Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: The January six Committee continues to build its case that
Speaker 1: former President Donald Trump instigated the violence at the Capitol.
Speaker 1: This week, we heard from Trump insiders like former Attorney
Speaker 1: General William Barr that Trump was not interested in hearing
Speaker 1: the facts about his false claims of election fraud. And
Speaker 1: I went into this and would you know, tell them
Speaker 1: how crazy some of these allegations were. There was never
Speaker 1: there was never an indication of interest and what the
Speaker 1: actual facts were. Attorney General Merrick Garland says he and
Speaker 1: the Justice Department are listening to the hearings, but the
Speaker 1: question is whether they'll act on them. Joining me as
Speaker 1: former federal prosecutor Eli Hoenig, the Committee is obviously laying
Speaker 1: out a roadmap for prosecuting former President Trump. Do you
Speaker 1: think the evidence presented so far provides the basis for
Speaker 1: potential criminal charges? So, jan let me say, first of all,
Speaker 1: there's been a notable change in tone from the committee members.
Speaker 1: If you think back a few weeks and months ago,
Speaker 1: whenever they were asked about are you trying to encourage
Speaker 1: or pressure prosecutors to bring charges, they would always sort
Speaker 1: of demur. They would say, well, it's not up to us.
Speaker 1: Now they are openly talking about illegality and conspiracy, so
Speaker 1: there's no question to me that they're trying to send
Speaker 1: a message here to prosecutors. Is there enough to prosecute,
Speaker 1: that's a complicated question. I think that there is a
Speaker 1: compelling foundation being laid that Donald Trump and others had
Speaker 1: potentially criminal intent, and that the intent was to obstruct
Speaker 1: Congress and potentially to defraud the United States. Not I
Speaker 1: don't usually like to use so many hedge words potential, potential,
Speaker 1: but let me tell you why I'm doing that. We
Speaker 1: should not look at these committee hearings and assume that
Speaker 1: everything we're seeing would translate over one to one to
Speaker 1: a criminal prosecution, because there are two very different ball games,
Speaker 1: and some of the evidence of the committee is playing
Speaker 1: would not be admissible in a trial, and there's no
Speaker 1: defense lawyers, there's no cross examination at the committee. So
Speaker 1: I think we need to keep that in mind, that
Speaker 1: this is sort of the committee having the floor all
Speaker 1: to itself. But a criminal trial is very different. A
Speaker 1: prosecutor has to prove the case beyond a reasonable doubt,
Speaker 1: and of course the accused the defendant would have a
Speaker 1: zealous defect. So I'm reluctant to draw a straight yes,
Speaker 1: this can be prosecuted and convicted, just based on what
Speaker 1: the committee has done so far. What are some of
Speaker 1: the possible crimes that could be charged? Not saying that
Speaker 1: they will be charged, but what are some of the
Speaker 1: possible crimes you see? Well, I see three big ones
Speaker 1: if we're talking about with respected Donald Trump or other
Speaker 1: powerful people. The first one is conspiracy to defraud the
Speaker 1: United States. Though normally that means to steal money from
Speaker 1: the United States, but legally it does not have to
Speaker 1: be a financial loss. It can be to deprive the
Speaker 1: United States of a fair election. In fact, Robertmuller charged
Speaker 1: some of the Russian nationals who interfered with the elections
Speaker 1: under that theory. The second big one I see is
Speaker 1: an attempt to obstruct an official proceeding. Here, the official
Speaker 1: proceeding is the counting of the electoral votes by Congress,
Speaker 1: and the argument would be that Trump or potentially this
Speaker 1: lawyer John Eastman, had corrupt intent. They knew what they
Speaker 1: were doing was wrong, and they still tried to block
Speaker 1: essentially Mike Pencil counting the votes and then the third one,
Speaker 1: the most dramatic charge, would be seditious conspiracy, which is
Speaker 1: essentially the same thing as trying to obstruct a proceeding,
Speaker 1: only with an element of use of force. So you
Speaker 1: would need to tie the person to the physical force
Speaker 1: that we've used to break into the Capitol. I don't
Speaker 1: see any evidence establishing that link to Donald Trump at
Speaker 1: the moment, but d o J has charged various members
Speaker 1: and leaders of the Oath Keepers and Proud Boys with that,
Speaker 1: and if you can show that anybody else was involved
Speaker 1: with that use of force, then you can charge that
Speaker 1: crime as well. Prosecutors, of course, have to believe that
Speaker 1: they can prove their case to a jury beyond a
Speaker 1: reasonable doubt. What else goes into a charging decision? That's
Speaker 1: issue number one. You have to believe that you can
Speaker 1: prove your case of a journy beyond a reasonable doubt.
Speaker 1: You want to look at the equities of it. You
Speaker 1: want to look at is this a fair and righteous prosecution?
Speaker 1: And I think the big question here is how do
Speaker 1: you take into account the fact that this is a
Speaker 1: former president and an indictment of him will cause all
Speaker 1: manner of protests and perhaps worse than that we've heard
Speaker 1: Trump sort of rally his followers. If they indict me,
Speaker 1: we're going to have some civil unrest. Um paraphrasing what
Speaker 1: he said, you know, d O J internal guidance and
Speaker 1: this is public tells prosecutors you're not to consider that
Speaker 1: kind of thing. You're not to consider whether a person
Speaker 1: is politically popular or unpopular in whether to charge them.
Speaker 1: But I do think as a practical matter, June, I
Speaker 1: assure you prosecutors are cognizant of the fact that if
Speaker 1: they do charge Donald Trump, it will be unlike any
Speaker 1: prosecution in prior the United States history, and it will
Speaker 1: be uniquely fraught and uniquely difficult. Yeah, because we hear
Speaker 1: Attorney General Merrick Garland say over and over that you know,
Speaker 1: will go wherever the evidence leads us. But if the
Speaker 1: evidence does lead to Donald Trump, one wonders if they'll be,
Speaker 1: you know, worry of breaking the norm against indicting former
Speaker 1: presidents and also of the division that it will likely
Speaker 1: cause in the country. Here's my response to what we've
Speaker 1: seen from Marrick Arland. Two things I can say for sure.
Speaker 1: Number One, this idea we're going to start at the
Speaker 1: ground level and build up which he says over and over,
Speaker 1: that's not really true. That's not really how good prosecutors
Speaker 1: build their cases. I can't tell you how many times
Speaker 1: I had evidence that led me write to a powerful person.
Speaker 1: I used to do mob cases. I had evidence where
Speaker 1: I would go, Wow, okay, great, I have a shot
Speaker 1: at the boss here, I have a shot at a
Speaker 1: capo here. I wouldn't stop and go okay, hold on,
Speaker 1: let me go start with the low level guys on
Speaker 1: the street and see if I can put them, and
Speaker 1: see if then I can flip those guys and get
Speaker 1: back up to the top. So that, to me is
Speaker 1: not really an accurate view of what good prosecutors do
Speaker 1: or ought to do. The other thing that I think
Speaker 1: is sort of indisputable about Merrick Arland. You know, there's
Speaker 1: a lot of will here, won't he What I think
Speaker 1: is beyond dispute is this is taking too long. I mean,
Speaker 1: we are a year and a half out from January
Speaker 1: six at this point. Arland came in March, so he's
Speaker 1: been there sixteen months at this point. But if this
Speaker 1: is a crime by Donald Trump and others, it is
Speaker 1: the greatest crime ever committed against our democracy and to
Speaker 1: take this long and counting to charge it, I think
Speaker 1: is not at all commensurate with the seriousness of the
Speaker 1: crime that we're talking about, or of the ongoing threat.
Speaker 1: And the thing is, if Garland doesn't charge this by
Speaker 1: the end of the summer, d o J policy says
Speaker 1: you don't charge a big political case within sixty days
Speaker 1: or ninety days. People sort of vary on what the
Speaker 1: number is before an election. So if we don't see
Speaker 1: Merrick Garland charging Donald Trump or anyone around him by August,
Speaker 1: and I don't think anyone realistically thinks that's going to happen.
Speaker 1: Now we're talking end of early three. We're talking two
Speaker 1: full years out, by which time Donald Trump they well
Speaker 1: have declared his candidacy for four and if he does that,
Speaker 1: he will be called immediately the prohibitive Republican front runner,
Speaker 1: which I think makes it even more difficult as a
Speaker 1: practical measure to charge it. Thanks Ellie. That's from our
Speaker 1: federal prosecutor, Ellie Honing. The January six Committee explored former
Speaker 1: Vice President Mike Pence's decision not to violate the Constitution
Speaker 1: by ignoring the votes of states offering fake or alternate
Speaker 1: boards of electors. Pence's former general counsel, Greg Jacob, testified
Speaker 1: that the Vice president was clear from the outset that
Speaker 1: obeying Trump's wishes would have been unconstitutional the vice president's
Speaker 1: first instinct on that point, there is no uh justifiable
Speaker 1: basis to conclude that the vice president has that kind
Speaker 1: of authority. Joining me is Bloomberg Law team leader Christopher
Speaker 1: opfor Chris tell us about what happened to Greg Jacob
Speaker 1: on January six. Sure, so, at the time, Jacob was
Speaker 1: serving as chief council to Mike Pence, and of course
Speaker 1: Pence and his top staffers were there at the Capitol
Speaker 1: preparing to go through the imaginations of certifying the vote.
Speaker 1: And at this point, certainly Pence and his staff, including Jacob,
Speaker 1: were aware of the crowd gathering outside and were aware
Speaker 1: of the back and forth, particularly from various Trump supporters
Speaker 1: are urging Pence to do something to overturn the election results.
Speaker 1: But it wasn't until Jacob went downstairs into the battles
Speaker 1: of the Capitol with a couple of the staffiss to
Speaker 1: actually get a cup of coffee that he heard, you know,
Speaker 1: the mob outside storming the Capitol. He literally heard glass
Speaker 1: breaking and people filing in, and that's when he and
Speaker 1: the others hustled back upstairs. They were ushered by Capitol
Speaker 1: police and secret Service to the Senate floor at first,
Speaker 1: and then they were taken to a secure location with Pence,
Speaker 1: his wife, pence brother who's a Republican congressman, and others,
Speaker 1: and they really hunkered down there for the next six
Speaker 1: hours or so as the mob wineled in. So as
Speaker 1: he was being shuffled from the Senate floor to the
Speaker 1: secure location, Jacob fired off an email Eastman. And the
Speaker 1: backstory there is that over the last two days leading
Speaker 1: up to the Capitol, right on January six, he and
Speaker 1: Eastman had been having this ongoing back and forth debating
Speaker 1: the merits of Eastman's argument, in which Eastman was trying
Speaker 1: to convince Pence to step in and overturn the election.
Speaker 1: Those arguments had been rejected roundly. And once the mob
Speaker 1: had had forced its way into the Capitol and Jacob
Speaker 1: is being shuffled off first, he's fielding frantic text messages
Speaker 1: from family members and his pastor about are you all right?
Speaker 1: Are you say? He takes this moment to fire off
Speaker 1: an email the Eastman which says something to the effect
Speaker 1: that we are now under siege and this is all
Speaker 1: thanks to your BIA. So how did he become Pence's
Speaker 1: top lawyer? Since his background is employment benefits law. It's
Speaker 1: a really unlikely story. It's not something that Jacob had
Speaker 1: in mind for sure. Uh, certainly not when Trump and
Speaker 1: Pence were elected, and not even you know, probably midway
Speaker 1: into the four years of the Trump administration. He is
Speaker 1: an employment lawyer by trade. He is an expert in RISSA,
Speaker 1: which is this very wonky but also complicated and and
Speaker 1: incredibly important federal law that governs employee pensioned plans, retirement benefits, etcetera.
Speaker 1: He's been in and out of government in Republican administration.
Speaker 1: He's had some top roles at the Labor Department. Earlier
Speaker 1: in his career he had worked at the d J
Speaker 1: in the Office of Legal Counsel, so he did have
Speaker 1: some experience and expertise outside of the labor and employment world,
Speaker 1: but that was certainly his bread and butter. And in fact, Jacob,
Speaker 1: you know, once Trump was elected, had his eyes on
Speaker 1: a return to the Labor Department and was really focused
Speaker 1: there and for a number of reasons that fell through.
Speaker 1: He had made some connections with the Pence folks, because
Speaker 1: Jacob had been recruited by a b called the House,
Speaker 1: who's a long time GOP lawyer to work on this
Speaker 1: team that was actually vetting VP candidates for Trump, And
Speaker 1: so that's how he had come into Pence his orbits
Speaker 1: in the first place. Pence's long time chief council, a
Speaker 1: guy named Matt Morgan, had decided he needed to go
Speaker 1: back to Indiana for family reasons, and when they went
Speaker 1: looking for somebody, it was suggested that they take a
Speaker 1: look at Jacob. I mean so that although there was
Speaker 1: some familiarity of this was not a guy who was
Speaker 1: like a long time Pence guy, Pence supporter or anything
Speaker 1: like that. But on the other hand, they really did
Speaker 1: jibe pretty well. It sounds like, from from everyone involved,
Speaker 1: sort of a similar worldview, very conservative, also a very
Speaker 1: devout Christian, which of course Mike Pence in his family
Speaker 1: are as well. Now what is his connection to eat.
Speaker 1: It's interesting these are two guys that are sort of
Speaker 1: cut from the same cloth in many ways. They went
Speaker 1: to the same law school at different times. They've been
Speaker 1: running in GOP lawyer circles for decades, but they had
Speaker 1: never actually met until two days before the riot, and
Speaker 1: that was when Eastman came in. He had been hired
Speaker 1: by Trump to come in and work on some of
Speaker 1: the election issues, and it was on January fourth that
Speaker 1: he started reaching out to the Pence folks, including Greg Jacob,
Speaker 1: pitching this argument, which was basically that Pence could de
Speaker 1: certify the vote or send the vote back to certain
Speaker 1: states and UH six states, states including places like Michigan
Speaker 1: and Arizona where Trump supporters had been arguing that there was,
Speaker 1: you know, reason to take another look at those states
Speaker 1: on the one hand, or that he could simply effectively
Speaker 1: wave a magic wand and say that Trump is going
Speaker 1: to remain president. And he laid this out in detail
Speaker 1: in a memo that has become public as part of
Speaker 1: the hearing proceedings. He also laid it out in a
Speaker 1: series of emails that have become public since then, and
Speaker 1: now this chain of emails on January six between Jacob
Speaker 1: and Eastman have also become public. You're right that friends
Speaker 1: and colleagues call him humble, careful under the radar, not exactly,
Speaker 1: Mr Social. This is a guy, by all accounts, who
Speaker 1: has not thought the spotlight and somebody who is just
Speaker 1: super smart, super well respected in d C. And could
Speaker 1: have gone for a more public facing position had he
Speaker 1: thought that. And it's just not something that he personally
Speaker 1: has gone after. And I get the sense that, you know,
Speaker 1: if you left it up to Greg Jacob, he would
Speaker 1: rather not be going before the House Committee in a
Speaker 1: televised event before the world. He's a low key guy,
Speaker 1: you know. I think from his position, he's already sat
Speaker 1: for closed door testimony with the committee there. But on
Speaker 1: the other hand, here's someone who people close to him
Speaker 1: they believed in the rule of law. And certainly, by
Speaker 1: the time the mob was storming the Capitol, it became
Speaker 1: clear to Jacob that this of Trump's own doing and
Speaker 1: of trump supporters own doing, and and that Eastman in particular,
Speaker 1: according to Jacob, should shoulder some of the blame for
Speaker 1: spewing this narrative that somehow Trump was going to be
Speaker 1: able to remain in office. And I think for him
Speaker 1: it's more of a rule of law patriotism type of
Speaker 1: thing here where he feels like, you know, this is
Speaker 1: something where he has to step up and you know,
Speaker 1: explain what happened. Thanks Chris, that's Christopher up for a
Speaker 1: Bloomberg law. The Supreme Court sided with the Southwest Airlines
Speaker 1: baggage handling supervisor, who was trying to avoid having to
Speaker 1: go to arbitration with her claims for overtime pay. In
Speaker 1: a unanimous opinion, the Justice has said the supervisor isn't
Speaker 1: covered by the Federal Arbitration Act, which requires the enforcement
Speaker 1: of agreements to take claims to arbitration rather than to trial.
Speaker 1: In the majority opinion, Justice Clarence Thomas said the supervisor
Speaker 1: qualified for an exception in the law for workers engaged
Speaker 1: in foreign or interstate commerce. Joining me is Mark Rifkin,
Speaker 1: a partner Wolf Haldenstein. This is the second time in
Speaker 1: two weeks that the Court has shot down a company's
Speaker 1: attempt to force an employee into arbitration rather than going
Speaker 1: to trial and a unanimous decision. Is that surprising to you, No,
Speaker 1: I don't think so. I think that the first decision
Speaker 1: in the case involving the worker who was trying to
Speaker 1: invoke waiver as a defense to arbitration, was a straightforward
Speaker 1: application of the principle that arbitration should be put on
Speaker 1: the same footing as every other contract. And then the
Speaker 1: Southwest Airlines case, the second case is again just a
Speaker 1: straightforward application of simple definitions and principles that you can
Speaker 1: find in Black Law Dictionary. And so I think in
Speaker 1: the in that vein, they're both simple, straightforward applications of
Speaker 1: basic fundamental principles to arbitration agreements. So tell us about
Speaker 1: the facts here. So, the plaintiff in the Southwest Airlines
Speaker 1: case was ramp supervisor and part of her job included
Speaker 1: helping the ramp workers load baggage and airmail and cargo
Speaker 1: on and off airplanes that obviously travel across the country
Speaker 1: and presumably internationally as well. And the question is whether
Speaker 1: those workers who are involved in that kind of work
Speaker 1: belonged to a class of workers engaged in foreign or
Speaker 1: interstate commerce. Because the Federal Arbitration Act exempts those workers
Speaker 1: from the protection of the f a A, they can't
Speaker 1: be compelled to arbitrate, And so the question is do
Speaker 1: those baggage handlers fall within that class of workers. It
Speaker 1: seems obvious what her argument would be. What was the
Speaker 1: argument of Southwest as to why she shouldn't fall under
Speaker 1: this exemption. So Southwest Airlines said that the airline is
Speaker 1: engaged in interstate commerce, but the workers at the airport
Speaker 1: who don't themselves travel across state lines or across international lines.
Speaker 1: That the workers are not engaged in interstate commerce, even
Speaker 1: though they work for a company that is. And and
Speaker 1: the question that the Supreme Court addressed is whether those
Speaker 1: workers who are part of that effort of commerce are
Speaker 1: themselves engaged in foreign or interstate commerce even though they
Speaker 1: work within one state rather than traveling interstate or internationally.
Speaker 1: Justice Clarence Thomas wrote the majority opinion, explain his reasoning, Well,
Speaker 1: it's a unanimous decision, so so all the judges who
Speaker 1: participated in the decision agreed, and Justice Barrett did not participate,
Speaker 1: but everybody who participated agreed. And Justice Thomas, writing for
Speaker 1: the court, said that, um, if we look at how
Speaker 1: black slaw a dictionary defines the words engaged and commerce,
Speaker 1: then we conclude that anyone is engaged in commerce who
Speaker 1: is occupied in it, employed in it, or involved in it.
Speaker 1: And the Court took a very broad approach to applying
Speaker 1: that definition. And since the ramp supervisors who actually handle
Speaker 1: the cargo are certainly involved in interstate commerce, the Court said, well,
Speaker 1: they fall within that class of workers who are exempt
Speaker 1: under Section one of the Federal arbitration. I love when
Speaker 1: they go to the dictionary to decide a case of
Speaker 1: national importance. Well, you would think if a case was
Speaker 1: complicated enough and important enough to be adjudicated by the
Speaker 1: Supreme Court, it should require some more sophisticated analysis than
Speaker 1: looking in the dictionary. But here the dictionary help. And
Speaker 1: so Justice Thomas looked in the dictionary and saw the
Speaker 1: how those terms were interpreted, and uh said, works for
Speaker 1: US Uber Lift and Amazon all file briefs backing Southwest.
Speaker 1: What are the implications for those workers? Well, I think
Speaker 1: the principle is fairly well established. Now, if you work
Speaker 1: in an industry that participates in either interstate or international commerce,
Speaker 1: and so for example, Amazon plainly participates in interstate and
Speaker 1: international commerce, if you work for a company that does that,
Speaker 1: and your job is closely enough tied to that commerce,
Speaker 1: then the same rationale would apply to that worker as
Speaker 1: as applied to Saxon in the Southwest Airlines case. Now,
Speaker 1: not everybody who works for Southwest Airlines would fall within
Speaker 1: the courts rational So I could imagine an accountant who
Speaker 1: works for Southwest Airlines. I could imagine that a court
Speaker 1: would say, well, that person is not engaged in interstate
Speaker 1: or international commerce. But you know, obviously, if a baggage
Speaker 1: handler is engaged in interstate or international commerce, a flight
Speaker 1: attendant is engaged in interstate or international commerce, and presumably
Speaker 1: others as well, even though their jobs don't cross state
Speaker 1: lines or international lines, still could be engaged in interstate
Speaker 1: commerce within the meaning of Supreme Court's decision here, I
Speaker 1: want you to tell me what you think Southwest is
Speaker 1: saying here. They said, because non union employees rarely handle
Speaker 1: cargo on a regular basis, Southwest will continue to rely
Speaker 1: on the Federal Arbitration Act to enforce its arbitration program
Speaker 1: in the future. Are they saying they're not going to
Speaker 1: pay attention to the Supreme Court? Well, I think they're
Speaker 1: trying to look for a move all around through this
Speaker 1: free Courts decisions. They conceded in the case that at
Speaker 1: least Saxon, this ramp supervisor, that a significant part of
Speaker 1: her job was to transport cargo, that she helped the
Speaker 1: ramp workers by frequently loading and unloading cargo. So because
Speaker 1: Southwest conceded the issue there, they're now looking for a
Speaker 1: way to distinguish some other kinds of workers from Saxon
Speaker 1: and I guess the way they're trying to do that
Speaker 1: is the extent to which any particular worker actually handles
Speaker 1: baggage or cargo or whatever it may be that gets
Speaker 1: loaded and unloaded from from airplanes. Um. You know, these
Speaker 1: are the kinds of grain lines that courts often have
Speaker 1: to draw. And I guess in the next case brought
Speaker 1: by a Southwest Airlines employee who doesn't handle as much
Speaker 1: baggage as Saxon did, maybe the court would find that
Speaker 1: that person falls outside the exemption. But that's another case
Speaker 1: for another day. We've talked about the Supreme Court and
Speaker 1: arbitration before. Before these two cases, has the Supreme Court
Speaker 1: been interpreting arbitration in ways that are favorable to businesses
Speaker 1: for the most part, well, I think the Supreme Court's
Speaker 1: approach to arbitration has been favorable to business. The f
Speaker 1: a A says you can't disfavor arbitration, and that was
Speaker 1: the rationale for the Morgan Versus Sundance opinion that Justice
Speaker 1: Kagan wrote is that arbitration agreements have to be on
Speaker 1: exactly the same footing as all other contracts, and so
Speaker 1: in that case in Morgan Versus Sundance, the Supreme Court said,
Speaker 1: you can't favor arbitration by creating an artificial barrier to
Speaker 1: a waiver defense that doesn't exist to the defense of
Speaker 1: any other contractual right. And so when the Sixth Circuit
Speaker 1: imposed this additional requirement of prejudice to the defendant who
Speaker 1: was trying to enforce arbitration after litigating a case or
Speaker 1: some prolonged period of time, the Supreme Court said, you've
Speaker 1: weighed that right, whether you're prejudiced by by the inability
Speaker 1: to arbitrate or not. And so the Court now says,
Speaker 1: you know, equal footing means equal footing both ways. But
Speaker 1: the reason that the approach to arbitration favors business is
Speaker 1: because it's an expansion of what the f a A
Speaker 1: really was created to do. You know, decades ago, federal
Speaker 1: courts were very unwilling to enforce arbitration agreements between sophisticated
Speaker 1: commercial parties, which is primarily where arbitration agreements were found.
Speaker 1: And when two big companies decide they want to arbitrate
Speaker 1: their disputes, they're able to make a decision and negotiate
Speaker 1: over whether to include a provision like that or not
Speaker 1: include a provision like that. In a contract, and so
Speaker 1: it really does make sense to say that arbitration is
Speaker 1: a matter of mutual consent between the parties, and we're
Speaker 1: going to treat that the decision to arbitrate and agreement
Speaker 1: to arbitrate like any other agreement that we routinely have
Speaker 1: to enforce. But today businesses imposed these arbitration agreements on
Speaker 1: consumers who don't really have a choice and don't really
Speaker 1: have the opportunity to negotiate, and can't say to a
Speaker 1: company that they want to buy a product from, I'd
Speaker 1: like your product, but I don't want to agree to arbitrate.
Speaker 1: It's to take it or leave it kind of of
Speaker 1: a contract. And it's hard to imagine that there's really
Speaker 1: any voluntary consent to an arbitration clause that's inserted in,
Speaker 1: you know, in a click through page on a website
Speaker 1: where you order goods or services online, for example. But
Speaker 1: the Supreme Court has expressed the view that if there's
Speaker 1: an arbitration agreement anywhere around, whether you can be said
Speaker 1: to consent to it in any meaningful sense or not,
Speaker 1: you're bound by it. And that's why I think the
Speaker 1: way the Court has approached arbitration agreements is very business
Speaker 1: friendly because in the consumer context there really is not
Speaker 1: any meaningful choice. I know I've asked you this many
Speaker 1: many times before, but just explain how arbitration favors the
Speaker 1: large companies. So there's there's two or three principle advantages
Speaker 1: to a big company. One is that you don't have
Speaker 1: the ability to conduct broad discovery, so that prevents a plaintiff,
Speaker 1: any plaintiff, from from finding out enough information to be
Speaker 1: able to bring a claim successfully. Number Two, you'll lose
Speaker 1: the right to a trial by jury, and that's a
Speaker 1: really important right, particularly for a consumer, because stories are
Speaker 1: there to try to even out and any prejudice that's
Speaker 1: built into the system to favor the big guy over
Speaker 1: the little guy. And then the third big advantage is
Speaker 1: it is virtually impossible to appeal an arbitration award against
Speaker 1: you because the standard for appealing an arbitration award is
Speaker 1: so incredibly high it's almost impossible to meet. It can
Speaker 1: almost never be met. And lots of times arbitrators are
Speaker 1: part of the industry in which the big company works.
Speaker 1: Not always, but lots of time. Thanks Mark. That's Mark
Speaker 1: Rifkin of Wolf hollen Stein. And that's it for this
Speaker 1: edition of The Bloomberg Law Show. Remember you can always
Speaker 1: get the latest legal news on our Bloomberg Law Podcast.
Speaker 1: You can find them on Apple Podcasts, Spotify, and at
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Speaker 1: remember to tune in to The Bloomberg Law Show every
Speaker 1: week night at ten b m. Wall Street Time. I'm
Speaker 1: June Grosso and you're listening to bloom Burn