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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: This week, the Supreme Court justices grapple with the question

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Speaker 1: of whether a man serving a life sentence for his

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Speaker 1: role on an international kill team should get a new

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Speaker 1: trial because the confession of a co defendant implicated him

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Speaker 1: in the crime. Adam Semiah was tried with two other

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Speaker 1: men for killing a real estate broker in the Philippines.

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Speaker 1: One of his co defendants had confessed to the crime,

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Speaker 1: and prosecutors used that confession at trial, with Semiah's name

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Speaker 1: redacted and replaced by the words someone and the other person.

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Speaker 1: Semiah argued that violated his right to confront witnesses testifying

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Speaker 1: against him, but the Conservative justices, including Chief Justice John Roberts,

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Speaker 1: appeared skeptical about that. Maybe they will wonder, Weld, why

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Speaker 1: are they saying another person if it was this guy,

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Speaker 1: be because it's somebody else that they don't, you know,

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Speaker 1: haven't brought to trial. The liberal justice is, like Elena Kagan,

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Speaker 1: seem more accepting of Samea's arguments. It's just as good

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Speaker 1: to say the woman and I went out and robbed

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Speaker 1: Phil as it is to say Mary, the person sitting

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Speaker 1: on my left went out and robbed Bill in that

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Speaker 1: in that case, right, it does the same thing. It

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Speaker 1: identifies the person joining me as former federal prosecutor George

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Speaker 1: Newhouse of Richard's Carrington. George tell us about the issue here.

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Speaker 1: The legal issue in this case is the admissibility of

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Speaker 1: a co conspirator statement that criminates both the defendant who

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Speaker 1: made the statement and his co conspirator. In this case dammiab.

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Speaker 1: When they go to trial against two individuals and they

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Speaker 1: try to offer this statement against the non testifying defendant,

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Speaker 1: it's not admissible because it's a hearsay statement of not

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Speaker 1: being offered against the person who made it, mister Stillwell,

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Speaker 1: being offered against codefendant. So the law is clear and

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Speaker 1: has always been clear, that that statement is not admissible.

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Speaker 1: And in the original case Bruton Bruton objected and the

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Speaker 1: judge said, that's fine. I will instruct the jury that

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Speaker 1: it cannot be used against mister Bruton. It's only offered

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Speaker 1: against the codefendant who made the admission. And of course,

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Speaker 1: in Bruton Bruton objective, stead, your honor, the jury can

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Speaker 1: hardly disregard that evidence, even though they're instructed to do so.

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Speaker 1: So the Supreme Court jaid, that's right. There are limited

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Speaker 1: powers of the jury to disregard highly probitive, highly incriminating evidence.

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Speaker 1: So that's now called Bruton error. And when the government

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Speaker 1: wants to introduce that statement, they either have to separate

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Speaker 1: the trial, have a separate trial for that defendant, or

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Speaker 1: they have to not offer that statement against the defendant.

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Speaker 1: So in this case, a very similar situation, two people

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Speaker 1: committed the crime. This was a shooting in the Philippines,

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Speaker 1: murdered an individual. There were two people in the car,

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Speaker 1: and still Well confessed, and they of course offered that

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Speaker 1: confession against both individuals. But what they did was they redacted,

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Speaker 1: they cleaned up the confession for the person who testified.

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Speaker 1: The law enforcement officers said, well Stillwell admitted to the crime,

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Speaker 1: and he admitted that he was in the car with

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Speaker 1: another person not identified. And of course the issue in

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Speaker 1: this case is the defendant Sammy us saying, really, the

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Speaker 1: jury will immediately know who that other person is by

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Speaker 1: the context of the evidence presented enhanced. It's a brutal

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Speaker 1: error because you're offering an out of corpse statement against me.

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Speaker 1: And it's what we call a confrontation clause issue. That

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Speaker 1: the six Adenment allows you the right to confront and

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Speaker 1: proper examine your accusers. You can't do it when it's

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Speaker 1: an out of court statement. So the issue before the

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Speaker 1: court is is this fall within the purview of Bruton

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Speaker 1: or is it an acceptable correction that doesn't harm the

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Speaker 1: defendant's chance and doesn't violate the sixth Amendment right of confrontations.

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Speaker 1: That will be the issue of Supreme Court decide. So

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Speaker 1: it seemed like some of the conservative justices, like the

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Speaker 1: Chief Justice, said, well, you know, you can't really tell

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Speaker 1: and it is not necessarily referring to the defendant. But

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Speaker 1: then you had some of the liberal justices like Elina

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Speaker 1: Kagan saying, come on, obviously you're going to know who

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Speaker 1: it is the person sitting next to you that explains it.

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Speaker 1: It makes sense. But the conservative justices who think that

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Speaker 1: a reference to another person unnamed will not immediately lead

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Speaker 1: the fury to the defendant is ridiculous in that case.

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Speaker 1: From the context there are only two people in the car.

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Speaker 1: They're going to figure out who was in the car,

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Speaker 1: and they're going to connect the dots, and then they

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Speaker 1: will disregard the instruction that the evidence is only offered

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Speaker 1: against mister Stillwell, the defendant who made the statement. So

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Speaker 1: it really is a reality test, and I predict that

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Speaker 1: the court will find that this is brutal error. You know,

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Speaker 1: the choice the real prosecutors have to make is do

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Speaker 1: they want to try the two together sometimes they can

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Speaker 1: sever the cases, or do you not want to offer

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Speaker 1: the confession or you need to change the confession so

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Speaker 1: there isn't a reference to the other person in the

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Speaker 1: car in this case, Sammy, of the person that they

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Speaker 1: wound up convicting was the shoot her. So the question

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Speaker 1: is context and interpretation, and this is an interesting issue,

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Speaker 1: but my prediction is that they will find that it's

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Speaker 1: the brutent error should be justice. Amy Coney, Barrett and

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Speaker 1: some of the other conservatives seemed concerned about having to

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Speaker 1: sever the trials. So it seems to me at the

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Speaker 1: end of the day, it boils down to you just

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Speaker 1: can't try two defendants together if you have a non

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Speaker 1: testifying defendant and confession. So they seem rather reluctant about

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Speaker 1: severing trials. That's a very good point, and that's a

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Speaker 1: traditional reaction of the courts. They want to optimize judicial economy.

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Speaker 1: They want to have one trial rather than force the

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Speaker 1: court to do true trials. And most trial judges are

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Speaker 1: the same. They're very reluctant to grant a severance motion,

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Speaker 1: which really would be the motion you make. But in

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Speaker 1: the face of that, you still have to say, the

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Speaker 1: constitutional rights of the defendant against whom this statement is

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Speaker 1: really affect to be going to cause prejudice, even though

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Speaker 1: the jury is instructed not to fold it against him.

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Speaker 1: I think his paramount because it's his constitutional rights. And frankly,

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Speaker 1: the government chas to make a choice. They can either

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Speaker 1: have two trials or they can not offer that statement

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Speaker 1: in the evidence. Either way, the government says will harm,

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Speaker 1: and that's what the court likes to do. I have

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Speaker 1: to balance judicial economy against the rights of the defendant.

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Speaker 1: Pennsylvania led thirty two states in an amicuous brief urging

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Speaker 1: the court to uphold the use of the confession, noting

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Speaker 1: that thousands of trials in the past ten years have

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Speaker 1: involved multiple defendants and confessions, and a ruling for sameia

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Speaker 1: would lead to retrials and cause prosecutors to try defendants separately.

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Speaker 1: What's your take on that argument? Hard to know how

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Speaker 1: much credibility to attach to that argument, because Obviously it

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Speaker 1: does occur, and obviously it imposes a cost limitation on prosecutors,

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Speaker 1: but I don't really think that it's that substantial. This

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Speaker 1: Bruton rule and so called Bruton air has been around

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Speaker 1: a long time, and frankly, most judges don't allow the

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Speaker 1: confession and sanitizing in the way that they did. By

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Speaker 1: referring to quote the other person when the context makes

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Speaker 1: it clear who that is, is simply a violation of

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Speaker 1: that person's constitutional rights in my view. Justice Corsage brought

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Speaker 1: up something that I thought was interesting. He said that

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Speaker 1: in other instances we do give juries limiting instructions such

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Speaker 1: as only consider this non mirandized confession for impeachment purposes.

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Speaker 1: So basically, why can't we trust the jury in this

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Speaker 1: case with a codefendants confession. It's an interesting argument, and

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Speaker 1: it's one of the problems with having justices on the

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Speaker 1: Supreme Court who are not had never been trial lawyers

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Speaker 1: or trial judges, because people who have corbate experience know

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Speaker 1: perfectly well that jurors have a hard time following those

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Speaker 1: instructions when they hear this incredibly damning evidence and they

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Speaker 1: figure out on the content who it refers to. You

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Speaker 1: can tell the jurors whatever you want, but the practicality

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Speaker 1: is it causes prejudice to that person and deprives them.

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Speaker 1: One would argue a constitutional right, which is to confront

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Speaker 1: your accuses. It's the confrontational pause issue and the jury

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Speaker 1: instructions that was what was the holding of bruten The

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Speaker 1: curative instructions don't always work, and that's reality, George. Does

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Speaker 1: this come up often where you have a co defendants

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Speaker 1: confession that implicates another defendant introduced at trial? Very frequently

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Speaker 1: because now we like to have multiple defendant cases, and

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Speaker 1: it's very common that one or more the defendants will confess,

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Speaker 1: and when they confess, they tell all and they identify

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Speaker 1: all the participants. That evidence is highly incriminating with respect

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Speaker 1: of a non testifying defendant. So it's a common situation.

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Speaker 1: There are various solutions in some cases of judge will

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Speaker 1: hold one trial, but in panel two juries and the

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Speaker 1: one juring will hear that tainted confession and the other

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Speaker 1: jury will not. So there are measures that the courts

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Speaker 1: can take that I think strikes the right balance between

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Speaker 1: the defendant constitutional rights and judicial efficiency. I appreciate the

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Speaker 1: insights of an experienced trial lawyer George, Thanks so much.

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Speaker 1: That's former federal prosecutor George Newhouse of Richard's Carrington. A

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Speaker 1: landmark trial is kicking off in Minnesota the first time

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Speaker 1: one of the thousands of cases against eat cigarette maker

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Speaker 1: Jewel is going to play out in a courtroom. Minnesota

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Speaker 1: accuses Jewel and Altria of hooking a generation of young

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Speaker 1: people on their products by deception and slick advertising, and

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Speaker 1: the state wants the companies to pay up for the

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Speaker 1: public costs of addressing an uptick in youth vaping and smoking.

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Speaker 1: Joining me is healthcare attorney Harry Nelson of Nelson Hardeman Harry.

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Speaker 1: Minnesota is using the theory of public nuisance, a theory

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Speaker 1: that was used against the tobacco industry in the nineteen nineties.

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Speaker 1: Tell us about it. Yeah, So a public nuisance legal theory.

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Speaker 1: It was a series that actually grew out of cases

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Speaker 1: where there had been some kind of public harm like

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Speaker 1: damage to you know, water sources and from pollution and

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Speaker 1: things like that. And the idea was that essentially you

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Speaker 1: could hold private parties responsible for the social costs, the

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Speaker 1: costs that they impost on society. So we've been seeing

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Speaker 1: through the opioid cases of the last few years, they

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Speaker 1: attempt to extend that theory against drug makers and pharmacies

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Speaker 1: that allowed easy access, and the state of Minnesota is

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Speaker 1: trying to do the same thing here, essentially to say

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Speaker 1: that Jools, you know, the eas cigarette company that Altria

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Speaker 1: is the biggest of the tobacco companies, essentially caused great

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Speaker 1: harm to the public by encouraging the sale of the

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Speaker 1: e cigarette flavors to teenagers and to underage consumers. Do

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Speaker 1: you think that the public Nuisan's theory is a good

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Speaker 1: fit for what it's accusing Jewelove. I think it is

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Speaker 1: a little bit of a stretch. Personally, I think that

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Speaker 1: this issue of underage consumers smoking or engaging in unhealthy

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Speaker 1: behaviors is a more complicated problem. It's not a clean

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Speaker 1: fit to me that jewel was the entire problem. I

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Speaker 1: think there's a broader question about our consumer culture that

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Speaker 1: made this product so closely popular with kids. So, while

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Speaker 1: I do think that the marketing practices were reprehensible, I'm

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Speaker 1: not sure that it's a clear line to say that

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Speaker 1: they were the cause of all these problems. I also

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Speaker 1: think it's unclear we won't know for years what the

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Speaker 1: long term health effects will be of kids starting to

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Speaker 1: smoke in eighth grade, and certainly there's been an issue

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Speaker 1: of teenagers of older teenagers, tenth graders eleventh graders smoking

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Speaker 1: that preday e cigarettes. Minnesota says in papers that in

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Speaker 1: the fourteen years between two and twenty fourteen Minnesota high

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Speaker 1: schoolers smoking at least one cigarette in the last thirty

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Speaker 1: days dropped from thirty two point four percent down to

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Speaker 1: ten point six percent. Six years later, nineteen point three

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Speaker 1: percent of high schoolers reported having vaped at least once

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Speaker 1: in the last thirty days. Does that make their case

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Speaker 1: about public health or do they need to do much more?

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Speaker 1: I think that's a helpful fact to them. I just

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Speaker 1: don't know the whole story. I think the reality is

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Speaker 1: like vaping in general has become a more socially acceptable

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Speaker 1: and more popular alternative too smoking. So even as we've

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Speaker 1: seen a decline in general rates of cigarette smoking, you

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Speaker 1: know with greater awareness that vaping is a slightly healthier

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Speaker 1: choice of an overall very unhealthy activity. You know it's increased,

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Speaker 1: So I think it's helpful. I just don't know. I

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Speaker 1: don't think it's a clam dunk Jule and Altria are

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Speaker 1: trying to shift the blame to the state of Minnesota.

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Speaker 1: Minnesota got billions of dollars from tobacco settlements over the

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Speaker 1: last decade, but spent less than one percent on prevention efforts,

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Speaker 1: instead using the funds to bankroll unrelated products like the

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Speaker 1: Minnesota Vikings football stadium. This is a really interesting argument.

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Speaker 1: If you go back to nineteen ninety eight, the various

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Speaker 1: states one something like two hundred and five two hundred

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Speaker 1: and six billion dollars. I think the state of Minnesota

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Speaker 1: alone got over six billion dollars in the tobacco settlements

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Speaker 1: with all the big tobacco companies, including the company that

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Speaker 1: now Altria right it used to be Philip Morris. And

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Speaker 1: so there was like enormous opportunity for not only Minnesota,

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Speaker 1: but for all of the states to use that money

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Speaker 1: to really create better public health programs, better education programs

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Speaker 1: to reduce smoking and educate people about the dangers of smoking,

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Speaker 1: and intervene in trends like this. And I think that

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Speaker 1: Jewel and Altria have a good taste to make that

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Speaker 1: not only Minnesota, but literally every state in the country

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Speaker 1: basically wasted that opportunity. When we look at what they

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Speaker 1: did with the money. They mostly plugged holes and stay

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Speaker 1: budgets and just considered it's sort of a flush fund

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Speaker 1: to be used whenever there was a financial needs. It's

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Speaker 1: hard to find any examples in Minnesota. There's no exception

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Speaker 1: of a state that really used the money comprehensively for

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Speaker 1: effective public health related to the danger of smoking. Do

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Speaker 1: Altria and Jewel have the same defense or are they

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Speaker 1: pointing fingers. Jewel is the main target here to fuel

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Speaker 1: Labs is the company that developed this and marketed this,

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Speaker 1: and they are a victim of their own success with

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Speaker 1: all of the flavors that they came out with, mango

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Speaker 1: and other things that really appeals to kids. Altria has

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Speaker 1: the misfortune of having been a major investor, I think

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Speaker 1: something like twelve to thirteen billion dollar investment in Jewel.

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Speaker 1: But it's not to me at all clear why Altria

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Speaker 1: is sitting side by side defending this case with Jewel. Frankly,

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Speaker 1: it looks like they are there because they are such

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Speaker 1: a big player in the overall tobacco industry and not

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Speaker 1: because they were so singularly attached to this product. In fact,

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Speaker 1: Altria has completely divested itself of its position and Jewel,

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Speaker 1: which I think was never more than a small minority percentage. Ironically,

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Speaker 1: Altria is actually invested in a competing product, and Joy,

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Speaker 1: which is competing with Jewels, and so I'm not clear

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Speaker 1: if their appearance here is more about optics and having

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Speaker 1: you know, the biggest tobacco company in the country so

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Speaker 1: much as related to their actual activity in the state

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Speaker 1: of Minnesota related to eastigs. Also for the deep pocket, yeah,

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Speaker 1: no questions. As a parent of children, I share the

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Speaker 1: concern about the effective, dangerously effective marketing of East cigarettes.

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Speaker 1: But it does seem that Altria is at the table

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Speaker 1: mostly not only for their size and disability, but also

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Speaker 1: for the potential resources that they can add to the

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Speaker 1: pool of funds. So I agree with your comment about

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Speaker 1: them being a deep pocket here. As far as if

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Speaker 1: the jury thinks the state has some responsibility here, is

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Speaker 1: this a case where the jury can allocate damages. Yeah, absolutely,

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Speaker 1: the jury does have the ability to attribute comparative amounts

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Speaker 1: and to assess responsibilities. So yeah, it's a tricky case

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Speaker 1: for Altria because it obviously the goal is to show

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Speaker 1: that this is a bigger, more complex problem that isn't

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Speaker 1: specifically tied to this, but also to try to minimize

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Speaker 1: its share of any damages that are awarded. So what's

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Speaker 1: the question the jury will have to answer. I mean,

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Speaker 1: the question is really whether Jewel engaged in deceptive marketing

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Speaker 1: practices that targeted Minnesota youth. And so that's really the

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Speaker 1: claim that's being made, essentially, that there was some kind

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Speaker 1: of fraudulent practice, you know, that there was actually intention

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Speaker 1: to lull kids into taking up vaping in the marketing

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Speaker 1: that they use, rather than this being a case of

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Speaker 1: kids being marketing you know that was intended for adults,

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Speaker 1: that in fact, the entire strategy of Jewel was to

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Speaker 1: hook a hold new generation of young kids on vaping.

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Speaker 1: Jewel has faced thousands of lawsuits across the nation, but

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Speaker 1: most have settled, and it said that Minnesota had rejected

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Speaker 1: settlement offers similar to those reached with other states, which

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Speaker 1: provided quote hundreds of millions of dollars to further combat

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Speaker 1: underage use and developed cessation programs in those states. So

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Speaker 1: is this for the good of Minnesota or is this,

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Speaker 1: you know, for making a name and making a statement

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Speaker 1: about these products. I'm just trying to figure out why

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Speaker 1: they wouldn't settle. Yeah, it definitely is an aggressive strategy

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Speaker 1: here on the part of the state of Minnesota. It

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Speaker 1: seems interesting that the state Attorney General, Keith Ellison is

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Speaker 1: actually taking the lead in trying this case. He's certainly

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Speaker 1: someone who has a colorful political history nationally, and I

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Speaker 1: do think there's certainly a question of whether there's some grandstanding,

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Speaker 1: you know, whether it's to create a name for him,

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Speaker 1: or just to make a statement by taking such an

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Speaker 1: aggressive position on this case rather than following the path

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Speaker 1: of other states and pursuing a quicker settlement. The State

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Speaker 1: of Minnesota hasn't set a number for damages, but Allison

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Speaker 1: said that it could be in the ballpark with Minnesota's

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Speaker 1: landmarks seven point one billion dollars settlement with the tobacco

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Speaker 1: industry in nineteen ninety eight. But wasn't that a bigger

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Speaker 1: case the case with the tobacco industry and didn't go

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Speaker 1: back decades. It's really hard to imagine how the problem

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Speaker 1: of jewel could be taken as equivalent as the nineteen

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Speaker 1: ninety eight tobacco settlement, which was really addressing decades and

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Speaker 1: decades of actually deceptive marketing where the tobacco industry knew

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Speaker 1: how dangerous smoking was to American Health and clearly did

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Speaker 1: everything it could to block that information from coming out

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Speaker 1: and to keep pushing a product that it knew was deadly.

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Speaker 1: So the conduct here happened in a much shorter period

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Speaker 1: of time. I don't think Jewel even entered the market

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Speaker 1: until twenty sixteen, and I think the main period we're

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Speaker 1: focusing on is like twenty sixteen to twenty nineteen. So

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Speaker 1: it seems like this should be ultimately a drop in

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Speaker 1: the bucket compared to the broader tobacco settlement. And again,

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Speaker 1: it does to me raise questions why it's turney General

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Speaker 1: Ellison is taking such an aggressive position here. Not to

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Speaker 1: say this this isn't a problem, but to suggest that

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Speaker 1: it's on par with the whole tobacco crisis seems a

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Speaker 1: bit much. If the state of Minnesota did win here,

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Speaker 1: would it help other states to get leverage to reach settlements?

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Speaker 1: I mean, how would it affect states outside of Minnesota

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Speaker 1: or you know, the general population outside of Minnesota. I mean,

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Speaker 1: I think if a jury is receptive and gives Minnesota

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Speaker 1: give Journey General Ellison a multibillion dollars or even a

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Speaker 1: billion dollars settlement here, I think it will embolden other states,

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Speaker 1: and it will concern Jewels and potentially Altria and sort

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Speaker 1: of increase the numbers that are being paid out, which

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Speaker 1: are already significant and in the hundreds of millions dollars.

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Speaker 1: So I do think that this case in a sense

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Speaker 1: will either strengthen or weaken the assessments on both sides

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Speaker 1: of what this case is worse and what this harm

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Speaker 1: is worse than what it's going to take to settle

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Speaker 1: these cases. So there is exposure here. If Minnesota wins

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Speaker 1: this case, there's going to be more states that are

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Speaker 1: willing to be more aggressive and push for more, which

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Speaker 1: is going to be obviously bad for Jewel and Altria.

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Speaker 1: And if Minnesota loses the case, will Jewel in Altria

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Speaker 1: be hesitant to settle these cases? Again? To me, it's

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Speaker 1: more like I think of it a little bit like

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Speaker 1: a stock, right, So if Minnesota loses this case, then

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Speaker 1: the value of the claims that other states and jurisdictions

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Speaker 1: could make against Jewel against Altria will be a little

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Speaker 1: bit lower. And Jewels already shown a desire to settle

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Speaker 1: these cases. I just think it may be slightly more

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Speaker 1: aggressive and settle for a little bit less, But at

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Speaker 1: the end of the day, it seems to me that

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Speaker 1: these companies have set aside huge reserves, you know, to

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Speaker 1: pay off planes here, not because they agree that there's

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Speaker 1: any deceptive marketing, but simply because it's not a popular

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Speaker 1: position to be defending marketing that clearly impacted kids and

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Speaker 1: drove more kids to vaping. And these companies just need

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Speaker 1: to do what they can to get rid of these

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Speaker 1: cases as efficiently as they can. So I think this

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Speaker 1: case is going to be significant one way or the other.

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Speaker 1: It's going to make these cases around the country a

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Speaker 1: little bit more valuable or a little bit less valuable.

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Speaker 1: Critics of the public nuisance theory say that it allows

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Speaker 1: executive officers like state attorneys general to improperly step in

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Speaker 1: and replace the role of administrative agencies and lawmakers, which

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Speaker 1: should be the ones regulating the industry. Do you agree

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Speaker 1: with that or disagree? I mean, I'm not a fan

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Speaker 1: of the expansion of public nuisance theory. I think that

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Speaker 1: it played a very valuable role in America when it

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Speaker 1: came to some of the terrible environmental harms that American

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Speaker 1: industry imposed on different parts of the country where we

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Speaker 1: saw long term, real environmental costs that were imposed, you know,

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Speaker 1: when toxins were spread in particular parts of the country.

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Speaker 1: I think these kind of social behavior oriented public nuisance cases,

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00:22:02,680 --> 00:22:06,600
Speaker 1: as in the case of opioids and here, are really questionable.

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Speaker 1: You can see why it's very exciting to states and

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Speaker 1: two executive leaders. But I agree that the questions of

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Speaker 1: the long term harm and long term responsibility are probably

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Speaker 1: going to be addressed more accurately and with a little

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Speaker 1: bit less passion and uncertainty in other places than putting

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Speaker 1: them before juries. So I agree with that criticism. The

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Speaker 1: trials expected to last three weeks, so we'll find out

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Speaker 1: just how the public nusance theory works here. You know,

387
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Speaker 1: this case makes me wonder what's the next issue that

388
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Speaker 1: we're going to see where Americans engaging in dangerous, unhealthy behavior.

389
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Speaker 1: It's going to lead to a public nusance theory. I'm

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Speaker 1: still waiting for the sugar industry, you know, for the

391
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Speaker 1: first public nuisance case food. I don't know where it's

392
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Speaker 1: going to be. But I think this kind of reflects

393
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Speaker 1: the trend in American society where, you know, on the

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Speaker 1: one they had this good to In my opinion, that

395
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Speaker 1: we're thinking about where the dangers two consumers are, you know.

396
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Speaker 1: On the other hand, it's not always easy to get

397
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Speaker 1: exactly who's to blame, Thanks Harry. That's healthcare attorney Harry

398
00:23:04,400 --> 00:23:10,600
Speaker 1: Nelson of Nelson Hardeman Madison Square Garden Entertainment can band

399
00:23:10,760 --> 00:23:15,320
Speaker 1: lawyers suing the company from attending concerts and theatrical performances

400
00:23:15,359 --> 00:23:18,840
Speaker 1: at its venues, even if they have valid tickets. That's

401
00:23:18,840 --> 00:23:22,320
Speaker 1: according to a New York Appeals Court ruling. James Dolan,

402
00:23:22,560 --> 00:23:26,840
Speaker 1: chairman of MSG, admitted that they use facial recognition technology

403
00:23:27,160 --> 00:23:30,840
Speaker 1: to prevent lawyers suing them from attending events, and explained

404
00:23:30,920 --> 00:23:34,120
Speaker 1: why on Good Day New York in January. But look

405
00:23:34,119 --> 00:23:36,560
Speaker 1: at it this way, right, if you own the bakery

406
00:23:36,800 --> 00:23:41,000
Speaker 1: or a restaurant, right, and you know someone comes in

407
00:23:41,040 --> 00:23:43,080
Speaker 1: and buys bread from you, and then the next day

408
00:23:43,359 --> 00:23:46,360
Speaker 1: they serve you with a lawsuit because they hated your bread. Right,

409
00:23:46,440 --> 00:23:49,560
Speaker 1: they said something happened to them with a center. Then

410
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Speaker 1: the next day they show up at your bakery again.

411
00:23:52,600 --> 00:23:55,159
Speaker 1: I'd like to buy some more bread, right, would you

412
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Speaker 1: sell them the bread? The court did say MSG is

413
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Speaker 1: liable to pay five hundred dollars every time it refuses

414
00:24:01,840 --> 00:24:05,200
Speaker 1: access to a ticket holder joining me as sid Rao,

415
00:24:05,400 --> 00:24:09,320
Speaker 1: a partner at Romano Law. The appellate Court reversed an

416
00:24:09,359 --> 00:24:13,080
Speaker 1: injunction against MSG that a judge had issued. Tell us

417
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Speaker 1: about that injunction. There was an injunction granted to the plaintiffs,

418
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Speaker 1: but it was extremely narrow. So the court's injunction did

419
00:24:22,240 --> 00:24:26,600
Speaker 1: not prohibit Madison Square Garden, for example, from revoking tickets.

420
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Speaker 1: It didn't prohibit Madison Square Garden from refusing to sell

421
00:24:30,280 --> 00:24:34,280
Speaker 1: tickets to lawyers or law firms involved in litigations against

422
00:24:34,320 --> 00:24:37,480
Speaker 1: the arena or against any of their assiliated parties. The

423
00:24:37,560 --> 00:24:41,120
Speaker 1: only thing the injunction prevented was that the arena could

424
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Speaker 1: not turn people away at the time of the event

425
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Speaker 1: or a reasonable time before who had valid tickets. Let's

426
00:24:47,520 --> 00:24:49,720
Speaker 1: say I'm the lead plaintiff, I'm partner at the firm

427
00:24:49,800 --> 00:24:51,879
Speaker 1: Larry Hutcher, and I have a ticket, and I go

428
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Speaker 1: to MSG on the day of the event and I

429
00:24:53,880 --> 00:24:57,080
Speaker 1: present it. MSG is then joined from turning me away.

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Speaker 1: But that's it. Tell us why I knew your Kapel's

431
00:24:59,640 --> 00:25:06,600
Speaker 1: Court overturned the judges preliminary injunction. Ultimately, the issue that

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Speaker 1: the decision turned on the appeals decision, and the reason

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Speaker 1: why the appellate Court vacated the injunction was really just

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Speaker 1: a careful statutory construction exercise. So Civil rights Law section

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Speaker 1: forty B was the basis for the lower court's injunction,

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Speaker 1: and that is the statue that prohibits venues from turning

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00:25:25,520 --> 00:25:28,720
Speaker 1: away holders of valid tickets essentially at the door. The

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00:25:28,800 --> 00:25:32,240
Speaker 1: problem for the plaintiffs for is that the next section

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00:25:32,280 --> 00:25:36,359
Speaker 1: of the law, section forty one, prescribes a remedy for violation,

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00:25:36,680 --> 00:25:39,280
Speaker 1: and it's a financial remedy and starting at one hundred

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00:25:39,320 --> 00:25:41,920
Speaker 1: dollars in going to five hundred dollars. Now, the argument

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00:25:42,119 --> 00:25:44,840
Speaker 1: in the lower court did address this, you know, the

443
00:25:44,920 --> 00:25:47,800
Speaker 1: question really is is that the sole remedy, and the

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00:25:47,920 --> 00:25:51,400
Speaker 1: lower court was persuaded that even if the statute prescribes

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Speaker 1: a remedy, if there was a chance of reparable harm,

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00:25:54,600 --> 00:25:57,879
Speaker 1: the court still had power to intervene because of the

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00:25:57,920 --> 00:26:02,440
Speaker 1: possibility of reparable harm. That's where the appellate Court differed

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00:26:02,560 --> 00:26:05,879
Speaker 1: in its judgment. And actually in many other respects, the

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00:26:05,960 --> 00:26:08,679
Speaker 1: Appellate Court agrees and kept saying, you know, the motion

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00:26:08,720 --> 00:26:12,359
Speaker 1: court properly concluded, but in this one respect, the court

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Speaker 1: said the only remedy for violation of the section of

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Speaker 1: the civil rights law is the monetary remedy. That is,

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00:26:19,680 --> 00:26:23,760
Speaker 1: the court interpreted the legislature's decision to provide a remedy

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Speaker 1: as excluding other potential remedies. And what the appellate court

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Speaker 1: was saying is you can't get an injunction. Your damages

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00:26:30,800 --> 00:26:33,520
Speaker 1: for that violation are limited to five hundred dollars, and

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00:26:33,640 --> 00:26:36,679
Speaker 1: because that's a monetary remedy, there's no injunctor really, So

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00:26:36,800 --> 00:26:39,520
Speaker 1: that's why they vacated the injunction, and that kind of

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00:26:39,600 --> 00:26:42,320
Speaker 1: leaves the plaintiffs I think, you know in alert here.

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00:26:42,560 --> 00:26:44,760
Speaker 1: You know, a five hundred dollar penalty is probably not

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00:26:44,880 --> 00:26:48,520
Speaker 1: strong enough disincentive for Madison Square Regarden to reevaluate its policy.

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00:26:48,920 --> 00:26:53,480
Speaker 1: Attorney General Letitia James is investigating this. The office said

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00:26:53,520 --> 00:26:56,560
Speaker 1: in a letter to MSG that the ban and the

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00:26:56,600 --> 00:27:01,160
Speaker 1: company's use of facial recognition technology to force it, may

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00:27:01,280 --> 00:27:05,520
Speaker 1: violate anti discrimination laws and may dissuade lawyers from taking

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00:27:05,560 --> 00:27:09,800
Speaker 1: on cases such as sexual harassment or job discrimination claims

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00:27:09,840 --> 00:27:14,920
Speaker 1: against the company. Quote MSG, Entertainment cannot fight their legal

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00:27:14,960 --> 00:27:18,080
Speaker 1: battles in their own arenas, so she could bring a

469
00:27:18,119 --> 00:27:21,280
Speaker 1: case that's absolutely correct, and I love that quote. I

470
00:27:21,320 --> 00:27:23,400
Speaker 1: think this is really getting to the heart of it

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00:27:23,520 --> 00:27:27,040
Speaker 1: right because we're talking about statutory language and parsing technicalities.

472
00:27:27,280 --> 00:27:31,040
Speaker 1: But the real issue here is that the facial recognition

473
00:27:31,119 --> 00:27:35,480
Speaker 1: technology is fairly intrusive. There's this privacy and data concern

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00:27:35,520 --> 00:27:38,720
Speaker 1: around the facial recognition technology, especially in an era where

475
00:27:39,119 --> 00:27:41,679
Speaker 1: there's technology available to parse large amounts of data, and

476
00:27:41,680 --> 00:27:45,000
Speaker 1: then there's a public policy concerned with what we think

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00:27:45,000 --> 00:27:48,560
Speaker 1: the real purposes behind Madison Square Gardens policy is to

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00:27:48,720 --> 00:27:53,159
Speaker 1: disincentivize litigation or maybe to sort of tunitively act towards

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00:27:53,200 --> 00:27:56,840
Speaker 1: lawyers who have the huts by issue, and that really

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00:27:56,920 --> 00:28:00,399
Speaker 1: is against public policy. Any time you're dealing with system

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00:28:00,440 --> 00:28:03,520
Speaker 1: that uses discretion, and we are here Arena has discretion

482
00:28:03,560 --> 00:28:06,439
Speaker 1: to turn people away, there's a possibility of discrimination. I

483
00:28:06,480 --> 00:28:09,040
Speaker 1: think that that's a very legitimate concern that the Attorney

484
00:28:09,080 --> 00:28:12,600
Speaker 1: General topic is raising, which is you are creating policies

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00:28:12,640 --> 00:28:15,720
Speaker 1: that enable people to exercise a fairly large amount of

486
00:28:15,720 --> 00:28:19,440
Speaker 1: discretion to turn patrons away. What's to say that that policy,

487
00:28:19,560 --> 00:28:21,840
Speaker 1: which now applies to lawyers won't apply to some other

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00:28:21,880 --> 00:28:25,040
Speaker 1: group in the future. Thanks sid that's sid Rao of

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Speaker 1: Romano Law. And that's it for this edition of The

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Speaker 1: Bloomberg Law Show. Remember you can always get the latest

491
00:28:30,720 --> 00:28:33,800
Speaker 1: legal news on our Bloomberg Law Podcast. You can find

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00:28:33,840 --> 00:28:38,360
Speaker 1: them on Apple Podcasts, Spotify, and at www dot bloomberg

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00:28:38,480 --> 00:28:42,280
Speaker 1: dot com slash podcast Slash Law, And remember to tune

494
00:28:42,280 --> 00:28:45,080
Speaker 1: into The Bloomberg Law Show every week night at ten

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00:28:45,160 --> 00:28:48,920
Speaker 1: pm Wall Street Time. I'm June Grosso and you're listening

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00:28:49,000 --> 00:28:49,720
Speaker 1: to Bloomberg