Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: There's a lot of legal maneuvering going on as the
Speaker 1: Biden administration navigates tricky territory in implementing its own environmental policies.
Speaker 1: Lawyers in the Justice Department and other agencies have evaluated
Speaker 1: the government's position in hundreds of pending cases, pressing pause
Speaker 1: on as many as possible. The focus is on strategic
Speaker 1: delays rather than dramatic changes in position, although new policies
Speaker 1: are already under attack by Republicans. Joining me is Pat Parento,
Speaker 1: a professor of environmental law at Vermont Law School. So
Speaker 1: what's the strategy that the Biden administration is using impending
Speaker 1: environmental cases. It seems like there isn't a uniform approach
Speaker 1: to how the Biden administration is going to undo what
Speaker 1: the Trump administration did on environmental issues. For exact sample,
Speaker 1: with the two big pipeline cases, we saw right out
Speaker 1: of the box, Biden killed the Keystone XL pipeline because
Speaker 1: he was able to do that at a time before
Speaker 1: actual construction in the United States portion was underway, or
Speaker 1: at least part of it. With regard to the Dakota
Speaker 1: Access pipeline. On the other hand, Biden and the d
Speaker 1: o J have decided not to stop the flow of
Speaker 1: oil through that pipeline, which is already built. And if
Speaker 1: you look at these two pipelines, the common theme from
Speaker 1: both of them is the impact on jobs. And the
Speaker 1: unions were all over Biden when he killed Keystone and
Speaker 1: said you've cost us thousands of potential jobs. With regard
Speaker 1: to Dakota Access, those are jobs that are already underway.
Speaker 1: And I think it was a political calculation in these
Speaker 1: two cases. So I think what we're gonna see is
Speaker 1: that the Biden administration is going to look at each
Speaker 1: one of these environmental issues in its context and decide
Speaker 1: which ones can it immediately reverse and which ones is
Speaker 1: it going to take longer to reverse. And a good
Speaker 1: example of that is happening right now today where a
Speaker 1: judge in Virginia is hearing arguments to overturn Trump's NIPA rules,
Speaker 1: which greatly watered down and weakened NIPA analysis. And in
Speaker 1: that case, the Biden administration has asked the court to
Speaker 1: stay the case and allow c e Q to review,
Speaker 1: of course, the Trump rules and decide how they're going
Speaker 1: to make changes. They signaled very strongly that they have
Speaker 1: serious problems with the Trump NIPA rules. But it's curious
Speaker 1: that they didn't agree to let the judge rule that
Speaker 1: the Trump NIPA rules are in fact illegal, even though
Speaker 1: the Biden c e Q filing in the case has
Speaker 1: identified all the same reasons why the Trump rules are illegal. Right,
Speaker 1: so you can't figure out exactly what the strategy is
Speaker 1: from the Biden administration, except it seems to depend on
Speaker 1: each individual case. Do you think that there is a
Speaker 1: broad strategy in place or it's just case by case.
Speaker 1: I think that the broad strategy is we do want
Speaker 1: to reverse these Trump policies, but each one is going
Speaker 1: to be apparently evaluated, I guess, as I say, in
Speaker 1: its own context, in its own circumstances, and the thinking
Speaker 1: behind when Biden takes a decisive action and when he differs.
Speaker 1: It's not clear yet whether it's politics or whether it's
Speaker 1: a different kind of strategy that would strengthen the ultimate
Speaker 1: decision that Biden is going to make. We don't really
Speaker 1: know yet. Um we have a similar situation with the
Speaker 1: litigation over the Clean Power Plan. This is the rule
Speaker 1: of course regulating greenhouse gases from power plants. And that again,
Speaker 1: the Trump Rule, which replaced the Obama Rule, has been
Speaker 1: struck down by the d C Circuit, And the DC
Speaker 1: Circuit also struck down the Trump rule that repeals the
Speaker 1: Clean Power Plan. But again the Biden administration did not
Speaker 1: agree to reinstate the Clean Power Plan. Rather, it sets
Speaker 1: to the d C Circuit hold off on that part
Speaker 1: of your order to give us time to figure out
Speaker 1: what kind of a new rule we want to adopt
Speaker 1: for power plants. In that case, it might make some
Speaker 1: sense to do that because the Clean power Plant has
Speaker 1: already been overtaken by market forces, which have reduced emissions
Speaker 1: from the power plant sector by more than what Clean
Speaker 1: Power Plan would have done. The Clean Power Plan was
Speaker 1: talking about reduction and emissions. We've already achieved reduction and
Speaker 1: emissions measured from two thousand and five baseline. So again,
Speaker 1: you know you're gonna I think we're gonna all have
Speaker 1: to be patient and and watch to see, you know,
Speaker 1: how Biden is going to deal with each one of
Speaker 1: these issues, and how quickly the administration is going to
Speaker 1: be able to come up with new rules when those
Speaker 1: are required for new decisions, and I'm not sure there
Speaker 1: is a uniform approach yet. Are the courts in general
Speaker 1: allowing the Biden administration to press the pause button on
Speaker 1: these cases? Well, not in the case of the nap
Speaker 1: of rule, Judge Jones. It is in Virginia. You know,
Speaker 1: the Biden administration went into his court weeks ago and
Speaker 1: asked the judge to put a hold on the case.
Speaker 1: And the judge said, no, the case is being briefed
Speaker 1: and these Trump rules are on the books and agencies
Speaker 1: are lying on them and the way they're doing their
Speaker 1: environmental impact assessments, and no, we need to decide this case.
Speaker 1: You're not giving me any firm deadline by which you
Speaker 1: intend to take an action that would resolve the issues
Speaker 1: in this case. So no, I think we should proceed.
Speaker 1: And I predict that Judge Jones is going to make
Speaker 1: that same decision at argument, and he's probably gonna rule
Speaker 1: on the merits of the case challenging the Trump rule.
Speaker 1: And the Biden administration is in a really awkward position.
Speaker 1: They certainly can't defend the Trump rule. So you know,
Speaker 1: if the judge says, no, I'm not going to hold
Speaker 1: this case back, I'm going to decide it with or
Speaker 1: without the input of the Biden administration. That's a really
Speaker 1: unusual situation that one. To me, it's very hard to understand.
Speaker 1: Has the Biden administration completely eliminated any Trump error rules? Oh,
Speaker 1: let's see, the so called secret Science rule is off
Speaker 1: the books, but that was done through the Congressional Review Act.
Speaker 1: The methane rules are also, I think gonna be revoked
Speaker 1: by this d r A, as it's called the Congressional
Speaker 1: Review Act Resolution, the rule that would have changed the
Speaker 1: interpretation of the Migratory Bird Treaty Act. That's been vacated
Speaker 1: with the Biden administration's approval. But you know, you have
Speaker 1: to go sort of issue by issue, don't you. And
Speaker 1: I'd have to say that very few of the Trump
Speaker 1: rules have been acts at this point. Have industry groups
Speaker 1: and Republicans have they begun mounting a legal campaign against
Speaker 1: the Biden agenda which is unfolding. Oh? Yes, yes, for sure.
Speaker 1: The so called Red States, the Republican ages have challenged
Speaker 1: the moratorium on oil and gas leasing, both on on land,
Speaker 1: on the public lands in the West and off shore.
Speaker 1: The States and some of the power companies still have
Speaker 1: an opportunity to take the Clean Power Plan and the
Speaker 1: so called eighths rule that replaced it to the Supreme Court.
Speaker 1: The time period for filing a petition for review by
Speaker 1: the Supreme Court will expire in May, so we don't
Speaker 1: know are they going to try to get the Supreme
Speaker 1: Court to actually overturn the DC Circuits decision which struck
Speaker 1: down the eighth rule. So yeah, I would say we're
Speaker 1: only beginning now to see pushback coming from the opponents, well,
Speaker 1: either the supporters of the Trump rule or the opponents
Speaker 1: of the Obama rules that preceded them. Same with the
Speaker 1: Chamber of Commerce, the Pacific Legal Foundation on the clean
Speaker 1: Water rule. The District Court in Colorado had overturned the
Speaker 1: Trump Water rule. The Tent Circuit set that injunction aside
Speaker 1: and set it back to Colorado. But but the the
Speaker 1: opponents to the Obama Clean Water Rule and the supporters
Speaker 1: of the Trump replacement rule, they're continuing to press in
Speaker 1: the cases that are that are trying to decide which
Speaker 1: are those rules is going to survive. So you know,
Speaker 1: there is there is so much litigation going on with
Speaker 1: all of these environmental rules now it's very difficult to
Speaker 1: keep track of it all and it's very very hard
Speaker 1: to predict how it's all going to come out, because
Speaker 1: sooner or later many of these issues are going to
Speaker 1: have to go to the Supreme Court. Is this similar
Speaker 1: to what's happened in other changes of administration from Democratic
Speaker 1: to Republican or Republican to Democratic, not at this scale. No.
Speaker 1: In my fifty years of practice, so going on fifty years,
Speaker 1: I haven't seen this much turmoil and so many major
Speaker 1: rules up in the air and in doubt, and again
Speaker 1: blooming over all of this is the uncertainty about how
Speaker 1: much is the current Supreme Court going to allow these
Speaker 1: agencies to assert authority under statutory provisions that are ambiguous.
Speaker 1: The term waters of the United States is still undecided.
Speaker 1: The scope of what I p A can do under
Speaker 1: the Clean Air Act to regulate greenhouse gas emissions from
Speaker 1: stationary sources is still undecided. The scope of the Endangered
Speaker 1: Species Act is very much in doubt these days. So
Speaker 1: I haven't seen so many bed rock environmental laws and
Speaker 1: rules in such a state of chaos in my entire career.
Speaker 1: Tell us about this unusual suit by Arizona where they're
Speaker 1: using federal environmental law against the Biden administration. Right, it's
Speaker 1: the border wall case. And they flipped the script. You know,
Speaker 1: when when Trump was building his border wall without fully
Speaker 1: complying with NIPA, UM, California and some environmental groups took
Speaker 1: him to court and they lost. And so now the
Speaker 1: proponents of the border are trying to argue that Biden's
Speaker 1: decision to stop building the wall m was done without
Speaker 1: compliance with NIPA. So I mean, you know, crocodile tears,
Speaker 1: I guess is what you'd say. Um, And we'll see
Speaker 1: what the courts do with it. They mean, the courts
Speaker 1: were not very sympathetic two people that were trying to
Speaker 1: stop the construction using NIPA. I'm not sure the courts
Speaker 1: are going to be any more sympathetic to those that
Speaker 1: are trying to keep the construction of the wall going
Speaker 1: because of non compliance with NIPA. Can a court really
Speaker 1: forced an administration to spend billions of dollars on our wall?
Speaker 1: I really can't mean it can certainly say you didn't,
Speaker 1: you know, jump through some of the hoops that NIPA
Speaker 1: or some other statute procedural requirements. There's another statutes impose
Speaker 1: you can you can certainly find the administration isn't following
Speaker 1: certain procedures and and require that they do. So the
Speaker 1: question of whether you can order the government to spend
Speaker 1: money or to continue construction, you know, those are what
Speaker 1: we call, you know, questions of equity, where you're asking
Speaker 1: the court to exercise the extraordinary remedies, and those are
Speaker 1: just very rare. I mean, even when environmentalists are trying
Speaker 1: to stop project if you think the Code to Access
Speaker 1: pipeline again, you know, the environmental groups have not actually
Speaker 1: been able to stop the flow of oil even though
Speaker 1: the courts are finding violations of law. So I think
Speaker 1: these efforts to try to force Biden to do things
Speaker 1: like spend money and build the wall, um, well, they're
Speaker 1: going to run into a brick wall. That's my feeling.
Speaker 1: Let's talk about some of the legal questions that play
Speaker 1: the Obama administration, that went on resolved during the Trump
Speaker 1: administration that are now posing an obstacle for the Biden administration.
Speaker 1: For example, the proper scope of the Clean Water Act,
Speaker 1: the limits of presidential authority to create national monuments, and
Speaker 1: the e p A wielding it's regulatory tools against climate change. Yeah,
Speaker 1: those are all big ones. And you know what each
Speaker 1: one that you mentioned. The scope of the Clean Water Act,
Speaker 1: the scope of the President's power to designate monuments under
Speaker 1: the Antiquities Act, the scope of epas authority to deal
Speaker 1: with climate change under the Clean Ract. All three of
Speaker 1: those huge environmental issues are ultimately going to have to
Speaker 1: go to the Supreme Court. I don't think any one
Speaker 1: of them is going to be settled by lower court decisions.
Speaker 1: They're too big, and each one of them implicates issues
Speaker 1: that this current Conservative Supreme Court is very interested in.
Speaker 1: For example, the scope of deference under the Chevron doctrine
Speaker 1: and whether that doctrine is going to enable the Biden
Speaker 1: e p A To interpret statutes that have some vague
Speaker 1: terms in them. Waters of the US under the Antiquities
Speaker 1: Act areas that are limited to those scope necessary to
Speaker 1: protect objects of scientific interest? What does that mean? Right? So,
Speaker 1: these are huge issues of statutory interpretation, and this Conservative
Speaker 1: Supreme Court is very suspicious of agencies exercising broad authority
Speaker 1: under vague statutory terms. Right. They're also interested in reviving
Speaker 1: what's called the non delegation doctrine. This is a constitutional
Speaker 1: doctrine in which and this is going to be applicable
Speaker 1: to the Antiquities Act, and so these conservative justices and
Speaker 1: Robert signaled this, by the way, Chief Justice Robert signaled
Speaker 1: is in the Seamounts case, this is the national monument
Speaker 1: off the Atlantic coast that has these very high biological values.
Speaker 1: That Obama designated this huge area of the North Atlantic
Speaker 1: as a marine monument. And so Roberts has agreed that
Speaker 1: the challenge from the fisherman to that monument designation is
Speaker 1: no longer right for the Court to review. But he's
Speaker 1: also signaled that this question of the scope of the
Speaker 1: president's power under the Antiquities Act is an open question.
Speaker 1: And he specifically said, even though we have never found
Speaker 1: a case where the president has exceeded that authority, that
Speaker 1: doesn't mean that there aren't limits to it. That's a
Speaker 1: pretty clear signal that the scope of the Antiquities Act power,
Speaker 1: which is going to relate to Bear's Ears Monument and
Speaker 1: the Grand Staircase monument. It's a pretty clear signal that
Speaker 1: the Supreme Court may exercise its final judgment on what
Speaker 1: the scope of those powers are. So, yeah, we are
Speaker 1: in for years of uncertainty about all of these big powers.
Speaker 1: Thanks for being the Bloomberg Law Show. Pat that's professor
Speaker 1: Pat Parento of their Mont Law School. The Scott Tucker
Speaker 1: paid a lending business was illegal from top to bottom.
Speaker 1: Scott Tucker walked away with over four hundred million dollars
Speaker 1: money taken from struggling consumers. Scott Tucker was charging two
Speaker 1: or three times that interest rates that the New York
Speaker 1: City mafia loan Shark instin. The kids charged. You didn't
Speaker 1: hear a moral person. I'm a business person. Scott Tucker,
Speaker 1: a subject of the Netflix documentary series Dirty Money, was
Speaker 1: sentenced in ten to more than sixteen years in prison
Speaker 1: for racketeering. The Federal Trade Commission also got a one
Speaker 1: point three billion dollar judgment against Tucker in a civil
Speaker 1: case on behalf of the sumers he defrauded, but this
Speaker 1: week the Supreme Court overturned that judgment in a decision
Speaker 1: that also eliminates the legal tool the FTC has used
Speaker 1: to recoup billions of dollars for defrauded consumers over the
Speaker 1: past decade. Joining me is Andrea, a tuition a professor
Speaker 1: at Penn State Law School. So with this decision, the
Speaker 1: Supreme Court has taken away what the FTC calls the
Speaker 1: strongest tool it has to recoup money for consumers who
Speaker 1: have been defrauded? Are you surprised that this was a
Speaker 1: unanimous decision? While it may be viewed to a surprise
Speaker 1: in some ways, in the reading of the decision, it
Speaker 1: is a statutory interpretation exercise that was done very precisely
Speaker 1: by the Court, so the unanimity is understandable in that way. However,
Speaker 1: the Court does point out that in other circumstances, when
Speaker 1: it has been faced with somewhat are a little questions,
Speaker 1: the Court has not always engaged in such a narrow
Speaker 1: reading of a statute. So here the Supreme Court made
Speaker 1: a strategic choice to engage in the narrow reading of
Speaker 1: the statute and to punt the conversation over the policy
Speaker 1: and the availability of the streamlined remedy that the FTC
Speaker 1: has been using offensively through into the halls of Congress.
Speaker 1: So in that way, this is definitely a bump in
Speaker 1: the road for the FTC. However, that said Congress is
Speaker 1: poised to act to correct this. So tell us about
Speaker 1: the Senate hearing earlier this week where they addressed what
Speaker 1: could be done to restore the FTC's power to recoup
Speaker 1: money for consumers. So on Tuesday, there was testimony from
Speaker 1: four FTC commissioners, all four in front of the Senate
Speaker 1: com the e Commerce, Science, and Transportation, and Senator Maria
Speaker 1: Cantwell indicated her readiness to act withly in the eventuality
Speaker 1: that the Supreme Court did decide in the way that
Speaker 1: we see the verdict coming down today, and it was
Speaker 1: reassuring to see that this was a bipartisan approach. So
Speaker 1: the ranking member, Senator Wicker agreed with the framing that
Speaker 1: the FTC performs a critical function in preserving remedies for
Speaker 1: considers against fraud, and in particular in a time when
Speaker 1: fake COVID remedies and fought and misleading advertising around the
Speaker 1: health treatments are prevalent enough that Congress had earlier this
Speaker 1: year already given the FTC additional authority in connection with
Speaker 1: COVID relief. We see bipartisan in risks in preserving the
Speaker 1: enforcement authority of the FTC, and it was a very
Speaker 1: non acrimonious hearings. There was much agreement among both senators
Speaker 1: on the one hand and STEC commissioners on the other
Speaker 1: regarding the need for certainly preserving and in some directions
Speaker 1: expanding the authority of the FTC to address both traditional
Speaker 1: areas of entering and deceptive practices and the kind of
Speaker 1: fraud that we sensibly see an issue in the facts
Speaker 1: of case allegedly, but also in particular around some of
Speaker 1: the concerning technology practices that are at the center of
Speaker 1: our discussions, not only in terms of the data security
Speaker 1: engagement of the FTC and the privacy concerns that consumers have,
Speaker 1: but also the competition concerns around the high degree of
Speaker 1: concentration that we're seeing in the largest technology company. So
Speaker 1: it's an expect in the one hands, this opinion certainly
Speaker 1: is as the FTC put it, a major obstacle for
Speaker 1: their continued use of existing tools as they've been using them. However,
Speaker 1: the small upside, if we can call it that, is
Speaker 1: that there does seem to be bipartisan interest in the
Speaker 1: Senate on ensuring that the call from the Supreme Court
Speaker 1: for congressional clarification and policy articulation has been heard, and
Speaker 1: the Senate may indeed move swiftly to address the questions
Speaker 1: that the Supreme Court raised in today's According to reports,
Speaker 1: five hundred million dollars of that judgment has already been
Speaker 1: given back to victims. What happens to that. Are they
Speaker 1: going to try to claud that back? So certainly I
Speaker 1: would expect there to be some attempt on the part
Speaker 1: of the defendant in this case, Scott Tucker and his counsel,
Speaker 1: to attempt to cause that back. There will undoubtedly be
Speaker 1: pushed back through other procedural means from the FTC on
Speaker 1: that and the existing avenues that are otherwise provided by
Speaker 1: the FTC Act will undoubtedly be used by the FTC
Speaker 1: to try to hold onto as much of that consumer
Speaker 1: redress as possible. But yes, I would expect there to
Speaker 1: be continuing litigation with respect of the substance of this
Speaker 1: case and the illegal conduct that was relevant here. So
Speaker 1: can the FTC go back and start again and go
Speaker 1: down the route that the Supreme Court has left them
Speaker 1: in this case? Well, certainly there is the opportunity to
Speaker 1: go through the other processes that are created by the
Speaker 1: FTC Act, and to go through the administrative decision making
Speaker 1: process and to uh attempt to engage with the conduct
Speaker 1: in in other ways. We'll see whether there is engagement
Speaker 1: with this alternative enforcement task on the part of the FTC.
Speaker 1: Um There has not been a statement by them as
Speaker 1: to what they're expected next conduct will be so we'll
Speaker 1: have to wait and see how this place out. What
Speaker 1: are some other and going back to the opinion, Basically,
Speaker 1: the Supreme Court has said that the route that the
Speaker 1: FTC was using to go straight to court for monetary
Speaker 1: penalties using a provision that allows it to seek injunctions
Speaker 1: was not proper and so has been cut off. So
Speaker 1: the way the Court framed the questions involved what has
Speaker 1: sometimes been framed as two parallel structure as a possible
Speaker 1: relief on the part of the FTC. So, on the
Speaker 1: one hand, we have the traditional administrative proceedings that then
Speaker 1: lead to potential subsequent litigation as a results of the
Speaker 1: outcomes through those administrative proceedings there or we're looking to
Speaker 1: Section nineteen. But here in this particular case, we're looking
Speaker 1: at the other parallel avenue, which in thirteen B creates
Speaker 1: an explicit authorization for the FTC to seek injunctive relief.
Speaker 1: But the FTC has also, in connection with that injunctive relief,
Speaker 1: been successfully obtaining equitable monetary relief to compensate harmed consumers
Speaker 1: who have been the victims of the illegal conduct that
Speaker 1: is the subject of the injunctive relief and the reason
Speaker 1: that the FTC is in court on that occasion. So
Speaker 1: the spirit of the disgorgement through both possible avenues is
Speaker 1: parallel in the framing of a number of circuits up
Speaker 1: to this point. And so well we ended up with
Speaker 1: this circuits foot because there certainly is a plausible interpretation
Speaker 1: in in that way, particularly when you think about the
Speaker 1: framing of equitable relief, and say a contract law context
Speaker 1: where monetary damages are part of the package of possible
Speaker 1: remedies of the court might award in in that body
Speaker 1: of law, or in other circumstances where we give the
Speaker 1: court's discretion to offer relief, such as the circumstances warrant.
Speaker 1: But in this case, the general approaches that there were
Speaker 1: these two parallel paths, either of which could end up
Speaker 1: with a disgorgement of ill gotten gains in order to
Speaker 1: compensate consumers for the actual harms that were suffered. This
Speaker 1: UH duality of pathways in today's opinion is foreclosed by
Speaker 1: UM the Supreme Court as the Court understands for Team V.
Speaker 1: And so the Court is saying that their Team V
Speaker 1: should be narrowly understood UH. On the point of the
Speaker 1: injunctive relief, but it should not be considered by courts
Speaker 1: to include that secondary authorization for UH monetary relief and disgorgement.
Speaker 1: So the practical impact of what this means is that
Speaker 1: the run of the mill frauds that are well established
Speaker 1: to be within the type of unfair and deceptive trade
Speaker 1: practices that result in consumers being targeted by frauds will
Speaker 1: no longer potentially have a streamlined a pathway from the
Speaker 1: identification and enforcement action to stop the fun from continuing,
Speaker 1: through too through to the actual recovery of the ill
Speaker 1: gotten gains to make the consumers at least partially whole um.
Speaker 1: So that's in particular where I think Congress will UH
Speaker 1: step into clarify the role of thirteen b as at
Speaker 1: least now implicitly including that right to have the FTC
Speaker 1: seats that disgorgement. So Andrea this, what are some other
Speaker 1: things that Congress can do here? And I would encourage
Speaker 1: Congress to think even more creatively and to recognize that
Speaker 1: the same way as in civil litigation attorneys fees are
Speaker 1: recovered by UH plaintiffs and meritorious cases that the FTC
Speaker 1: is inctled to recovery for their lawyer time. UM. And
Speaker 1: the other thoughts that that I would highlight from the
Speaker 1: facts of this case is that in this case we
Speaker 1: don't have a sort of last generation, run of the
Speaker 1: mill offline frauds. We have a fraud that was facilitated
Speaker 1: by technology. So this was an Internet facilitated frauds. And
Speaker 1: so in that way, this sort of case fact connects
Speaker 1: with the broader discussions about technology practices that are permeating
Speaker 1: our legal and policy ecosystem today and in particular are
Speaker 1: presenting uh, some novel challenges to the speed and nimbleness
Speaker 1: of enforcement for all regulatory agencies. But the FTC is
Speaker 1: on the front lines of these discussions. UM. So UH
Speaker 1: a way that we could try to connect the competition
Speaker 1: and the fraud concerns from the consumer protection side that
Speaker 1: are articulated in the policy discussions underpinning today's conversation, and
Speaker 1: I've advocated for this in my scholarship, is the creation
Speaker 1: of a new Technology Practices Division within the FTC whose
Speaker 1: goal is to have a higher level of rulemaking and
Speaker 1: finding and enforcement authority as granted by Congress explicitly. And
Speaker 1: here's the golden opportunity, as we're correcting this framing from
Speaker 1: the Supreme Court's opinion, UM to give this new Technology
Speaker 1: Practices group an explicit authorization to engage with the technology
Speaker 1: economy in a deeper dive, pulling in the FTC technologists
Speaker 1: into this group, authorizing the group to specifically work across
Speaker 1: agency boundaries, create cross detailed teams, and to address the
Speaker 1: problems as they present themselves through the lens of the
Speaker 1: technologies that are at issue. What are some of the
Speaker 1: first things that would be on the agenda UM The
Speaker 1: first order of business could be, for example, taking a
Speaker 1: look at the heart stat Redino process and why it
Speaker 1: is that technology assets are treated more with greater laxity,
Speaker 1: with more flexibility and in some cases their assent from
Speaker 1: the reporting requirements UM for harts cut Ridino filing UM.
Speaker 1: And so that's a great first cut that would help
Speaker 1: with the competition side. On the consumer fraud side UM,
Speaker 1: the kind of payday lending or online lending UM enterprises
Speaker 1: that are the subject of the facts of today's case
Speaker 1: would similarly create a golden opportunity for some rulemaking and
Speaker 1: guidance and collaboration UH as the FTC has already been
Speaker 1: doing with UH. The CFPV to ensure that there is
Speaker 1: a consumer harm focus and that just because we're dealing
Speaker 1: with evolving business models, that the uh externalities of those
Speaker 1: business models are not imposed on consumers, that uh nothing
Speaker 1: is falling through the regular Tory cracks. And having having
Speaker 1: been a corporate lawyer myself, I know that sometimes companies
Speaker 1: look for those gaming opportunities between different agencies to position
Speaker 1: themselves in one way for purposes of say, their SEC filings,
Speaker 1: in a slightly different way, perhaps for purposes of their
Speaker 1: heartstut Routino filing. But by creating this kind of a
Speaker 1: new central point for coordination within the SEC with rulemaking
Speaker 1: and finding authority um. That is one add on that
Speaker 1: Congress could offer in this case too neatly closed this
Speaker 1: gap and to start to take a first cut at
Speaker 1: addressing some of the gaps that exist in the technology
Speaker 1: competition and technology fraud spaces that are unfortunately prevalent as
Speaker 1: a point of concerns for consumers today and enforcers arelike
Speaker 1: thanks Andrea. That's professor Andrew a tuition of Penn State
Speaker 1: Law School. The Justice Department is opening a sweeping investigation
Speaker 1: into policing practices in Minneapolis Attorney General Merrick Garland announced
Speaker 1: the investigation a day after a jury found Derek Chauvin
Speaker 1: guilty of murdering George Floyd. The investigation I am announcing
Speaker 1: today we'll assess whether the Minneapolis Police Department engages in
Speaker 1: a pattern or practice of using excessive force, including during protests.
Speaker 1: Joining me is Calfoni Terrey, a former police officer who
Speaker 1: was an associate professor of criminal justice at Quinnipiac University.
Speaker 1: I want to start with the verdict in the Chauvin case.
Speaker 1: Does it indicate a new era of police accountability? Well,
Speaker 1: I'd likened this to a pivot in sort of athletic sport.
Speaker 1: A pivot doesn't necessarily mean that one is making an advancement.
Speaker 1: It just simply means that they have turned the body politics,
Speaker 1: they have turned themselves around, or they've angled in a
Speaker 1: different direction in order to take in either a more
Speaker 1: panoramic view, a more comprehensive view, or certainly, at the
Speaker 1: very minimum, a different view. So if, in fact, which
Speaker 1: I think, this verdict is a small step, a small pivot,
Speaker 1: if you will, then what we now must do is
Speaker 1: decide whether we will advance in a new direction retreat
Speaker 1: from a new direction or do something which is lateral,
Speaker 1: either moving in a different direction side to side, and
Speaker 1: I would argue that a retreat here would be unacceptable
Speaker 1: and advance would be preferable, and a side movement, a
Speaker 1: more lateral movement, would only be a strategic movement to
Speaker 1: maintain the status quo. So what we need then from
Speaker 1: this verdict, If this verdict is a sign that there
Speaker 1: is a new traject to be ahead, we now need
Speaker 1: the advancement. We need to see the agility of our
Speaker 1: criminal justice system from our legal system. We need to
Speaker 1: see the advancement in policing, and we also need to
Speaker 1: see a different community support that would help moved the
Speaker 1: sport President. Biden said this was a murder in the
Speaker 1: full light of day. Some of the factors here that
Speaker 1: set this apart is that video that was seen around
Speaker 1: the world, the summer of protests, the blue wall of
Speaker 1: silence crumbling. But in the future, how many cases will
Speaker 1: there be with so many factors like that, So this
Speaker 1: is significantly important for us to appreciate. We will not
Speaker 1: often see cases such as this come before the court
Speaker 1: where there is an overwhelming amount of video epidence and
Speaker 1: that there is a sympathy jury in a sense to
Speaker 1: the facts of the case, and even more so that
Speaker 1: there is an array of experts to um and give
Speaker 1: us a precise moment when George Floyd would have taken
Speaker 1: his last breast, when the life basically lifted away from him.
Speaker 1: We don't benefit from that. And I would like to
Speaker 1: argue or at least recall with Ratney King and the
Speaker 1: four l A p D officers who were charged and
Speaker 1: ultimately exonerated, at least in the state court, we had
Speaker 1: visual evidence, but the defense was able to tap into
Speaker 1: a certain logic, a certain white logic if you will,
Speaker 1: that beholds the black or Latin or minority male or female,
Speaker 1: or someone who's considered non normative, and some stretch of
Speaker 1: imagination as the threat to what they were able to do,
Speaker 1: even with footage, was to say that Ratney King was
Speaker 1: reaching up from the hells of urth to strike damage
Speaker 1: to these officers who were hovering above him and the
Speaker 1: jury if you recall that narrative, and it was very
Speaker 1: much um racio undertones there. And so that was one
Speaker 1: piece of footage. In this particular case, you had a
Speaker 1: substand you amount of footage available and it just became insurmountable.
Speaker 1: Even though I think the defense attorney Eric Nelson, without
Speaker 1: being explicit, attempted to draw on those racio stereotypes. That
Speaker 1: was successful um for the cops in the Ratney King case.
Speaker 1: It just wasn't successful here. And so there is something
Speaker 1: to celebrate, there is something to hope in that. But
Speaker 1: to answer your anitie question, we will not be afforded
Speaker 1: in most cases with this much evidence and these many experts, witnesses,
Speaker 1: and these many direct witnesses. The Attorney General Merrick Garland
Speaker 1: has announced a pattern or practice investigation. How important is it?
Speaker 1: You know, I am very pleased by that because I
Speaker 1: have made inintains that there was a danger in celebrating
Speaker 1: this particular conviction. The prostratorial teams stated in their summary
Speaker 1: remark that this wasn't an indictment against mp D Minneapolis
Speaker 1: Police Department, It wasn't an indictment against the Minnesota police agency.
Speaker 1: In fact, it clearly wasn't an indictment of policing around
Speaker 1: the country. They made it clear that it was just
Speaker 1: one officer, and that was a strategic decision on the
Speaker 1: part of the proscratorial team because, as we all know,
Speaker 1: at this point, it is almost unlikely that you will
Speaker 1: have an officer broughth to trial. Only three percent are
Speaker 1: and if and when they're brought to trial, less than
Speaker 1: one percent are actually convicted. So they had to isolate
Speaker 1: Derek children by himself. He wasn't representative of policing throughout
Speaker 1: the country. And the danger in that was that those
Speaker 1: on the outside of the Indepen County courthouse were complaining
Speaker 1: about a more systemic problem. Well, the beautiful things about
Speaker 1: the Department of Justice and the U. S Attorney General
Speaker 1: Merrick Garland, who just yesterday announced that there would be
Speaker 1: an investigation in sweeping investigation around patterns and practices, is
Speaker 1: that it seems that Attorney General Garland understands that Derek
Speaker 1: Chauvin being found guilty on all three counts is about accountability.
Speaker 1: It is what we call reactive accountability what Attorney General
Speaker 1: Merrick Garland realized that we need proactive justice. Today's a
Speaker 1: difference between reactive accountability and proactive justice. Pro Active justice
Speaker 1: is the effort to create an environment where the loss
Speaker 1: of life will not be a sort of touch point
Speaker 1: for pro police against those who are anti police, et cetera.
Speaker 1: It will not lead to the grieving and the pain
Speaker 1: suffered by that community and by the immediate family. That's
Speaker 1: proactive justice. Proactive justice says that we want police not
Speaker 1: to simply enforce the law in black and brown communities,
Speaker 1: but we want them to serve the community just the
Speaker 1: same as they would do in more suburban communities. They
Speaker 1: serve and protect as opposed to enforce the law and
Speaker 1: engage in order maintenance. Now, I want to be careful
Speaker 1: here and be and be very clear. Brooklyn Center, Minnesota,
Speaker 1: is a suburban community. So it is not the case
Speaker 1: that all suburban communities where African American or Latin American
Speaker 1: or other minority people are located. Somehow it is the
Speaker 1: rap of pretextual stops or racial profiling or stop express
Speaker 1: or heavy handed policing. But by and large, there is
Speaker 1: a different experience in police in the suburbs versus policing
Speaker 1: in urban centers. How does this investigation go forward? Who
Speaker 1: do they talk to, what do they do? This is
Speaker 1: a great question, and most people don't know what these
Speaker 1: very sort of complicated investigations which are initiated by the
Speaker 1: Department of Justice until and and often when we hear
Speaker 1: that the Department of Justice are initiating or beginning a
Speaker 1: patterns and practice investigation. We almost automatically assume that there's
Speaker 1: going to be some decisions rendered in the same amount
Speaker 1: of time as a criminal conviction. Right, it doesn't work
Speaker 1: at length. These types of investigations last for months on end,
Speaker 1: and they're very comprehensive. It requires that professionals from the
Speaker 1: Department of Justice, sometimes in partnership with the local agency
Speaker 1: being investigated, in most cases without them. They will seek
Speaker 1: out witnesses both excessive police violence. They will look up
Speaker 1: complaints citizen complain and investigate those stretching back perhaps some
Speaker 1: teen years. They will look at the actual data, arrest
Speaker 1: records and police incidents that work found, and they will
Speaker 1: reach out to those participants of that police encounter there,
Speaker 1: whether a positive encounter or field investigation of what we
Speaker 1: call a carry stop, or an actual criminal encounter where
Speaker 1: there is an arrect and they will attempt to ascertain
Speaker 1: what was the treatment, like what was the nature of
Speaker 1: the stop? Where these pretextual stops, where was the pattern
Speaker 1: of these stops? Are they concentrated in a particular corridor,
Speaker 1: on a particular neighborhood where it is predominantly black and Latin.
Speaker 1: These are the things that they want to know. They
Speaker 1: want to try to gather all the complaints, to gather
Speaker 1: all the witnesses, but they also want to talk to
Speaker 1: police officers. And one of the beautiful things about this
Speaker 1: particular trial with Derek Children is that we heard nearly
Speaker 1: a dozen police officers come out and say, not in
Speaker 1: our names. We will not allow nor accept brutality in
Speaker 1: our names. This might bode or signal that there is
Speaker 1: a new horizon horizon ahead of us with regards to
Speaker 1: police and black and Latin relations, community relations. I hope so.
Speaker 1: But the Department of Justice will want to talk to
Speaker 1: almost all those officers in that department, and they do
Speaker 1: this comprehensive investigation so they can get at those patterns
Speaker 1: and practices. You know, I'm an ethnographer and I studied policing,
Speaker 1: and in order to really discover something about the less
Speaker 1: visible aspects of police culture, you can't come in one
Speaker 1: day and ask if your questions and think you've arrived
Speaker 1: at some truth. You have to get in and experience
Speaker 1: this community for the long haul. I mean almost you know,
Speaker 1: a year more. Because people will present themselves in a
Speaker 1: certain way for the public, but off the main stage,
Speaker 1: if you will, they begin to show who they truly are.
Speaker 1: And this is what the Department of Justice essentially is
Speaker 1: going to do. Some activists and members of Floyd's family
Speaker 1: are calling for Derek Chauvin to get the maximum sentence.
Speaker 1: What's your take on the sentencing. Well, they're always are
Speaker 1: these mitigating factors, and they're there are these exaggerated factories
Speaker 1: that either will push the penalty up or down. I
Speaker 1: think I'm certainly this homicide was committed before children, and
Speaker 1: that should be accounted for, and that should a call
Speaker 1: for a great a party. Um. I can only think about,
Speaker 1: for example, Darnella Frazier, who lamented the fact in her
Speaker 1: testimony that she's haunted at night and harried by day
Speaker 1: of the idea that she could not intervene. She had
Speaker 1: the impulse to save this man's life, but it was
Speaker 1: not seeing that she could do, and and how she's
Speaker 1: been haunted by that. I think about her, and I
Speaker 1: think about her companion, her her relative who was just
Speaker 1: nine at the time. No, this should factor in. These
Speaker 1: are factors that should cause or call for great epivalcy.
Speaker 1: Now I can't tell you whether or not Derek Cholden
Speaker 1: should receive the minimum that he could be charged on.
Speaker 1: The max is somewhere in between. What I can tell
Speaker 1: you is that his disposition, his response to the conviction,
Speaker 1: his response throughout the trial, and his science both from
Speaker 1: his body dispositions, his non verbals, and also his election
Speaker 1: to exercise us at amendment was the same cold, of course,
Speaker 1: in different silence to which he expressed when he kneels
Speaker 1: upon George Floyd's neck. And so I am not a judge,
Speaker 1: but I think that when you're thinking about the penalties,
Speaker 1: you have to even take into account that matter. There
Speaker 1: was absolutely no signs of contrition on his face, um,
Speaker 1: And so I think whatever the judge um decides, it
Speaker 1: should be as substantial as the actions that were committed
Speaker 1: the George Floyd Justice and Policing Act. How important is
Speaker 1: it that that get passed? Are there certain things in
Speaker 1: that act that are necessary? Or can we move forward
Speaker 1: without it? You know, this is this is a great
Speaker 1: question again disappoints to Merrick's Gardener's the Attorney General's comment yesterday,
Speaker 1: he said the verdict does not resolve systemic policing. We
Speaker 1: myre deal with the issues of spetimic policing are in
Speaker 1: this country, and that must be legislated at higher level.
Speaker 1: It must come from city council and state legislatures, and
Speaker 1: our federal legislature, which is the Congress. It also, i
Speaker 1: would argue, it must come from the court. You know,
Speaker 1: as the Supreme Court has given wide latitude two officers
Speaker 1: in order to carry out law and order law enforcement,
Speaker 1: and by and large the depictions of their practices has
Speaker 1: been the sim blue line against a k chaotic black backdrop.
Speaker 1: In other words, that police have been operating in this
Speaker 1: sort of dystopian phase of African Americans and Latino people
Speaker 1: and other people of color, and so in some ways
Speaker 1: perhaps the implicit biases of the of the court, and
Speaker 1: I'm speaking of the Supreme Court, it has allowed for
Speaker 1: these practices, in other words, not to prohibit nor interfere
Speaker 1: with with responsible police practicing because they keeping society's safe.
Speaker 1: And time and time again we have seen evidence where
Speaker 1: uh police have operated and you know, very oppressive fashion
Speaker 1: against these fellow citizens. The Supreme Court in fact has
Speaker 1: given white latitude and has given very little guard rails.
Speaker 1: It's told police that they can do all of these things,
Speaker 1: but it's never told the police what they can't do.
Speaker 1: And so hopefully this becomes law at the federal level,
Speaker 1: but we need the Supreme Court. Uh. And you know,
Speaker 1: as part of this right, we need local courts to
Speaker 1: be part of this as well, but we need the
Speaker 1: Supreme Court to be part of this uh. And there's
Speaker 1: been a number of fact is where the court has
Speaker 1: to be quite freek let the American Injury down. Thanks
Speaker 1: for being on the show. Califanni. That's Califanni Torre, an
Speaker 1: associate professor of criminal justice at Quinnipiac University. And that's
Speaker 1: it for the edition of The Bloomberg Law Show. I'm
Speaker 1: June Grasso. Thanks so much for listening, and please tune
Speaker 1: into The Bloomberg Law Show every week night at ten
Speaker 1: pm Eastern right here on Bloomberg Radio.