Happy Juneteenth, I’m Eriq Gardner.

Welcome back to The Rainmaker, a private email about money, power, fame, and most of all, the law. In this week’s edition, exclusive news about a remarkable Robert De Niro trial—a highly atypical case, featuring De Niro’s former top assistant and his current girlfriend, that may cause you to look at airline frequent flyer miles a little differently.

Also in this issue: Elon Musk, Dan Abrams, Lina Khan, Dr. Luke, and Sam Bankman-Fried. Plus: On a day when we celebrate emancipation and the nation’s racial awakening, a few notes on an audacious legal move to redress police brutality against a Black man involving facial recognition technology. (Was this email forwarded to you? Click this link to subscribe.)

• Elon Musk’s Twitter faces no shortage of problems these days, but one predicament that has flown under the radar are allegations being made by John Brda, the former chief executive of Torchlight Energy Resources Inc. According to recent court papers from Brda, someone created an imposter account using his name and likeness, and has been comparing him to Sam Bankman-Fried. While stuff like this figured to become a headache once Musk changed who got blue check verification, there’s more: The imposter’s account is apparently sending out deepfake videos where “Brda” makes public statements to Torchlight shareholders. Brda, who says Twitter users believe he’s operating the account, is alleging market manipulation, but for now, he’s just demanding that Twitter identify the anonymous users behind the account. A New York judge has told Twitter to respond by tomorrow.

• A&E has taken a big step forward in its lawsuit alleging that Live PD, starring Dan Abrams, was “cloned” to create Reelz’s On Patrol: Live, also starring Abrams. The defendant argued on a dismissal motion that the idea of an unscripted show about police on the job wasn’t copyrightable. On Friday, U.S. District Court Judge Katherine Polk Failla responded that while individual elements might not be protectable, the particular selection and arrangement of these elements—the mix of live footage with in-studio commentary, the use of the same hosts, identical tables with nearly identical coffee mugs, etc.—were sufficient to state a copyright claim. Here’s the full decision, which allows A&E’s trademark claim to survive, too.

• The Federal Trade Commission’s bid to stop Microsoft from acquiring Activision is now in the bottom of the ninth inning. As I previously laid out, Microsoft has been stuck in a slow-moving administrative hellscape while the deal must close before July 18. However, Microsoft finally figured out a way to get Lina Khan’s agency into federal court, the only venue where it stands a shot of overcoming regulators. Specifically, the tech giant said it would consummate the acquisition, notwithstanding how U.K. regulators concluded the merger would decrease competition in cloud gaming services. Would Microsoft really have flouted U.K. law? Who knows, but with the threat of the merger going forward, the F.T.C. decided it wouldn’t take a chance. The agency is now seeking an injunction, and Microsoft has convinced a federal judge to swiftly review the agency’s claims that the deal will be bad for gaming. The result is a bit of a mini-trial over the next couple of weeks, followed, presumably, by a last-second ruling by U.S. District Judge Jacqueline Scott Corley that will hold enormous sway over the fate of the video game industry.

Journalists like myself tread carefully at the time, given the sensitive landscape of the #MeToo movement and an opaque picture. What were the underlying motives? For the past four years, I’ve been following this surprisingly enduring case, and at last, I have finally unearthed some answers, courtesy of a 158-page summary judgment ruling, initially sealed and unveiled here for the first time. Based on depositions, contemporaneous emails and texts, audio recordings, and other documented evidence, it offers an exhaustive account of what transpired while also setting the stage for an intriguing, and even possibly historic, trial slated for late October.

Trouble began to brew, however, when a bitter feud erupted between Robinson and Tiffany Chen, De Niro’s girlfriend. Chen, who recently gave birth to De Niro’s seventh child, held a dim view of Robinson, perceiving her as a territorial figure who didn’t play nice with others. She even speculated that Robinson might be in love with De Niro. In fact, according to one text message chain, Chen went so far as to tell another Canal employee that Robinson had disconnected all the chargers on her side of the bed and commented how the situation had become “very ‘single white female,’” a reference to the chilling 1992 movie about an obsessive roommate. As tensions simmered, Robinson found herself stripped of responsibilities at De Niro’s lavish New York townhouse.

Driven by suspicion about who was responsible for her apparent demotion, Robinson used administrative privileges to access a colleague’s email account, which unearthed Chen’s directive that the assistant no longer be involved in work around the home. This discovery proved to be the final straw, prompting Robinson’s immediate resignation. “Now we just have to work out severance,” De Niro told Chen, who responded by suggesting money be instead used “for the therapy everyone needs… as a result of her.”

Soon after, De Niro’s longtime attorney Tom Harvey got involved and had Canal employees review Robinson’s computer, emails, and documents. The investigation, he later testified, resulted in all sorts of revelations about unauthorized personal spending. Meanwhile, Robinson was pushing Harvey for a severance package and wanted De Niro to sign a letter of recommendation for her application to business school. But the actor himself had grown upset to learn that Robinson had transferred about five million Delta SkyMiles into a personal account.

The situation continued to escalate. Robinson wrote to De Niro, expressing frustration that she wasn’t allowed to exit in good standing. She soon began to demand two years of salary and health coverage, or else she wouldn’t sign a release. When Canal hesitated, she advised De Niro and Harvey that she’d be getting a lawyer and possibly taking legal action. Hearing that news, Chen texted De Niro: “She thought she was your wife. I saw it from the beginning. I told you.” The actor texted back: “The balls, the nerve, the chutzpah, the sense of entitlement: how dare her!”

Harvey then sent Robinson a letter accusing her of wrongdoing and demanded that she hand over company property still in her possession. Robinson’s legal team at Sanford Heisler began communicating with De Niro attorney Laurent Drogin at Tarter Krinsky. Before Robinson could sue in federal court, though, De Niro filed his own complaint in state court (which led to about a year of bickering about which case should move forward; Eventually hers did, with De Niro bringing counterclaims). Still seething over the missing frequent-flyer miles, De Niro explained the decision to sue in a deposition: “I wanted her to return the stuff. Do what’s right.”

In his assessment of Robinson’s case, Judge Liman delivered a mixed opinion (feel free to email me for a copy of the May 25 ruling). On one hand, he dismissed her retaliation claims. The judge nodded to the abundance of conversations these days about wages, hours, and pay parity, and expressed concern that being too heavy-handed might impede a functional workplace. Accordingly, he ruled that simply requesting to be paid on par with a colleague of the opposite gender, as Robinson did when noting the salary of De Niro’s male trainer, or pointing out that an employer must give overworked female assistants their overtime pay, doesn’t trigger federal employment law.

The judge did, however, flag that Robinson communicated potential legal concerns about Canal after she resigned. That qualifies as protected activity. Then again, the judge quickly added, Robinson didn’t suffer any “employment action” as a result of those threats. In the judge’s estimation, De Niro’s decision to file an attention-grabbing lawsuit (with an exaggerated $6 million damages asserted) and involving the Manhattan D.A. did not qualify as employment actions.

However, Robinson will get to a jury against De Niro’s company on one claim—gender discrimination—and Liman offered some pretty interesting reasoning there. While Liman downplayed evidence that De Niro repeatedly called Robinson a “bitch” (De Niro denies saying that), the judge found compelling evidence of discrimination from the alleged actions of Chen.

A jury could view the apparent belief by De Niro’s girlfriend that Robinson was in love with the actor as motivated by gender, the judge writes, leading to worsening treatment at the company due to her status as a single female. In a footnote, Liman acknowledged that Chen didn’t actually work for Canal Productions, but he suggested that she nevertheless could be considered an “agent” of the company through her intimate relationship with De Niro. Another aspect for the jury to decide.

Of course, De Niro doesn’t walk to trial empty-handed. All of his counterclaims arising from her personal spending on the corporate credit cards and the transfer of those five million Delta SkyMiles (despite De Niro’s preference to fly private) will also be presented to a jury. The judge allowed De Niro to pursue the recovery of her past compensation too.

Nevertheless, Robinson’s legal team wants appellate judges to address the question of whether an employer’s suit can qualify as actionable retaliation, especially when there’s evidence that the millions of dollars in damages claimed were solely designed to humiliate her. Additionally, De Niro’s ex-assistant wanted to raise a “novel” question related to her spending as well as her appropriation of frequent flyer miles. Specifically, should a lack of authorization be presumed or affirmatively demonstrated when an employer sues an employee for splurging with the corporate credit card? It may sound like splitting hairs, but of course, no one likes to get ripped off, and courts seldom devote years to the pettiest of grievances. So while it might sound weird, don’t be surprised if De Niro’s legal battle with an assistant becomes as influential as Taxi Driver.

• Few court rulings truly surprise me, but I have to admit being astonished two years ago when a New York state judge concluded that “Dr. Luke” Gottwald wasn’t a public figure in his defamation battle with Kesha Sebert. The producer, after all, has been behind some of the biggest hits of the 21st century, and while he may not be a household name, Kesha’s rape allegation made headlines internationally. An appeals court has now said that Dr. Luke is indeed a limited purpose public figure—a decision that may not seal the fate of a defamation trial later this summer, but probably makes sense given the attention both sides will be paying to the way that their respective P.R. teams attempted to shape public opinion in the dispute.

• Speaking of defamation, while everyone focuses on civil law, a few states still have criminal defamation laws. New Hampshire is one of them, and one individual now wants the Supreme Court to review the constitutionality of prosecuting someone for saying something false about a public official. Attorneys for the state are urging the high court to reject the case, saying that so long as a state can show actual malice, there’s nothing wrong with such a prosecution. Here’s the brief, which also warns of a future that includes people creating deepfakes of political figures.
• When the case against Sam Bankman-Fried was split into two trials a few days ago, most saw the development through the eyes of the defense. Was this good or bad for him? But why did prosecutors offer to do this in the first place? Was it really to resolve S.B.F.’s objection to how he was charged with counts that the Bahamas never agreed to when extraditing him? Perhaps, but I can’t help but also think it has something to do with how it delays the more politically sensitive aspects of the case, namely the campaign finance charges that may prove hard to win anyway. Honestly, I’m not entirely sure we’ll ever see that second trial, but we’ll see.

And finally, a look at a bold legal strategy to use allegedly biased facial recognition tech to tackle police brutality…

Paul Hetznecker represents Alfonse Bowman, who was injured on October 27, 2020. Bowman was visiting his parents when protests broke out over the police shooting of Walter Wallace Jr. While sitting in the back seat of a car, a police officer struck Bowman in the face with a baton. Neither Hetznecker nor Bowman knows the officer’s identity, but there’s apparently video footage of the incident.

In a motion filed in federal court on June 15, Hetznecker demanded that the city of Philadelphia apply its own facial recognition system to a database of photographs of local cops. The city has thus far refused, citing an obscure police department directive that prohibits use of the program for non-law enforcement. The plaintiff attorney responded that this makes no sense, as this is a law enforcement matter. He told the judge: “Police officers are not above the law, and as with civilians, police officers should be subject to the same investigatory techniques available to law enforcement when investigating criminal conduct.”

Hetznecker hopes to use the evidence in an ongoing civil rights case against the city. I’ll provide updates on the outcome in a future edition of this newsletter.

Best, Eriq