Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: The American Bar Association is calling for the Supreme Court
Speaker 1: to adopt the Judicial Ethics Code as the Court faces
Speaker 1: plummeting public opinion, an unresolved leak investigation, and a wave
Speaker 1: of ethics concerns, none of which the Chief Justice has
Speaker 1: addressed head on. Chief Justice John Roberts has spoken only
Speaker 1: twice publicly in the past year, behind closed door audiences
Speaker 1: of fellow judges, lawyers, and judicial staff at Federal Circuit
Speaker 1: Court conferences. The only reference he made to the public
Speaker 1: disapproval of the Court was to say that Supreme Court
Speaker 1: decisions and controversial cases have always been subject to intense criticism,
Speaker 1: but it's a mistake to call into question the legitimacy
Speaker 1: of the Court. The legitimacy of the Court rests on
Speaker 1: the fact that it satisfies the requirements of the of
Speaker 1: the Statute and that the Constitution needs, as John Marshall
Speaker 1: put it, somebody to say what the law is, and
Speaker 1: that's the role of the Supreme Court. I don't understand
Speaker 1: the connection between opinions that people disagree with and the
Speaker 1: legitimacy of the Court if the Court doesn't retain its
Speaker 1: legitimate function of interpreting the Constitution, I'm not sure who
Speaker 1: would joining me is an expert in constitutional law, David Super,
Speaker 1: a professor at Georgetown Law School. How would you describe
Speaker 1: the Chief Justice's response to the unresolved lead investigation, the
Speaker 1: ethics concerns raised about Justice Thomas, his wife, and the
Speaker 1: low public approval of the court. I think the Chief
Speaker 1: Justice is trying to keep all of these things in
Speaker 1: house with the Court and avoid public scrutiny and criticism.
Speaker 1: Is strategy seems to be focused largely on public perception
Speaker 1: rather than on getting at the underlying problems. Roberts has said,
Speaker 1: timing again that the Court isn't political. It exists separate
Speaker 1: from the political branches. But it seems like the Court
Speaker 1: has become political in the way it makes decisions recently.
Speaker 1: Is that something that he should address. I'm not sure
Speaker 1: that there's much he can do. It is in his
Speaker 1: interest to have the Court regarded as being above politics,
Speaker 1: so he's going to keep saying that. But the fact
Speaker 1: is that at least five of the justices are voting
Speaker 1: pretty consistently along ideological lines and disregarding precedents, indeed disregarding
Speaker 1: some of their own precedent when the implications affect their
Speaker 1: political preferences in different ways. There's nothing that the Chief
Speaker 1: Justice can do to obscure that fact. The most he
Speaker 1: can do is against Some of them are politicized decisions,
Speaker 1: which he has, but his vote doesn't matter. I remember
Speaker 1: back in after former President Trump called judges partisan, Roberts
Speaker 1: did speak out and he said, you know, they're not
Speaker 1: Obama judges or Trump judges, so why wouldn't he do
Speaker 1: something similar now when you know public approval of the
Speaker 1: Court is so low and there are so many issues
Speaker 1: surrounding the Court outside of the decisions that it makes.
Speaker 1: Because he can't do very much about them. The only
Speaker 1: people he's really accountable to are the other eight justices,
Speaker 1: and they're not supportive of his doing the kinds of
Speaker 1: things that would take to resolve these questions. One of
Speaker 1: them either leaked the opinion or likely has staff who
Speaker 1: did and may be aware of that. He certainly isn't
Speaker 1: going to get support for exposing that from the guilty party.
Speaker 1: He did as much of an investigation as he could
Speaker 1: without going outside of the building or ruffling the justices
Speaker 1: feathers on the ethics matter. There have been ethics issues
Speaker 1: raised before about justices, and there is not an effective
Speaker 1: outside means of a drafting it. Unless it rises to
Speaker 1: the level that the other justices are themselves willing to
Speaker 1: take action against one of their own, which is very rare,
Speaker 1: then he doesn't have much leverage there either. Is the
Speaker 1: way he handled the leak investigation sort of symptomatic of
Speaker 1: his approach. He had someone inside the court investigate instead of,
Speaker 1: as you mentioned, outside agency like the FBI, so he
Speaker 1: could control it. And I wonder if he really wanted
Speaker 1: to find out who leaked the draft opinion, or if
Speaker 1: in fact he did find out and just hasn't told us.
Speaker 1: I would be surprised if his bad faith rose to
Speaker 1: that level. I think he wanted to find out, but
Speaker 1: not so badly as to anger other justices. So, for example,
Speaker 1: it appears the investigation only looked at them, not justices,
Speaker 1: and to look at justices would create a lot of
Speaker 1: unpleasantness and discomfort within the nine, and he was unwilling
Speaker 1: to do that. If, as many people are speculated, the
Speaker 1: leak was by a justice, then this isn't going to
Speaker 1: find it because he was only looking at people who
Speaker 1: worked justices. I think he found a staff member who
Speaker 1: leaked it. He probably would have released that. But my
Speaker 1: suspicion from this is that the leak was a justice,
Speaker 1: and he's not prepared to deal with the blowback that
Speaker 1: he would get from exposing such a justice if he
Speaker 1: knows who it was. Some of the justices seem to
Speaker 1: be having a sort of debate in public by responding
Speaker 1: to what others have said in their public appearances. So
Speaker 1: Robert said, the mere disagreement with the ruling is not
Speaker 1: a basis for questioning the legitimacy of the court, and
Speaker 1: then two weeks later, Justice Kagan seemed to be replying
Speaker 1: to him, almost saying that Americans are bound to lose
Speaker 1: confidence in a court that looks like an extension of
Speaker 1: the political process. Does it seem as if there's some
Speaker 1: some problem among the justices. Well, I agree with both
Speaker 1: of those statements, so it's not necessarily a debate. There
Speaker 1: are many decisions of the Court recently and otherwise that
Speaker 1: I disagree with, but whose legitimacy I accept. My job
Speaker 1: is teaching law students such decisions. So I think the
Speaker 1: Chief Justice is right, but I think what Justice Kagan
Speaker 1: is saying is that the problems here are much broader
Speaker 1: than Justice agreeing with the opinions. They rise to the
Speaker 1: level of believing with the opinions are politicized. And I
Speaker 1: think she's right about that as well. There was this
Speaker 1: unprecedented delay in issuing the first opinion of the term,
Speaker 1: and Justice Kavanaugh blamed it recently on the mix of cases.
Speaker 1: If the Justice has heard in October and November, do
Speaker 1: you think it's more than just that. I think it
Speaker 1: is probably more or less what Justice Kavanaugh said. Now,
Speaker 1: how that mix effects what the Court does is another matter.
Speaker 1: Tradition on the Court is that they don't issue opinions
Speaker 1: until any justices who want to write the sending opinions
Speaker 1: had finished with the solids six three supermajority of conservatives.
Speaker 1: They won't have any trouble getting to a majority on
Speaker 1: politically charged cases, but they may have felt that they
Speaker 1: needed to wait for the centers to finish, or there
Speaker 1: may have been a back and forth. Typically, once a
Speaker 1: descent has been circulated, the justices and the majority want
Speaker 1: to change the majority to respond to the defense and
Speaker 1: the the centers often than want to further change their
Speaker 1: descent to respond to the new points in the majority opinion,
Speaker 1: and that process could have taken quite a while. That
Speaker 1: wouldn't be surprising or a polarized court. After the leak,
Speaker 1: Justice Clarence Thomas said something to the effect that the
Speaker 1: trust has gone and you're looking over your shoulder. But
Speaker 1: does it seem as if it's such a different court
Speaker 1: then the court was, you know a few years ago
Speaker 1: when Justice Scalia was on the court. It's not the same.
Speaker 1: It's not the same because they're no longer any meaningful
Speaker 1: swing votes. In a certain sense. The Chief Justice is
Speaker 1: to swing vote, but he swings between a six three
Speaker 1: and five four conservative majority doesn't change the outcome. Once
Speaker 1: in a great while, one of the other justices will
Speaker 1: part company with their colleagues, and if two of them do,
Speaker 1: then you may have a different results, but that almost
Speaker 1: never happens. I think oral argument therefore feels less lively
Speaker 1: because there are fewer doubts about how the cases are
Speaker 1: going to come out with the super majority. In New
Speaker 1: England School of Law, event Roberts said, the Framers established
Speaker 1: a court in a way that we would not care
Speaker 1: about that criticism. Explaining his approach to dealing with criticism
Speaker 1: of the court, which is not to deal with it.
Speaker 1: I guess do you agree with his interpretation of the
Speaker 1: Framer's intent. I think his approach is too simplistic. The
Speaker 1: Framers did not intend for justices to entrench themselves on
Speaker 1: the Court for long periods and take politified actions to
Speaker 1: reverse the results of election. The first two chief Justices
Speaker 1: serve for only a few years each. Most of the
Speaker 1: justices from the original area it served very brief terms.
Speaker 1: Chief Justice Marshall departed from that, serving for a very
Speaker 1: long time. But if you can judge at original intent
Speaker 1: by what the early justices did, they saw it as
Speaker 1: a temporary role, not one where they could be thrown
Speaker 1: out by the public if their decisions were unpopular, but
Speaker 1: also not one where the justice is appointed long long
Speaker 1: ago would continue to hand down decisions. So this is
Speaker 1: a very different court from the founders. And the notion
Speaker 1: that the Court would be impervious to election results and
Speaker 1: indeed would strike down laws passed by majorities voted in
Speaker 1: by the public is certainly not an original concept. Indeed,
Speaker 1: the ideas of the Supreme Court could strike down laws
Speaker 1: Congress passed at all was not part of the original
Speaker 1: document in the Constitution. It was added later in Marbury
Speaker 1: versus Madison by Chief Justice Marshal. Should the Supreme Court
Speaker 1: justices have a judicial ethics code? All other federal judges
Speaker 1: follow one? And why should judges with the most power
Speaker 1: to affect the country and the law the exempt. It
Speaker 1: seems counterintuitive, And I know the American Bar Association passed
Speaker 1: a resolution urging the High Court to adopt ethics rules.
Speaker 1: Why do they resist? They resist because they can. No
Speaker 1: one is in a position to impose it on them.
Speaker 1: But there really is no defense for them doing that.
Speaker 1: I suppose the argument would be that if there's an
Speaker 1: ethics code, um, then people could use ethics allegations to
Speaker 1: try to influence what judges too. But that's true in
Speaker 1: any court, and there are methods for punishing that faith accusations,
Speaker 1: whether against judges or anybody else. Uh. There really is
Speaker 1: no justification for not having an ethics code. Uh. And
Speaker 1: when justices have done things that call their impartiality, and
Speaker 1: the question yet justice for working closely with the Johnson
Speaker 1: administration shin at the same time he was deciding cases
Speaker 1: that involved that administration or Justice Lea, the personally close
Speaker 1: to uh sitting vice president or the matters being raised. Now,
Speaker 1: there is a strong interest in the court to have
Speaker 1: these matters. There's also a wrong clear lines, but there's
Speaker 1: not a strong interest in individual justices for that. Could
Speaker 1: Congress force a code, a judicial code, on the justices
Speaker 1: or it's just totally up to them. I think there's
Speaker 1: an argument Congress could do that. There are some state
Speaker 1: constitutions that give the High Court absolute control over the judiciary.
Speaker 1: That's not as clear in Article three in the Federal Constitution.
Speaker 1: So I think it is entirely possible that Congress could
Speaker 1: do that. Congress may limit the court's jurisdiction, and if
Speaker 1: it can do that, it say that the Court does
Speaker 1: not have jurisdiction to hear any case in which a
Speaker 1: justice has the conflict of interest but has failed to
Speaker 1: refuse him or herself. I mean, does the Chief Justice
Speaker 1: have any power beyond what any other justice has. He
Speaker 1: does have some powers that I'm not sure whether they help.
Speaker 1: He can, for example, in any decision where he's in
Speaker 1: the majority, he can write the opinion if he wants
Speaker 1: to um. And he could write more moderate, more precedent
Speaker 1: honoring opinions on some of these cases if he's in
Speaker 1: the majority. But that's not going to deal with the
Speaker 1: fundamental concerned people have that the outcome are the winners
Speaker 1: in these cases are ordained by politics. There have been,
Speaker 1: you know, a lot of suggestions of about ways to
Speaker 1: change the court, to pack the court, to add term limits.
Speaker 1: What's your take on whether or not something should be
Speaker 1: done to change the court in that way. I think
Speaker 1: the should be done to change the court. I absolutely
Speaker 1: think that, but I don't like the proposals that are
Speaker 1: currently popular. I've actually written an article on what I
Speaker 1: think should be done. I think the proper approach is
Speaker 1: to adopt the one that New York State has, which
Speaker 1: is a nonpartisan commission picking a set of candidates for
Speaker 1: each position, and if the President chooses one of those candidates,
Speaker 1: then they can go through the Senate without a filibuster.
Speaker 1: The President would be free to nominate someone else, but
Speaker 1: that person would not have protection against the filibuster. That
Speaker 1: would get us more moderate Democrats and more moderate Republicans,
Speaker 1: and we'd go back to having genuine swing votes on
Speaker 1: the Court. Thanks David. That's Professor David super of Georgetown
Speaker 1: Law School. In the wake of the shooting down of
Speaker 1: a Chinese spy balloon over the coast of South Carolina
Speaker 1: and three other objects. Lawmakers are beginning to look towards
Speaker 1: how these kinds of surveillance efforts should be handled between
Speaker 1: the US and China, including through the data collection of
Speaker 1: companies like TikTok. The chairman of the House Oversight Committee,
Speaker 1: Republican Representative James Coomer, said Congress shouldn't rule out further
Speaker 1: restrictions on these companies, particularly on how data is gathered.
Speaker 1: It's a concern for high level people in the government
Speaker 1: because with that data byte dance can can tell where
Speaker 1: you are. If you're using TikTok, they know where your
Speaker 1: location is, so that would be a concern. And TikTok
Speaker 1: is facing a growing number of class action lawsuits that
Speaker 1: it's in app browser illegally tracks users clicks and key
Speaker 1: strokes in violation of a federal wire tap law, a
Speaker 1: claim that will test novel privacy litigation issues. The suits
Speaker 1: say that TikTok could become privy to private information such
Speaker 1: as a user's credit card accounts, mental health, or sexual preferences.
Speaker 1: Joining me is privacy and class action attorney David Straight,
Speaker 1: a partner to cello and love it. There are nearly
Speaker 1: one dozen proposed class actions across five states that have
Speaker 1: been filed against TikTok since November. Can you explain the
Speaker 1: basis of these actions, you know, the causes of action? Yes,
Speaker 1: Briefly speaking, all of these complaints allege that TikTok is
Speaker 1: injecting script as a JavaScript code into the websites that
Speaker 1: are being visited through the TikTok app. And this script
Speaker 1: allows for session replay. So this is not you know,
Speaker 1: the traditional sort of tracking across the Internet where the
Speaker 1: actual website, you know, the u r L with the
Speaker 1: IP address and maybe the file path would be recorded
Speaker 1: by a third party. The session replay code allows the
Speaker 1: recipients of the information two observe right down to the
Speaker 1: key stroke of what's going on on those sites. So,
Speaker 1: these cases all alleged that TikTok is violating numerous laws,
Speaker 1: including the wiretop Law, which forbid the interception of communications
Speaker 1: over the wires in flight, meaning real time contemporary communications
Speaker 1: without the consent of at least one party to the
Speaker 1: communication or cord order. What kind of information is TikTok
Speaker 1: allegedly mining? Do we know? Well, when you say mining,
Speaker 1: it's unclear what use TikTok is making of the data. Typically,
Speaker 1: when a third party monitors Internet use, the data is
Speaker 1: not simply stored in the file. Typically inferences are made
Speaker 1: right so profiles are created and inferences are made based
Speaker 1: on one's activity, where one visits from, where, who you are,
Speaker 1: what sort of activity has done so well, I don't
Speaker 1: know what precisely TikTok is using with the data. We
Speaker 1: do have a sense of what data is being gathered
Speaker 1: through the app when users click on links that bring
Speaker 1: them to first party websites, and what would that be.
Speaker 1: So the session replay the script allows more than just
Speaker 1: the gathering of the r L. So it would be
Speaker 1: for example, forms that are filled out. It could be
Speaker 1: navigating the website from page to page, deeper and deeper down,
Speaker 1: maybe choices that are made on the website, information that's
Speaker 1: provided into various places on the website, into forms, etcetera.
Speaker 1: It can be fairly profound what information can be gathered. So,
Speaker 1: for example, if a person is filling out a health form,
Speaker 1: all that personal information is entered. Now are these claims
Speaker 1: by the plaintiffs novel claims or are they claims that
Speaker 1: have been tried before in a kind of a different way.
Speaker 1: So session replay is fairly new. You know. There were
Speaker 1: some interesting articles published as early as on this topic,
Speaker 1: so it's not a new technology this year. It's been
Speaker 1: around for a while. But the claims are based on older,
Speaker 1: tried and true plan. The Wiretap Act, originally passed by
Speaker 1: Congress in nineteen sixty eight, applied the telephone calls, that's
Speaker 1: the traditional nineteen sixties and nineteen seventies style, you know,
Speaker 1: bugging of a phone and see these. But then in
Speaker 1: the early nineteen eighties it was understood that increasing number
Speaker 1: of communications were happening by a computer and then and
Speaker 1: through this submerging technology which became known as the Internet.
Speaker 1: So in the Wiretap Act was updated to include computer communications.
Speaker 1: It was the Electronic Communications Privacy Act which then updated
Speaker 1: and incorporated the old wire Tap Act. So we're going
Speaker 1: back now decades. It's understood that the interception of communications,
Speaker 1: even over computers, can be a wire tap violation. So
Speaker 1: in these cases we have Wiretap Act claims, and those
Speaker 1: are long ago held to apply to the Internet communications
Speaker 1: by design in the statute, and certainly the interception of
Speaker 1: a r L even just a link to a website,
Speaker 1: assuming it's not just the I P address you give
Speaker 1: you hypothetical www dot cnn dot com. Well, that may
Speaker 1: or may not be the content of the communication that
Speaker 1: would give rise to a wiretap claim. But certainly deeper
Speaker 1: into the website, when you're talking about articles that are
Speaker 1: viewed on CNN dot com, certainly search queries and other
Speaker 1: activities on the website, absolutely those would be content of
Speaker 1: the communication and therefore implicating a possible wire tap claim here,
Speaker 1: because we have session replay technology, we're talking not just
Speaker 1: about the U r L visited, the clicking on the
Speaker 1: link and then visiting the website, you know, through the
Speaker 1: TikTok after you know the browser, but we're talking about
Speaker 1: activities on the website that would then allegedly be captured
Speaker 1: by the session of replay technology. So in that sense,
Speaker 1: it's not a new novel claim, but it is the
Speaker 1: extension of the existing, well accepted application of the Wire's
Speaker 1: Appact to the interception of communications on the Internet. Do
Speaker 1: users of these kinds of apps have an expectation of privacy? Yes,
Speaker 1: absolutely that that is a given. So there's no question
Speaker 1: that there's a reasonable expectation of privacy and one's Internet browsing. Certainly,
Speaker 1: the aggregation of the browsing the ninth Circuit in particular
Speaker 1: has been out front and so finding not too many
Speaker 1: courts at this point would disagree. Certainly, multiple studies have
Speaker 1: confirmed that although you may be sharing your Internet browsing
Speaker 1: with a particular website that particular visit, the aggregation of
Speaker 1: your web browsing across multiple sites. Absolutely there's an expectation
Speaker 1: of privacy there. Even if we're talking about you know,
Speaker 1: what's traditionally thought of as non sensitive website that you
Speaker 1: go to, you know, Walmart dot com to buy a towel. There,
Speaker 1: maybe some people and they say, well, is that really
Speaker 1: a private issue? Well it is, in fact, Congress said,
Speaker 1: so that's why the Wire's at Act exists. That private communications,
Speaker 1: there's absolutely reasonable expectation of privacy, and that's why the
Speaker 1: original wire Tap Act was passed. Once we start talking
Speaker 1: about the aggregation and of your web browsing, no question,
Speaker 1: that's generally accept that there would be a reasonable expectation
Speaker 1: of privacy. Now, your question, specifically, does that expectation of
Speaker 1: privacy continue within the TikTok app? Specific to TikTok i
Speaker 1: would say yes. Certainly these cases that are being filed
Speaker 1: would say yes. But that reasonable expectation is not a
Speaker 1: precondition to the application of the Wiretap Act. All that's
Speaker 1: necessary is that there be the interception of a communication
Speaker 1: across the wires in flight, and communication includes the content
Speaker 1: of the communication without consent, full stop. That's the claim.
Speaker 1: So that's why these claims under the wire Tap Act
Speaker 1: are so powerful, because we don't need to ask the
Speaker 1: question of whether a reasonable person has an expectation of
Speaker 1: privacy or whether an individual plaintiffs might have an expectation
Speaker 1: of privacy. The wire Tap Act doesn't care. It's simply
Speaker 1: says the interception was unbowful. A TikTok spokesperson said, would
Speaker 1: you not collect keystroke or text inputs through this JavaScript code?
Speaker 1: It's only used for debugging, trouble suiting and performance monitoring.
Speaker 1: Is there a clear way for them to prove that?
Speaker 1: There will be two ways that they can pursue that defense.
Speaker 1: First of all, I'm not quite sure whether that's a
Speaker 1: complete defense to what's being ledged. Even if what they're
Speaker 1: saying is true to the letter of their defense, I'm
Speaker 1: not sure that would be a complete defense anyway. We
Speaker 1: would have to look at the terms of service and
Speaker 1: the privacy policy and other governing documents and see whether
Speaker 1: that defense would work, whether that limited gathering or limited
Speaker 1: use of gathering would be permissible, because I don't know
Speaker 1: the details there. But there are two places where that
Speaker 1: defense could be raised. One could be at the at
Speaker 1: the motions dismiss phase. For the non lawyers listening, the
Speaker 1: motion to dismiss phase is testing the legal sufficiency of
Speaker 1: the outations, where the court will have to assess if
Speaker 1: it's true what's being alleged. Is the allegation legally sufficient
Speaker 1: to raise this claim? It's not usually appropriate at the
Speaker 1: stage for the defended to say it, but I don't
Speaker 1: do that. Sometimes there can be some allegations that are
Speaker 1: so atlantish or so obviously wrong they can be defended
Speaker 1: at the motion to this misspace, but usually not. Typically
Speaker 1: a defense of what I didn't do it um is
Speaker 1: done later in the case, after discovery, after defendants have
Speaker 1: an opportunity to see if they're telling the truth. So
Speaker 1: the evaluation at the first stage is what is the
Speaker 1: basis of the information? Is it just information and belief?
Speaker 1: Is it through testing? What is the credibility at a
Speaker 1: very basic level, and then the case proceeds to discovery.
Speaker 1: Then there's a second opportunity that the defendant will have. Here,
Speaker 1: it's multiple defendants will have the opportunity after discovery to say, hey,
Speaker 1: you haven't proven your case that no reasonable jury could
Speaker 1: believe your version of the facts. That would be a
Speaker 1: motion for summary judgment after the parties have had an
Speaker 1: opportunity to test the claims. One of the law firms
Speaker 1: involved here wants to consolidate nine of the cases and
Speaker 1: to multi district litigation. Does it seem like there is
Speaker 1: so much similarity in the allegations that they should be consolidated. Well,
Speaker 1: the judicial panel and multi district litigation will ultimately make
Speaker 1: that decision. And the focus is typically on efficiencies and discovery,
Speaker 1: and you know there's I think some people who aren't
Speaker 1: in the industry may not understand that. Technically speaking, if
Speaker 1: a case goes to trial, the case of them become
Speaker 1: just aggregated sent back to their home district. That's a
Speaker 1: very rare situation. But the focus on the grouping of
Speaker 1: the cases together and then transferring them to a common
Speaker 1: court that is actually done for efficiency in discovery. So
Speaker 1: that's the same executive, for example, only testifies once, so
Speaker 1: the documents can be produced in an efficient manner among
Speaker 1: the cases. In fact, even if the jp m L
Speaker 1: the Judicial Panel on Multi district Litigation, even if they
Speaker 1: were to decide the cases are related enough to consider
Speaker 1: them together and transfers them all to a single court,
Speaker 1: that does not necessarily mean they have to be consolidated
Speaker 1: into a single case. There are many cases where they're
Speaker 1: simply related and that they are coordinated, and that's a
Speaker 1: decision that the transferre court will have to make whether
Speaker 1: they should be consolidated or simply coordinated. And TikTok is
Speaker 1: arguing that the lawsuit should be included in an already
Speaker 1: settled multidistrict litigation action in Illinois. I mean, is that
Speaker 1: a wild kind of argument. It's unusual. Certainly, it's not
Speaker 1: a normal thing for a settlement agreement to settle claims
Speaker 1: for past behavior and future behavior, so to the extent
Speaker 1: that any of these cases overlap with the settled case.
Speaker 1: For actions that were done prior to the day of
Speaker 1: the settlement, or prior to the data of the pulmonary approval,
Speaker 1: even prior to the data the final approval, then the
Speaker 1: question will be whether the settlement substantively covers the actions
Speaker 1: that are challenged in these cases. But to the extent
Speaker 1: that the offending activity or alleged to the offending activity
Speaker 1: occurred after one of those dates, that's a little more unusual.
Speaker 1: The idea that a settlement can say we put a
Speaker 1: force field around the defendant for even future behavior is very,
Speaker 1: very unusual and is not likely to be looked at
Speaker 1: kindly by too many courts. Are the Planti's going to
Speaker 1: have troubles here once they do? You mentioned the discovery phase.
Speaker 1: Once they do reach the discovery phase, are they going
Speaker 1: to have trouble getting discovery from TikTok, which is based
Speaker 1: in China. Whenever there's a case where evidence is located
Speaker 1: outside of the borders of the United States, naturally there
Speaker 1: are challenges, and the challenges are are multifacets. First of all,
Speaker 1: would be documents. That's the easiest question, because documents can
Speaker 1: easily be transferred. Then you have the question of what
Speaker 1: if what about depositions. Some countries are less amenable two
Speaker 1: depositions of individuals, because that's that's more of an American thing.
Speaker 1: Many countries allowed depositions, but not the same extent that
Speaker 1: that the United States does. To get that type of
Speaker 1: evidence located abroad, there are conventions that can be used.
Speaker 1: The Hay Convention is the most common to get access
Speaker 1: to that evidence. But we're talking about China, it's a
Speaker 1: different issue. The complication that one always faces whenever evidence
Speaker 1: is located outside the United States is even more complex
Speaker 1: when you're talking about China specifically. And one thing that
Speaker 1: we also have to remember is that these documents may
Speaker 1: or may not be evidence, may or may not be
Speaker 1: taken at deposition in the language other than English. I'm
Speaker 1: not familiar with the language of business. That TikTok it.
Speaker 1: That's always an issue whenever you have international litigation. You
Speaker 1: have these you know, nearly a dozen proposed class actions.
Speaker 1: Are you expecting to see more similar class actions or
Speaker 1: arrest it until some of these cases get a little
Speaker 1: farther along, I don't know whether others will be filed.
Speaker 1: Typically at this phase, given that we're now a couple
Speaker 1: of months into the process, you would expect to see
Speaker 1: the pace fall off, and we have seen the pace
Speaker 1: fall off. That does not preclude other people from filing UM,
Speaker 1: but at this phase UM, if new claims are brought.
Speaker 1: Typically you would see them include additional allegations or additional
Speaker 1: claims that weren't brought before. There may be some firms
Speaker 1: doing additional investigations, and those would likely be the basis
Speaker 1: for new claims being filed. But just because the the
Speaker 1: panel is now looking at the motion for centralization does
Speaker 1: not preclude new cases from being brought. You might see more.
Speaker 1: You know, we've heard a lot from regulators, government officials
Speaker 1: concern about TikTok and China's access to the US user data.
Speaker 1: Do you expect to see more state enforcement against the app? Well,
Speaker 1: certainly the fact that this is TikTok, leave aside the
Speaker 1: technology that's allegedly being used, the session replay technology, leaving
Speaker 1: that aside, leaving aside the wiretap claims. In particular, we're
Speaker 1: talking about a defendant that is right now very much
Speaker 1: in the site of Congress, state legislatures, regulators at the
Speaker 1: federal level and state level. It's a fairly well known
Speaker 1: defendant this year, um and given also what's happened recently
Speaker 1: and it's still going on with spy balloons and other
Speaker 1: unidentified objects, and there's a bit of heightened tension, specifically
Speaker 1: with Chinese spying or legisfying. There's no way to separate
Speaker 1: out the Chinese space of TikTok from these stories. It's impossible,
Speaker 1: So that will absolutely be a factor how it plays out.
Speaker 1: I have no way of knowing, but the analysis of
Speaker 1: these cases cannot be divorced from the current geopolitical situation. Now,
Speaker 1: will states also get involved? I think it would be
Speaker 1: impossible that every state would stay out, whether it be
Speaker 1: through legislative action or regulatory action. I just can't imagine
Speaker 1: that for the next year no state gets involved in
Speaker 1: trying to regulate TikTok. Oh. I think you're right. You know,
Speaker 1: those state attorney generals love to get involved, and this
Speaker 1: is an important case to watch. You know that it's
Speaker 1: rare for a series of class actions like this to
Speaker 1: be touching on so many issues, keep a lot of
Speaker 1: people interesstood, even people who are traditionally not involved in
Speaker 1: the class action space or not typically involved in data
Speaker 1: privacy space, just because of the national security issues. And
Speaker 1: also let's not forget something like half of all TikTok
Speaker 1: users are under eighteen. That absolutely is going to be
Speaker 1: a elevant issue here. There's so many issues that played
Speaker 1: I think this will remain in in the president and
Speaker 1: the headlines for the duration of the case. Thanks David.
Speaker 1: That's David Straight, a partner to Cello Levitt. And that's
Speaker 1: it for this edition of The Bloomberg Law Show. Remember
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Speaker 1: week night at ten pm Wall Street Time. I'm June
Speaker 1: Grosso and you're listening to Bloomberg