1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio. 2 00:00:09,280 --> 00:00:12,920 Speaker 1: I so remember what it is like to be a 3 00:00:12,960 --> 00:00:18,920 Speaker 1: young black girl and feeling utterly invisible. I remember desperately 4 00:00:19,000 --> 00:00:24,280 Speaker 1: striving for distinction and looking anywhere and everywhere for affirmations 5 00:00:24,320 --> 00:00:28,160 Speaker 1: of self worth. If I have one hope for the 6 00:00:28,240 --> 00:00:31,240 Speaker 1: role that I now have and the work that I 7 00:00:31,320 --> 00:00:36,040 Speaker 1: will do, it is that I can so inspire the 8 00:00:36,200 --> 00:00:40,880 Speaker 1: children of today. And Justice Potangi Brown Jackson, the first 9 00:00:40,920 --> 00:00:44,640 Speaker 1: black woman on the Supreme Court, intends to do just that, 10 00:00:45,000 --> 00:00:47,920 Speaker 1: writing a memoir that she says will be a story 11 00:00:47,960 --> 00:00:50,320 Speaker 1: of what it takes to rise through the ranks of 12 00:00:50,360 --> 00:00:53,800 Speaker 1: a legal profession, especially as a woman of color with 13 00:00:53,880 --> 00:00:57,880 Speaker 1: an unusual name. It will be entitled Lovely One, a 14 00:00:58,000 --> 00:01:02,160 Speaker 1: reference to the African name could tan Gionika that Jackson's 15 00:01:02,200 --> 00:01:05,600 Speaker 1: parents gave her. With the book deal, Jackson becomes part 16 00:01:05,640 --> 00:01:08,760 Speaker 1: of what has become a phenomenon at the Court. Justice 17 00:01:08,800 --> 00:01:11,640 Speaker 1: is looking to craft their own images and score a 18 00:01:11,760 --> 00:01:15,400 Speaker 1: hefty payday along the way. Every justice on the Roberts 19 00:01:15,480 --> 00:01:18,520 Speaker 1: Court who has written a memoir has gotten at least 20 00:01:18,600 --> 00:01:21,720 Speaker 1: a million and a half dollars. Joining me now is 21 00:01:21,760 --> 00:01:25,480 Speaker 1: Bloomberg new Supreme Court reporter Greg Store, who knows a 22 00:01:25,480 --> 00:01:28,119 Speaker 1: lot about what I like to call the Supreme Court 23 00:01:28,160 --> 00:01:32,120 Speaker 1: book club. Greg random House is the publisher. Do we 24 00:01:32,200 --> 00:01:35,960 Speaker 1: know how much Jackson's advances? We do not. That number 25 00:01:36,080 --> 00:01:39,080 Speaker 1: was not disclosed, and we can make some guesses based 26 00:01:39,120 --> 00:01:42,400 Speaker 1: on what other justices have received. Justice. Amy Coney Barrett 27 00:01:43,680 --> 00:01:46,880 Speaker 1: reportedly secured a two million dollar advance from a different 28 00:01:47,040 --> 00:01:50,200 Speaker 1: imprint of Penguin Random House, But we don't know exactly 29 00:01:50,240 --> 00:01:53,080 Speaker 1: what amount Justice Jackson will be getting, and Amy Coney 30 00:01:53,160 --> 00:01:56,000 Speaker 1: Barrett hasn't written the book yet. She has not, and 31 00:01:56,040 --> 00:01:59,800 Speaker 1: in fact, there haven't actually been a formal announcement of 32 00:02:00,000 --> 00:02:03,120 Speaker 1: at so we know even less about what that book 33 00:02:03,160 --> 00:02:07,559 Speaker 1: will involve. Based on the reports, it may be less 34 00:02:07,600 --> 00:02:12,120 Speaker 1: about her personal story growing up and more about her 35 00:02:12,200 --> 00:02:14,800 Speaker 1: views about the role of a judge, but that is 36 00:02:14,840 --> 00:02:19,560 Speaker 1: still to come out. What makes Barrett's book deal Jackson's 37 00:02:19,760 --> 00:02:23,920 Speaker 1: and Justice Sonia so to mayors, different from justice in 38 00:02:23,919 --> 00:02:27,240 Speaker 1: the past is that they got them when they were 39 00:02:27,280 --> 00:02:29,519 Speaker 1: on the court for just a short time. I mean 40 00:02:29,960 --> 00:02:33,919 Speaker 1: Jackson was just sworn in about six months ago. Yeah, 41 00:02:34,000 --> 00:02:36,600 Speaker 1: that's the real new development here, I think. In addition, 42 00:02:36,639 --> 00:02:39,679 Speaker 1: to the large sums. Justice Jackson has yet to write 43 00:02:39,680 --> 00:02:43,440 Speaker 1: a majority opinion. When Justice Barrett's book News came out, 44 00:02:43,520 --> 00:02:46,079 Speaker 1: she had written only two majority opinions. Justice so to 45 00:02:46,160 --> 00:02:48,520 Speaker 1: Mayor had been on the court for about a year 46 00:02:48,960 --> 00:02:52,080 Speaker 1: when her book was amun So, you know, it's a 47 00:02:52,120 --> 00:02:57,200 Speaker 1: far cry from say, when Justice O'Connor, before she retired, 48 00:02:57,240 --> 00:02:59,400 Speaker 1: wrote a book with her brother about growing up on 49 00:02:59,639 --> 00:03:03,480 Speaker 1: a r in Arizona. That was after Justice O'Connor had 50 00:03:03,520 --> 00:03:07,079 Speaker 1: been on the court for something like twenty years or so, 51 00:03:07,200 --> 00:03:10,920 Speaker 1: kind of an end of career looking back. These instead 52 00:03:10,960 --> 00:03:13,919 Speaker 1: are justices whose names are out there because of the 53 00:03:14,080 --> 00:03:17,519 Speaker 1: confirmation fight, and they're seizing on the moment where they're 54 00:03:17,560 --> 00:03:20,200 Speaker 1: the hot new thing to jump in and tell their 55 00:03:20,200 --> 00:03:22,720 Speaker 1: own story and portray what they think being judge is 56 00:03:22,760 --> 00:03:26,760 Speaker 1: all about. And Justice Clarence Thomas also wrote a memoir 57 00:03:26,960 --> 00:03:29,800 Speaker 1: and got a one and a half million dollar advance, 58 00:03:29,960 --> 00:03:32,040 Speaker 1: but he had been on the court awhile he had 59 00:03:32,040 --> 00:03:34,480 Speaker 1: been on the court for fifteen years or so when 60 00:03:34,480 --> 00:03:37,200 Speaker 1: he wrote that, you know, much like St. Of Mayors memoir, 61 00:03:37,400 --> 00:03:40,120 Speaker 1: he had told of a really interesting story both of 62 00:03:40,200 --> 00:03:43,760 Speaker 1: them as young children life of poverty are are close 63 00:03:43,800 --> 00:03:47,560 Speaker 1: to poverty and racial minorities as well, and so they 64 00:03:48,200 --> 00:03:50,320 Speaker 1: really had interesting stories that on it's it is very 65 00:03:50,360 --> 00:03:53,000 Speaker 1: interesting seeing how they developed into people with very very 66 00:03:53,000 --> 00:03:57,080 Speaker 1: different views of the Constitution. So Justice gorse It wrote 67 00:03:57,120 --> 00:04:00,400 Speaker 1: a book, but it wasn't really a memoir and he 68 00:04:00,440 --> 00:04:03,920 Speaker 1: didn't get an eye popping advance. No, it wasn't quite 69 00:04:03,920 --> 00:04:06,760 Speaker 1: as much justice course, which his dollar amount is still 70 00:04:07,240 --> 00:04:10,440 Speaker 1: out of a million dollars, unlike the other justices. And 71 00:04:10,480 --> 00:04:12,560 Speaker 1: it was more a book, although it contained a little 72 00:04:12,560 --> 00:04:15,160 Speaker 1: bit of some personal details. It was more a book 73 00:04:15,200 --> 00:04:17,280 Speaker 1: about what he sees as a proper role of a 74 00:04:17,400 --> 00:04:19,919 Speaker 1: judge in the constitutional system, and you know, kind of 75 00:04:19,920 --> 00:04:22,960 Speaker 1: a defense of originalism or an argument for originalism as 76 00:04:23,000 --> 00:04:26,640 Speaker 1: the means of interpreting the Constitution. Now, other justices have 77 00:04:26,720 --> 00:04:31,120 Speaker 1: written books. Stephen brier wrote, I think four books tell 78 00:04:31,200 --> 00:04:34,200 Speaker 1: us about some of the other justices books. Yes, not 79 00:04:34,320 --> 00:04:36,239 Speaker 1: at all a new thing, as you said, Justice Briar 80 00:04:36,279 --> 00:04:39,480 Speaker 1: wrote several books. Chief Justice Rank Clifts would write books 81 00:04:39,520 --> 00:04:43,200 Speaker 1: about history, including he wrote a book about the impeachment 82 00:04:43,240 --> 00:04:47,240 Speaker 1: trials of Justice Samue old Chase and President Andrew Johnson, 83 00:04:47,279 --> 00:04:49,320 Speaker 1: and then alfter that book was out to teach Justice 84 00:04:49,400 --> 00:04:51,560 Speaker 1: Rank question ended up being the one presiding over Bill 85 00:04:51,560 --> 00:04:56,440 Speaker 1: Clinton's impeachment trial. In Justice William O. Douglass before he died, 86 00:04:56,480 --> 00:04:59,800 Speaker 1: wrote more than thirty books. So the phenomenon of just 87 00:05:00,120 --> 00:05:03,320 Speaker 1: his writing books is not new. It's the you know, 88 00:05:03,440 --> 00:05:06,520 Speaker 1: justice joins the court and gets big money for writing memoirs. 89 00:05:06,560 --> 00:05:09,559 Speaker 1: That is a new phenomenon. We all see the dollar 90 00:05:09,720 --> 00:05:12,159 Speaker 1: signs and go, wow, they're writing it for that reason. 91 00:05:12,200 --> 00:05:16,200 Speaker 1: But are there other reasons they may be writing a book? Sure, 92 00:05:16,440 --> 00:05:19,520 Speaker 1: you know, this is an opportunity for them to really 93 00:05:19,600 --> 00:05:22,080 Speaker 1: craft their image. It is you know, you look at 94 00:05:22,200 --> 00:05:25,159 Speaker 1: examples of Justices Thomas and so do Mayor, both of 95 00:05:25,200 --> 00:05:27,680 Speaker 1: whom sort of crafted the rags to rich the story 96 00:05:27,839 --> 00:05:31,280 Speaker 1: about themselves and pointed out the obstacles they had overcome 97 00:05:31,360 --> 00:05:34,320 Speaker 1: and the lessons they had learned from overcoming those obstacles. 98 00:05:34,360 --> 00:05:37,640 Speaker 1: Again very different lessons that each drew, but you know 99 00:05:37,680 --> 00:05:40,320 Speaker 1: that informs what we think about them. And so for 100 00:05:40,360 --> 00:05:43,400 Speaker 1: any new justice, whether they're writing about their personal life 101 00:05:43,520 --> 00:05:47,520 Speaker 1: or about their judicial philosophy, this gives them, you know whatever, 102 00:05:47,600 --> 00:05:51,159 Speaker 1: three hundred pages to tell their story without an eruption 103 00:05:51,240 --> 00:05:53,080 Speaker 1: the way they want to tell them, just by the 104 00:05:53,160 --> 00:05:57,120 Speaker 1: numbers associate justices earned two hundred seventy four thousand, two 105 00:05:57,200 --> 00:06:00,880 Speaker 1: hundred dollars a year. Are they limited to outside income 106 00:06:00,880 --> 00:06:03,200 Speaker 1: of no more than thirty thousand dollars or is that 107 00:06:03,360 --> 00:06:07,520 Speaker 1: just judges. The outside income cap applies to certain things 108 00:06:07,560 --> 00:06:10,920 Speaker 1: like teaching. When it comes to book royalties, there is 109 00:06:10,960 --> 00:06:13,520 Speaker 1: no cap, which is why we can get these figures 110 00:06:13,520 --> 00:06:16,000 Speaker 1: that are so large and why you know they are 111 00:06:16,080 --> 00:06:18,440 Speaker 1: troubling to sub legal experts just because of this sheer 112 00:06:18,480 --> 00:06:21,680 Speaker 1: amounts relative to what they earned in their day job. 113 00:06:21,839 --> 00:06:25,559 Speaker 1: Does kind of create some optical issues. Greg, you spoke 114 00:06:25,600 --> 00:06:28,560 Speaker 1: to a lot of legal ethics professors for your story, 115 00:06:29,000 --> 00:06:31,600 Speaker 1: and they seem to be split as far as their 116 00:06:31,640 --> 00:06:35,520 Speaker 1: concerns about these huge book deals for Supreme Court justices. 117 00:06:36,120 --> 00:06:41,320 Speaker 1: Charles Gay of Indiana University said, quote from the perspective 118 00:06:41,360 --> 00:06:44,160 Speaker 1: of the average American who's grinding out a living at 119 00:06:44,200 --> 00:06:47,360 Speaker 1: forty K a year, the optics of a judge who 120 00:06:47,360 --> 00:06:50,440 Speaker 1: has paid two d fifty thousand dollars in tax dollars 121 00:06:50,440 --> 00:06:54,120 Speaker 1: to do the people's business as a justice earning several 122 00:06:54,160 --> 00:06:57,719 Speaker 1: times her salary on a side deal may be problematic. 123 00:06:58,360 --> 00:07:01,680 Speaker 1: So is the point. Basically, it doesn't look right as 124 00:07:01,720 --> 00:07:05,680 Speaker 1: he said, legal ethics experts were split on this issue. 125 00:07:05,760 --> 00:07:09,080 Speaker 1: With Professor Gay that is his concern that there is 126 00:07:08,720 --> 00:07:12,080 Speaker 1: an issue of the optics of these large dollar amounts. 127 00:07:12,160 --> 00:07:15,040 Speaker 1: He says he's uneasy about it. He actually characterized this 128 00:07:15,120 --> 00:07:18,200 Speaker 1: issue as you know, relatively small compared to some other 129 00:07:18,240 --> 00:07:22,320 Speaker 1: ethical issues affecting the court. Another expert I spoke with, 130 00:07:22,480 --> 00:07:26,000 Speaker 1: Richard Painter, who's the former White House Ethics Council, was 131 00:07:26,080 --> 00:07:29,040 Speaker 1: more concerned about, you know, knowing where the money is 132 00:07:29,120 --> 00:07:33,200 Speaker 1: coming from, the concern that may be interested parties might 133 00:07:33,840 --> 00:07:36,560 Speaker 1: five books in bulk as a way of occurring favor 134 00:07:36,720 --> 00:07:40,400 Speaker 1: with justices. That said, There were a couple other experts 135 00:07:40,440 --> 00:07:43,680 Speaker 1: I I was in contact with Amanda Frost Stephen Giller's 136 00:07:43,680 --> 00:07:46,840 Speaker 1: who essentially said, look, I don't see this as a problem. 137 00:07:46,920 --> 00:07:49,680 Speaker 1: They are allowed under the ethics laws to do this 138 00:07:50,080 --> 00:07:52,400 Speaker 1: if if there's some issue involving and say the publisher, 139 00:07:52,440 --> 00:07:54,760 Speaker 1: they may have to refuse from a particular case, but 140 00:07:55,040 --> 00:07:57,600 Speaker 1: there's not any sort of barge to adjust as doing 141 00:07:57,760 --> 00:08:00,760 Speaker 1: this sort of effect. It's a small controversy, but it's 142 00:08:00,760 --> 00:08:05,680 Speaker 1: at a time when this court is mired in controversy. Yeah, 143 00:08:05,720 --> 00:08:08,400 Speaker 1: of course, we you know, think about things like the 144 00:08:08,480 --> 00:08:11,239 Speaker 1: leak of the draft abortion opinion. We think about things 145 00:08:11,320 --> 00:08:15,080 Speaker 1: like Justice Thomas's wife, Virginia, taking part in efforts to 146 00:08:15,120 --> 00:08:18,000 Speaker 1: overturn the election results in him not recusing from cases. 147 00:08:18,080 --> 00:08:21,560 Speaker 1: And and yes, the Court is a wash in ethical 148 00:08:21,680 --> 00:08:25,760 Speaker 1: controversies right now. And you know, everything the Court does 149 00:08:25,880 --> 00:08:29,360 Speaker 1: right now reflects on it and has the potential to 150 00:08:29,400 --> 00:08:32,640 Speaker 1: effect its standing among the public. You know, one other 151 00:08:32,720 --> 00:08:36,840 Speaker 1: aspect of these books, particularly the memoirs, is that they 152 00:08:36,920 --> 00:08:40,440 Speaker 1: probably contribute to this notion that justices are are frequently 153 00:08:40,480 --> 00:08:43,560 Speaker 1: becoming celebrities in their own rights. When we saw that 154 00:08:43,640 --> 00:08:47,400 Speaker 1: with Justice Ginsburgh before she passed away. There's a bit 155 00:08:47,440 --> 00:08:50,440 Speaker 1: of a cult of personality that surrounds some of the 156 00:08:50,480 --> 00:08:53,559 Speaker 1: other justices on the Court. Now. Certainly Justice Thomas is 157 00:08:53,640 --> 00:08:56,439 Speaker 1: very much a hero, and conservative circles Justice to Mayor 158 00:08:56,679 --> 00:08:59,680 Speaker 1: very much has developed our own brand. Justice Jackson maybe 159 00:09:00,000 --> 00:09:02,640 Speaker 1: moving in that direction. I don't want to speak prematurely, 160 00:09:02,800 --> 00:09:06,160 Speaker 1: but certainly she is somebody who has captured the imagination 161 00:09:06,240 --> 00:09:08,440 Speaker 1: of a lot of people in the public, and a 162 00:09:08,480 --> 00:09:11,640 Speaker 1: book like this that tells her story may only further 163 00:09:11,720 --> 00:09:14,280 Speaker 1: that trend. Yeah, it's a far cry from the days 164 00:09:14,360 --> 00:09:17,160 Speaker 1: when many people didn't even know who was on the 165 00:09:17,200 --> 00:09:20,840 Speaker 1: Supreme Court. Now their celebs. But do these book deals 166 00:09:20,920 --> 00:09:25,040 Speaker 1: highlight the controversy over the justices being the only federal 167 00:09:25,160 --> 00:09:29,000 Speaker 1: judges not bound by an ethical code of conduct. That 168 00:09:29,160 --> 00:09:32,080 Speaker 1: is really a long running criticism of the Court that 169 00:09:32,160 --> 00:09:37,040 Speaker 1: has gotten more headway recently because of all these ethical controversies. 170 00:09:37,080 --> 00:09:39,480 Speaker 1: This is a case where even if that code of 171 00:09:39,520 --> 00:09:42,840 Speaker 1: conduct that applies to lower court judges, even if that 172 00:09:42,880 --> 00:09:46,600 Speaker 1: applied to the Supreme Court, it probably wouldn't provide any 173 00:09:46,600 --> 00:09:49,000 Speaker 1: clearer statement that said, you can't do something like this, 174 00:09:49,320 --> 00:09:51,880 Speaker 1: but this might be the kind of thing that some 175 00:09:51,920 --> 00:09:53,960 Speaker 1: folks want to look at. Thanks so much, Greg, that's 176 00:09:53,960 --> 00:09:59,040 Speaker 1: Bloomberg News Supreme Court reporter Greg's store. The Supreme Court 177 00:09:59,080 --> 00:10:03,320 Speaker 1: has refused to lack New York's new handgun restrictions, leaving 178 00:10:03,360 --> 00:10:08,040 Speaker 1: in place a ban on firearms and designated sensitive locations, 179 00:10:08,080 --> 00:10:11,800 Speaker 1: including busses and parks. The state enacted the measure last 180 00:10:11,880 --> 00:10:14,440 Speaker 1: year after the Court struck down in New York law 181 00:10:14,800 --> 00:10:17,720 Speaker 1: that required people to show a special need to carry 182 00:10:17,720 --> 00:10:21,480 Speaker 1: a concealed handgun in public. Joining me is Eric Rubin, 183 00:10:21,559 --> 00:10:24,440 Speaker 1: a professor at s m Used Deadman's School of law 184 00:10:25,400 --> 00:10:29,679 Speaker 1: is New York's new law still very restrictive. So New 185 00:10:29,720 --> 00:10:33,840 Speaker 1: York law is a response to the June Supreme Court 186 00:10:33,880 --> 00:10:37,760 Speaker 1: Ruin and Brewing, which gutted New York's old public cary law. 187 00:10:38,160 --> 00:10:40,280 Speaker 1: In the Brewing case, the Supreme Court said that it 188 00:10:40,320 --> 00:10:43,960 Speaker 1: was unconstitutional to restrict to field carry permits to only 189 00:10:44,000 --> 00:10:47,440 Speaker 1: those who had a heightened need for self defense, and 190 00:10:47,480 --> 00:10:51,360 Speaker 1: that had been the primary enforcement mechanism for the New 191 00:10:51,440 --> 00:10:54,280 Speaker 1: York law for over a century. So as a result, 192 00:10:54,679 --> 00:10:58,760 Speaker 1: many more people are eligible for concealed carry permit now 193 00:10:58,760 --> 00:11:01,040 Speaker 1: in New York compared to be for the Brewing case, 194 00:11:01,160 --> 00:11:03,800 Speaker 1: and so in that sense, New York's law is less 195 00:11:03,840 --> 00:11:06,360 Speaker 1: restrictive than before. But at the same time, New York 196 00:11:06,400 --> 00:11:10,000 Speaker 1: added other restrictions which make New York's law more restrictive 197 00:11:10,000 --> 00:11:13,760 Speaker 1: in different ways. For example, before Brewing, there had been 198 00:11:13,760 --> 00:11:17,400 Speaker 1: no training requirement for concealed carry permit in New York. 199 00:11:17,720 --> 00:11:21,120 Speaker 1: That was actually an outlier position. Most places required training 200 00:11:21,160 --> 00:11:23,440 Speaker 1: before you could get a permit, so New York composed 201 00:11:23,440 --> 00:11:26,840 Speaker 1: a new training requirement, and Brewin also said that it 202 00:11:26,920 --> 00:11:30,080 Speaker 1: was permissible to being guns altogether in certain sensitive places, 203 00:11:30,440 --> 00:11:34,280 Speaker 1: so New York took care after Bruins identify certain places 204 00:11:34,360 --> 00:11:38,760 Speaker 1: like playgrounds and bars and subways where guns would henceforth 205 00:11:38,800 --> 00:11:40,720 Speaker 1: be banned. So on the whole, I think it's accurate 206 00:11:40,760 --> 00:11:44,000 Speaker 1: to say that more people are eligible now as compared 207 00:11:44,040 --> 00:11:47,080 Speaker 1: to before, co lawfully carry a gun in public, but 208 00:11:47,320 --> 00:11:49,679 Speaker 1: at the same time they're more restricted in where they 209 00:11:49,679 --> 00:11:53,680 Speaker 1: can bring their guns. Gun owners challenged the law. What 210 00:11:53,800 --> 00:11:57,400 Speaker 1: was their objection to the law? So the pointiffs in 211 00:11:58,000 --> 00:12:01,320 Speaker 1: the anton Uth case brought a sweeping challenge to the 212 00:12:01,400 --> 00:12:04,960 Speaker 1: law shortly after the law got passed this past summer, 213 00:12:05,600 --> 00:12:09,240 Speaker 1: and they led to virtually all of the new public 214 00:12:09,280 --> 00:12:14,880 Speaker 1: cary regime was unconstitutional. That case was assigned to a 215 00:12:15,000 --> 00:12:19,760 Speaker 1: judge in Syracuse, New York, Judge Glenn Sutoy, and in 216 00:12:20,160 --> 00:12:22,480 Speaker 1: the course of n leak, Judge Sutoby has issued a 217 00:12:22,520 --> 00:12:25,640 Speaker 1: bunch of opinions. Three opinions they have opened on a 218 00:12:25,720 --> 00:12:30,840 Speaker 1: constitutionality of various provisions of New York's law, and they've 219 00:12:30,840 --> 00:12:35,960 Speaker 1: reached different conclusions. The basis for the challenge is that 220 00:12:36,640 --> 00:12:39,520 Speaker 1: in the Bruin case, the Supreme Court said that modern 221 00:12:39,600 --> 00:12:44,600 Speaker 1: restrictions have to be analogist to historical laws. The plaintiffs 222 00:12:44,600 --> 00:12:46,760 Speaker 1: are saying that a lot of these restrictions in the 223 00:12:46,760 --> 00:12:50,199 Speaker 1: New York law are not analogist and tell us a 224 00:12:50,240 --> 00:12:54,960 Speaker 1: little bit more about what Judge sutay enjoined. Judge Sotoby 225 00:12:55,040 --> 00:13:02,200 Speaker 1: and his ruling um enjoined twelve provisions UM in New 226 00:13:02,320 --> 00:13:08,920 Speaker 1: York's law, and they ranged um from aspects of the 227 00:13:09,000 --> 00:13:14,319 Speaker 1: permanent application process to some of the sensitive locations. For example, 228 00:13:14,320 --> 00:13:18,600 Speaker 1: of Judge Stuby said that even those constitutional to ban 229 00:13:18,760 --> 00:13:22,520 Speaker 1: guns at playgrounds because of the presence of children, it 230 00:13:22,640 --> 00:13:26,720 Speaker 1: was likely unconstitutional to ban them as zoos because even 231 00:13:26,760 --> 00:13:28,680 Speaker 1: though there are a lot of children there, some adults 232 00:13:28,720 --> 00:13:32,400 Speaker 1: go without children um. And so one of the things 233 00:13:32,400 --> 00:13:34,559 Speaker 1: that Judge Stuby did in his opinion, which is on 234 00:13:34,640 --> 00:13:42,640 Speaker 1: appeal right now, is draw unarticulated distinctions between history historical 235 00:13:42,760 --> 00:13:48,360 Speaker 1: gun laws and their relevant, very different modern regulations. Appealing 236 00:13:48,440 --> 00:13:51,280 Speaker 1: Judge Steby's order that would go to the Second Circuit 237 00:13:51,400 --> 00:13:54,880 Speaker 1: Court of Appeals. Why didn't we just have the Second 238 00:13:54,880 --> 00:13:58,480 Speaker 1: Circuit ruling on it before they tried to get the 239 00:13:58,520 --> 00:14:02,800 Speaker 1: Supreme Court to intervene, so that that question goes to 240 00:14:02,880 --> 00:14:06,640 Speaker 1: the procedural posture here. So what basically happened was Judge 241 00:14:06,720 --> 00:14:11,160 Speaker 1: dot to Be in his third opinion, which had halted 242 00:14:11,320 --> 00:14:14,040 Speaker 1: enforcement of twelve of the provisions of the New York law, 243 00:14:14,640 --> 00:14:18,880 Speaker 1: didn't give New York much time to appeal, And what 244 00:14:19,040 --> 00:14:22,200 Speaker 1: New York did instead was it did appeal, but at 245 00:14:22,240 --> 00:14:24,600 Speaker 1: the same time it asked the Second Circuit Court of 246 00:14:24,640 --> 00:14:28,600 Speaker 1: Appeals to issue an emergency stay and maintain the status 247 00:14:28,640 --> 00:14:31,880 Speaker 1: quo so the law would remain in effect while the 248 00:14:31,920 --> 00:14:35,920 Speaker 1: Second Circuits stut of his opinions, and the Second Circuit 249 00:14:36,160 --> 00:14:42,040 Speaker 1: granted that emergency stay. And at present the parties are 250 00:14:42,080 --> 00:14:45,120 Speaker 1: briefing the case before the Second Circuit. But the plaintiffs 251 00:14:45,160 --> 00:14:48,720 Speaker 1: in the case, we're unsatisfied with that emergency stay. They 252 00:14:48,800 --> 00:14:54,280 Speaker 1: wanted the various provisions of New York's law to be unenforced, 253 00:14:54,640 --> 00:14:58,720 Speaker 1: and they appealed that emergency stay up to the Supreme Court. 254 00:14:59,000 --> 00:15:01,240 Speaker 1: And so that is what the Supreme Court was deciding 255 00:15:01,600 --> 00:15:04,280 Speaker 1: at this time, was whether or not to intervene with 256 00:15:04,320 --> 00:15:08,400 Speaker 1: respect to this emergency's day, not necessarily with whatever the 257 00:15:08,440 --> 00:15:11,680 Speaker 1: Second Circuit ultimately decides about the law. So then would 258 00:15:11,720 --> 00:15:15,400 Speaker 1: you say that it's not surprising that the Supreme Court 259 00:15:15,480 --> 00:15:19,680 Speaker 1: decided not to intervene. Yeah, absolutely, And in fact it 260 00:15:19,720 --> 00:15:21,880 Speaker 1: would have been quite unusual at this point in the 261 00:15:21,920 --> 00:15:25,800 Speaker 1: case is procedural history for the Supreme Court to have intervened, 262 00:15:26,120 --> 00:15:29,840 Speaker 1: and in fact, Justices Alito and Thomas issued a statement 263 00:15:30,160 --> 00:15:34,640 Speaker 1: accompanying the denial of the position at this point, saying 264 00:15:34,840 --> 00:15:38,800 Speaker 1: that the basis for the Supreme Court's denial was out 265 00:15:38,800 --> 00:15:42,520 Speaker 1: of respect for the Second Circuit procedures at this point, 266 00:15:42,840 --> 00:15:45,280 Speaker 1: implying that it was just not the right time for aniel. 267 00:15:45,520 --> 00:15:50,920 Speaker 1: Alito describes Soboby's opinion as thorough and that the case 268 00:15:51,040 --> 00:15:55,120 Speaker 1: presented novel in serious questions under the Constitution's First and 269 00:15:55,200 --> 00:16:00,520 Speaker 1: second amendments. Does that hint that at least two of 270 00:16:00,600 --> 00:16:03,680 Speaker 1: the Justices might want to take this case after the 271 00:16:03,720 --> 00:16:08,320 Speaker 1: Second Circuit rules. I think so, especially the reference to 272 00:16:08,520 --> 00:16:11,240 Speaker 1: novel and serious questions. One of the things that the 273 00:16:11,240 --> 00:16:14,360 Speaker 1: Supreme Court considers as it's deciding whether or not to 274 00:16:14,520 --> 00:16:17,960 Speaker 1: grant petitions to hear cases every single year is the 275 00:16:18,080 --> 00:16:20,920 Speaker 1: novelty and a seriousness of the questions that are presented. 276 00:16:21,040 --> 00:16:24,320 Speaker 1: So those two justices at least, I think that on 277 00:16:24,480 --> 00:16:27,280 Speaker 1: that metric, this case would be a good candidate for 278 00:16:27,360 --> 00:16:31,400 Speaker 1: Supreme Court consideration down the line. Um. The point about 279 00:16:31,480 --> 00:16:34,360 Speaker 1: it being thorough is interesting and it's and it's tough 280 00:16:34,480 --> 00:16:37,240 Speaker 1: to part or read too much into it. The sut 281 00:16:37,280 --> 00:16:41,040 Speaker 1: of the opinion certainly was long there, four pages, but 282 00:16:41,080 --> 00:16:43,160 Speaker 1: at the same time, it was a very big case, 283 00:16:43,480 --> 00:16:48,800 Speaker 1: and dozens of provisions and legally questions are presented by 284 00:16:48,840 --> 00:16:52,640 Speaker 1: the case, and so the lent alone is not a 285 00:16:52,640 --> 00:16:55,240 Speaker 1: good indication about whether or not the opinion is actually 286 00:16:55,280 --> 00:16:59,120 Speaker 1: well reasoned. And up in the Second Circuit. Just on Monday, 287 00:16:59,200 --> 00:17:02,760 Speaker 1: New York file a brief explaining why they think that 288 00:17:02,800 --> 00:17:06,439 Speaker 1: the study by opinion actually was badly recently, Well, it 289 00:17:06,480 --> 00:17:09,720 Speaker 1: seems like this case is going to be a test case. Perhaps, 290 00:17:09,800 --> 00:17:15,000 Speaker 1: but with the ruling in Brewin, doesn't it make it 291 00:17:15,040 --> 00:17:18,120 Speaker 1: difficult for states to know? I mean, was there enough 292 00:17:18,160 --> 00:17:22,120 Speaker 1: guidance in that ruling for states to know exactly what 293 00:17:22,160 --> 00:17:26,040 Speaker 1: they can and can't do. That's one of the things 294 00:17:26,040 --> 00:17:29,199 Speaker 1: that lower courts are really struggling with right now is 295 00:17:29,240 --> 00:17:32,679 Speaker 1: that the Supreme Court in Brewin changed the way the 296 00:17:32,720 --> 00:17:35,920 Speaker 1: Second Amendment cases are to be litigated and decided in 297 00:17:35,960 --> 00:17:40,560 Speaker 1: the future. Over fourteen hundred opinions about the Second Amendment 298 00:17:40,640 --> 00:17:44,760 Speaker 1: had been decided in the thirteen years before Bruin and 299 00:17:44,880 --> 00:17:49,280 Speaker 1: after the landmark opinion District Colombia b. Heller Um and 300 00:17:49,440 --> 00:17:51,680 Speaker 1: in essence, the Supreme Court said that all of those 301 00:17:51,720 --> 00:17:56,199 Speaker 1: opinions were decided using in inappropriate methodology. But at the 302 00:17:56,240 --> 00:17:58,879 Speaker 1: same time, other than saying that lower courts is supposed 303 00:17:58,920 --> 00:18:01,560 Speaker 1: to analogize to Hit three, the Supreme Court didn't provide 304 00:18:01,760 --> 00:18:04,639 Speaker 1: a whole lot of workable guidance for the lower courts. 305 00:18:04,720 --> 00:18:09,159 Speaker 1: So what we're seeing right now in this case um 306 00:18:09,200 --> 00:18:11,760 Speaker 1: as well as in others, is judges coming up with 307 00:18:12,200 --> 00:18:16,479 Speaker 1: different rules and tests about how to read history and 308 00:18:16,480 --> 00:18:19,720 Speaker 1: then translate it to modern times that are fundamentally different 309 00:18:19,720 --> 00:18:23,160 Speaker 1: when it comes to gun violence. I imagine that it's 310 00:18:23,200 --> 00:18:26,040 Speaker 1: going to take years for the lower courts and then 311 00:18:26,080 --> 00:18:30,240 Speaker 1: ultimately the Supreme Court to try to firm up some 312 00:18:30,320 --> 00:18:33,720 Speaker 1: way to implement the Brewing case in a sensible and 313 00:18:33,960 --> 00:18:37,520 Speaker 1: coherent way. Thanks so much, Eric. That's Eric Rubin, a 314 00:18:37,560 --> 00:18:41,200 Speaker 1: professor at s m used Deadman's School of Law. Coming 315 00:18:41,280 --> 00:18:44,679 Speaker 1: up next on the Bloomberg Law Show, the FTC is 316 00:18:44,720 --> 00:18:49,040 Speaker 1: proposing a ban on non compete clauses in employment contracts. 317 00:18:49,720 --> 00:18:53,800 Speaker 1: I'm June Grosso and you're listening to Bloomberg. The Federal 318 00:18:53,800 --> 00:18:57,359 Speaker 1: Trade Commission is proposing a ban on non compete clauses 319 00:18:57,400 --> 00:19:01,720 Speaker 1: in employment contracts that keep worker from switching jobs. It's 320 00:19:01,720 --> 00:19:05,840 Speaker 1: a sweeping rule likely to affect millions of Americans. President 321 00:19:05,920 --> 00:19:09,000 Speaker 1: Biden touted the rule last week at his first cabinet 322 00:19:09,040 --> 00:19:12,280 Speaker 1: meeting of the year, saying that although the clauses might 323 00:19:12,359 --> 00:19:15,880 Speaker 1: be necessary for certain kinds of jobs where trade secrets 324 00:19:15,880 --> 00:19:19,960 Speaker 1: are involved, non competes block millions of workers from getting 325 00:19:19,960 --> 00:19:23,359 Speaker 1: better jobs with better pay. It's another thing to say 326 00:19:23,800 --> 00:19:28,000 Speaker 1: you're working for subway and you can't walk across the 327 00:19:28,040 --> 00:19:30,840 Speaker 1: street and uh go to Jimmy John's and get a 328 00:19:30,880 --> 00:19:33,680 Speaker 1: twenty cent raise. What tells that all about other than 329 00:19:33,800 --> 00:19:37,639 Speaker 1: keeping wages down? Joining me is David Wolfe, partner as 330 00:19:37,680 --> 00:19:40,240 Speaker 1: Fagree Drink or Biddle and Wreath. David tell us a 331 00:19:40,240 --> 00:19:44,800 Speaker 1: little about the proposed rule. It's a ban on non compete, 332 00:19:44,880 --> 00:19:49,160 Speaker 1: and it's very very broad. There are virtually no exception. 333 00:19:49,320 --> 00:19:52,040 Speaker 1: The only real exception and excale business exception. But even 334 00:19:52,040 --> 00:19:55,840 Speaker 1: back in the high threshold, it would not only new 335 00:19:55,960 --> 00:20:00,159 Speaker 1: noncompete to take out existing um non compete. And it 336 00:20:00,200 --> 00:20:04,159 Speaker 1: applies not only the standard noncompete you know provision or 337 00:20:04,160 --> 00:20:06,600 Speaker 1: a paragraph that says how you can't go compete with 338 00:20:06,680 --> 00:20:10,240 Speaker 1: your employer, but also things that the FTC would would 339 00:20:10,240 --> 00:20:13,480 Speaker 1: say functions as a fact the noncompete and they don't 340 00:20:13,520 --> 00:20:16,320 Speaker 1: define that except to give a couple of examples, but 341 00:20:16,400 --> 00:20:20,359 Speaker 1: it's essentially things that could prevent an employee or a 342 00:20:20,359 --> 00:20:22,920 Speaker 1: worker which is the term they use, from moving from 343 00:20:22,960 --> 00:20:25,560 Speaker 1: one employer to another. So it's very, very broad in 344 00:20:25,640 --> 00:20:28,880 Speaker 1: terms of prohibiting restrictions that that stop people from going 345 00:20:28,920 --> 00:20:33,080 Speaker 1: to another employees. So explain why the Biden administration, and 346 00:20:33,200 --> 00:20:37,240 Speaker 1: you know President Biden has talked about this, is so 347 00:20:37,880 --> 00:20:42,480 Speaker 1: concerned about noncompetes. Well, I think it's a few things. 348 00:20:43,280 --> 00:20:46,880 Speaker 1: Historically there have been built in Congress, which is really 349 00:20:46,880 --> 00:20:49,080 Speaker 1: where there should be if it's going to move forward. 350 00:20:49,119 --> 00:20:52,119 Speaker 1: But put that aside, they've been building Congress that have 351 00:20:52,200 --> 00:20:55,920 Speaker 1: gotten by partisan support. Um, not a squad, but kind 352 00:20:55,920 --> 00:21:00,159 Speaker 1: of the concept of, hey, noncompete can be unfair, they 353 00:21:00,200 --> 00:21:02,760 Speaker 1: can restraint competition, they can have an impact on the economy, 354 00:21:02,760 --> 00:21:04,280 Speaker 1: and we should do something about that. So I think 355 00:21:05,040 --> 00:21:08,000 Speaker 1: that makes it somewhat attractive. You know, when you read 356 00:21:08,080 --> 00:21:11,840 Speaker 1: some of the commentary. The commentary discusses the fact that 357 00:21:12,520 --> 00:21:16,080 Speaker 1: it is anticipated or predicted to increase wages, increase movements 358 00:21:16,520 --> 00:21:19,200 Speaker 1: provide benefits to the economy into workers, So I think 359 00:21:19,240 --> 00:21:22,159 Speaker 1: that's something that's naturally nice to have. And then I 360 00:21:22,480 --> 00:21:25,560 Speaker 1: think the third thing is they talked broadly about non constuses, 361 00:21:25,600 --> 00:21:28,119 Speaker 1: but really the focus of the discussion uh to a 362 00:21:28,200 --> 00:21:31,080 Speaker 1: large degree on kind of the unfairness in certain pockets, 363 00:21:31,119 --> 00:21:35,520 Speaker 1: including certain large pots, one of which is low wage workers. 364 00:21:35,560 --> 00:21:38,280 Speaker 1: And I think they were able to come up with examples, 365 00:21:38,280 --> 00:21:40,600 Speaker 1: and it's really not hard because they're out there of 366 00:21:40,920 --> 00:21:44,480 Speaker 1: lower wage workers or other workers who lacked bargaining power 367 00:21:45,359 --> 00:21:48,120 Speaker 1: being put in a tough and really unfair position because 368 00:21:48,160 --> 00:21:50,040 Speaker 1: of a non constus. And so when we pull those 369 00:21:50,080 --> 00:21:53,359 Speaker 1: out and us that becomes kind of believes part of 370 00:21:53,560 --> 00:21:56,280 Speaker 1: the rule and the discussion around the world. It makes 371 00:21:56,320 --> 00:21:59,480 Speaker 1: for compelling at least, you know, kind of in the 372 00:21:59,480 --> 00:22:04,359 Speaker 1: initial a compelling proposal. But this will apply to all workers, 373 00:22:04,440 --> 00:22:08,360 Speaker 1: you know, people in corporations and high level jobs as 374 00:22:08,400 --> 00:22:11,880 Speaker 1: well as low wage workers. That's right, that's right. They're 375 00:22:11,920 --> 00:22:14,680 Speaker 1: talking about people at the highest levels of jobs, the 376 00:22:14,800 --> 00:22:18,440 Speaker 1: suite type people being being brought in. Although there is 377 00:22:18,480 --> 00:22:21,879 Speaker 1: a comment from the SEC saying we welcome as you 378 00:22:22,160 --> 00:22:24,920 Speaker 1: as people respond to the proposal. We welcome comments around 379 00:22:24,920 --> 00:22:27,760 Speaker 1: whether executives should be included in the band right now 380 00:22:27,800 --> 00:22:30,560 Speaker 1: they are, but I think the SEC clearly recognized that 381 00:22:30,800 --> 00:22:33,040 Speaker 1: that's going to get some blowback and it's a legitimate 382 00:22:33,080 --> 00:22:35,240 Speaker 1: area for discussion, and they they've said that the welcome 383 00:22:35,320 --> 00:22:40,120 Speaker 1: discussion in that area. Um, I'm wondering. So I think 384 00:22:40,119 --> 00:22:42,440 Speaker 1: that you know, probably no one is going to disagree 385 00:22:42,480 --> 00:22:46,280 Speaker 1: as far as low wage workers, well most people won't disagree, 386 00:22:46,800 --> 00:22:51,840 Speaker 1: But as far as other workers, let's say incorporations, is 387 00:22:51,880 --> 00:22:56,520 Speaker 1: it fair to the business who trains a worker for years, 388 00:22:56,520 --> 00:22:59,119 Speaker 1: they finally get up to, you know, the point where 389 00:22:59,600 --> 00:23:03,159 Speaker 1: they're doing everything the way they should be, and then 390 00:23:03,400 --> 00:23:07,920 Speaker 1: they leave. Is that fair to the business. I think 391 00:23:07,960 --> 00:23:10,560 Speaker 1: that's a really good question. Um. You know, I think 392 00:23:10,560 --> 00:23:13,240 Speaker 1: there's bareness around questions around that. I think there's bareness, 393 00:23:13,720 --> 00:23:17,440 Speaker 1: especially with access to confidential information. I mean, training is 394 00:23:17,440 --> 00:23:19,639 Speaker 1: a really good point, and traditionally that's been one of 395 00:23:19,640 --> 00:23:23,639 Speaker 1: the three basis for noncomplete confidential information and customer relationships 396 00:23:23,720 --> 00:23:26,000 Speaker 1: being the others. But I think there is a real 397 00:23:26,040 --> 00:23:30,040 Speaker 1: fairness argument um too companies. And I think it's also 398 00:23:30,520 --> 00:23:33,000 Speaker 1: it's kind of a quid pro quel when they're taking 399 00:23:33,040 --> 00:23:34,840 Speaker 1: away half of it. I mean, the quid proflo at 400 00:23:34,840 --> 00:23:36,880 Speaker 1: a senior level is we're gonna give you some really 401 00:23:36,920 --> 00:23:40,080 Speaker 1: confidential information. We're going to ask you to help us 402 00:23:40,119 --> 00:23:43,280 Speaker 1: develop some things that are we think valuable in the 403 00:23:43,320 --> 00:23:46,080 Speaker 1: market place. We're gonna pay you a large salary and 404 00:23:46,119 --> 00:23:48,159 Speaker 1: provide other benefits. And all we ask is that you 405 00:23:48,200 --> 00:23:50,680 Speaker 1: don't take that information that either we've given you or 406 00:23:50,680 --> 00:23:52,520 Speaker 1: we're paying you to develop, and use it against us. 407 00:23:52,520 --> 00:23:54,840 Speaker 1: And I think that isn't a fairness issue, but that's 408 00:23:54,840 --> 00:23:58,120 Speaker 1: not really the focus of the FCC's rule and commons 409 00:23:58,160 --> 00:24:04,000 Speaker 1: right now. Does the DC rule exclude businesses where trade 410 00:24:04,040 --> 00:24:09,200 Speaker 1: secrets are at risk? Now? It doesn't. So that they 411 00:24:09,200 --> 00:24:12,080 Speaker 1: say it's there are other ways to protect those things, 412 00:24:12,119 --> 00:24:16,080 Speaker 1: And what are some of the ways that they're talking about. Well, 413 00:24:16,400 --> 00:24:20,600 Speaker 1: the number one way is through nondisclosure agreements. What they 414 00:24:20,640 --> 00:24:23,240 Speaker 1: say is, hey, we get it. You guys are concerned 415 00:24:23,240 --> 00:24:25,639 Speaker 1: that your confidential information could walk out the door. But 416 00:24:25,800 --> 00:24:31,119 Speaker 1: you've got NDAs and competentiality agreements that employees do and 417 00:24:31,119 --> 00:24:32,960 Speaker 1: will in the future be able to sign. And that's 418 00:24:32,960 --> 00:24:36,280 Speaker 1: an adequate protection. And I just don't I personally think 419 00:24:36,520 --> 00:24:38,680 Speaker 1: I know a lot of employers think as well, it's 420 00:24:38,720 --> 00:24:41,159 Speaker 1: just not enough. It doesn't work the same way as 421 00:24:41,160 --> 00:24:46,320 Speaker 1: the non particularly the highest this number surprised me. According 422 00:24:46,359 --> 00:24:51,240 Speaker 1: to a Treasury Department report, about one in five Americans 423 00:24:51,480 --> 00:24:54,760 Speaker 1: is bound by a non compete agreement, and the figure 424 00:24:54,840 --> 00:24:59,359 Speaker 1: is higher in some industries. Yeah, there are industries where 425 00:24:59,440 --> 00:25:03,480 Speaker 1: I think it's more prevalent, some of you know, tech industry, 426 00:25:03,520 --> 00:25:06,520 Speaker 1: I think it's more common. I mean typically areas where 427 00:25:06,600 --> 00:25:10,439 Speaker 1: you've got you're relying, you're not kind of making the 428 00:25:10,520 --> 00:25:14,480 Speaker 1: same thing that everyone's making, but develop perhaps delivering it better, 429 00:25:14,800 --> 00:25:17,760 Speaker 1: or being in a market where there's an opportunity. It's 430 00:25:17,760 --> 00:25:20,080 Speaker 1: really that those jobs where you're pushing the envelope, I 431 00:25:20,080 --> 00:25:23,359 Speaker 1: think on the technology side of development side, and you 432 00:25:23,400 --> 00:25:25,600 Speaker 1: think you've got an advantage as an employer, as a 433 00:25:25,640 --> 00:25:28,399 Speaker 1: company that you can exploit um from an I T 434 00:25:28,600 --> 00:25:32,760 Speaker 1: perspective or delivery perspective. Those are the companies in the 435 00:25:32,840 --> 00:25:36,040 Speaker 1: area's wherecord you have noncompetes more because there's more to 436 00:25:36,119 --> 00:25:39,119 Speaker 1: lose if someone walks out the door and goes to 437 00:25:39,280 --> 00:25:42,520 Speaker 1: drink companies. You're right. Studies have found that between thirty 438 00:25:43,400 --> 00:25:46,840 Speaker 1: and forty percent of tech workers are bound by non 439 00:25:46,880 --> 00:25:51,040 Speaker 1: compete clauses and as many as forty five percent of 440 00:25:51,160 --> 00:25:55,520 Speaker 1: primary care physicians. So I just want you to react 441 00:25:55,560 --> 00:25:59,879 Speaker 1: to this. Sean Heather, the head of International Regulatory of 442 00:26:00,000 --> 00:26:03,240 Speaker 1: There's an antitrust for the Chamber of Commerce, called the 443 00:26:03,240 --> 00:26:09,160 Speaker 1: proposal blatantly unlawful and described noncompete clauses as an important 444 00:26:09,200 --> 00:26:13,960 Speaker 1: tool in fostering innovation and preserving competition. Do you think 445 00:26:13,960 --> 00:26:18,000 Speaker 1: that it's unlawful? Look, I'm an employment lawyer. You know. 446 00:26:18,040 --> 00:26:20,240 Speaker 1: There's two people coming out, if they're the employment lawyer 447 00:26:20,320 --> 00:26:23,800 Speaker 1: to react to, say, Hey, I can't believe we're having 448 00:26:23,800 --> 00:26:26,080 Speaker 1: a non compete ban. It's so different than we've had, 449 00:26:26,080 --> 00:26:29,160 Speaker 1: and they're they're antitrust lawyers. You know. From what I'm 450 00:26:29,200 --> 00:26:31,480 Speaker 1: hearing from the trust lawyers, I do think this is 451 00:26:31,520 --> 00:26:34,200 Speaker 1: a lawful in terms of and it reads that way. Um, 452 00:26:34,200 --> 00:26:37,320 Speaker 1: it's a complete ban in an area that's been regulated 453 00:26:37,320 --> 00:26:41,359 Speaker 1: by the states for years and years. The justifications could 454 00:26:41,359 --> 00:26:43,320 Speaker 1: be debated one way or the other, but it doesn't 455 00:26:43,359 --> 00:26:46,200 Speaker 1: strike me as something you just roll out of rule 456 00:26:46,359 --> 00:26:50,040 Speaker 1: and banned in all fifty states and virtually every worker. 457 00:26:50,840 --> 00:26:53,119 Speaker 1: So you know, my sense is, yes, that this is 458 00:26:53,200 --> 00:26:56,639 Speaker 1: a lawful um in addition to kind of some of 459 00:26:56,640 --> 00:26:59,800 Speaker 1: the practice issues with it. There are some states that 460 00:27:00,359 --> 00:27:04,639 Speaker 1: bean non competes. Aren't there, Yes, there are three that 461 00:27:04,760 --> 00:27:08,040 Speaker 1: have full, full blown band amount. I mean, how is 462 00:27:08,080 --> 00:27:10,680 Speaker 1: it working in those states? Are are there any studies 463 00:27:10,720 --> 00:27:15,080 Speaker 1: that show whether workers are you know, making more money 464 00:27:15,080 --> 00:27:20,840 Speaker 1: in those states switching more? Yeah? I think there are 465 00:27:20,880 --> 00:27:23,119 Speaker 1: a lot of studies, and they go both ways. And 466 00:27:23,200 --> 00:27:26,680 Speaker 1: I think the keys to the studies is to look 467 00:27:26,720 --> 00:27:29,119 Speaker 1: at what group and to really break out the groups. 468 00:27:29,119 --> 00:27:31,960 Speaker 1: I mean, in other words, to have a study that 469 00:27:32,040 --> 00:27:34,800 Speaker 1: talks about non competes across the borders to all employees. 470 00:27:34,800 --> 00:27:38,080 Speaker 1: I don't think it's really valuable in my opinion, just 471 00:27:38,200 --> 00:27:41,520 Speaker 1: because the noncompeted inherently a case by case analysis in 472 00:27:41,560 --> 00:27:44,959 Speaker 1: the situation situation analysis in the lumping, someone making fifteen 473 00:27:45,000 --> 00:27:48,040 Speaker 1: dollars an hour and working in a fast food with 474 00:27:48,160 --> 00:27:50,320 Speaker 1: some of his making half a million dollars a year 475 00:27:50,400 --> 00:27:54,280 Speaker 1: has instet an equity, instetive conversation and equity UH to 476 00:27:54,400 --> 00:27:56,159 Speaker 1: be in a sea level the company. That's just a 477 00:27:56,240 --> 00:28:00,560 Speaker 1: very very different analysis. I don't think, you know, I 478 00:28:00,560 --> 00:28:03,000 Speaker 1: think it's the lower level than a state like California. 479 00:28:03,760 --> 00:28:06,760 Speaker 1: I think it probably works works just fine. I think 480 00:28:06,840 --> 00:28:09,960 Speaker 1: it's not I don't think. I think they're missing out 481 00:28:10,000 --> 00:28:11,840 Speaker 1: on a tool at the higher levels that some of 482 00:28:11,880 --> 00:28:14,080 Speaker 1: the other states have, or at least some of the 483 00:28:14,119 --> 00:28:17,760 Speaker 1: other states allow employers to have. So what happens now 484 00:28:17,840 --> 00:28:21,160 Speaker 1: there's a comment period and then is the rule likely 485 00:28:21,240 --> 00:28:24,560 Speaker 1: to change? I think yes, the answer your question, yes, 486 00:28:24,600 --> 00:28:29,240 Speaker 1: there's a period of comments um of that will go 487 00:28:29,320 --> 00:28:31,919 Speaker 1: on now, um and it's already you're starreading starting to 488 00:28:31,960 --> 00:28:35,080 Speaker 1: see it, um for the next sixty days. And I 489 00:28:35,119 --> 00:28:38,120 Speaker 1: think it will change. I mean, you see in the 490 00:28:38,120 --> 00:28:40,920 Speaker 1: the notice of the comments a few areas where the 491 00:28:41,000 --> 00:28:45,120 Speaker 1: SEC expressly asked for feedback, one of which was around 492 00:28:45,120 --> 00:28:48,480 Speaker 1: the executive And I think this seems to me set up, 493 00:28:48,600 --> 00:28:51,160 Speaker 1: assuming the legal challenges in terms of the authority FEC 494 00:28:51,360 --> 00:28:55,160 Speaker 1: don't don't go through our successful I think it's just 495 00:28:55,240 --> 00:28:59,200 Speaker 1: set up for some kind of compromise. Who where um 496 00:28:59,280 --> 00:29:01,800 Speaker 1: at least to see your folks, for example, are carved out, 497 00:29:02,120 --> 00:29:04,280 Speaker 1: and that's there's some precedent for that, and that's that's 498 00:29:04,280 --> 00:29:08,520 Speaker 1: what's happening Washington. See, they passed an on fan it 499 00:29:08,600 --> 00:29:11,360 Speaker 1: was very very broad, and then carved it back through 500 00:29:11,360 --> 00:29:14,920 Speaker 1: an amendment after the business creating. Let's say that the 501 00:29:15,040 --> 00:29:19,160 Speaker 1: FTC enacts this rule after comment period. Can they be 502 00:29:19,280 --> 00:29:22,680 Speaker 1: challenged in court? Yes? And I think that's what the 503 00:29:22,760 --> 00:29:26,520 Speaker 1: Chamber has been talking about. The folk you do make 504 00:29:27,040 --> 00:29:29,880 Speaker 1: if there's a legal challenge to the rule, what would 505 00:29:29,880 --> 00:29:33,560 Speaker 1: be the legal basis for the challenge? It would just 506 00:29:33,600 --> 00:29:37,440 Speaker 1: be the the SEC exceeded its authority in terms of 507 00:29:37,440 --> 00:29:40,640 Speaker 1: a banning non competes by a post rule versus something 508 00:29:40,640 --> 00:29:44,880 Speaker 1: like legislation. This is the second major rule under Lena Khan. 509 00:29:46,160 --> 00:29:51,200 Speaker 1: Is the agency being much more aggressive under Biden? Yeah? 510 00:29:51,240 --> 00:29:54,200 Speaker 1: I think it is. I mean it's it's started with 511 00:29:54,360 --> 00:29:57,080 Speaker 1: kind of no poach and in agreements between employers not 512 00:29:57,200 --> 00:29:59,760 Speaker 1: to higher which was a sn area. I think a 513 00:29:59,800 --> 00:30:02,280 Speaker 1: lot of you don't expected that this is really pushing 514 00:30:02,280 --> 00:30:05,000 Speaker 1: the envelope, to put it mildly, and so yeah, I 515 00:30:05,000 --> 00:30:08,959 Speaker 1: absolutely think you're seeing a more aggressive FTC and then 516 00:30:09,000 --> 00:30:12,880 Speaker 1: dividing administration In conclusion, what's your take on this non 517 00:30:12,920 --> 00:30:16,400 Speaker 1: compete band? Uh, It's just I think it's just too 518 00:30:16,520 --> 00:30:20,640 Speaker 1: broad of rush for for the issue. I think this 519 00:30:20,760 --> 00:30:25,360 Speaker 1: is an important issue, but certainly there are certainly issues 520 00:30:25,360 --> 00:30:29,560 Speaker 1: that around lower earners people who don't have a lot 521 00:30:29,560 --> 00:30:33,880 Speaker 1: of bargaining power, and I understand why they want to 522 00:30:33,880 --> 00:30:35,240 Speaker 1: do what they want to do with that, But to 523 00:30:35,320 --> 00:30:38,760 Speaker 1: say that you can't have a noncompete at a senior 524 00:30:38,840 --> 00:30:41,080 Speaker 1: level of executive level, that doesn't make a lot of 525 00:30:41,120 --> 00:30:42,920 Speaker 1: sense to me. And to do it by rule makes 526 00:30:42,920 --> 00:30:46,320 Speaker 1: you the sense and you know, people compared to California, 527 00:30:46,400 --> 00:30:49,200 Speaker 1: but it actually goes further than what the California law 528 00:30:49,200 --> 00:30:53,000 Speaker 1: does because at least in California, the sale of business 529 00:30:53,000 --> 00:30:55,480 Speaker 1: exception is much broader. Here, it's a very very narrow 530 00:30:55,560 --> 00:30:58,120 Speaker 1: self business exception. So even in the sale of business case, 531 00:30:58,720 --> 00:31:01,840 Speaker 1: you're talking about a situation which is hard to get 532 00:31:01,840 --> 00:31:05,000 Speaker 1: a non compete in a situation where a non competes 533 00:31:05,040 --> 00:31:08,520 Speaker 1: are common. Indeed, they're helpful and I think pro competitive. 534 00:31:08,920 --> 00:31:11,000 Speaker 1: Thanks so much for being on the Bloomberg Lass Show. 535 00:31:11,560 --> 00:31:16,360 Speaker 1: That's David Wolfe, who leads the employment litigation team at Fagrie, Drinker, 536 00:31:16,440 --> 00:31:19,040 Speaker 1: Biddle and Wreath. And that's it for this edition of 537 00:31:19,080 --> 00:31:21,720 Speaker 1: the Bloomberg Law Show. Remember you can always get the 538 00:31:21,800 --> 00:31:25,000 Speaker 1: latest legal news on our Bloomberg Law Podcast. You can 539 00:31:25,040 --> 00:31:29,320 Speaker 1: find them on Apple Podcasts, Spotify, and at www dot 540 00:31:29,320 --> 00:31:33,440 Speaker 1: Bloomberg dot com, slash podcast Slash Law, and remember to 541 00:31:33,520 --> 00:31:36,360 Speaker 1: tune into The Bloomberg Law Show every week night at 542 00:31:36,400 --> 00:31:39,880 Speaker 1: ten BM Wall Street Time. I'm June Grosso and you're 543 00:31:39,960 --> 00:31:41,160 Speaker 1: listening to Bloomberg