucks will do that, right? I guess. But then Decker's began suing the crap out of everyone else. It seems to be a big part of their business model. In Australia, Decker sued and lost on the trademark UGG itself, UGG. An Australian court ruled that the name was generic. Quote, evidence overwhelmingly supports the position that the terms UGG, UGG, UGH, and UGG boots are interchangeably used to describe a specific style of sheepskin boot and are the first and most natural way in which to describe these goods. So today, in Australia at least, you can call your product UGG boots and sell them without getting sued. But you can't do that in America due to our lack of sheep shearing surfer traditions. so I looked so much for an appropriate Simpsons clip here from the Australia episode but I see you've played knifey spoonie before anyway dupes of Uggs here in the United States cannot and do not call themselves Uggs so Quince for example calls their boots the classic ultra mini boot it's like an Ugg it's it's a suede boot that has fur in it it's it's not her it's shearling Aren't those things the same? Oh, my God. Then you know your law, sir, because you're not going to make it in the world of fashion. Oh, crap. Okay. So the point is that nobody in the U.S. is infringing the UGG trademark name. They're just selling boots that look like Uggs and calling them, I don't know, sad sheep booties or whatever. These are not my favorite style, TBQH. Anyway, instead of suing over the name, Decker started suing for infringing its trade dress. So they filed hundreds of these lawsuits. And the argument is that the trade dress of Ugg boots is suede exteriors, shearling lining, rounded toes, and thick soles. And they claim that the quince boot and lots of other dupes infringe on that trade dress. So quince responded with the Samsung argument about functionality. They said that suede is a regular material that you make boots out of all the time. Sheepskin linings are comfortable and water resistant. Thick soles are kind of important for boots. So, you know, TLDR, we didn't rip off your trademark. We just made the best sheepskin boot we could. And after two years of discovery, Quince won. Suede boot with sheepskin lining is not a protectable trade dress. Yeah, so far, perfectly normal. But what's really interesting is what happened next, which is Deckers kept right on filing lawsuits against other bootmakers. They claimed the exact same trade dress infringement that they just lost on in the exact same language, right? And that's when Quince decided to file a lawsuit of their own as the plaintiff. And it's clever. I will give them that. So it's a one-count complaint under the Sherman Antitrust Act, which is 15 U.S.C. Section 2, which makes it a felony to attempt to monopolize any part of interstate commerce. The legal term here is the relevant market. And here, Quince argues that the relevant market is the sheepskin casual footwear market, The market for sheepskin boots, slippers, slides, and sandals. And the argument is that Deckers is trying to monopolize that market by driving out all competitors. Yeah. These attempted monopolization cases, they're kind of niche, but they're not that uncommon, right? So typically, the way it plays out is like this. Suppose, stretch your imagination here, that a market has one dominant player in it, like, Google for digital advertising or OpenAI for LLMs. And the big boy, let's say, has 80% of the market share and all of the competitors, the little tiny competitors, add up to the remaining 20%. So the big boy isn't quite a monopoly, right? You don't have to use chat GPT, but yet, right? And so you can see how the largest player in a field might be able to use unfair tactics to try and drive all of the little competitors out of business, or to leverage their 80% and turn that into 100%. That's attempted monopolization. So the key question here is whether the market leader's tactics, that is Decker's tactics, are unfair or not. And usually the way that you'd prove that is by looking at their business decisions. So suppose the market leader requires its suppliers to sign exclusivity agreements. That might be a legitimate business tactic if the purpose is to protect the supply chain, but it might be an unfair attempt to shut out the competition. And a court has to assess the facts and figure out which it is by looking at those tactics in context. Yeah. What makes this case different from all the other cases is that Quince isn't calling out Deckers' business tactics, right? Like their supply chain deal. Instead, what they've challenged is their litigation tactics. So they allege in the complaint. Deckers operates a litigation assembly line. It churns out template complaints asserting exclusive rights over basic and unprotectable product features, suede exteriors, shearling linings, rounded toes and thick soles. It reuses identical feature lists in lawsuits against dozens of competitors, changing only the defendant's name and product. Quince's theory of the case is that Deckers knows its arguments are garbage, but files these lawsuits anyway, and that it's part of its using its market power to try and drive the competition out of the marketplace. And for context, Quince looks at the way Deckers files these lawsuits. Quince says that Deckers files them in the fall, timing its lawsuits for maximum disruption, because that's when competitors have already invested in inventory and marketing, right? Nobody's buying Uggs in July. And then when defendants argue that the trade dress claims are generic. Decker says that courts can't decide those issues until the end of discovery. So they have to go through this really expensive litigation and then they just quit. Quince says that Decker uses that to leverage settlements and then takes that to the next competitor down the line. And they say that Decker repeats this process with dozens of defendants every year. Yeah. I don't know. Okay. Some of that is just the nature of litigation tactics when you have a huge company. But I will say there are some specific allegations in this lawsuit that definitely raise eyebrows, right? Like paragraph 17. So Ugg used to make these boots called the Bailey button boots, right? They've got these big white buttons on the side. And Deckers sued and got a ton of permanent injunctions from other boot makers that had big buttons on the side. a lot of those were via consent decree. And so the net effect of that was that they basically got people to stop making similar boots to the Bailey Button boot. Oh, which that's all fine. But here's the allegation. Deckers holds approximately 70 permanent injunctions tied to Bailey Button trade dress. The underlying design patents expired in 2023 and 2024. Deckers no longer sells the Bailey Button boot on its website, yet Decker's filed new Bailey Button trade dress claims as recently as May 2025. Here's how they summarize it. The product is gone. The patents have lapsed, but the market restraints remain in force. So, so look, do I think Decker's is throwing their weight around? Absolutely. But if I were representing them, certainly one of the first things I would say is, look, these dupe lawsuits are uncharted territory. We know we're filing a lot of lawsuits, but that's because nobody really knows how to weigh the legitimate interest that we do have. Like we brought this thing here. We bought the company that brought this thing here. It created a market. We invested money in advertising. We built a brand. And, you know, now these guys want to come by and get rich off of what we did. And at minimum, we should be allowed to vigorously argue for our interests in court as the world is changing. Which is not to say I'm not rooting for Quince. Like, go Quince. And if we come back and revisit, there's a there's a super fascinating doctrine called the Noah Pennington doctrine that I'd love to do a deep dive on. But you've indulged me a lot in this segment already. Well, you know, indulge me by talking me through this because I think that Quince, I mean, Quince doesn't really have anything. What does Quince have any skin in this game? I think that the skin that Quince has in this game is that Quince is like Payless was back in the day, although much better quality. Quince's business is selling designs which have been popularized by other companies, copying them or knocking them off, dupes, however you want to say it. Right. Like Quince doesn't give a shit about the Bailey Button boot or whatever the hell. I don't remember what it was called. I do remember what it looked like. It was, again, not my favorite design. But the point is that Quince's business model is threatened by this very type of lawsuit. And so Quince, I mean, for a while, I was like, why would they bother? And the reason that they're bothering is that just as, you know, it appears that Decker's business model rests on filing these lawsuits and policing its perimeter so aggressively, Quince's business model rests on there being no perimeters around any of these fashion, you know, marks that are trade dress litigation. So I think this is really important. I mean, it's more important to Quince to win this than it is to Deckers, because I kind of think that the Ugg boots like it's not that like they'll continue to sell them and whatever. But I think that they're not going to be able to hold that perimeter for much longer. Yeah I think that right I think this is a way of saying we will fight and we will punch back I think there are a lot of legal problems with this lawsuit as it is presently pled But you know this I think really gets at that fundamental issue that we talked about across a lot of shows with respect to intellectual property, right? Which is, how do these laws match up with the two contradictory ideas, right? The first is the idea that if you create something, if it is your intellectual property, it's your intellectual property. You own it. You should profit off of it. And the second is the idea that like when somebody has an idea, right? Part of capitalism is let's take that idea and do it cheaper, faster, better, more consumer friendly, right? And I think that these are really, really interesting cases as copying has moved from something illicit and deceptive to something where, you know, the kids on the tickety-tocks are like tickety-tock. Hashtag dupe. I found the good one. Stop. Stop. Okay. All right. I have to stop now. If you are a subscriber, we have a Liz subscriber bonus on big data, artificial intelligence, and Pete Heggseth because it's a Liz story. You will not want to miss it, though. It's fascinating. For everybody else, we will be back after this ad break with a really fantastic district court order on third-party removal orders in deportation cases. And we're back. All right, Liz, for our last story, we have a really, I think, heartwarming decision from a trial court judge in Massachusetts. What Judge Brian Murphy is trying to do is rein in how the Trump administration has abused third country deportation. You know what this administration has done. They have sent people to gulags and torture camps in El Salvador and elsewhere. And they have wink, wink, nod, nod, encouraged what's called chain reformat, which is an international war crime. Yeah. Just just to be clear, chain reformat is sending you back to a country where you cannot be sent to. And chain reform is that like the U.S. sends you to, say, Cameroon and Cameroon tries to send you back to that country where your native country where you can't go without being tortured. Right. So two weeks ago, the Trump administration deported nine men and women to Cameroon, but none of those people were from Cameroon and none had asked to be sent there. Eight of them had what are known as final orders of withholding issued by an immigration court saying they could not be deported to their country of origin. For example, one fled from Zimbabwe after he was arrested when he refused to be press ganged into the military, and he said he'd be killed if he went back. A woman fled Ghana because she's gay, and she was repeatedly threatened to be murdered if she came home. And another woman said if she sent back to Ghana, it would be signing her death warrant. And these people made credible claims because that is why the immigration court said, okay, we're going to withhold this order of removal were not going to send you back to your country of origin. So instead, the Trump administration, as we said, has been setting up this kind of global gulag system of third countries to send people to, most specifically, we've talked about that. That was the whole point of CICOT in El Salvador. And right now, they've threatened to send Kilmar Abrego Garcia to all manner of third countries in Africa, despite the fact that he has agreed to go to Costa Rica. uh costa rica is not punitive enough yeah you know maybe to situate this we should start with how deportation is supposed to work right like when the government deports you where is it supposed to send you that the statute is 8 usc section 1231 and and by the way uh the way in which we understand how that statute operates comes from a case called jama versus ice from 2005. It was a 5-4 decision from the Roberts Court written by Antonin Scalia with the then four liberals in dissent. So, you know, not crazy leftist stuff. Yeah. So the JAMA case describes the law as a four-step order of operations. So step one is a non-citizen shall be removed to the country of his choice unless that's procedurally impossible. If the immigrant fails to designate country promptly, the designated country fails to accept him, or where the DHS decides that removing an alien to the country is prejudicial to the United States. So that's the default rule. You get sent where you ask to go if your home country is not that. Yeah, that's 99 plus percent of cases. Step two, it's not possible to send you where you ask to go, then the non-citizen shall be removed to the country of which he is a citizen. Okay. If that country won't take you, let's say you're a citizen of Cuba and Cuba is not accepting deportees from the United States, then it's on to step three and you get removed to one of six countries that are defined by section. And I feel it's important to read how deep in the code this is. Section 1231B2E1 through B2E6. And those six countries can be the place you left from, the place where you were born, where you lived prior to emigrating to the United States, things like that. But now assume each and every one of those options are found to be. And here I'm going to quote from the seventh sub sub subsection. If they are impracticable, inadvisable or impossible, then step four applies only as the last, last, last resort. Then the non-citizen shall be removed to another country whose government will accept the alien into that country. So in other words, we don't deport people to random third countries unless we've tried and failed all of those procedures. Or at least we didn't until 2025 when the U.S. government decided that it was really important to get rid of all of these people who had been going about their business in the United States and not bothering anybody. that they had to cleanse the country of immigrants, even immigrants who couldn't be sent back to their native countries. That was all of those habeas cases we talked about in the first section. And these people are being held in Cameroon and reporting that they are being pressured to agree to be repatriated to their native countries. And that's effectively chain reformat, even if they aren't being physically dumped in those countries. If you're going to be imprisoned in a foreign country until you agree to go back, that's chain reformant. And that's illegal. As you said, it's a war crime. So in addition to disregarding the order of operations on third party removals, the Trump administration also gutted the procedural protections provided by the Convention Against Torture. In an internal memo issued in March of 2025, DHS said that it made deporting non-citizen quote, without the need for further procedures if he is to be removed to a country that has provided a diplomatic assurance that aliens removed from the United States will not be persecuted or tortured. And if the State Department finds such assurances to be credible. Yeah. And there's a slippage buried in there, right? Which is that that March 2025 memo only requires a general assurance that aliens, plural, sent from the U.S. won't be persecuted or tortured. But that is not what due process requires, right? Right. So to be clear, what's happening here is that you used to be able to argue, at least in an immigration hearing, that you had a credible fear of being transferred to a third country. If you were a detainee who had an order withholding removal, that they would say to you, well, we're going to send you somewhere else. And you got a chance to say, I am afraid to go to the somewhere else. And then Kristi Noem said, ah, that's too annoying. That gets in the way. What we're going to do is we'll send you to the somewhere else as long as we have a generalized assurance from somewhere else that they don't torture people. So all they have to do is like have a little postcard that says no torture, love South Sudan. And that's good enough. You can't you can't make an argument against it. So this litigation has been going on for more than a year. We talked about it a lot during the progress of it last summer. This it's called DVD versus U.S. It's in Massachusetts. It's Judge Brian Murphy. He ordered the government to provide due process to any of these detainees who were being sent to third countries before sending them there. And there were all of these horrible stories about immigrants kind of being on the plane before they figured out where they were going to go, which didn't really give anybody time to raise a habeas petition? So this is a decision on the merits. This is granting summary judgment in favor of the plaintiffs. And there are really two components to the order that Judge Murphy entered. The first is declaring that March guidance issued by DHS to be illegal, right? It violates due process because you can't just take a generic assurance of, we're not going to torture anybody you send us, right? You have to evaluate everything on a case-by-case basis so that folks don't slip through the cracks. And we're going to talk about that in a second. The second aspect is that it says the administration must send you to the country that you designate unless there are specific reasons that are put on the record why it can't do that. So in other words, reinstating that four-step process that Justice Scalia walked through and saying, no, we're not going to let you jump to the very end of sub-sub-subsection Q, right? You've got to send people where they ask to be sent. And, you know, one of the things that I really appreciate about Judge Murphy's order is that it does the hard work of unpacking exactly what this administration is doing. So, for example, the Trump administration rewrote form I-589, which is the application for asylum and withholding of removal. Question four on that used to say, are you afraid of being subjected to torture in your home country? Which makes sense. But now it says, are you afraid of being subjected to torture in your home country or any other country to which you may be returned? And then if you check the yes box, there's a little box that says, if yes, explain in five lines or less why you're afraid and describe the nature of the torture you fear by whom and why it would be inflicted. And the Trump administration called that in Judge Murphy's court a real path to administrative relief. Well, Judge Murphy called it either dangerously uninformed or blatantly dishonest, which I tend to agree with myself. How could you expect people to list every country in the world they might be afraid to be sent to? That's it. You're supposed to list every country. You're supposed to guess where the government might send you, as Judge Murphy put it. Should an Ecuadorian woman have to know her risk of female genital mutilation in Somalia? Should a gay man keep himself apprised of buggery laws in the too long and ever changing list of countries that enforce them? No person could reasonably be expected to make a detailed prophylactic claim about every country on earth to which she might have a valid claim against removal. Yeah, it actually gets worse because longstanding case law says that an applicant for asylum can't ask the immigration court to adjudicate claims that relate to a country. This is the exact language from the opinion that nobody is trying to send them to. And that's what happened to one of the one of the name plaintiffs here. His name is OGC or those are his initials. At his withholding hearing, he proved to the court that he had a credible fear of being sexually assaulted in Guatemala as a homosexual man. And the court granted him an order of withholding from Guatemala. And then OGC tried to explain that he had the same fear about Mexico, where he had been raped en route to America. And he was told, we can't send you back to Mexico, sir, because you're a native of Guatemala. And thus, you know, your complaint about Mexico is irrelevant. So the immigration judge refused to add Mexico to OGC's order of removal based on assurances from the Department of Justice that Guatemala was the only country. And then two days later, and with no advanced warning, OGC was put on a bus and sent to Mexico where he was assaulted. And Judge Murphy didn't think that was an accident. And unless he ruled in favor of the plaintiffs, he expects this administration to try that same trick again. So he did this really remarkable thing where he says that the government could, if it were evil enough, avoid having any court ever hear evidence of claims under the Convention Against Torture just by not naming the actual place they intend to send you during the removal proceedings. Right. Name some other country and then they could conveniently change their mind immediately afterwards. Here's what he said. Previously, one could have found some comfort in the idea that the government would not intentionally engage in this kind of gamesmanship. However, given the existence of the March guidance, it defies logic to imagine that DHS would not avail itself of this obviously less burdensome, if somewhat furtive, approach. Wow. So Judge Murphy has voluntarily stayed his order for 15 days to give the government time to appeal. He says, in effect, the government isn't remotely likely to win under his logical reasoning. But the Supreme Court has already stayed his preliminary injunction once. So, you know, he's not going to get out in front of it. But we talked about this the last time we talked about this on our last episode. Courts know that the Supreme Court is constantly jumping in and providing relief in an irregular process. And so to avoid this race to the Supreme Court, they are staying their orders and providing an extra two weeks or something for the Supreme Court to wreck shit. Yeah. And I think we will be at the Supreme Court. Court sooner rather than later. The next stop is going to be the First Circuit. The First Circuit is obviously not going to enjoin Judge Murphy's opinion. But I don't know what the Supreme Court will do. I mean, this seems like the bare minimum acid test for if they really do intend to rein in the worst of the Trump administration's actions targeting immigrants. So we'll see. We'll keep watching. All right. That is going to do it for us this week. Thank you guys so much for hanging out with us. We appreciate it. You would become a subscriber at patreon.com slash lawandchaospod or lawandchaospod.com. And we would absolutely appreciate it if you would give us a five-star review on your podcast platform of choice. Have a lovely weekend. We will be back Monday with written content and Tuesday with another show. Copyright Recipes of Media, LLC. All rights reserved.