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Column: A Trump judge eviscerates a pro-worker regulation at the request of big employers

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Column: A Trump judge eviscerates a pro-worker regulation at the request of big employers

The Biden administration’s support of worker rights and union organizing has become a byword.

President Biden has restored the National Labor Relations Board to its traditional role as protector of collective bargaining rights. He walked the United Auto Workers picket line during its ultimately successful contract negotiations with the Big Three automakers.

He has nominated and renominated the outstanding worker advocate Julie Su as secretary of Labor. And he swept a gaggle of Trump-appointed union-busters and anti-union ideologues out of a key federal agency responsible for ruling on disputes involving government union contracts.

As major companies have consciously invested in building brands…as the cornerstone of their business strategy, they have also shed their role as the direct employer of the people responsible for providing their products and services.

— David Weil, “The Fissured Workplace”

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But now he has run up against a brick wall of hard-right anti-union ideology put in place by his predecessor: another Trump-appointed ultra-partisan federal judge using his perch in an obscure courthouse to make policy for the entire nation.

We’re talking about J. Campbell Barker of the U.S. District Court of Tyler, Texas. Last week Barker, ruling in a lawsuit brought by the U.S. Chamber of Commerce and 12 other business lobbies, invalidated an NLRB rule aimed at broadening the standard by which big corporations could be held jointly responsible for the welfare and unionization rights of workers employed by their franchisees.

Barker was appointed by Trump in 2019 after a career as a Texas state lawyer writing briefs to restrict voting rights and LGBTQ+ rights, supporting Trump’s travel ban on Muslim-majority nations and attacking access to contraceptives and abortion.

On March 8, he ruled that the NLRB’s joint-employer regulation, issued in October, was so broad that it would “treat virtually every entity that contracts for labor as a joint employer.”

Many workers whose wages or workplace conditions were effectively dictated by big companies that fobbed their responsibilities onto franchise owners would consider that anything but a drawback.

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The NLRB is certain to appeal Barker’s decision, probably to the New Orleans-based 5th Circuit Court of Appeals, which has set its own standard for far-right judicial overreach. The board had earlier argued that Barker shouldn’t have taken the lawsuit in the first place, because by law NLRB final rules can be appealed only to the federal appeals court in the District of Columbia. Barker rejected that argument.

Big business has been fighting efforts to broaden legal interpretations of joint-employer status for decades. The plaintiffs in this lawsuit included lobbies for builders, restaurants, hotels and convenience stores.

Many of them base their business models on their ability to control workplace conditions from afar while pushing legal liability for labor violations onto franchise owners, whom they often describe (inaccurately) as small mom-and-pop operations just scraping by.

Among the plaintiffs is the Chamber of Commerce of Longview, Texas. Longview is a small city in the east Texas oil patch; presumably its chamber was recruited because the plaintiffs figured that its presence would give them standing to sue in the federal district court in Tyler, which has two judges, both appointed by Donald Trump, including Barker. They got their wish.

Another plaintiff is the Coalition for a Democratic Workplace. You might suppose that an organization bearing that name represents the whole panoply of business stakeholders, from fast-food workers to corporate employers, but no.

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“Democratic” here means much the same thing as it did when “German Democratic Republic” signified a Communist dictatorship in East Germany, which was anything but a democratic workers’ paradise. The coalition comprises 600 employer groups “joined by their mutual concern over regulatory overreach by the National Labor Relations Board.”

Now let’s turn to the lawsuit itself. If you surmise that its opening brief, filed on Nov. 9, bristled with disinformation, you would be right.

The brief stated that the NLRB “rammed” the rule changes through on the claim that “the 90-year-old National Labor Relations Act has been misinterpreted for most of its existence.” (Actually, the board is only 88 years old.)

A couple of points here. First, it’s a little unclear what the plaintiffs meant by “ramming through” the new rule. The NLRB first proposed the rule in September 2022, and didn’t promulgate it until 13 months later. In the interim it put the proposal out for public comments, of which it received 13,000.

The plaintiffs implied that the NLRB’s joint-employer rules have been static since the board’s founding in 1935. Nothing could be further from the truth.

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The standard came before the Supreme Court more than once, starting in 1964. The board amended it, sometimes narrowing and sometimes expanding its definition of joint employer, in 1982, 2002, 2007, 2018 and 2020, before the latest version was issued in October.

The plaintiffs wring their hands over the fact that the board reversed a rule that it “promulgated just three years ago.” You might ask yourself: Hmm, what changed in Washington between 2020 and 2023?

If you guessed that the Trump administration was turned out of office and replaced by the Biden administration, well done.

The latter gave the NLRB a Democratic majority, just as the former had given it a Republican majority. Presidents have the power to do that and most have done so when they were succeeding a president of the other party. So when the plaintiffs depict the board as an unchanging entity that reversed itself, they’re lying, possibly in the hope that a judge will be too stupid to notice their sleight of hand. Or too partisan to care.

But they can’t avoid explicitly stating their true concern with the joint-employer rule: The rule threatens employers with “billions of dollars in liability and costs.”

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Defining joint-employer responsibilities has become more important in recent decades as more businesses turn to the franchise model, which gives fast-food, hotel and retailing behemoths plausible deniability over how their front-line workers are treated and paid.

“As major companies have consciously invested in building brands … as the cornerstone of their business strategy,” labor expert David Weil wrote in his 2014 book “The Fissured Workplace,” “they have also shed their role as the direct employer of the people responsible for providing their products and services.” The trend, Weil wrote, encompasses hotel maids, cable installers, commercial janitors and merchandise pickers in Amazon warehouses — all are actually on the payroll of third-party employment firms.

(By the way, Biden nominated Weil in 2021 to a high-level position at the Department of Labor, but the nomination was killed by opposition from Republicans and Big Business.)

In recent years, the principal target of joint-employer cases at the NLRB has been McDonald’s. That’s unsurprising, since with more than $119 billion in overall international sales it’s the largest franchisor in the world.

The Obama-era NLRB brought a massive case against the company and 29 franchisees in 2014, which turned into what was regarded as the biggest case the board ever instituted, and the longest. The main issue was whether the company had participated in — in fact, helped to run — a nationwide attack on the Fight for $15 union campaign for a higher minimum wage at its restaurants.

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Then-NLRB general counsel Richard Griffin alleged at the outset that the franchisees fired, suspended, cut work hours, threatened, spied on and interrogated employees involved in the union campaign, all of which he interpreted as illegal responses to union organizing.

Administrative Law Judge Lauren Esposito cited evidence that the anti-union response was “formulated and implemented” from McDonald’s headquarters in Chicago and that the company provided franchisees with “suggested policies” and legal training in labor relations — so much so that the company was properly regarded as the franchise workers’ joint employer.

By the time Esposito prepared to rule, Trump was president. He replaced Griffin with Peter Robb, whose record as an anti-labor lawyer was well nigh unassailable and whose hostility to the joint-employer rule was manifest. Before Esposito could rule, Robb settled the cases against the franchisees by ordering back pay for the workers who were fired or had their hours cut. But the settlements didn’t involve McDonald’s Corp., which therefore skated on the joint-employer issue.

Esposito rejected the settlements, but she was overruled by the NLRB’s new, Republican majority. The sole dissent came from Lauren McFerran, an Obama appointee who was the only Democrat then on the board.

“A finding of joint-employer status,” she wrote, “would have important collateral consequences for McDonald’s, in both unfair labor practice proceedings involving its franchisees and … if workers employed at McDonald’s franchisees sought to organize (that is, unionize).”

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In other words, the Trump NLRB moved heaven and earth to keep McDonald’s from being declared a joint employer.

McFerran is now chair of the NLRB, presiding over a 3-1 Democratic majority. (One seat on the five-member board is vacant.)

The NLRB’s joint-employer rule would bring millions of workers — typically low-wage workers without health or retirement benefits and virtually no job security — under the umbrella of their well-heeled ultimate employers. It’s possible, if not certain, that they would see an improvement in their working lives, through better wages and more opportunity to unionize.

Even big franchisees or labor brokers don’t have to care about their public image — most customers don’t even know they exist. But McDonald’s, Marriott, Walmart and Amazon have a lot to lose in public esteem by getting tagged as an abuser of workers.

If the NLRB had its way, they would no longer be getting away with shedding their responsibilities. Let’s hope that Judge Barker’s ruling is a temporary obstacle to making the world work better.

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Kevin Warsh, Trump’s Pick to Lead Fed, Faces Senate at Tricky Moment

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Kevin Warsh, Trump’s Pick to Lead Fed, Faces Senate at Tricky Moment

Kevin M. Warsh, President Trump’s pick to lead the Federal Reserve, has spent years refining his pitch for why he should get one of the most powerful economic jobs in the world.

At his confirmation hearing on Tuesday, he will have to convince Senate lawmakers that he is ready to step into the role, which has become politically explosive amid Mr. Trump’s relentless attacks on the institution and its current chair, Jerome H. Powell.

Mr. Warsh, who is scheduled to testify before the Banking Committee at 10 a.m., plans to commit to being “strictly independent” on decisions related to interest rates, according to his prepared remarks. He also plans to tell lawmakers that he is unbothered by Mr. Trump’s incessant calls for substantially lower borrowing costs. And he will use his opening statement to underscore his focus on disrupting the “status quo” at an institution he said just last year was in need of “regime change.”

“In a time that will rank among the most consequential in our nation’s history, I believe a reform-oriented Federal Reserve can make a real difference to the American people,” he plans to tell lawmakers, adding: “The stakes could scarcely be higher.”

Mr. Warsh, 56, faces significant hurdles to winning confirmation. He has broad support among Republicans, who control the Senate and can confirm him along party lines. Yet his candidacy has stalled because of an ongoing investigation by the Justice Department into Mr. Powell and his handling of the Fed’s headquarters renovations.

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Mr. Powell’s term as chair ends May 15, but Mr. Warsh looks increasingly unlikely to be in place by then. That’s because Senator Thom Tillis of North Carolina — a Republican on the Banking Committee who has expressed support for Mr. Warsh — has vowed to block any attempt to confirm a new Fed chair until the legal threats into Mr. Powell are resolved. For Mr. Tillis, the investigation is a blatant attempt to coerce Mr. Powell into lowering rates, undermining the Fed’s independence and confirming the politicization of the Justice Department.

“I’m not going to condone bad decision-making and bad behavior,” Mr. Tillis told reporters on Monday in reference to the Justice Department’s lack of evidence of any wrongdoing.

The department has vowed to continue its investigation, despite numerous legal setbacks.

“I think ultimately, he will be confirmed,” Senator John Kennedy of Louisiana, another Republican on the committee, told reporters on Monday. “I just don’t know what decade.”

Mr. Warsh’s ascent would mark a homecoming for the Wall Street financier, who served as a Fed governor from 2006-11.

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Since leaving the Fed, he has amassed assets worth well in excess of $100 million, according to financial disclosures submitted before his hearing. Those have drawn scrutiny because Mr. Warsh repeatedly invoked “pre-existing confidentiality agreements” to avoid disclosing the details behind several of his investments. He has said he would divest a substantial amount of his assets before taking the job.

The global financial crisis dominated Mr. Warsh’s first tenure at the Fed, thrusting him into the middle of discussions about how the central bank should respond to the threat of bank failures, turmoil in financial markets and a painful recession that followed. Mr. Warsh, then the youngest-ever member of the Board of Governors, was initially supportive of the Fed’s efforts to shore up financial markets by buying enormous quantities of government bonds and expanding its balance sheet to ease strains in financial markets and support growth by keeping market-based rates low.

But he soon soured on subsequent efforts to buy more bonds and resigned in protest. That experience has stuck with Mr. Warsh, who has made a smaller balance sheet a pillar of his plans if he takes over as chair.

Mr. Warsh would also be likely to usher in changes to how the Fed communicates its policy views, having expressed misgivings about its strategy of providing so-called forward guidance, or hints about how interest rates may change in the future to guide expectations. He has also suggested that policymakers across the Fed system should speak far less. Mr. Powell held a news conference after each rate decision, or eight a year, and delivered speeches with regularity. Mr. Trump’s pick to join the Fed last year, Stephen I. Miran, often speaks multiple times a week.

“Once policymakers reveal their economic forecast, they can become prisoners of their own words,” Mr. Warsh said in a speech last year. “Fed leaders would be well served to skip opportunities to share their latest musings. The swivel-chair problem, rhetorically waxing and waning with the latest data release, is common and counterproductive.”

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What is far less clear is how much Mr. Warsh would heed the president’s demands for lower interest rates. Mr. Trump said he would not pick someone for chair who did not support lower borrowing costs.

Mr. Warsh sought in his opening statement to downplay the costs of a president’s voicing his opinions about rates, saying central bankers must be “strong enough to listen to a diversity of views from all corners, humble enough to be open-minded to new ideas and new economic developments, wise enough to translate imperfect data into meaningful insight and dedicated enough to make judgments faithfully and wisely.”

Earlier this year, many officials at the Fed saw a path to gradually lower rates as the impact of Mr. Trump’s tariffs faded and inflation restarted its slide back toward 2 percent after almost of year of stalling out. The war in Iran — and the energy shock it has unleashed — has upended those forecasts, however, prompting officials to turn wary about lowering rates.

Mr. Warsh will face questions on Tuesday about the economic impact of the war and how it has changed his thinking around the Fed’s ability to lower rates. While at the Fed, he was known as an inflation hawk who often argued against providing policy relief for fear that it could stoke price pressures. He also said the Fed should aspire to engage in rule-based policymaking that stems from formulas that prescribe how officials should set rates based on levels of inflation and employment.

While campaigning to be chair, Mr. Warsh embraced the need for rate cuts, arguing that there was a path for lower borrowing costs because of his plans to shrink the balance sheet, which would lift longer-term rates that then could be offset by lowering short-term ones. He also argued that higher productivity from the boom in artificial intelligence could unleash higher growth without stoking inflation, which could give the Fed more space to lower rates than otherwise would be the case.

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In his opening statement, Mr. Warsh made clear, however, that a failure to bring down inflation, which has been stuck above the Fed’s 2 percent target for roughly five years, would strictly be the Fed’s fault, suggesting that he would shoulder the blame if he did not bring it back down during his tenure.

“Inflation is a choice, and the Fed must take responsibility for it,” he will tell lawmakers.

Megan Mineiro contributed reporting.

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New lawsuit alleges Uber is violating drivers’ rights. Here’s how

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New lawsuit alleges Uber is violating drivers’ rights. Here’s how

A gig drivers organization filed a lawsuit against Uber, alleging the company violated their rights by not providing a sufficient appeals process for deactivated accounts.

The lawsuit was announced Monday during a news conference by Rideshare Drivers United, an independent organization that represents more than 20,000 app-based drivers in California.

The organization, represented by attorney Shannon Liss-Riordan, said thousands of drivers have been terminated with little to no explanation, many of whom had worked as drivers for years and had high ratings.

“Drivers want to stand up for themselves and for basic fairness, and we can’t when there is no fair appeals process,” said Jason Munderloh, the chairman of the organization’s Bay Area chapter.

The lawsuit is the latest in a long battle between drivers and major ride-hailing service companies. Uber, a frequent target of lawsuits, has often faced claims of labor violations and vehicle collisions.

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The tension could reach the November ballot, as the ride-hailing giant attempts to curb the laundry list of legal action. Uber is advocating for legislation that could cap how much attorneys can earn in vehicle collision cases.

Rideshare Drivers United said Monday that Uber is violating Proposition 22, which passed in 2020 and was upheld by the state Supreme Court in 2024. The legislation was a win for gig economy companies, allowing them to classify drivers as independent contractors rather than employees, provided certain requirements are met.

Uber is violating a clause in the proposition that requires the company to provide an appeals process for drivers who are terminated, the organization said.

“Uber has had six years of hiding behind Prop. 22 on issues favorable to it and ignored the law when it seemed inconvenient,” Munderloh said.

The lawsuit seeks a statewide judgment that Uber has failed to comply with Proposition 22, along with an opportunity for the thousands of deactivated drivers to appeal their terminations. The suit also seeks reactivation and back pay for drivers who were unfairly terminated.

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Uber denied the claims in the lawsuit and reaffirmed that it offers a clear appeals process, in compliance with Proposition 22, a spokesperson told The Times.

“This is a baseless lawsuit by an opportunistic trial lawyer seeking to overturn Proposition 22 and the will of California voters,” the spokesperson said. “We’ll fight this publicity stunt in court while continuing to strengthen drivers’ voice on the platform.”

The company posted on a blog Friday that details its termination and appeals process. Every deactivated driver is given a reason for termination and offered a review process for more information. Drivers can then appeal, and the appeal is evaluated by a real person, according to the website.

Rirdeshare Drivers United said drivers are often terminated for vague reasons and are met with endless automated chatbots when inquiring about their terminations.

Drivers who request an appeal are either automatically denied or given the runaround without being offered an actual appeals process, Liss-Riordan said.

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Devins Baker had given about 18,000 rides for Uber in eight years and boasted a 4.96 rating when his account was unexpectedly terminated just before Christmas in 2024. An automated message from the company claimed Baker had driven recklessly and offered no other information, he said.

He wasn’t told what resulted in his termination, but said that during his last ride, he had to drive defensively to avoid crashing into a vehicle that was merging recklessly on the freeway.

Baker had to hit the brakes to avoid the collision, and the passenger, who wasn’t wearing a seat belt, fell off the seat.

Baker was not offered a chance to appeal, he said.

Proposition 22 carved out a new classification for gig economy workers, affording them limited benefits, but not the rights granted to full-fledged employees.

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The legislation received strong financial backing from Uber.

A group of drivers challenged Proposition 20 in 2024, claiming the law is unconstitutional because it interferes with the state Legislature’s authority to provide workers’ compensation protections to drivers. Their claims were ultimately rejected by the state’s highest court.

Ride-hail drivers have long raised concerns about low wages, minimal workplace protections and exploitative practices.

More recently, they have grappled with rising gas prices amid the war in the Middle East, which has driven some away from the ride-hailing business.

“The pay is not good in the first place. We do what we can to create a solid framework for ourselves and our families,” said Munderloh, who works as a part-time Uber driver. “It’s hard enough with how little they pay us, and then even that is taken away.”

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Various gig companies, including Uber, Lyft and DoorDash, have said Proposition 22 is a crucial component of their businesses and threatened to shut down in the state if the proposition were struck down. These companies poured hundreds of millions of dollars into a campaign to sway voters on the proposition.

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The Onion Signs New Deal to Take Over Infowars

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The Onion Signs New Deal to Take Over Infowars

When Infowars, the website founded by the right-wing conspiracist Alex Jones, came up for sale two years ago, an unlikely suitor stepped up. The Onion, a satirical news outlet, planned to convert the site into a parody of itself.

That sale was scuttled by a bankruptcy court. Now, The Onion has re-emerged with a new plan: licensing the website from Gregory Milligan, the court-appointed manager of the site.

On Monday, Mr. Milligan asked Maya Guerra Gamble, a judge in Texas’ Travis County District Court overseeing the disposition of Infowars, to approve that licensing agreement in a court filing. Under the terms, The Onion’s parent company, Global Tetrahedron, would pay $81,000 a month to license Infowars.com and its associated intellectual property — such as its name — for an initial six months, with an option to renew for another six months.

The licensing deal has been agreed to by The Onion and the court-appointed administrator. But it is not effective until Judge Guerra Gamble approves it, and Mr. Jones could appeal any ruling. That means the fate of Infowars remains in limbo until the court rules, probably sometime in the next two weeks. Mr. Jones continues to operate Infowars.com and host its weekday program, “The Alex Jones Show.”

Mr. Jones had no immediate comment.

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The battle over Infowars has been a long and fraught saga, and Mr. Jones — a notorious peddler of lies and invective — has used his bully pulpit for more than a year to crusade against The Onion’s efforts to take over the platform. The site is in limbo because of a series of defamation lawsuits against Mr. Jones filed by families of victims of the mass shooting in 2012 at Sandy Hook Elementary School in Connecticut, which Mr. Jones falsely claimed was a hoax.

People who believed his lies that the shooting was staged subjected the families to years of online abuse, harassment and death threats.

In 2018, the families of two Sandy Hook victims sued Mr. Jones for defamation in Texas, where Infowars is based, and relatives of eight other victims sued him in Connecticut. In 2022, a jury in Texas awarded the parents of one victim $50 million.

Mr. Jones declared bankruptcy later that year. A trial pitting him against the parents of a second victim was delayed indefinitely by that move. Later that year, a jury awarded the families and a former law enforcement official who sued Mr. Jones in Connecticut a total of $1.4 billion.

Mr. Jones appealed the Connecticut verdict, the largest defamation award in history, all the way to the U.S. Supreme Court. In October, the justices declined to hear the case.

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To help satisfy Mr. Jones’s debts to the Sandy Hook families and other creditors, Judge Christopher Lopez of U.S. Bankruptcy Court ordered in mid-2024 that a court-appointed trustee sell off equipment, intellectual property and other assets owned by Free Speech Systems, Infowars’ parent company.

In late 2024, a sealed-bid silent auction drew only two contenders: The Onion’s parent and a company associated with Mr. Jones. The trustee and the families chose The Onion’s bid, despite its potential to yield less cash than the rival company’s. Mr. Jones and his lawyers cried foul, and Judge Lopez intervened, saying that the process was opaque and that The Onion’s bid was not obviously superior. He rejected plans for a do-over of the auction, instead directing the families to seek a liquidation through Judge Guerra Gamble’s court in Texas, where the first defamation case was heard and won.

In August, Judge Guerra Gamble ruled that a court-appointed administrator would take over and sell Infowars’ assets, reopening the door to The Onion. “We’re working on it,” Ben Collins, the chief executive of Global Tetrahedron, wrote on social media on the same day as Judge Guerra Gamble’s ruling.

The Onion’s proposal, worth $486,000 in its initial six-month term, does little to satisfy the enormous damages awarded to the Sandy Hook families. The families have been fighting to collect since Mr. Jones filed for personal and business bankruptcy. Mr. Jones is expected to lose access to his studio and equipment as part of the deal, Mr. Collins said.

The Onion plans to turn Infowars into a comedy site with satirical echoes of the fringe conspiracy theories that Mr. Jones is known for. Tim Heidecker, one of the comedians behind “Tim and Eric Awesome Show, Great Job!” on Cartoon Network’s Adult Swim, has been hired to serve as “creative director of Infowars.” He said he initially planned to parody Mr. Jones’s “whole modus operandi.”

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Mr. Heidecker has been working on his impression of Mr. Jones. But eventually, when that joke gets old, Mr. Heidecker hopes to turn Infowars into a destination for independent and experimental comedy, he said.

“I just thought it would be just a beautiful joke if we could take this pretty toxic, negative, destructive force of Infowars and rebrand it as this beautiful place for our creativity,” Mr. Heidecker said in an interview. During a recent trip to Philadelphia, he traveled to the Liberty Bell to film a video in character as the new creative director of Infowars.

“The goal for the families we represent has always been to prevent Alex Jones from being able to cause harm at scale, the way he did against them,” said Chris Mattei, the lawyer who argued the Connecticut families’ case in court. The deal with The Onion promises “to significantly degrade his power to do that.”

The Onion also plans to sell merchandise and share the proceeds with the Sandy Hook families.

“We are excited to lie constantly for cold, hard cash, but this time in a cool way, and we’ll make sure some of it gets back to the families,” Mr. Collins said.

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While broadcast programming is “out of my lane,” Mr. Mattei said, “satire and humor can be universal. If their programming can be of interest to Jones’s former audience, and help bring them out of the dark, that would be wonderful.”

In the meantime, the company has been filming satirical videos in antipation of the court’s ruling. One of them features a fictional anchor from the satirical Onion News Network, “Jim Haggerty,” who defects from the mainstream media to become a conspiracy monger. He will be played by the actor Brad Holbrook.

“For 35 years, I was part of the problem,” Mr. Haggerty intoned in a dramatic trailer released by The Onion. “But now, I’m free of my corporate shackles, and my only business is freedom.”

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