Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: This week, the Supreme Court justices grapple with the question
Speaker 1: of whether a man serving a life sentence for his
Speaker 1: role on an international kill team should get a new
Speaker 1: trial because the confession of a co defendant implicated him
Speaker 1: in the crime. Adam Semiah was tried with two other
Speaker 1: men for killing a real estate broker in the Philippines.
Speaker 1: One of his co defendants had confessed to the crime,
Speaker 1: and prosecutors used that confession at trial, with Semiah's name
Speaker 1: redacted and replaced by the words someone and the other person.
Speaker 1: Semiah argued that violated his right to confront witnesses testifying
Speaker 1: against him, but the Conservative justices, including Chief Justice John Roberts,
Speaker 1: appeared skeptical about that. Maybe they will wonder, Weld, why
Speaker 1: are they saying another person if it was this guy,
Speaker 1: be because it's somebody else that they don't, you know,
Speaker 1: haven't brought to trial. The liberal justice is, like Elena Kagan,
Speaker 1: seem more accepting of Samea's arguments. It's just as good
Speaker 1: to say the woman and I went out and robbed
Speaker 1: Phil as it is to say Mary, the person sitting
Speaker 1: on my left went out and robbed Bill in that
Speaker 1: in that case, right, it does the same thing. It
Speaker 1: identifies the person joining me as former federal prosecutor George
Speaker 1: Newhouse of Richard's Carrington. George tell us about the issue here.
Speaker 1: The legal issue in this case is the admissibility of
Speaker 1: a co conspirator statement that criminates both the defendant who
Speaker 1: made the statement and his co conspirator. In this case dammiab.
Speaker 1: When they go to trial against two individuals and they
Speaker 1: try to offer this statement against the non testifying defendant,
Speaker 1: it's not admissible because it's a hearsay statement of not
Speaker 1: being offered against the person who made it, mister Stillwell,
Speaker 1: being offered against codefendant. So the law is clear and
Speaker 1: has always been clear, that that statement is not admissible.
Speaker 1: And in the original case Bruton Bruton objected and the
Speaker 1: judge said, that's fine. I will instruct the jury that
Speaker 1: it cannot be used against mister Bruton. It's only offered
Speaker 1: against the codefendant who made the admission. And of course,
Speaker 1: in Bruton Bruton objective, stead, your honor, the jury can
Speaker 1: hardly disregard that evidence, even though they're instructed to do so.
Speaker 1: So the Supreme Court jaid, that's right. There are limited
Speaker 1: powers of the jury to disregard highly probitive, highly incriminating evidence.
Speaker 1: So that's now called Bruton error. And when the government
Speaker 1: wants to introduce that statement, they either have to separate
Speaker 1: the trial, have a separate trial for that defendant, or
Speaker 1: they have to not offer that statement against the defendant.
Speaker 1: So in this case, a very similar situation, two people
Speaker 1: committed the crime. This was a shooting in the Philippines,
Speaker 1: murdered an individual. There were two people in the car,
Speaker 1: and still Well confessed, and they of course offered that
Speaker 1: confession against both individuals. But what they did was they redacted,
Speaker 1: they cleaned up the confession for the person who testified.
Speaker 1: The law enforcement officers said, well Stillwell admitted to the crime,
Speaker 1: and he admitted that he was in the car with
Speaker 1: another person not identified. And of course the issue in
Speaker 1: this case is the defendant Sammy us saying, really, the
Speaker 1: jury will immediately know who that other person is by
Speaker 1: the context of the evidence presented enhanced. It's a brutal
Speaker 1: error because you're offering an out of corpse statement against me.
Speaker 1: And it's what we call a confrontation clause issue. That
Speaker 1: the six Adenment allows you the right to confront and
Speaker 1: proper examine your accusers. You can't do it when it's
Speaker 1: an out of court statement. So the issue before the
Speaker 1: court is is this fall within the purview of Bruton
Speaker 1: or is it an acceptable correction that doesn't harm the
Speaker 1: defendant's chance and doesn't violate the sixth Amendment right of confrontations.
Speaker 1: That will be the issue of Supreme Court decide. So
Speaker 1: it seemed like some of the conservative justices, like the
Speaker 1: Chief Justice, said, well, you know, you can't really tell
Speaker 1: and it is not necessarily referring to the defendant. But
Speaker 1: then you had some of the liberal justices like Elina
Speaker 1: Kagan saying, come on, obviously you're going to know who
Speaker 1: it is the person sitting next to you that explains it.
Speaker 1: It makes sense. But the conservative justices who think that
Speaker 1: a reference to another person unnamed will not immediately lead
Speaker 1: the fury to the defendant is ridiculous in that case.
Speaker 1: From the context there are only two people in the car.
Speaker 1: They're going to figure out who was in the car,
Speaker 1: and they're going to connect the dots, and then they
Speaker 1: will disregard the instruction that the evidence is only offered
Speaker 1: against mister Stillwell, the defendant who made the statement. So
Speaker 1: it really is a reality test, and I predict that
Speaker 1: the court will find that this is brutal error. You know,
Speaker 1: the choice the real prosecutors have to make is do
Speaker 1: they want to try the two together sometimes they can
Speaker 1: sever the cases, or do you not want to offer
Speaker 1: the confession or you need to change the confession so
Speaker 1: there isn't a reference to the other person in the
Speaker 1: car in this case, Sammy, of the person that they
Speaker 1: wound up convicting was the shoot her. So the question
Speaker 1: is context and interpretation, and this is an interesting issue,
Speaker 1: but my prediction is that they will find that it's
Speaker 1: the brutent error should be justice. Amy Coney, Barrett and
Speaker 1: some of the other conservatives seemed concerned about having to
Speaker 1: sever the trials. So it seems to me at the
Speaker 1: end of the day, it boils down to you just
Speaker 1: can't try two defendants together if you have a non
Speaker 1: testifying defendant and confession. So they seem rather reluctant about
Speaker 1: severing trials. That's a very good point, and that's a
Speaker 1: traditional reaction of the courts. They want to optimize judicial economy.
Speaker 1: They want to have one trial rather than force the
Speaker 1: court to do true trials. And most trial judges are
Speaker 1: the same. They're very reluctant to grant a severance motion,
Speaker 1: which really would be the motion you make. But in
Speaker 1: the face of that, you still have to say, the
Speaker 1: constitutional rights of the defendant against whom this statement is
Speaker 1: really affect to be going to cause prejudice, even though
Speaker 1: the jury is instructed not to fold it against him.
Speaker 1: I think his paramount because it's his constitutional rights. And frankly,
Speaker 1: the government chas to make a choice. They can either
Speaker 1: have two trials or they can not offer that statement
Speaker 1: in the evidence. Either way, the government says will harm,
Speaker 1: and that's what the court likes to do. I have
Speaker 1: to balance judicial economy against the rights of the defendant.
Speaker 1: Pennsylvania led thirty two states in an amicuous brief urging
Speaker 1: the court to uphold the use of the confession, noting
Speaker 1: that thousands of trials in the past ten years have
Speaker 1: involved multiple defendants and confessions, and a ruling for sameia
Speaker 1: would lead to retrials and cause prosecutors to try defendants separately.
Speaker 1: What's your take on that argument? Hard to know how
Speaker 1: much credibility to attach to that argument, because Obviously it
Speaker 1: does occur, and obviously it imposes a cost limitation on prosecutors,
Speaker 1: but I don't really think that it's that substantial. This
Speaker 1: Bruton rule and so called Bruton air has been around
Speaker 1: a long time, and frankly, most judges don't allow the
Speaker 1: confession and sanitizing in the way that they did. By
Speaker 1: referring to quote the other person when the context makes
Speaker 1: it clear who that is, is simply a violation of
Speaker 1: that person's constitutional rights in my view. Justice Corsage brought
Speaker 1: up something that I thought was interesting. He said that
Speaker 1: in other instances we do give juries limiting instructions such
Speaker 1: as only consider this non mirandized confession for impeachment purposes.
Speaker 1: So basically, why can't we trust the jury in this
Speaker 1: case with a codefendants confession. It's an interesting argument, and
Speaker 1: it's one of the problems with having justices on the
Speaker 1: Supreme Court who are not had never been trial lawyers
Speaker 1: or trial judges, because people who have corbate experience know
Speaker 1: perfectly well that jurors have a hard time following those
Speaker 1: instructions when they hear this incredibly damning evidence and they
Speaker 1: figure out on the content who it refers to. You
Speaker 1: can tell the jurors whatever you want, but the practicality
Speaker 1: is it causes prejudice to that person and deprives them.
Speaker 1: One would argue a constitutional right, which is to confront
Speaker 1: your accuses. It's the confrontational pause issue and the jury
Speaker 1: instructions that was what was the holding of bruten The
Speaker 1: curative instructions don't always work, and that's reality, George. Does
Speaker 1: this come up often where you have a co defendants
Speaker 1: confession that implicates another defendant introduced at trial? Very frequently
Speaker 1: because now we like to have multiple defendant cases, and
Speaker 1: it's very common that one or more the defendants will confess,
Speaker 1: and when they confess, they tell all and they identify
Speaker 1: all the participants. That evidence is highly incriminating with respect
Speaker 1: of a non testifying defendant. So it's a common situation.
Speaker 1: There are various solutions in some cases of judge will
Speaker 1: hold one trial, but in panel two juries and the
Speaker 1: one juring will hear that tainted confession and the other
Speaker 1: jury will not. So there are measures that the courts
Speaker 1: can take that I think strikes the right balance between
Speaker 1: the defendant constitutional rights and judicial efficiency. I appreciate the
Speaker 1: insights of an experienced trial lawyer George, Thanks so much.
Speaker 1: That's former federal prosecutor George Newhouse of Richard's Carrington. A
Speaker 1: landmark trial is kicking off in Minnesota the first time
Speaker 1: one of the thousands of cases against eat cigarette maker
Speaker 1: Jewel is going to play out in a courtroom. Minnesota
Speaker 1: accuses Jewel and Altria of hooking a generation of young
Speaker 1: people on their products by deception and slick advertising, and
Speaker 1: the state wants the companies to pay up for the
Speaker 1: public costs of addressing an uptick in youth vaping and smoking.
Speaker 1: Joining me is healthcare attorney Harry Nelson of Nelson Hardeman Harry.
Speaker 1: Minnesota is using the theory of public nuisance, a theory
Speaker 1: that was used against the tobacco industry in the nineteen nineties.
Speaker 1: Tell us about it. Yeah, So a public nuisance legal theory.
Speaker 1: It was a series that actually grew out of cases
Speaker 1: where there had been some kind of public harm like
Speaker 1: damage to you know, water sources and from pollution and
Speaker 1: things like that. And the idea was that essentially you
Speaker 1: could hold private parties responsible for the social costs, the
Speaker 1: costs that they impost on society. So we've been seeing
Speaker 1: through the opioid cases of the last few years, they
Speaker 1: attempt to extend that theory against drug makers and pharmacies
Speaker 1: that allowed easy access, and the state of Minnesota is
Speaker 1: trying to do the same thing here, essentially to say
Speaker 1: that Jools, you know, the eas cigarette company that Altria
Speaker 1: is the biggest of the tobacco companies, essentially caused great
Speaker 1: harm to the public by encouraging the sale of the
Speaker 1: e cigarette flavors to teenagers and to underage consumers. Do
Speaker 1: you think that the public Nuisan's theory is a good
Speaker 1: fit for what it's accusing Jewelove. I think it is
Speaker 1: a little bit of a stretch. Personally, I think that
Speaker 1: this issue of underage consumers smoking or engaging in unhealthy
Speaker 1: behaviors is a more complicated problem. It's not a clean
Speaker 1: fit to me that jewel was the entire problem. I
Speaker 1: think there's a broader question about our consumer culture that
Speaker 1: made this product so closely popular with kids. So, while
Speaker 1: I do think that the marketing practices were reprehensible, I'm
Speaker 1: not sure that it's a clear line to say that
Speaker 1: they were the cause of all these problems. I also
Speaker 1: think it's unclear we won't know for years what the
Speaker 1: long term health effects will be of kids starting to
Speaker 1: smoke in eighth grade, and certainly there's been an issue
Speaker 1: of teenagers of older teenagers, tenth graders eleventh graders smoking
Speaker 1: that preday e cigarettes. Minnesota says in papers that in
Speaker 1: the fourteen years between two and twenty fourteen Minnesota high
Speaker 1: schoolers smoking at least one cigarette in the last thirty
Speaker 1: days dropped from thirty two point four percent down to
Speaker 1: ten point six percent. Six years later, nineteen point three
Speaker 1: percent of high schoolers reported having vaped at least once
Speaker 1: in the last thirty days. Does that make their case
Speaker 1: about public health or do they need to do much more?
Speaker 1: I think that's a helpful fact to them. I just
Speaker 1: don't know the whole story. I think the reality is
Speaker 1: like vaping in general has become a more socially acceptable
Speaker 1: and more popular alternative too smoking. So even as we've
Speaker 1: seen a decline in general rates of cigarette smoking, you
Speaker 1: know with greater awareness that vaping is a slightly healthier
Speaker 1: choice of an overall very unhealthy activity. You know it's increased,
Speaker 1: So I think it's helpful. I just don't know. I
Speaker 1: don't think it's a clam dunk Jule and Altria are
Speaker 1: trying to shift the blame to the state of Minnesota.
Speaker 1: Minnesota got billions of dollars from tobacco settlements over the
Speaker 1: last decade, but spent less than one percent on prevention efforts,
Speaker 1: instead using the funds to bankroll unrelated products like the
Speaker 1: Minnesota Vikings football stadium. This is a really interesting argument.
Speaker 1: If you go back to nineteen ninety eight, the various
Speaker 1: states one something like two hundred and five two hundred
Speaker 1: and six billion dollars. I think the state of Minnesota
Speaker 1: alone got over six billion dollars in the tobacco settlements
Speaker 1: with all the big tobacco companies, including the company that
Speaker 1: now Altria right it used to be Philip Morris. And
Speaker 1: so there was like enormous opportunity for not only Minnesota,
Speaker 1: but for all of the states to use that money
Speaker 1: to really create better public health programs, better education programs
Speaker 1: to reduce smoking and educate people about the dangers of smoking,
Speaker 1: and intervene in trends like this. And I think that
Speaker 1: Jewel and Altria have a good taste to make that
Speaker 1: not only Minnesota, but literally every state in the country
Speaker 1: basically wasted that opportunity. When we look at what they
Speaker 1: did with the money. They mostly plugged holes and stay
Speaker 1: budgets and just considered it's sort of a flush fund
Speaker 1: to be used whenever there was a financial needs. It's
Speaker 1: hard to find any examples in Minnesota. There's no exception
Speaker 1: of a state that really used the money comprehensively for
Speaker 1: effective public health related to the danger of smoking. Do
Speaker 1: Altria and Jewel have the same defense or are they
Speaker 1: pointing fingers. Jewel is the main target here to fuel
Speaker 1: Labs is the company that developed this and marketed this,
Speaker 1: and they are a victim of their own success with
Speaker 1: all of the flavors that they came out with, mango
Speaker 1: and other things that really appeals to kids. Altria has
Speaker 1: the misfortune of having been a major investor, I think
Speaker 1: something like twelve to thirteen billion dollar investment in Jewel.
Speaker 1: But it's not to me at all clear why Altria
Speaker 1: is sitting side by side defending this case with Jewel. Frankly,
Speaker 1: it looks like they are there because they are such
Speaker 1: a big player in the overall tobacco industry and not
Speaker 1: because they were so singularly attached to this product. In fact,
Speaker 1: Altria has completely divested itself of its position and Jewel,
Speaker 1: which I think was never more than a small minority percentage. Ironically,
Speaker 1: Altria is actually invested in a competing product, and Joy,
Speaker 1: which is competing with Jewels, and so I'm not clear
Speaker 1: if their appearance here is more about optics and having
Speaker 1: you know, the biggest tobacco company in the country so
Speaker 1: much as related to their actual activity in the state
Speaker 1: of Minnesota related to eastigs. Also for the deep pocket, yeah,
Speaker 1: no questions. As a parent of children, I share the
Speaker 1: concern about the effective, dangerously effective marketing of East cigarettes.
Speaker 1: But it does seem that Altria is at the table
Speaker 1: mostly not only for their size and disability, but also
Speaker 1: for the potential resources that they can add to the
Speaker 1: pool of funds. So I agree with your comment about
Speaker 1: them being a deep pocket here. As far as if
Speaker 1: the jury thinks the state has some responsibility here, is
Speaker 1: this a case where the jury can allocate damages. Yeah, absolutely,
Speaker 1: the jury does have the ability to attribute comparative amounts
Speaker 1: and to assess responsibilities. So yeah, it's a tricky case
Speaker 1: for Altria because it obviously the goal is to show
Speaker 1: that this is a bigger, more complex problem that isn't
Speaker 1: specifically tied to this, but also to try to minimize
Speaker 1: its share of any damages that are awarded. So what's
Speaker 1: the question the jury will have to answer. I mean,
Speaker 1: the question is really whether Jewel engaged in deceptive marketing
Speaker 1: practices that targeted Minnesota youth. And so that's really the
Speaker 1: claim that's being made, essentially, that there was some kind
Speaker 1: of fraudulent practice, you know, that there was actually intention
Speaker 1: to lull kids into taking up vaping in the marketing
Speaker 1: that they use, rather than this being a case of
Speaker 1: kids being marketing you know that was intended for adults,
Speaker 1: that in fact, the entire strategy of Jewel was to
Speaker 1: hook a hold new generation of young kids on vaping.
Speaker 1: Jewel has faced thousands of lawsuits across the nation, but
Speaker 1: most have settled, and it said that Minnesota had rejected
Speaker 1: settlement offers similar to those reached with other states, which
Speaker 1: provided quote hundreds of millions of dollars to further combat
Speaker 1: underage use and developed cessation programs in those states. So
Speaker 1: is this for the good of Minnesota or is this,
Speaker 1: you know, for making a name and making a statement
Speaker 1: about these products. I'm just trying to figure out why
Speaker 1: they wouldn't settle. Yeah, it definitely is an aggressive strategy
Speaker 1: here on the part of the state of Minnesota. It
Speaker 1: seems interesting that the state Attorney General, Keith Ellison is
Speaker 1: actually taking the lead in trying this case. He's certainly
Speaker 1: someone who has a colorful political history nationally, and I
Speaker 1: do think there's certainly a question of whether there's some grandstanding,
Speaker 1: you know, whether it's to create a name for him,
Speaker 1: or just to make a statement by taking such an
Speaker 1: aggressive position on this case rather than following the path
Speaker 1: of other states and pursuing a quicker settlement. The State
Speaker 1: of Minnesota hasn't set a number for damages, but Allison
Speaker 1: said that it could be in the ballpark with Minnesota's
Speaker 1: landmarks seven point one billion dollars settlement with the tobacco
Speaker 1: industry in nineteen ninety eight. But wasn't that a bigger
Speaker 1: case the case with the tobacco industry and didn't go
Speaker 1: back decades. It's really hard to imagine how the problem
Speaker 1: of jewel could be taken as equivalent as the nineteen
Speaker 1: ninety eight tobacco settlement, which was really addressing decades and
Speaker 1: decades of actually deceptive marketing where the tobacco industry knew
Speaker 1: how dangerous smoking was to American Health and clearly did
Speaker 1: everything it could to block that information from coming out
Speaker 1: and to keep pushing a product that it knew was deadly.
Speaker 1: So the conduct here happened in a much shorter period
Speaker 1: of time. I don't think Jewel even entered the market
Speaker 1: until twenty sixteen, and I think the main period we're
Speaker 1: focusing on is like twenty sixteen to twenty nineteen. So
Speaker 1: it seems like this should be ultimately a drop in
Speaker 1: the bucket compared to the broader tobacco settlement. And again,
Speaker 1: it does to me raise questions why it's turney General
Speaker 1: Ellison is taking such an aggressive position here. Not to
Speaker 1: say this this isn't a problem, but to suggest that
Speaker 1: it's on par with the whole tobacco crisis seems a
Speaker 1: bit much. If the state of Minnesota did win here,
Speaker 1: would it help other states to get leverage to reach settlements?
Speaker 1: I mean, how would it affect states outside of Minnesota
Speaker 1: or you know, the general population outside of Minnesota. I mean,
Speaker 1: I think if a jury is receptive and gives Minnesota
Speaker 1: give Journey General Ellison a multibillion dollars or even a
Speaker 1: billion dollars settlement here, I think it will embolden other states,
Speaker 1: and it will concern Jewels and potentially Altria and sort
Speaker 1: of increase the numbers that are being paid out, which
Speaker 1: are already significant and in the hundreds of millions dollars.
Speaker 1: So I do think that this case in a sense
Speaker 1: will either strengthen or weaken the assessments on both sides
Speaker 1: of what this case is worse and what this harm
Speaker 1: is worse than what it's going to take to settle
Speaker 1: these cases. So there is exposure here. If Minnesota wins
Speaker 1: this case, there's going to be more states that are
Speaker 1: willing to be more aggressive and push for more, which
Speaker 1: is going to be obviously bad for Jewel and Altria.
Speaker 1: And if Minnesota loses the case, will Jewel in Altria
Speaker 1: be hesitant to settle these cases? Again? To me, it's
Speaker 1: more like I think of it a little bit like
Speaker 1: a stock, right, So if Minnesota loses this case, then
Speaker 1: the value of the claims that other states and jurisdictions
Speaker 1: could make against Jewel against Altria will be a little
Speaker 1: bit lower. And Jewels already shown a desire to settle
Speaker 1: these cases. I just think it may be slightly more
Speaker 1: aggressive and settle for a little bit less, But at
Speaker 1: the end of the day, it seems to me that
Speaker 1: these companies have set aside huge reserves, you know, to
Speaker 1: pay off planes here, not because they agree that there's
Speaker 1: any deceptive marketing, but simply because it's not a popular
Speaker 1: position to be defending marketing that clearly impacted kids and
Speaker 1: drove more kids to vaping. And these companies just need
Speaker 1: to do what they can to get rid of these
Speaker 1: cases as efficiently as they can. So I think this
Speaker 1: case is going to be significant one way or the other.
Speaker 1: It's going to make these cases around the country a
Speaker 1: little bit more valuable or a little bit less valuable.
Speaker 1: Critics of the public nuisance theory say that it allows
Speaker 1: executive officers like state attorneys general to improperly step in
Speaker 1: and replace the role of administrative agencies and lawmakers, which
Speaker 1: should be the ones regulating the industry. Do you agree
Speaker 1: with that or disagree? I mean, I'm not a fan
Speaker 1: of the expansion of public nuisance theory. I think that
Speaker 1: it played a very valuable role in America when it
Speaker 1: came to some of the terrible environmental harms that American
Speaker 1: industry imposed on different parts of the country where we
Speaker 1: saw long term, real environmental costs that were imposed, you know,
Speaker 1: when toxins were spread in particular parts of the country.
Speaker 1: I think these kind of social behavior oriented public nuisance cases,
Speaker 1: as in the case of opioids and here, are really questionable.
Speaker 1: You can see why it's very exciting to states and
Speaker 1: two executive leaders. But I agree that the questions of
Speaker 1: the long term harm and long term responsibility are probably
Speaker 1: going to be addressed more accurately and with a little
Speaker 1: bit less passion and uncertainty in other places than putting
Speaker 1: them before juries. So I agree with that criticism. The
Speaker 1: trials expected to last three weeks, so we'll find out
Speaker 1: just how the public nusance theory works here. You know,
Speaker 1: this case makes me wonder what's the next issue that
Speaker 1: we're going to see where Americans engaging in dangerous, unhealthy behavior.
Speaker 1: It's going to lead to a public nusance theory. I'm
Speaker 1: still waiting for the sugar industry, you know, for the
Speaker 1: first public nuisance case food. I don't know where it's
Speaker 1: going to be. But I think this kind of reflects
Speaker 1: the trend in American society where, you know, on the
Speaker 1: one they had this good to In my opinion, that
Speaker 1: we're thinking about where the dangers two consumers are, you know.
Speaker 1: On the other hand, it's not always easy to get
Speaker 1: exactly who's to blame, Thanks Harry. That's healthcare attorney Harry
Speaker 1: Nelson of Nelson Hardeman Madison Square Garden Entertainment can band
Speaker 1: lawyers suing the company from attending concerts and theatrical performances
Speaker 1: at its venues, even if they have valid tickets. That's
Speaker 1: according to a New York Appeals Court ruling. James Dolan,
Speaker 1: chairman of MSG, admitted that they use facial recognition technology
Speaker 1: to prevent lawyers suing them from attending events, and explained
Speaker 1: why on Good Day New York in January. But look
Speaker 1: at it this way, right, if you own the bakery
Speaker 1: or a restaurant, right, and you know someone comes in
Speaker 1: and buys bread from you, and then the next day
Speaker 1: they serve you with a lawsuit because they hated your bread. Right,
Speaker 1: they said something happened to them with a center. Then
Speaker 1: the next day they show up at your bakery again.
Speaker 1: I'd like to buy some more bread, right, would you
Speaker 1: sell them the bread? The court did say MSG is
Speaker 1: liable to pay five hundred dollars every time it refuses
Speaker 1: access to a ticket holder joining me as sid Rao,
Speaker 1: a partner at Romano Law. The appellate Court reversed an
Speaker 1: injunction against MSG that a judge had issued. Tell us
Speaker 1: about that injunction. There was an injunction granted to the plaintiffs,
Speaker 1: but it was extremely narrow. So the court's injunction did
Speaker 1: not prohibit Madison Square Garden, for example, from revoking tickets.
Speaker 1: It didn't prohibit Madison Square Garden from refusing to sell
Speaker 1: tickets to lawyers or law firms involved in litigations against
Speaker 1: the arena or against any of their assiliated parties. The
Speaker 1: only thing the injunction prevented was that the arena could
Speaker 1: not turn people away at the time of the event
Speaker 1: or a reasonable time before who had valid tickets. Let's
Speaker 1: say I'm the lead plaintiff, I'm partner at the firm
Speaker 1: Larry Hutcher, and I have a ticket, and I go
Speaker 1: to MSG on the day of the event and I
Speaker 1: present it. MSG is then joined from turning me away.
Speaker 1: But that's it. Tell us why I knew your Kapel's
Speaker 1: Court overturned the judges preliminary injunction. Ultimately, the issue that
Speaker 1: the decision turned on the appeals decision, and the reason
Speaker 1: why the appellate Court vacated the injunction was really just
Speaker 1: a careful statutory construction exercise. So Civil rights Law section
Speaker 1: forty B was the basis for the lower court's injunction,
Speaker 1: and that is the statue that prohibits venues from turning
Speaker 1: away holders of valid tickets essentially at the door. The
Speaker 1: problem for the plaintiffs for is that the next section
Speaker 1: of the law, section forty one, prescribes a remedy for violation,
Speaker 1: and it's a financial remedy and starting at one hundred
Speaker 1: dollars in going to five hundred dollars. Now, the argument
Speaker 1: in the lower court did address this, you know, the
Speaker 1: question really is is that the sole remedy, and the
Speaker 1: lower court was persuaded that even if the statute prescribes
Speaker 1: a remedy, if there was a chance of reparable harm,
Speaker 1: the court still had power to intervene because of the
Speaker 1: possibility of reparable harm. That's where the appellate Court differed
Speaker 1: in its judgment. And actually in many other respects, the
Speaker 1: Appellate Court agrees and kept saying, you know, the motion
Speaker 1: court properly concluded, but in this one respect, the court
Speaker 1: said the only remedy for violation of the section of
Speaker 1: the civil rights law is the monetary remedy. That is,
Speaker 1: the court interpreted the legislature's decision to provide a remedy
Speaker 1: as excluding other potential remedies. And what the appellate court
Speaker 1: was saying is you can't get an injunction. Your damages
Speaker 1: for that violation are limited to five hundred dollars, and
Speaker 1: because that's a monetary remedy, there's no injunctor really, So
Speaker 1: that's why they vacated the injunction, and that kind of
Speaker 1: leaves the plaintiffs I think, you know in alert here.
Speaker 1: You know, a five hundred dollar penalty is probably not
Speaker 1: strong enough disincentive for Madison Square Regarden to reevaluate its policy.
Speaker 1: Attorney General Letitia James is investigating this. The office said
Speaker 1: in a letter to MSG that the ban and the
Speaker 1: company's use of facial recognition technology to force it, may
Speaker 1: violate anti discrimination laws and may dissuade lawyers from taking
Speaker 1: on cases such as sexual harassment or job discrimination claims
Speaker 1: against the company. Quote MSG, Entertainment cannot fight their legal
Speaker 1: battles in their own arenas, so she could bring a
Speaker 1: case that's absolutely correct, and I love that quote. I
Speaker 1: think this is really getting to the heart of it
Speaker 1: right because we're talking about statutory language and parsing technicalities.
Speaker 1: But the real issue here is that the facial recognition
Speaker 1: technology is fairly intrusive. There's this privacy and data concern
Speaker 1: around the facial recognition technology, especially in an era where
Speaker 1: there's technology available to parse large amounts of data, and
Speaker 1: then there's a public policy concerned with what we think
Speaker 1: the real purposes behind Madison Square Gardens policy is to
Speaker 1: disincentivize litigation or maybe to sort of tunitively act towards
Speaker 1: lawyers who have the huts by issue, and that really
Speaker 1: is against public policy. Any time you're dealing with system
Speaker 1: that uses discretion, and we are here Arena has discretion
Speaker 1: to turn people away, there's a possibility of discrimination. I
Speaker 1: think that that's a very legitimate concern that the Attorney
Speaker 1: General topic is raising, which is you are creating policies
Speaker 1: that enable people to exercise a fairly large amount of
Speaker 1: discretion to turn patrons away. What's to say that that policy,
Speaker 1: which now applies to lawyers won't apply to some other
Speaker 1: group in the future. Thanks sid that's sid Rao of
Speaker 1: Romano Law. And that's it for this edition of The
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