Preview
1 John Tehranian (SBN 211616)
jtehranian@onellp.com
2 William J. O’Brien (SBN 99526)
wobrien@onellp.com
3 Christopher S. Skinner (SBN 342830)
4 cskinnner@onellp.com
ONE LLP
5 23 Corporate Plaza
Suite 150-105
6 Newport Beach, CA 92660
Telephone: (310) 866-5157
7
Facsimile: (310) 943-2085
8
Attorneys for Phillip Andrew Torrez,
9 Opening Arguments Media LLC, and Opening Arguments
Foundation Inc.
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF SONOMA
12
THOMAS SMITH, an individual; and Case No. SCV-272627
13
SERIOUS POD LLC, individually and Hon. Bradford DeMeo
14 derivatively on behalf of OPENING
ARGUMENTS MEDIA LLC, a California DECLARATION OF PHILLIP ANDREW TORREZ
15 limited liability company, IN OPPOSITION TO EX PARTE APPLICATION
Plaintiffs, FOR EXPEDITED DISCOVERY
16
vs.
17 PHILLIP ANDREW TORREZ, an Hearing Date: June 20, 2023
individual; and DOES 1-10,
18 Defendants, Amended Complaint Filed: March 29, 2023
19 and
OPENING ARGUMENTS MEDIA LLC, a
20 California limited liability company, and
OPENING ARGUMENTS FOUNDATION
21 INC., a California nonprofit corporation,
22 Nominal Defendants.
OPENING ARGUMENTS MEDIA LLC
23 and PHILLIP ANDREW TORREZ,
Cross-Complainants,
24
vs.
25 THOMAS SMITH; SERIOUS POD LLC;
and ROES 1-10,
26
Cross-Defendants.
27
28
TORREZ DECLARATION OPPOSING EX PARTE APP. FOR EXPEDITED DISCOVERY
1 I, Phillip Andrew Torrez, declare:
2 INTRODUCTION
3 1. I am a defendant and cross-complainant in this case. I submit this declaration in
4 response to the ex parte application by Thomas Smith and Serious Pod LLC seeking expedited
5 discovery during the pendency of my Special Motion to Strike (Anti-SLAPP motion). I have
6 personal knowledge of the facts stated below.
7 2. As background and further support for this opposition, I am providing, as Exhibit A
8 to this declaration, a copy of the declaration I submitted in support of the Anti-SLAPP motion.
9 The statements in my Anti-SLAPP declaration are true and correct. (Because of their bulk, I am
10 omitting the many exhibits to my Anti-SLAPP declaration from Exhibit A.)
11 STATEMENTS BY TERESA GOMEZ
12 3. As I stated in my Anti-SLAPP declaration, Teresa Gomez is a longtime supporter
13 of Opening Arguments who has been involved as an administrator of the Opening Arguments
14 Facebook community, an editor of the Opening Arguments wiki, and as unpaid volunteer at
15 Opening Arguments events—assisting, for example, in the sale of Opening Arguments
16 merchandise. During the course of her activities, she became a friend of both me and Mr. Smith.
17 4. Ms. Gomez has never been an employee of Opening Arguments Media or of me.
18 Neither I nor Opening Arguments Media has directed or controlled any statements or activities of
19 Ms. Gomez related to the present dispute and controversy involving Mr. Smith.
20 5. Ms. Gomez has been critical of both me and Mr. Smith in connection with aspects
21 of the present controversy. Mr. Smith insulted her and tarnished her standing in the Opening
22 Arguments community by attacking her (I believe falsely) as a liar. She responded by making
23 statements about Mr. Smith. In doing so, she was not acting on behalf of or under the control of
24 Opening Arguments Media or me. I did not ask or encourage her, directly or indirectly, to make
25 any statement about Mr. Smith. I did not tell her what to say or suggest any statements to her,
26 whether directly or indirectly.
27 6. The foregoing statements apply to (but are not limited to) the statements attributed
28 to Ms. Gomez by Thomas Smith in Paragraphs 13 through 16 of his declaration supporting the ex
2
TORREZ DECLARATION OPPOSING EX PARTE APP. FOR EXPEDITED DISCOVERY
1 parte application. I did not instruct or encourage Ms. Gomez to make any of those statements. I
2 did not even see those statements at the times when they were posted and, to this day, I am
3 uncertain whether Ms. Gomez actually made all of the statements attributed to her by Mr. Smith.
4 7. If I had been in control of Ms. Gomez’s statements, I would never have authorized
5 or directed the statements attributed to her by Mr. Smith. For example, I would have never told or
6 encouraged her to say, “EAT MY WHOLE ASS THOMAS!” Such statements obviously reflect
7 her highly personal exasperation with Mr. Smith as a supposed friend who had accused her of
8 being a liar.
9 8. To the extent that Ms. Gomez made the statements attributed to her by Mr. Smith,
10 they appear to reflect her own personal thoughts and her own personal interpretation of events
11 rather than anything I told her. For example, I did not tell her that Thomas Smith had violated a
12 contract or had taken a year’s salary out of the Opening Arguments Media LLC account. Ms.
13 Gomez is not an attorney, and, as a lay person, she may not be familiar with the distinction
14 between breaches of contract and breaches of fiduciary duty, which I have alleged. Her reference
15 to “a year[’]s salary” appears to be her colloquial characterization of the public and uncontroverted
16 fact that Mr. Smith withdrew almost $42,000 from the Opening Arguments Media LLC account in
17 early February 2023. (I believe that, by a year’s salary, Ms. Gomez meant an amount that would
18 be a year’s salary for many people. I believe that the statement was not intended and could not
19 reasonably be understood to refer to a salary that had actually been received by Mr. Smith.)
20 THE ROLE OF KARA SCHMIEMANN
21 9. Kara Schmiemann is a Director at Red Banyan, a public relations firm that I have
22 retained in connection with the public controversy involving me, Opening Arguments Media LLC,
23 and Thomas Smith. I have never routed communications to Teresa Gomez through Ms.
24 Schmiemann or Red Banyan. To the best of my knowledge, no one at Red Banyan has ever
25 spoken with or otherwise communicated with Ms. Gomez. I have never authorized, directed,
26 encouraged, or facilitated any communications between Red Banyan (including Kara
27 Schmiemann) and Teresa Gomez.
28
3
TORREZ DECLARATION OPPOSING EX PARTE APP. FOR EXPEDITED DISCOVERY
1 FURTHER PUBLIC STATEMENTS BY THOMAS SMITH
2 10. The reason why the defendants provided a declaration from Ms. Schmiemann in
3 support of our Anti-SLAPP motion was to support the existence of public interest in the dispute
4 between Mr. Smith and me and related controversies. I have not seen any indication that Mr.
5 Smith contests that point. In fact, he has further confirmed it during the past few days, by publicly
6 posting a statement responding to some of the allegations in the Anti-SLAPP motion. Smith
7 posted such a statement on the Opening Arguments Facebook group and as audio files on his
8 Serious Inquiries Only podcast and website (https://seriouspod.com/sio365-i-finally-get-to-defend-
9 myself-a-little/), and he posted further documents in a public Google Drive
10 (https://drive.google.com/drive/folders/1peH7cNSIWR23wSFbG6rd_N-zJh9P0Mam).
11 11. Among other things, in this public statement, Mr. Smith, accuses multiple women
12 who have made accusations against me of lying about him and defaming him.
13 12. It is my understanding that the Opening Arguments Facebook community has over
14 5,000 members and that Serious Inquiries Only reaches tens of thousands of listeners.
15 13. Exhibit B to this declaration is a true and correct copy of the version of Mr. Smith’s
16 statement that was posted on the Opening Arguments Facebook group.
17 I declare under penalty of perjury under the laws of the State of California that the
18 foregoing is true and correct.
19 Executed on June 20, 2023.
20
21
22
23
24
25
26
27
28
4
TORREZ DECLARATION OPPOSING EX PARTE APP. FOR EXPEDITED DISCOVERY
EXHIBIT A
Page 5
1 John Tehranian (SBN 211616)
jtehranian@onellp.com
2 William J. O’Brien (SBN 99526)
wobrien@onellp.com
3 Christopher S. Skinner (SBN 342830)
cskinnner@onellp.com
4 ONE LLP
23 Corporate Plaza
5 Suite 150-105
Newport Beach, CA 92660
6 Telephone: (310) 866-5157
Facsimile: (310) 943-2085
7
Attorneys for Defendants and Nominal Defendants
8 Phillip Andrew Torrez, Opening Arguments Media LLC,
and Opening Argument Foundation Inc.
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SONOMA
11
THOMAS SMITH, an individual; and Case No. SCV-272627
12 SERIOUS POD LLC, individually and Hon. Bradford DeMeo
derivatively on behalf of OPENING
13 ARGUMENTS MEDIA LLC, a California
limited liability company, DECLARATION OF PHILLIP ANDREW TORREZ
IN SUPPORT OF SPECIAL MOTION TO STRIKE
14
Plaintiffs,
15 vs. Hearing Date: TBD
16 PHILLIP ANDREW TORREZ, an Amended Complaint Filed: March 29, 2023
individual; and DOES 1-10,
17
Defendants,
18
and,
19
OPENING ARGUMENTS MEDIA LLC, a
20 California limited liability company; and
OPENING ARGUMENTS FOUNDATION
21 INC., a California nonprofit corporation,
22 Nominal Defendants.
23 OPENING ARGUMENTS MEDIA LLC
and PHILLIP ANDREW TORREZ,
24
Cross-Complainants,
25
vs.
26
THOMAS SMITH; SERIOUS POD LLC;
27 and ROES 1-10,
28 Cross-Defendants.
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
Page 6
1 I, Phillip Andrew Torrez, declare:
2 INTRODUCTION
3 1. I am a defendant and cross-complainant in this case. I am a founder, member, and
4 50% owner of Opening Arguments Media, LLC. I am also an experienced attorney with more
5 than 25 years in practice and an active member of the Maryland State Bar. I have personal
6 knowledge of the facts stated below.
7 2. I am asking the Court to strike portions of the First Amended Complaint in this
8 case, because Thomas Smith and Serious Pod LLC are suing me for statements that I made (or, in
9 some cases, that an independent third party made) in the exercize of free speech rights about a
10 public controversy—a controversy that Mr. Smith had himself participated in creating, and in
11 which he was publicly maligning and damaging me and Opening Arguments Media (an entity to
12 which he owes fiduciary duties, as his company Serious Pod is a member). As I explain below,
13 any statements that I made about Mr. Smith in connection with our dispute have been truthful and
14 in good faith, made in an attempt to set the record straight on issues of public interest and concern.
15 THE OPENING ARGUMENTS PODCAST
16 3. Opening Arguments Media, LLC, is a California limited liability company. I own
17 50% of the company. The other 50% is owned by Serious Pod LLC, which is a California limited
18 liability company owned by Thomas Smith.
19 4. The principal business of Opening Arguments Media is to create and distribute the
20 podcast Opening Arguments. Opening Arguments offers legal analyses of popular stories in the
21 news. Mr. Smith and I began Opening Arguments in August 2016. It has become a prominent
22 podcast, with a large community of listeners. There have been more than 750 episodes to date,
23 with more than eighteen million downloads.
24 5. As a result of the success of Opening Arguments, Mr. Smith and I have become
25 widely known in the podcast industry and among the many fans of Opening Arguments. Many
26 followers of the program have participated in online communities dedicated to the show and to
27 multiple live events put on by Mr. Smith and me. For example, there is an active “Opening
28 Arguments Community” on Facebook in which members discuss the show. There is also an
2
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
Page 7
1 “Opening Arguments Forum” on Reddit, created in 2017, which has more than 4,000 members.
2 There is a wiki (online collaboration platform) devoted to Opening Arguments in which—until the
3 eruption of the controversy discussed below—fans posted information about each Opening
4 Arguments, about Mr. Smith and me, and about Opening Arguments events and activities.
5 6. Because of the success of the Opening Arguments podcast, we have been able to
6 sell advertising on the show. Opening Arguments has also received a great deal of support from
7 supporters via Patreon, a service that allows them to make financial contributions via subscription.
8 As of January 2023, more than 4,300 patrons were subscribing to Opening Arguments. In 2022,
9 our annual revenues from advertising and Patreon subscriptions exceeded $600,000.
10 THE PUBLIC CONTROVERSY GIVING RISE TO THIS DISPUTE
11 7. The present dispute arises from public attacks on me by Thomas Smith after
12 publication of an article that contained allegations of personal, sexual misconduct against me. As
13 background, Mr. Smith and I originally met in March 2016 when I appeared on a podcast he then
14 hosted called Atheistically Speaking. That episode attracted far more listeners than his podcast
15 usually received, and Mr. Smith invited me back to make additional popular episodes. This
16 eventually gave rise to the idea of our starting a new podcast devoted to legal issues.
17 8. Mr. Smith and I also came into contact as a result of our membership in “American
18 Atheists,” a nonprofit organization that “strive[s] to create an environment where atheism and
19 atheists are accepted as members of our nation’s communities and . . . promote understanding of
20 atheists through education, outreach, and community building . . . .” I later became a member of
21 the group’s board of directors, which made me a target for political opponents of the organization.
22 On February 1, 2023, I was appalled to learn that I and another board member had been accused of
23 misconduct in an article published earlier that day in Religion News Service, a publication that has
24 been known to attack leaders of American Atheists.1 The article contained highly embarrassing
25 insinuations about my personal life, including allegations that I made unwanted sexual advances
26 towards two women at atheist conferences or other events. The article could also be taken as
27
1
28 A true and correct copy of the article is Exhibit A to this declaration.
3
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
Page 8
1 hinting that I had recently been forced to resign my position on the board of American Atheists
2 because of an ethics investigation, although that was not true and I had actually resigned because
3 my other work commitments were causing me to miss too many board calls. I was distraught and
4 disoriented to find my personal life the subject of intrusive public scrutiny.
5 9. Immediately after publication of the Religion News Service article, Mr. Smith and I
6 began discussing about how to best protect the Opening Arguments business from negative fallout.
7 We discussed developing a comprehensive strategy to minimize any impact on the business. Mr.
8 Smith repeatedly told me that he would support me and the Opening Arguments business. Indeed,
9 he criticized my accusers in the strongest terms. For example, he said the following about the
10 principal accuser in the Religion News Service article:
11 § “god damn I don’t know how to avoid calling bull shit on [Accuser 1]”
12 § “F_ _ _ [Accuser 1]. She f_ _ _in knew what she was doing. I don’t know how she
13 could post those thinking she looks like the victim . . . .”
14 § “The way [Accuser 1] characterizes the interaction is so much different than what
15 the screenshots show. . . . I’m a little worried that her bull shit has escalated things
16 slightly. Not sure, I think for now still same plan . . . She’s really f_ _ _ing pissing
17 me off. her and [Accuser 2].”2
18 10. Smith’s private statements about other women accusing me of impropriety
19 included:
20 § “[Accuser 3]’s lying her f_ _ _in ass off about it . . . .”
21 § “[Accuser 2] is like the biggest f_ _ _ing pain right now. . . . [S]he’s literally
22 spreading half truths to damage our business, which feels like we should have some
23 recourse. But also we have to be so f_ _ _ing careful. It’s such bullshit.”3
24
2
25 True and correct copies of Mr. Smith’s text messages containing these statements are Exhibit B
26 to this declaration. Names and an expletive are redacted from these quotations.
3
27 True and correct copies of Mr. Smith’s text messages containing these statements are Exhibit C
28 to this declaration. Here again, names and an expletive are redacted.
4
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
Page 9
1 11. I trusted Mr. Smith and believed his promises of support. I believed that he and I
2 had a shared interest in protecting Opening Arguments, that he sincerely disbelieved many of the
3 allegations against me, and, further, that, while I had crossed boundaries by flirting with women
4 and regretted doing so, Mr. Smith had encouraged such behavior and engaged in behavior that
5 was, similar in significant respects—and even worse in some respects—to what I had done.
6 12. Initially, Mr. Smith suggested that I record the next episode of Opening Arguments
7 without his participation, presumably as a way of gauging listener support. I agreed and suggested
8 that I ask a frequent recurring guest and colleague, Liz Dye, to co-host the show with me. Mr.
9 Smith agreed.
10 13. However, at some point during the evening of February 1, Mr. Smith apparently
11 changed his mind. The next day, he suggested that he should record the show with Liz Dye
12 instead, as a way of trying to let the controversy from the Religion News Service article die down.
13 Mr. Smith continued to assure me that his goal was to protect the show and quickly resume
14 producing episodes of Opening Arguments together. Sill feeling ashamed and embarrassed, I
15 agreed to having Mr. Smith and Ms. Dye record the next episode. Ms. Dye and I prepared the
16 research and notes or script for the episode with zero input from Mr. Smith.
17 14. Mr. Smith also repeatedly agreed to provide a public statement on the controversy
18 that would be supportive of me, and he repeatedly urged me to issue a public apology. I used my
19 personal funds to hire a public relations firm to assist in drafting any statements. Mr. Smith
20 entered into discussions with the firm about his statement supporting me.
21 THOMAS SMITH’S DISHONEST ATTACK ON ME
22 15. Instead of supporting me and Opening Arguments as he had promised, Thomas
23 Smith ambushed me with a dishonest attack, which dramatically expanded and prolonged the
24 controversy and severely harmed the Opening Arguments business. On the morning of February
25 4, Mr. Smith posted a bizarre audio recording heard by tens of thousands of listeners on his
26 personal podcast Serious Inquiries Only (operated through Serious Pod LLC) and on Serious
27 Pod’s website. In this recording, a purportedly tearful Mr. Smith made vague but dramatic
28
5
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
Page 10
1 allegations to the effect that, during a retreat in August 2021 for a business in which I was
2 involved, I “touched [Smith] inappropriately with no permission.”4
3 16. Mr. Smith’s allegation is false. I have never been attracted to or made any sexual
4 advances towards Mr. Smith. I have never intentionally touched Smith in any objectionable
5 manner for any reason, and I have no idea what Mr. Smith is referring to. Mr. Smith had never
6 mentioned any supposed unwanted touching to me. As a purported explanation for why Mr.
7 Smith supposedly had suddenly remembered this event a year and a half later, Smith claimed that
8 he had “gas[lit him]self” into forgetting that it happened.
9 17. Strangely, while purporting to be reduced to tears over the memory of this
10 supposed event years earlier, Mr. Smith (an experienced actor) also repeatedly made comments
11 suggesting that my supposed conduct was similar to conduct that Mr. Smith himself had engaged
12 in, directed both to women and to a male co-host of another podcast in which Mr. Smith is
13 involved.
14 18. Mr. Smith must have been aware that making this allegation would reinforce and
15 exacerbate the very worst impressions given off by the Religion News Service article, prolong and
16 expend the controversy, and hurt the Opening Arguments business. I believe that Mr. Smith
17 concocted this allegation for the purpose of defusing any criticism of himself by painting himself
18 as a victim, as well as to position himself to take control over Opening Arguments and shut me
19 out. I believe that, far from reflecting sincere and spontaneous emotion, Mr. Smith’s recording
20 was premeditated, rehearsed, and artificial, as well as dishonest.
21 19. Mr. Smith’s accusations are wholly inconsistent with his own later behavior. In his
22 February 4 posting, he suggested that, as a result of a drinking problem, I had harassed and
23 traumatized him to the point where he would cry about it years later. But for Christmas of 2021—
24 only a few months after supposedly suffering this traumatic drunken harassment—Mr. Smith gave
25
4
26 A true and correct copy of Mr. Smith’s February 4, 2023, posting is Exhibit D to this declaration.
27 A true and correct copy of a transcription of the audio file accompanying Mr. Smith’s February 4,
28 2023, posting is Exhibit E.
6
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
Page 11
1 me a bottle of expensive whiskey. Mr. Smith also invited me and my family to go wine-tasting
2 with him and his family in 2022. At a convention in April 2022, Mr. Smith and I spent every
3 night playing games and drinking in the same guest party suite. And before the breakup of our
4 collaboration, Mr. Smith repeatedly suggested and planned a visit to my home in Santa Rosa in
5 February 2023 for a live question-and-answer session.
6 20. On February 6, 2023, Mr. Smith escalated the situation further by making a posting
7 on the Opening Arguments Facebook community page that said—speaking of me—“F _ _ _ this f
8 _ _ _ ing dirtbag.”5 He then made a post on the Opening Arguments podcast channel that stated,
9 in part, “Andrew is stealing everything . . . .”6 But in actuality, Smith was the only person to
10 withdraw any funds from the Opening Arguments Media bank account during February and
11 March of 2023.
12 21. In the audio file accompanying his February 6 posting, Mr. Smith stated, among
13 other things, “Andrew is an abuser . . . . I am one of his victims . . . . This guy’s a f_ _ _ing
14 dirtbag . . . .”
15 22. On February 9, Mr. Smith fanned the flames of the controversy higher. For
16 example, he posted on his Twitter account a screen shot of, and link to, the Religion News Service
17 article and a statement that “Andrew has gone off the deep end and completely stolen control of
18 the show and company assets.”7 On the same date, he posted an audio file attempting to shift both
19 listeners and Patreon subscribers from Opening Arguments to Mr. Smith’s Serious Inquiries Only
20 podcast, as described below.
21 MY ACTIONS TO SAVE AND PRESERVE OPENING ARGUMENTS
22 23. It was immediately clear to me as a result of this conduct that Mr. Smith’s conduct
23 had placed the entire Opening Arguments business in jeopardy. He had also placed me in an
24
5
25 A true and correct copy of Mr. Smith’s February 6, 2023, Facebook posting is Exhibit F to this
26 declaration. Expletives are partially redacted in this and later quotations.
6
27 A true and correct copy of that post is Exhibit G.
7
28 A true and correct copy of that post is Exhibit H.
7
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
Page 12
1 untenable position. Before Mr. Smith’s February 4 and 6 media assaults on me, we had discussed
2 the possibility of my briefly absenting himself from the recording of one or more episodes (while
3 still writing content for a guest co-host) to let the controversy over the accusations against me
4 subside. However, Mr. Smith’s defamatory attacks fanned the flames of the controversy higher
5 than ever before and made any further hiatus pointless. Mr. Smith’s dishonest surprise attack also
6 made it impossible for me to trust him.
7 24. There was also other conduct by Mr. Smith that made it impractical to record
8 Opening Arguments episodes without me. I learned that Mr. Smith had alienated Liz Dye by
9 failing to pay her for her past appearances on the show. I understood that Mr. Smith had also
10 repelled one or more other potential temporary co-hosts by approaching them without my
11 knowledge or consent.
12 25. With an audience accustomed to and expecting multiple weekly Opening
13 Arguments episodes, maintaining a flow of high-quality content was and is critical to the survival
14 of the podcast. Mr. Smith himself had insisted on this very point in urging that he post a podcast
15 episode—as he did on February 3—using Liz Dye without me. His later attempt to put the show
16 on an indefinite hiatus without any plan for making further episodes is a transparent attempt to
17 destroy it.
18 26. In view of Mr. Smith’s conduct, it was no longer feasible to produce episodes
19 hosted by him and Ms. Dye even in the very short term. The interests of the business required
20 immediate action to produce ongoing Opening Arguments episodes by other means. Accordingly,
21 I took steps to secure the Opening Arguments podcast channel and website. After careful
22 evaluation of the situation, it was clear to me that the best and possibly only way to sustain the
23 Opening Arguments podcast and business in view of Mr. Smith’s actions was for me to record
24 episodes using Liz Dye as my co-host. Ms. Dye and I produced and posted episodes of Opening
25 Arguments beginning on Wednesday, February 8, 2023. We posted another episode that Friday
26 and more episodes the following Monday, Tuesday, Wednesday, and Thursday to regain
27 momentum. Since then, we have been consistently producing four Opening Arguments per week.
28 In my opinion, these programs have been at least equal in quality to the episodes I recorded with
8
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
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1 Mr. Smith and probably better. Certainly, this arrangement has been far superior to any available
2 alternative.
3 27. On February 6, 2023, before I began posting episodes recorded with Ms. Dye, my
4 legal counsel wrote to Mr. Smith, regarding his “recent conduct that has severely damaged Mr.
5 Torrez and the Opening Arguments business.”8 My counsel said in their February 6 letter to Mr.
6 Smith that he had “violated [his] fiduciary duties—as well as other legal rights and obligations—
7 not to mention betrayed the trust of a business partner and close friend.” They advised him that
8 we were prepared to meet to discuss the future of the podcast, saying:
9 Mr. Torrez is prepared to confer with you as soon as possible (along with
10 us and your counsel) to discuss the future of the Opening Arguments business and
11 the possible resolution of his claims against you. In the meantime, Mr. Torrez has
12 taken certain measures to preserve the status quo and protect against unilateral
13 actions that inalterably can damage both his rights and the business.
14 28. On February 8, my counsel consulted by telephone with Mr. Smith’s recently
15 retained counsel. My understanding is that the only alternative proposed by them was a “freeze”
16 or indefinite hiatus in Opening Arguments. It was clear to me that that was not a viable option for
17 the business. In a letter of February 9 to Mr. Smith’s counsel, my counsel accurately explained
18 my assessment of the situation and my intentions:
19 § “[Mr. Torrez] will not allow the Opening Arguments podcast to die for lack of fresh
20 content.”
21 § “He strongly feels that any announcement that the podcast was ‘frozen’ would be
22 devastating—probably fatal—to the podcast.”
23 § “Keeping the podcast viable will require a sustained flow of multiple episodes each
24 week.”
25 § “Mr. Torrez is ready and able to provide those episodes. He can conceive, plan,
26 and script them using essentially the same approach he has always used—offering
27
8
28 A copy of this letter is Exhibit A to the declaration of William J. O’Brien.
9
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
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1 the same kinds of legal insights and analyses that are the heart of the podcast—and
2 record them in collaboration with Liz Dye, who is well known to the Opening
3 Arguments audience and has been well received by them.”
4 § “In contrast, Mr. Smith, for all his talents, is not realistically equipped to carry on
5 and sustain this show. Throughout its history, Opening Arguments has consistently
6 addressed topics selected by Mr. Torrez, in episodes outlined and scripted by Mr.
7 Torrez, with Mr. Smith chiming-in spontaneously or nearly spontaneously with an
8 ‘everyman’ take on points conceived and developed by Mr. Torrez. Mr. Smith is
9 not a lawyer, and there is no reason to believe that any lawyer Mr. Smith could
10 recruit would have the intangible combination of features that have made Mr.
11 Torrez and Opening Arguments successful. Mr. Smith’s editing and production
12 activities have been helpful, but they can be replicated by any competent podcast
13 producer at modest expense.”9
14 29. My counsel therefore placed Mr. Smith on notice of my intentions in their February
15 9 letter:
16 Unlike Mr. Smith, Mr. Torrez is determined to continue to fulfill his
17 fiduciary duties to Opening Arguments. This entails, first and foremost, continuing
18 to provide suitable and timely content to keep the podcast viable. As Mr. Smith did
19 last week, this week Mr. Torrez will post an Opening Arguments podcast recorded
20 with Liz Dye.
21 30. From the outset of our dispute, I have repeatedly attempted (through counsel) to
22 engage Smith in a dialogue about how the Opening Arguments podcast and business could best be
23 preserved. Mr. Smith has persistently failed to meaningfully respond to my inquiries, instead
24 insisting on positions that, as a practical matter, would have resulted in the demise of the podcast.
25 For example, my counsel repeatedly invited Mr. Smith—in letters to his counsel dated February 9,
26 February 17, and March 21, 2023—to put forward any viable alternative to having me continue
27
9
28 A copy of this letter is Exhibit B to the O’Brien declaration.
10
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
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1 making Opening Arguments with Liz Dye as my cohost.10 But Mr. Smith has never done so.
2 31. My counsel accurately described my position in their letter of February 9, stating,
3 “For Mr. Torrez, the survival of the Opening Arguments podcast is the first priority, and financial
4 considerations are secondary” and that “Mr. Torrez will do whatever is in the best interests of
5 Opening Arguments.”
6 32. Based on my almost seven years of experience in producing the Opening
7 Arguments podcast, there is no doubt in my mind that—as my counsel explained to Mr. Smith’s
8 counsel on February 9—putting the podcast on hiatus would be the death knell of the podcast and
9 of the Opening Arguments Media business. The business depends, more than anything, on a
10 steady stream of podcast listeners. They, in turn, are attracted by a near-constant flow of new
11 content, and they will stop returning if that flow is interrupted. Indeed, Opening Arguments
12 listeners are accustomed to a diet of four episodes every week. In addition, we have long provided
13 additional content exclusive to Patreon subscribers at least once per month. And recently, Ms.
14 Dye and I have been posting bonus episodes of about 20 minutes each for Patreon subscribers
15 multiple times per week.
16 33. As my counsel stated to Mr. Smith’s counsel in the letter of February 17, his failure
17 to propose any viable alternative confirms my belief that he has no serious interest in sustaining
18 the Opening Arguments podcast and business:
19 Thomas Smith’s failure to make any proposal for how to sustain the podcast
20 confirms our impression that he is indifferent—at best—to the success or even
21 survival of the podcast. His statements and actions suggest that he is instead
22 focused on shifting income away from Opening Arguments to other podcasts that
23 he controls or from which he profits, placing them—and him—into competition
24 with Opening Arguments.
25 34. On March 21, 2023, after repeatedly soliciting Mr. Smith’s views about a future
26 plan for Opening Arguments without success, my counsel notified his counsel that I intended to
27
10
28 Copy of these letters are Exhibits B, E, and F to the O’Brien declaration, respectively.
11
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
Page 16
1 continue my existing approach:
2 Having asked repeatedly and been ignored, we are not going to continue to
3 beg Mr. Smith to provide any alternative plan to continue the Opening Arguments
4 podcast. It is obvious from your silence and his conduct that he does not have one.
5 As best we can divine, Mr. Smith’s goal is to shift as many donors and listeners as
6 possible from Opening Arguments to Mr. Smith’s Serious Inquiries Only podcast
7 and let Opening Arguments die. Mr. Torrez does not intend to let that happen. He
8 is going to continue making episodes with Liz Dye as that is the only plan on the
9 table for sustaining the podcast and the business.
10 35. In view of Mr. Smith’s damaging conduct and his refusal to discuss future plans for
11 the Opening Arguments podcast, it has been impossible for me to allow him access to the Opening
12 Arguments podcast channel. As described above and described further below, Mr. Smith has
13 intentionally undermined and harmed the Opening Arguments podcast and business. He has
14 continued such conduct despite repeated demands by my counsel that he stop. He has failed to
15 provide any assurances that, if given access to the Opening Arguments podcast channel, he would
16 not use that access to sabotage Opening Arguments by taking actions similar to things he has
17 already done, is doing, or has expressly proposed to do.
18 36. For example, in their February 17 letter, my counsel asked Mr. Smith’s counsel for
19 assurances on the following points of critical concern:
20 § “If given access to the Opening Arguments podcast channel, is Mr. Smith going to
21 try to enforce a “freeze” by deleting the high-quality and popular content that Mr.
22 Torrez and Ms. Dye have created?”
23 § “Is he again going to post false and highly damaging statements that Mr. Torrez is
24 ‘stealing everything’ from Opening Arguments?”
25 § “Is he going to post further false and defamatory statements about Mr. Torrez
26 touching him?”
27 § “Is he going to make further attempts to divert funds to other podcasts, like Serious
28 Inquiries Only or Dear Old Dads?”
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Page 17
1 37. My counsel pointed out in their February 17 letter that, in view of his prior
2 behavior, it was “irresponsible and unrealistic for Mr. Smith to keep demanding access to the
3 Opening Arguments podcast channel and accounts while remaining silent about his intentions and
4 while taking action to compete with and damage Opening Arguments through other channels.”
5 Yet, tellingly, Mr. Smith has not been willing to provide even the most basic assurances that he
6 would not use any access he was given to the Opening Arguments podcast channel to disrupt,
7 damage, or even destroy the Opening Arguments podcast and business. Under these
8 circumstances, I concluded that, as my counsel pointed out, “It would be inconsistent with Mr.
9 Torrez’s position as a responsible steward of the Opening Arguments podcast and business to
10 place Mr. Smith in a position to take such disruptive and destructive actions at a time when the
11 survival of the podcast and business hangs in the balance.”
12 MR. SMITH IS COMPETING WITH AND DAMAGING OPENING ARGUMENTS.
13 38. Beginning with his surprise attack on February 4, 2023, and continuing thereafter,
14 Mr. Smith has embarked on a sustained effort to compete with and damage the Opening
15 Arguments podcast and business. One aspect of this campaign has been to attempt to shift both
16 listeners and Patreon subscribers from Opening Arguments to Mr. Smith’s Serious Inquiries Only
17 podcast—thus shifting advertising revenues and Patreon donations from Opening Arguments
18 Media to him and Serious Pod LLC. Mr. Smith has actively discouraged donations to Opening
19 Arguments and has encouraged Opening Arguments donors to shift their Patreon support to
20 Serious Inquiries Only.
21 39. One example of these efforts is a February 9 audio posting by Mr. Smith on Serious
22 Pod’s website and podcast channel. In this posting, available online at
23 https://seriouspod.com/little-update, he attempted to persuade supporters of Opening Arguments to
24 instead support Serious Inquiries Only or—as an alternative or in addition—another podcast in
25 which Mr. Smith participates and owns an interest, Dear Old Dads.11
26 ///
27
11
28 A true and correct copy of a transcription of Mr. Smith’s February 9 audio posting is Exhibit I.
13
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
Page 18
1 40. In his February 9 posting, after encouraging readers to review “accusations of
2 misconduct against Andrew Torrez,” Mr. Smith discouraged them from continuing to support
3 Opening Arguments:
4 If you happen to be someone who is signed up for patreon.com/law [the Opening
5 Arguments Patreon account], which is again, my 50/50 company with Andrew
6 Torrez. If you are signed on to Patreon there, I have no control over that money
7 whatsoever, because I have no access to the Patreon account. Therefore, I don't
8 have any way of knowing or controlling what bank account that Patreon account
9 goes to.
10 41. Mr. Smith then encouraged Opening Arguments supporters to donate to Serious
11 Inquiries Only instead:
12 Anything that happens as Opening Arguments right now currently is
13 without my authorization. That said, if you are somebody who would like to
14 support me, pledge to patreon.com/seriouspod. That's how you can do it.
15 42. Having attempted to persuade Opening Arguments supporters to shift their
16 donations to Serious Inquiries Only, Mr. Smith added a pitch for Dear Old Dads:
17 Pledge that show if you like that show. It's fantastic. I highly encourage you
18 to. If you were just looking to support me, that is a way because I get a third of
19 that. If you were just concerned about me, this [Serious Inquiries Only] is the feed
20 that directly supports me.
21 43. Confirming that Opening Arguments had been the target of this solicitation effort,
22 Mr. Smith concluded it by saying, “That's basically it for the Opening Argument stuff . . . .”
23 44. My counsel have repeatedly demanded that Mr. Smith cease and desist from
24 competing with and attempting to damage Opening Arguments, but he has failed to comply.
25 45. For example, on February 10, 2023, in an email message to Mr. Smith’s counsel
26 entitled “Breach of Fiduciary Duty,” my counsel stated:
27 Anne, are you aware of what Thomas [Smith] has posted last night and this
28 morning? He is openly competing with the Opening Arguments Patreon account
14
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
Page 19
1 and trying to move subscribers to his Serious Inquiries Only Patreon
2 account. (Listen to the audio at: https://seriouspod.com/little-update/.) . . . This
3 needs to come down right away.12
4 46. In a letter the next day, my counsel warned Mr. Smith’s counsel that he “needs to
5 stop taking actions that compete with or damage Opening Arguments.” However, he has failed to
6 do so. His February 9 posting remains public to this day. It is clear that Opening Arguments has
7 lost listeners and supporters as a result of this and other conduct by Mr. Smith, causing Opening
8 Arguments Media to lose both Patreon donations and advertising revenue.
9 47. In March 2023, after the hiatus in Mr. Smith’s podcast, Serious Inquiries Only, he
10 entered into further competition with Opening Arguments by beginning to produce episodes of that
11 podcast that focus on legal aspects of current news stories—the same subject addressed by
12 Opening Arguments. Previously, Serious Inquiries Only had focused on science and related
13 matters. (Its original name was “Atheistically Speaking.) As recently as February 25, Mr. Smith
14 described Serious Inquiries Only as “a science show” that usually covers “the intersection of
15 politics and science and studies and stuff.” But to date, he has posted at least five podcast
16 episodes focusing on legal matters, using “SIO legal expert Matt Cameron” to provide legal
17 analyses and commentary on those matters. These have included the following episodes:
18 § March 20: “Is… Is Trump Going To Be Arrested? Like… Really?”
19 § March 26: “Ok So About That Whole ‘Trump Being Arrested’ Thing”
20 § March 30: “TRUMP INDICTED!!!!!!!!!!!!”
21 § April 4: “Serial’s Adnan Syed Conviction Reinstated. What Happened?”13
22 § April 10: “Afroman vs Police and Clarence Thomas vs Ethics”
23 48. Serious Inquiries Only’s new legal content directly competes with Opening
24 Arguments. Indeed, Opening Arguments has addressed every one of the legal topics on which Mr.
25
12
26 A copy of this message is Exhibit C to the O’Brien declaration.
13
27 True and correct copies of screenshots showing the title cards to these episodes on the podcast
28 channel are Exhibit J to this declaration.
15
TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE
Page 20
1 Smith based the foregoing Serious Inquiries Only episodes. For example, on March 20, the same
2 day that he posted the Serious Inquiries Only episode entitled “Is… Is Trump Going To Be
3 Arrested? Like… Really?,” Opening Arguments posted an episode on the same subject, entitled
4 “LOCK HIM UP (?!),” in which “Liz and Andrew answer all your legal questions regarding the
5 anticipated imminent indictment of Donald Trump.” Opening Arguments has also had several
6 other episodes on related topics. And on May 5, Opening Arguments posted an episode addressing
7 ethics issues involving Justice Clarence Thomas, which had been a subject of the Serious Inquiries
8 Only episode entitled “Afroman vs Police and Clarence Thomas vs Ethics.”
9 49. Making his competition with Opening Arguments even more blatant, Mr. Smith has
10 encouraged podcast listeners to listen to law-related episodes of Serious Inquiries Only as an
11 alternative to Opening Arguments. On or about May 20, Smith went onto the Opening Arguments
12 Facebook community page and posted the following message, which included a graphic that is
13 derived from, and is commonly used in connection with, Opening Arguments:
14
15
16
17
18
19
20
21
22
23
24
25 50. While he did not mention Opening Arguments by name, Mr. Smith’s meaning was
26 unmistakable to the Opening Arguments Facebook fans and, indeed, to anyone who was familiar
27 with the recent issues involving our dispute. The plain meaning to such persons of Smith’s
28 statement—especially in view of its placement on the Opening Arguments community page and its
16
TORREZ DEC
Preview
1 John Tehranian (SBN 211616) jtehranian@onellp.com 2 William J. O’Brien (SBN 99526) wobrien@onellp.com 3 Christopher S. Skinner (SBN 342830) 4 cskinnner@onellp.com ONE LLP 5 23 Corporate Plaza Suite 150-105 6 Newport Beach, CA 92660 Telephone: (310) 866-5157 7 Facsimile: (310) 943-2085 8 Attorneys for Phillip Andrew Torrez, 9 Opening Arguments Media LLC, and Opening Arguments Foundation Inc. 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SONOMA 12 THOMAS SMITH, an individual; and Case No. SCV-272627 13 SERIOUS POD LLC, individually and Hon. Bradford DeMeo 14 derivatively on behalf of OPENING ARGUMENTS MEDIA LLC, a California DECLARATION OF PHILLIP ANDREW TORREZ 15 limited liability company, IN OPPOSITION TO EX PARTE APPLICATION Plaintiffs, FOR EXPEDITED DISCOVERY 16 vs. 17 PHILLIP ANDREW TORREZ, an Hearing Date: June 20, 2023 individual; and DOES 1-10, 18 Defendants, Amended Complaint Filed: March 29, 2023 19 and OPENING ARGUMENTS MEDIA LLC, a 20 California limited liability company, and OPENING ARGUMENTS FOUNDATION 21 INC., a California nonprofit corporation, 22 Nominal Defendants. OPENING ARGUMENTS MEDIA LLC 23 and PHILLIP ANDREW TORREZ, Cross-Complainants, 24 vs. 25 THOMAS SMITH; SERIOUS POD LLC; and ROES 1-10, 26 Cross-Defendants. 27 28 TORREZ DECLARATION OPPOSING EX PARTE APP. FOR EXPEDITED DISCOVERY 1 I, Phillip Andrew Torrez, declare: 2 INTRODUCTION 3 1. I am a defendant and cross-complainant in this case. I submit this declaration in 4 response to the ex parte application by Thomas Smith and Serious Pod LLC seeking expedited 5 discovery during the pendency of my Special Motion to Strike (Anti-SLAPP motion). I have 6 personal knowledge of the facts stated below. 7 2. As background and further support for this opposition, I am providing, as Exhibit A 8 to this declaration, a copy of the declaration I submitted in support of the Anti-SLAPP motion. 9 The statements in my Anti-SLAPP declaration are true and correct. (Because of their bulk, I am 10 omitting the many exhibits to my Anti-SLAPP declaration from Exhibit A.) 11 STATEMENTS BY TERESA GOMEZ 12 3. As I stated in my Anti-SLAPP declaration, Teresa Gomez is a longtime supporter 13 of Opening Arguments who has been involved as an administrator of the Opening Arguments 14 Facebook community, an editor of the Opening Arguments wiki, and as unpaid volunteer at 15 Opening Arguments events—assisting, for example, in the sale of Opening Arguments 16 merchandise. During the course of her activities, she became a friend of both me and Mr. Smith. 17 4. Ms. Gomez has never been an employee of Opening Arguments Media or of me. 18 Neither I nor Opening Arguments Media has directed or controlled any statements or activities of 19 Ms. Gomez related to the present dispute and controversy involving Mr. Smith. 20 5. Ms. Gomez has been critical of both me and Mr. Smith in connection with aspects 21 of the present controversy. Mr. Smith insulted her and tarnished her standing in the Opening 22 Arguments community by attacking her (I believe falsely) as a liar. She responded by making 23 statements about Mr. Smith. In doing so, she was not acting on behalf of or under the control of 24 Opening Arguments Media or me. I did not ask or encourage her, directly or indirectly, to make 25 any statement about Mr. Smith. I did not tell her what to say or suggest any statements to her, 26 whether directly or indirectly. 27 6. The foregoing statements apply to (but are not limited to) the statements attributed 28 to Ms. Gomez by Thomas Smith in Paragraphs 13 through 16 of his declaration supporting the ex 2 TORREZ DECLARATION OPPOSING EX PARTE APP. FOR EXPEDITED DISCOVERY 1 parte application. I did not instruct or encourage Ms. Gomez to make any of those statements. I 2 did not even see those statements at the times when they were posted and, to this day, I am 3 uncertain whether Ms. Gomez actually made all of the statements attributed to her by Mr. Smith. 4 7. If I had been in control of Ms. Gomez’s statements, I would never have authorized 5 or directed the statements attributed to her by Mr. Smith. For example, I would have never told or 6 encouraged her to say, “EAT MY WHOLE ASS THOMAS!” Such statements obviously reflect 7 her highly personal exasperation with Mr. Smith as a supposed friend who had accused her of 8 being a liar. 9 8. To the extent that Ms. Gomez made the statements attributed to her by Mr. Smith, 10 they appear to reflect her own personal thoughts and her own personal interpretation of events 11 rather than anything I told her. For example, I did not tell her that Thomas Smith had violated a 12 contract or had taken a year’s salary out of the Opening Arguments Media LLC account. Ms. 13 Gomez is not an attorney, and, as a lay person, she may not be familiar with the distinction 14 between breaches of contract and breaches of fiduciary duty, which I have alleged. Her reference 15 to “a year[’]s salary” appears to be her colloquial characterization of the public and uncontroverted 16 fact that Mr. Smith withdrew almost $42,000 from the Opening Arguments Media LLC account in 17 early February 2023. (I believe that, by a year’s salary, Ms. Gomez meant an amount that would 18 be a year’s salary for many people. I believe that the statement was not intended and could not 19 reasonably be understood to refer to a salary that had actually been received by Mr. Smith.) 20 THE ROLE OF KARA SCHMIEMANN 21 9. Kara Schmiemann is a Director at Red Banyan, a public relations firm that I have 22 retained in connection with the public controversy involving me, Opening Arguments Media LLC, 23 and Thomas Smith. I have never routed communications to Teresa Gomez through Ms. 24 Schmiemann or Red Banyan. To the best of my knowledge, no one at Red Banyan has ever 25 spoken with or otherwise communicated with Ms. Gomez. I have never authorized, directed, 26 encouraged, or facilitated any communications between Red Banyan (including Kara 27 Schmiemann) and Teresa Gomez. 28 3 TORREZ DECLARATION OPPOSING EX PARTE APP. FOR EXPEDITED DISCOVERY 1 FURTHER PUBLIC STATEMENTS BY THOMAS SMITH 2 10. The reason why the defendants provided a declaration from Ms. Schmiemann in 3 support of our Anti-SLAPP motion was to support the existence of public interest in the dispute 4 between Mr. Smith and me and related controversies. I have not seen any indication that Mr. 5 Smith contests that point. In fact, he has further confirmed it during the past few days, by publicly 6 posting a statement responding to some of the allegations in the Anti-SLAPP motion. Smith 7 posted such a statement on the Opening Arguments Facebook group and as audio files on his 8 Serious Inquiries Only podcast and website (https://seriouspod.com/sio365-i-finally-get-to-defend- 9 myself-a-little/), and he posted further documents in a public Google Drive 10 (https://drive.google.com/drive/folders/1peH7cNSIWR23wSFbG6rd_N-zJh9P0Mam). 11 11. Among other things, in this public statement, Mr. Smith, accuses multiple women 12 who have made accusations against me of lying about him and defaming him. 13 12. It is my understanding that the Opening Arguments Facebook community has over 14 5,000 members and that Serious Inquiries Only reaches tens of thousands of listeners. 15 13. Exhibit B to this declaration is a true and correct copy of the version of Mr. Smith’s 16 statement that was posted on the Opening Arguments Facebook group. 17 I declare under penalty of perjury under the laws of the State of California that the 18 foregoing is true and correct. 19 Executed on June 20, 2023. 20 21 22 23 24 25 26 27 28 4 TORREZ DECLARATION OPPOSING EX PARTE APP. FOR EXPEDITED DISCOVERY EXHIBIT A Page 5 1 John Tehranian (SBN 211616) jtehranian@onellp.com 2 William J. O’Brien (SBN 99526) wobrien@onellp.com 3 Christopher S. Skinner (SBN 342830) cskinnner@onellp.com 4 ONE LLP 23 Corporate Plaza 5 Suite 150-105 Newport Beach, CA 92660 6 Telephone: (310) 866-5157 Facsimile: (310) 943-2085 7 Attorneys for Defendants and Nominal Defendants 8 Phillip Andrew Torrez, Opening Arguments Media LLC, and Opening Argument Foundation Inc. 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SONOMA 11 THOMAS SMITH, an individual; and Case No. SCV-272627 12 SERIOUS POD LLC, individually and Hon. Bradford DeMeo derivatively on behalf of OPENING 13 ARGUMENTS MEDIA LLC, a California limited liability company, DECLARATION OF PHILLIP ANDREW TORREZ IN SUPPORT OF SPECIAL MOTION TO STRIKE 14 Plaintiffs, 15 vs. Hearing Date: TBD 16 PHILLIP ANDREW TORREZ, an Amended Complaint Filed: March 29, 2023 individual; and DOES 1-10, 17 Defendants, 18 and, 19 OPENING ARGUMENTS MEDIA LLC, a 20 California limited liability company; and OPENING ARGUMENTS FOUNDATION 21 INC., a California nonprofit corporation, 22 Nominal Defendants. 23 OPENING ARGUMENTS MEDIA LLC and PHILLIP ANDREW TORREZ, 24 Cross-Complainants, 25 vs. 26 THOMAS SMITH; SERIOUS POD LLC; 27 and ROES 1-10, 28 Cross-Defendants. TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 6 1 I, Phillip Andrew Torrez, declare: 2 INTRODUCTION 3 1. I am a defendant and cross-complainant in this case. I am a founder, member, and 4 50% owner of Opening Arguments Media, LLC. I am also an experienced attorney with more 5 than 25 years in practice and an active member of the Maryland State Bar. I have personal 6 knowledge of the facts stated below. 7 2. I am asking the Court to strike portions of the First Amended Complaint in this 8 case, because Thomas Smith and Serious Pod LLC are suing me for statements that I made (or, in 9 some cases, that an independent third party made) in the exercize of free speech rights about a 10 public controversy—a controversy that Mr. Smith had himself participated in creating, and in 11 which he was publicly maligning and damaging me and Opening Arguments Media (an entity to 12 which he owes fiduciary duties, as his company Serious Pod is a member). As I explain below, 13 any statements that I made about Mr. Smith in connection with our dispute have been truthful and 14 in good faith, made in an attempt to set the record straight on issues of public interest and concern. 15 THE OPENING ARGUMENTS PODCAST 16 3. Opening Arguments Media, LLC, is a California limited liability company. I own 17 50% of the company. The other 50% is owned by Serious Pod LLC, which is a California limited 18 liability company owned by Thomas Smith. 19 4. The principal business of Opening Arguments Media is to create and distribute the 20 podcast Opening Arguments. Opening Arguments offers legal analyses of popular stories in the 21 news. Mr. Smith and I began Opening Arguments in August 2016. It has become a prominent 22 podcast, with a large community of listeners. There have been more than 750 episodes to date, 23 with more than eighteen million downloads. 24 5. As a result of the success of Opening Arguments, Mr. Smith and I have become 25 widely known in the podcast industry and among the many fans of Opening Arguments. Many 26 followers of the program have participated in online communities dedicated to the show and to 27 multiple live events put on by Mr. Smith and me. For example, there is an active “Opening 28 Arguments Community” on Facebook in which members discuss the show. There is also an 2 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 7 1 “Opening Arguments Forum” on Reddit, created in 2017, which has more than 4,000 members. 2 There is a wiki (online collaboration platform) devoted to Opening Arguments in which—until the 3 eruption of the controversy discussed below—fans posted information about each Opening 4 Arguments, about Mr. Smith and me, and about Opening Arguments events and activities. 5 6. Because of the success of the Opening Arguments podcast, we have been able to 6 sell advertising on the show. Opening Arguments has also received a great deal of support from 7 supporters via Patreon, a service that allows them to make financial contributions via subscription. 8 As of January 2023, more than 4,300 patrons were subscribing to Opening Arguments. In 2022, 9 our annual revenues from advertising and Patreon subscriptions exceeded $600,000. 10 THE PUBLIC CONTROVERSY GIVING RISE TO THIS DISPUTE 11 7. The present dispute arises from public attacks on me by Thomas Smith after 12 publication of an article that contained allegations of personal, sexual misconduct against me. As 13 background, Mr. Smith and I originally met in March 2016 when I appeared on a podcast he then 14 hosted called Atheistically Speaking. That episode attracted far more listeners than his podcast 15 usually received, and Mr. Smith invited me back to make additional popular episodes. This 16 eventually gave rise to the idea of our starting a new podcast devoted to legal issues. 17 8. Mr. Smith and I also came into contact as a result of our membership in “American 18 Atheists,” a nonprofit organization that “strive[s] to create an environment where atheism and 19 atheists are accepted as members of our nation’s communities and . . . promote understanding of 20 atheists through education, outreach, and community building . . . .” I later became a member of 21 the group’s board of directors, which made me a target for political opponents of the organization. 22 On February 1, 2023, I was appalled to learn that I and another board member had been accused of 23 misconduct in an article published earlier that day in Religion News Service, a publication that has 24 been known to attack leaders of American Atheists.1 The article contained highly embarrassing 25 insinuations about my personal life, including allegations that I made unwanted sexual advances 26 towards two women at atheist conferences or other events. The article could also be taken as 27 1 28 A true and correct copy of the article is Exhibit A to this declaration. 3 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 8 1 hinting that I had recently been forced to resign my position on the board of American Atheists 2 because of an ethics investigation, although that was not true and I had actually resigned because 3 my other work commitments were causing me to miss too many board calls. I was distraught and 4 disoriented to find my personal life the subject of intrusive public scrutiny. 5 9. Immediately after publication of the Religion News Service article, Mr. Smith and I 6 began discussing about how to best protect the Opening Arguments business from negative fallout. 7 We discussed developing a comprehensive strategy to minimize any impact on the business. Mr. 8 Smith repeatedly told me that he would support me and the Opening Arguments business. Indeed, 9 he criticized my accusers in the strongest terms. For example, he said the following about the 10 principal accuser in the Religion News Service article: 11 § “god damn I don’t know how to avoid calling bull shit on [Accuser 1]” 12 § “F_ _ _ [Accuser 1]. She f_ _ _in knew what she was doing. I don’t know how she 13 could post those thinking she looks like the victim . . . .” 14 § “The way [Accuser 1] characterizes the interaction is so much different than what 15 the screenshots show. . . . I’m a little worried that her bull shit has escalated things 16 slightly. Not sure, I think for now still same plan . . . She’s really f_ _ _ing pissing 17 me off. her and [Accuser 2].”2 18 10. Smith’s private statements about other women accusing me of impropriety 19 included: 20 § “[Accuser 3]’s lying her f_ _ _in ass off about it . . . .” 21 § “[Accuser 2] is like the biggest f_ _ _ing pain right now. . . . [S]he’s literally 22 spreading half truths to damage our business, which feels like we should have some 23 recourse. But also we have to be so f_ _ _ing careful. It’s such bullshit.”3 24 2 25 True and correct copies of Mr. Smith’s text messages containing these statements are Exhibit B 26 to this declaration. Names and an expletive are redacted from these quotations. 3 27 True and correct copies of Mr. Smith’s text messages containing these statements are Exhibit C 28 to this declaration. Here again, names and an expletive are redacted. 4 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 9 1 11. I trusted Mr. Smith and believed his promises of support. I believed that he and I 2 had a shared interest in protecting Opening Arguments, that he sincerely disbelieved many of the 3 allegations against me, and, further, that, while I had crossed boundaries by flirting with women 4 and regretted doing so, Mr. Smith had encouraged such behavior and engaged in behavior that 5 was, similar in significant respects—and even worse in some respects—to what I had done. 6 12. Initially, Mr. Smith suggested that I record the next episode of Opening Arguments 7 without his participation, presumably as a way of gauging listener support. I agreed and suggested 8 that I ask a frequent recurring guest and colleague, Liz Dye, to co-host the show with me. Mr. 9 Smith agreed. 10 13. However, at some point during the evening of February 1, Mr. Smith apparently 11 changed his mind. The next day, he suggested that he should record the show with Liz Dye 12 instead, as a way of trying to let the controversy from the Religion News Service article die down. 13 Mr. Smith continued to assure me that his goal was to protect the show and quickly resume 14 producing episodes of Opening Arguments together. Sill feeling ashamed and embarrassed, I 15 agreed to having Mr. Smith and Ms. Dye record the next episode. Ms. Dye and I prepared the 16 research and notes or script for the episode with zero input from Mr. Smith. 17 14. Mr. Smith also repeatedly agreed to provide a public statement on the controversy 18 that would be supportive of me, and he repeatedly urged me to issue a public apology. I used my 19 personal funds to hire a public relations firm to assist in drafting any statements. Mr. Smith 20 entered into discussions with the firm about his statement supporting me. 21 THOMAS SMITH’S DISHONEST ATTACK ON ME 22 15. Instead of supporting me and Opening Arguments as he had promised, Thomas 23 Smith ambushed me with a dishonest attack, which dramatically expanded and prolonged the 24 controversy and severely harmed the Opening Arguments business. On the morning of February 25 4, Mr. Smith posted a bizarre audio recording heard by tens of thousands of listeners on his 26 personal podcast Serious Inquiries Only (operated through Serious Pod LLC) and on Serious 27 Pod’s website. In this recording, a purportedly tearful Mr. Smith made vague but dramatic 28 5 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 10 1 allegations to the effect that, during a retreat in August 2021 for a business in which I was 2 involved, I “touched [Smith] inappropriately with no permission.”4 3 16. Mr. Smith’s allegation is false. I have never been attracted to or made any sexual 4 advances towards Mr. Smith. I have never intentionally touched Smith in any objectionable 5 manner for any reason, and I have no idea what Mr. Smith is referring to. Mr. Smith had never 6 mentioned any supposed unwanted touching to me. As a purported explanation for why Mr. 7 Smith supposedly had suddenly remembered this event a year and a half later, Smith claimed that 8 he had “gas[lit him]self” into forgetting that it happened. 9 17. Strangely, while purporting to be reduced to tears over the memory of this 10 supposed event years earlier, Mr. Smith (an experienced actor) also repeatedly made comments 11 suggesting that my supposed conduct was similar to conduct that Mr. Smith himself had engaged 12 in, directed both to women and to a male co-host of another podcast in which Mr. Smith is 13 involved. 14 18. Mr. Smith must have been aware that making this allegation would reinforce and 15 exacerbate the very worst impressions given off by the Religion News Service article, prolong and 16 expend the controversy, and hurt the Opening Arguments business. I believe that Mr. Smith 17 concocted this allegation for the purpose of defusing any criticism of himself by painting himself 18 as a victim, as well as to position himself to take control over Opening Arguments and shut me 19 out. I believe that, far from reflecting sincere and spontaneous emotion, Mr. Smith’s recording 20 was premeditated, rehearsed, and artificial, as well as dishonest. 21 19. Mr. Smith’s accusations are wholly inconsistent with his own later behavior. In his 22 February 4 posting, he suggested that, as a result of a drinking problem, I had harassed and 23 traumatized him to the point where he would cry about it years later. But for Christmas of 2021— 24 only a few months after supposedly suffering this traumatic drunken harassment—Mr. Smith gave 25 4 26 A true and correct copy of Mr. Smith’s February 4, 2023, posting is Exhibit D to this declaration. 27 A true and correct copy of a transcription of the audio file accompanying Mr. Smith’s February 4, 28 2023, posting is Exhibit E. 6 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 11 1 me a bottle of expensive whiskey. Mr. Smith also invited me and my family to go wine-tasting 2 with him and his family in 2022. At a convention in April 2022, Mr. Smith and I spent every 3 night playing games and drinking in the same guest party suite. And before the breakup of our 4 collaboration, Mr. Smith repeatedly suggested and planned a visit to my home in Santa Rosa in 5 February 2023 for a live question-and-answer session. 6 20. On February 6, 2023, Mr. Smith escalated the situation further by making a posting 7 on the Opening Arguments Facebook community page that said—speaking of me—“F _ _ _ this f 8 _ _ _ ing dirtbag.”5 He then made a post on the Opening Arguments podcast channel that stated, 9 in part, “Andrew is stealing everything . . . .”6 But in actuality, Smith was the only person to 10 withdraw any funds from the Opening Arguments Media bank account during February and 11 March of 2023. 12 21. In the audio file accompanying his February 6 posting, Mr. Smith stated, among 13 other things, “Andrew is an abuser . . . . I am one of his victims . . . . This guy’s a f_ _ _ing 14 dirtbag . . . .” 15 22. On February 9, Mr. Smith fanned the flames of the controversy higher. For 16 example, he posted on his Twitter account a screen shot of, and link to, the Religion News Service 17 article and a statement that “Andrew has gone off the deep end and completely stolen control of 18 the show and company assets.”7 On the same date, he posted an audio file attempting to shift both 19 listeners and Patreon subscribers from Opening Arguments to Mr. Smith’s Serious Inquiries Only 20 podcast, as described below. 21 MY ACTIONS TO SAVE AND PRESERVE OPENING ARGUMENTS 22 23. It was immediately clear to me as a result of this conduct that Mr. Smith’s conduct 23 had placed the entire Opening Arguments business in jeopardy. He had also placed me in an 24 5 25 A true and correct copy of Mr. Smith’s February 6, 2023, Facebook posting is Exhibit F to this 26 declaration. Expletives are partially redacted in this and later quotations. 6 27 A true and correct copy of that post is Exhibit G. 7 28 A true and correct copy of that post is Exhibit H. 7 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 12 1 untenable position. Before Mr. Smith’s February 4 and 6 media assaults on me, we had discussed 2 the possibility of my briefly absenting himself from the recording of one or more episodes (while 3 still writing content for a guest co-host) to let the controversy over the accusations against me 4 subside. However, Mr. Smith’s defamatory attacks fanned the flames of the controversy higher 5 than ever before and made any further hiatus pointless. Mr. Smith’s dishonest surprise attack also 6 made it impossible for me to trust him. 7 24. There was also other conduct by Mr. Smith that made it impractical to record 8 Opening Arguments episodes without me. I learned that Mr. Smith had alienated Liz Dye by 9 failing to pay her for her past appearances on the show. I understood that Mr. Smith had also 10 repelled one or more other potential temporary co-hosts by approaching them without my 11 knowledge or consent. 12 25. With an audience accustomed to and expecting multiple weekly Opening 13 Arguments episodes, maintaining a flow of high-quality content was and is critical to the survival 14 of the podcast. Mr. Smith himself had insisted on this very point in urging that he post a podcast 15 episode—as he did on February 3—using Liz Dye without me. His later attempt to put the show 16 on an indefinite hiatus without any plan for making further episodes is a transparent attempt to 17 destroy it. 18 26. In view of Mr. Smith’s conduct, it was no longer feasible to produce episodes 19 hosted by him and Ms. Dye even in the very short term. The interests of the business required 20 immediate action to produce ongoing Opening Arguments episodes by other means. Accordingly, 21 I took steps to secure the Opening Arguments podcast channel and website. After careful 22 evaluation of the situation, it was clear to me that the best and possibly only way to sustain the 23 Opening Arguments podcast and business in view of Mr. Smith’s actions was for me to record 24 episodes using Liz Dye as my co-host. Ms. Dye and I produced and posted episodes of Opening 25 Arguments beginning on Wednesday, February 8, 2023. We posted another episode that Friday 26 and more episodes the following Monday, Tuesday, Wednesday, and Thursday to regain 27 momentum. Since then, we have been consistently producing four Opening Arguments per week. 28 In my opinion, these programs have been at least equal in quality to the episodes I recorded with 8 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 13 1 Mr. Smith and probably better. Certainly, this arrangement has been far superior to any available 2 alternative. 3 27. On February 6, 2023, before I began posting episodes recorded with Ms. Dye, my 4 legal counsel wrote to Mr. Smith, regarding his “recent conduct that has severely damaged Mr. 5 Torrez and the Opening Arguments business.”8 My counsel said in their February 6 letter to Mr. 6 Smith that he had “violated [his] fiduciary duties—as well as other legal rights and obligations— 7 not to mention betrayed the trust of a business partner and close friend.” They advised him that 8 we were prepared to meet to discuss the future of the podcast, saying: 9 Mr. Torrez is prepared to confer with you as soon as possible (along with 10 us and your counsel) to discuss the future of the Opening Arguments business and 11 the possible resolution of his claims against you. In the meantime, Mr. Torrez has 12 taken certain measures to preserve the status quo and protect against unilateral 13 actions that inalterably can damage both his rights and the business. 14 28. On February 8, my counsel consulted by telephone with Mr. Smith’s recently 15 retained counsel. My understanding is that the only alternative proposed by them was a “freeze” 16 or indefinite hiatus in Opening Arguments. It was clear to me that that was not a viable option for 17 the business. In a letter of February 9 to Mr. Smith’s counsel, my counsel accurately explained 18 my assessment of the situation and my intentions: 19 § “[Mr. Torrez] will not allow the Opening Arguments podcast to die for lack of fresh 20 content.” 21 § “He strongly feels that any announcement that the podcast was ‘frozen’ would be 22 devastating—probably fatal—to the podcast.” 23 § “Keeping the podcast viable will require a sustained flow of multiple episodes each 24 week.” 25 § “Mr. Torrez is ready and able to provide those episodes. He can conceive, plan, 26 and script them using essentially the same approach he has always used—offering 27 8 28 A copy of this letter is Exhibit A to the declaration of William J. O’Brien. 9 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 14 1 the same kinds of legal insights and analyses that are the heart of the podcast—and 2 record them in collaboration with Liz Dye, who is well known to the Opening 3 Arguments audience and has been well received by them.” 4 § “In contrast, Mr. Smith, for all his talents, is not realistically equipped to carry on 5 and sustain this show. Throughout its history, Opening Arguments has consistently 6 addressed topics selected by Mr. Torrez, in episodes outlined and scripted by Mr. 7 Torrez, with Mr. Smith chiming-in spontaneously or nearly spontaneously with an 8 ‘everyman’ take on points conceived and developed by Mr. Torrez. Mr. Smith is 9 not a lawyer, and there is no reason to believe that any lawyer Mr. Smith could 10 recruit would have the intangible combination of features that have made Mr. 11 Torrez and Opening Arguments successful. Mr. Smith’s editing and production 12 activities have been helpful, but they can be replicated by any competent podcast 13 producer at modest expense.”9 14 29. My counsel therefore placed Mr. Smith on notice of my intentions in their February 15 9 letter: 16 Unlike Mr. Smith, Mr. Torrez is determined to continue to fulfill his 17 fiduciary duties to Opening Arguments. This entails, first and foremost, continuing 18 to provide suitable and timely content to keep the podcast viable. As Mr. Smith did 19 last week, this week Mr. Torrez will post an Opening Arguments podcast recorded 20 with Liz Dye. 21 30. From the outset of our dispute, I have repeatedly attempted (through counsel) to 22 engage Smith in a dialogue about how the Opening Arguments podcast and business could best be 23 preserved. Mr. Smith has persistently failed to meaningfully respond to my inquiries, instead 24 insisting on positions that, as a practical matter, would have resulted in the demise of the podcast. 25 For example, my counsel repeatedly invited Mr. Smith—in letters to his counsel dated February 9, 26 February 17, and March 21, 2023—to put forward any viable alternative to having me continue 27 9 28 A copy of this letter is Exhibit B to the O’Brien declaration. 10 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 15 1 making Opening Arguments with Liz Dye as my cohost.10 But Mr. Smith has never done so. 2 31. My counsel accurately described my position in their letter of February 9, stating, 3 “For Mr. Torrez, the survival of the Opening Arguments podcast is the first priority, and financial 4 considerations are secondary” and that “Mr. Torrez will do whatever is in the best interests of 5 Opening Arguments.” 6 32. Based on my almost seven years of experience in producing the Opening 7 Arguments podcast, there is no doubt in my mind that—as my counsel explained to Mr. Smith’s 8 counsel on February 9—putting the podcast on hiatus would be the death knell of the podcast and 9 of the Opening Arguments Media business. The business depends, more than anything, on a 10 steady stream of podcast listeners. They, in turn, are attracted by a near-constant flow of new 11 content, and they will stop returning if that flow is interrupted. Indeed, Opening Arguments 12 listeners are accustomed to a diet of four episodes every week. In addition, we have long provided 13 additional content exclusive to Patreon subscribers at least once per month. And recently, Ms. 14 Dye and I have been posting bonus episodes of about 20 minutes each for Patreon subscribers 15 multiple times per week. 16 33. As my counsel stated to Mr. Smith’s counsel in the letter of February 17, his failure 17 to propose any viable alternative confirms my belief that he has no serious interest in sustaining 18 the Opening Arguments podcast and business: 19 Thomas Smith’s failure to make any proposal for how to sustain the podcast 20 confirms our impression that he is indifferent—at best—to the success or even 21 survival of the podcast. His statements and actions suggest that he is instead 22 focused on shifting income away from Opening Arguments to other podcasts that 23 he controls or from which he profits, placing them—and him—into competition 24 with Opening Arguments. 25 34. On March 21, 2023, after repeatedly soliciting Mr. Smith’s views about a future 26 plan for Opening Arguments without success, my counsel notified his counsel that I intended to 27 10 28 Copy of these letters are Exhibits B, E, and F to the O’Brien declaration, respectively. 11 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 16 1 continue my existing approach: 2 Having asked repeatedly and been ignored, we are not going to continue to 3 beg Mr. Smith to provide any alternative plan to continue the Opening Arguments 4 podcast. It is obvious from your silence and his conduct that he does not have one. 5 As best we can divine, Mr. Smith’s goal is to shift as many donors and listeners as 6 possible from Opening Arguments to Mr. Smith’s Serious Inquiries Only podcast 7 and let Opening Arguments die. Mr. Torrez does not intend to let that happen. He 8 is going to continue making episodes with Liz Dye as that is the only plan on the 9 table for sustaining the podcast and the business. 10 35. In view of Mr. Smith’s damaging conduct and his refusal to discuss future plans for 11 the Opening Arguments podcast, it has been impossible for me to allow him access to the Opening 12 Arguments podcast channel. As described above and described further below, Mr. Smith has 13 intentionally undermined and harmed the Opening Arguments podcast and business. He has 14 continued such conduct despite repeated demands by my counsel that he stop. He has failed to 15 provide any assurances that, if given access to the Opening Arguments podcast channel, he would 16 not use that access to sabotage Opening Arguments by taking actions similar to things he has 17 already done, is doing, or has expressly proposed to do. 18 36. For example, in their February 17 letter, my counsel asked Mr. Smith’s counsel for 19 assurances on the following points of critical concern: 20 § “If given access to the Opening Arguments podcast channel, is Mr. Smith going to 21 try to enforce a “freeze” by deleting the high-quality and popular content that Mr. 22 Torrez and Ms. Dye have created?” 23 § “Is he again going to post false and highly damaging statements that Mr. Torrez is 24 ‘stealing everything’ from Opening Arguments?” 25 § “Is he going to post further false and defamatory statements about Mr. Torrez 26 touching him?” 27 § “Is he going to make further attempts to divert funds to other podcasts, like Serious 28 Inquiries Only or Dear Old Dads?” 12 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 17 1 37. My counsel pointed out in their February 17 letter that, in view of his prior 2 behavior, it was “irresponsible and unrealistic for Mr. Smith to keep demanding access to the 3 Opening Arguments podcast channel and accounts while remaining silent about his intentions and 4 while taking action to compete with and damage Opening Arguments through other channels.” 5 Yet, tellingly, Mr. Smith has not been willing to provide even the most basic assurances that he 6 would not use any access he was given to the Opening Arguments podcast channel to disrupt, 7 damage, or even destroy the Opening Arguments podcast and business. Under these 8 circumstances, I concluded that, as my counsel pointed out, “It would be inconsistent with Mr. 9 Torrez’s position as a responsible steward of the Opening Arguments podcast and business to 10 place Mr. Smith in a position to take such disruptive and destructive actions at a time when the 11 survival of the podcast and business hangs in the balance.” 12 MR. SMITH IS COMPETING WITH AND DAMAGING OPENING ARGUMENTS. 13 38. Beginning with his surprise attack on February 4, 2023, and continuing thereafter, 14 Mr. Smith has embarked on a sustained effort to compete with and damage the Opening 15 Arguments podcast and business. One aspect of this campaign has been to attempt to shift both 16 listeners and Patreon subscribers from Opening Arguments to Mr. Smith’s Serious Inquiries Only 17 podcast—thus shifting advertising revenues and Patreon donations from Opening Arguments 18 Media to him and Serious Pod LLC. Mr. Smith has actively discouraged donations to Opening 19 Arguments and has encouraged Opening Arguments donors to shift their Patreon support to 20 Serious Inquiries Only. 21 39. One example of these efforts is a February 9 audio posting by Mr. Smith on Serious 22 Pod’s website and podcast channel. In this posting, available online at 23 https://seriouspod.com/little-update, he attempted to persuade supporters of Opening Arguments to 24 instead support Serious Inquiries Only or—as an alternative or in addition—another podcast in 25 which Mr. Smith participates and owns an interest, Dear Old Dads.11 26 /// 27 11 28 A true and correct copy of a transcription of Mr. Smith’s February 9 audio posting is Exhibit I. 13 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 18 1 40. In his February 9 posting, after encouraging readers to review “accusations of 2 misconduct against Andrew Torrez,” Mr. Smith discouraged them from continuing to support 3 Opening Arguments: 4 If you happen to be someone who is signed up for patreon.com/law [the Opening 5 Arguments Patreon account], which is again, my 50/50 company with Andrew 6 Torrez. If you are signed on to Patreon there, I have no control over that money 7 whatsoever, because I have no access to the Patreon account. Therefore, I don't 8 have any way of knowing or controlling what bank account that Patreon account 9 goes to. 10 41. Mr. Smith then encouraged Opening Arguments supporters to donate to Serious 11 Inquiries Only instead: 12 Anything that happens as Opening Arguments right now currently is 13 without my authorization. That said, if you are somebody who would like to 14 support me, pledge to patreon.com/seriouspod. That's how you can do it. 15 42. Having attempted to persuade Opening Arguments supporters to shift their 16 donations to Serious Inquiries Only, Mr. Smith added a pitch for Dear Old Dads: 17 Pledge that show if you like that show. It's fantastic. I highly encourage you 18 to. If you were just looking to support me, that is a way because I get a third of 19 that. If you were just concerned about me, this [Serious Inquiries Only] is the feed 20 that directly supports me. 21 43. Confirming that Opening Arguments had been the target of this solicitation effort, 22 Mr. Smith concluded it by saying, “That's basically it for the Opening Argument stuff . . . .” 23 44. My counsel have repeatedly demanded that Mr. Smith cease and desist from 24 competing with and attempting to damage Opening Arguments, but he has failed to comply. 25 45. For example, on February 10, 2023, in an email message to Mr. Smith’s counsel 26 entitled “Breach of Fiduciary Duty,” my counsel stated: 27 Anne, are you aware of what Thomas [Smith] has posted last night and this 28 morning? He is openly competing with the Opening Arguments Patreon account 14 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 19 1 and trying to move subscribers to his Serious Inquiries Only Patreon 2 account. (Listen to the audio at: https://seriouspod.com/little-update/.) . . . This 3 needs to come down right away.12 4 46. In a letter the next day, my counsel warned Mr. Smith’s counsel that he “needs to 5 stop taking actions that compete with or damage Opening Arguments.” However, he has failed to 6 do so. His February 9 posting remains public to this day. It is clear that Opening Arguments has 7 lost listeners and supporters as a result of this and other conduct by Mr. Smith, causing Opening 8 Arguments Media to lose both Patreon donations and advertising revenue. 9 47. In March 2023, after the hiatus in Mr. Smith’s podcast, Serious Inquiries Only, he 10 entered into further competition with Opening Arguments by beginning to produce episodes of that 11 podcast that focus on legal aspects of current news stories—the same subject addressed by 12 Opening Arguments. Previously, Serious Inquiries Only had focused on science and related 13 matters. (Its original name was “Atheistically Speaking.) As recently as February 25, Mr. Smith 14 described Serious Inquiries Only as “a science show” that usually covers “the intersection of 15 politics and science and studies and stuff.” But to date, he has posted at least five podcast 16 episodes focusing on legal matters, using “SIO legal expert Matt Cameron” to provide legal 17 analyses and commentary on those matters. These have included the following episodes: 18 § March 20: “Is… Is Trump Going To Be Arrested? Like… Really?” 19 § March 26: “Ok So About That Whole ‘Trump Being Arrested’ Thing” 20 § March 30: “TRUMP INDICTED!!!!!!!!!!!!” 21 § April 4: “Serial’s Adnan Syed Conviction Reinstated. What Happened?”13 22 § April 10: “Afroman vs Police and Clarence Thomas vs Ethics” 23 48. Serious Inquiries Only’s new legal content directly competes with Opening 24 Arguments. Indeed, Opening Arguments has addressed every one of the legal topics on which Mr. 25 12 26 A copy of this message is Exhibit C to the O’Brien declaration. 13 27 True and correct copies of screenshots showing the title cards to these episodes on the podcast 28 channel are Exhibit J to this declaration. 15 TORREZ DECLARATION IN SUPPORT OF SPECIAL MOTION TO STRIKE Page 20 1 Smith based the foregoing Serious Inquiries Only episodes. For example, on March 20, the same 2 day that he posted the Serious Inquiries Only episode entitled “Is… Is Trump Going To Be 3 Arrested? Like… Really?,” Opening Arguments posted an episode on the same subject, entitled 4 “LOCK HIM UP (?!),” in which “Liz and Andrew answer all your legal questions regarding the 5 anticipated imminent indictment of Donald Trump.” Opening Arguments has also had several 6 other episodes on related topics. And on May 5, Opening Arguments posted an episode addressing 7 ethics issues involving Justice Clarence Thomas, which had been a subject of the Serious Inquiries 8 Only episode entitled “Afroman vs Police and Clarence Thomas vs Ethics.” 9 49. Making his competition with Opening Arguments even more blatant, Mr. Smith has 10 encouraged podcast listeners to listen to law-related episodes of Serious Inquiries Only as an 11 alternative to Opening Arguments. On or about May 20, Smith went onto the Opening Arguments 12 Facebook community page and posted the following message, which included a graphic that is 13 derived from, and is commonly used in connection with, Opening Arguments: 14 15 16 17 18 19 20 21 22 23 24 25 50. While he did not mention Opening Arguments by name, Mr. Smith’s meaning was 26 unmistakable to the Opening Arguments Facebook fans and, indeed, to anyone who was familiar 27 with the recent issues involving our dispute. The plain meaning to such persons of Smith’s 28 statement—especially in view of its placement on the Opening Arguments community page and its 16 TORREZ DEC