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

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Speaker 2: It's not a green card, but a gold card that

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Speaker 2: gets you a green card, and the price is five

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Speaker 2: million dollars. We're going to be selling a gold card.

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Speaker 1: You have a green card, this is a gold card.

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Speaker 2: We're going to be putting a price on that card

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Speaker 2: of about five million dollars and that's going to give

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Speaker 2: you Green card privileges.

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Speaker 3: Plus it's going to be a rap to citizenship.

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Speaker 2: It's a hefty price tag and replaces a current program

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Speaker 2: that offers US visas to investors who spend about one

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Speaker 2: million dollars on a company that employs at least ten people.

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Speaker 2: The US wouldn't be the first country to offer so

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Speaker 2: called golden visas. Joining me is immigration law expertly on Fresco,

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Speaker 2: a partner at Holland and Knight. Leon tell us about

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Speaker 2: the program that's in place now.

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Speaker 1: There's a program called the EB five program that allows

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Speaker 1: people to basically use their wealth to obtain lawful permanent residency.

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Speaker 1: And it does it in one of two ways. Either

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Speaker 1: you can invest in your own company that creates ten

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Speaker 1: American jobs, and you can invest one point eight million

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Speaker 1: dollars into that company, and that will allow you to

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Speaker 1: get a green card, although that process takes about five

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Speaker 1: years to do that. Or you can invest in what's

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Speaker 1: called a regional center, which is a previously approved project.

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Speaker 1: These projects get permission from the Immigration Service to actually

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Speaker 1: market themselves as pre approved projects, and there are things

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Speaker 1: that have been used in the past, like Hudson Yards

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Speaker 1: in the West End of New York or the Comcast

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Speaker 1: Center in Philadelphia. And what happens is if you invest

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Speaker 1: right now used to be five hundred thousand, now it's

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Speaker 1: eight hundred thousand dollars in those projects, then you get

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Speaker 1: a share of the project and a share of the

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Speaker 1: job creation of that which is the ten jobs again

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Speaker 1: that are needed to create it, and you can obtain

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Speaker 1: a green card. And so what President Trump is talking

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Speaker 1: about is, although unclear, either some sort of enhancement or

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Speaker 1: improvement or change to the program.

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Speaker 2: We don't know much about the specifics, like how he

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Speaker 2: intends to do this.

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Speaker 1: So this is what's a bit unclear, and so there's

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Speaker 1: a lot of permutations and possibilities here. The first is

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Speaker 1: that the EB five program is always, for whatever reason,

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Speaker 1: a program that expires and continues to need to be reauthorized.

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Speaker 1: So one simple message that President Trump may end up

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Speaker 1: delivering is, look, when this program expires again in twenty

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Speaker 1: twenty seven, don't expect me to reauthorize it. I want

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Speaker 1: to replace it with a new program. And the new

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Speaker 1: program will be rather than having this job creating investment

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Speaker 1: which doesn't actually accrue to the federal budget, I want

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Speaker 1: the money to accrue to the federal budget. So I

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Speaker 1: want you just to pay need five million dollars and

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Speaker 1: you don't get that money back. It's not an investment,

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Speaker 1: and we use it to pay down some sort of

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Speaker 1: the federal deficit. So that's one option, and it's not

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Speaker 1: clear if that would just be a legislative replacement, and

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Speaker 1: obviously if that's attempted, that's going to be something with

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Speaker 1: quite a lot of political pushback because there's a lot

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Speaker 1: of people who have a lot of money in these

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Speaker 1: projects now. So that's one option. The second option may

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Speaker 1: be that he will decide to use the parole authority

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Speaker 1: to say I have the ability to parole anyone I want.

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Speaker 1: I'm going to parole people into the country who do

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Speaker 1: these five million dollar investments and then allow them to

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Speaker 1: get access to the EB five program. For instance, the

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Speaker 1: Obama administration did this and the Biden administration did this

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Speaker 1: for something that was called an International Entrepreneur parole. So

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Speaker 1: they can create a new parole program that allows people

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Speaker 1: to come in and who do whatever they want. So

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Speaker 1: in the Bison and in the Obama administration, it was

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Speaker 1: start a new company with a certain amount of venture

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Speaker 1: capital investment. Those people could come in on a parole.

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Speaker 1: And so President Trump can say, if you would do

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Speaker 1: this five million dollar investment, I'm going to bring you

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Speaker 1: in on a parole. And what he can also do

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Speaker 1: conceivably is say, anybody who comes in with this parole

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Speaker 1: meets the requirements of the existing ED five statutes such

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Speaker 1: that they can then adjust their status to lawful permanent residence.

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Speaker 1: Now that will be subject to a law suit, the

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Speaker 1: huge one.

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Speaker 3: But he could try that.

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Speaker 1: But what he can't do is create new green cards

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Speaker 1: out of whole cloth. That he cannot do. He would

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Speaker 1: have to try to sneak them in under the existing category.

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Speaker 2: How many wealthy individuals are there around the world will

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Speaker 2: pay five million dollars to get the pathway to citizenship.

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Speaker 1: Well, here's what's very interesting about this. So the five

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Speaker 1: million dollar mark is very very high. I don't know

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Speaker 1: how high the demand will be for that at all.

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Speaker 1: The annual cap at the moment is ten thousand green

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Speaker 1: cards per year, and that cap is actually met and

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Speaker 1: is oversubscribed because what happens is it's only one investment

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Speaker 1: that's needed, so it's one eight hundred thousand dollars investment

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Speaker 1: that's needed, and then you can bring your spouse and

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Speaker 1: your children, and each person counts toward the ten thousand cap,

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Speaker 1: so they fill the cap quite quickly. But at five million,

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Speaker 1: I actually don't think that this number is realistic from

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Speaker 1: the standpoint of how many people you would get to invest.

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Speaker 1: I think it would end up being a very small number.

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Speaker 1: And then here's the second thing, and this is sort

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Speaker 1: of a tough conversation to have on immigration, but I

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Speaker 1: think a truthful one, unfortunately, is when the President says, well,

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Speaker 1: companies can use this money as an award to give

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Speaker 1: people green cards to are employees. That's unfortunately not the

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Speaker 1: history of the use of immigration employment visas it We're

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Speaker 1: being honest. Typically, the companies want the visas in order

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Speaker 1: to be able to control the employee and not allow

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Speaker 1: them to have free agency. Which is what happens when

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Speaker 1: they get a green card. So the idea that a

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Speaker 1: company will pay five million dollars to allow employees to

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Speaker 1: have free agency that they can lead whenever they want

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Speaker 1: and work for a different company or start their own

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Speaker 1: competitor company, it's not going to be realistic with what

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Speaker 1: we've seen in the immigration laws. Typically, a lot of companies,

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Speaker 1: even to this day, they say, oh, we need more

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Speaker 1: H to one V visas. They don't say we need

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Speaker 1: more green cards, because green cards means that that helps

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Speaker 1: the worker and the worker gets to go wherever they want.

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Speaker 1: And what the companies want, to believe it or not,

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Speaker 1: are the visas that actually tether them to the companies.

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Speaker 1: And so if we're being realistic about it, I do

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Speaker 1: not see this five million dollar program ending up being

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Speaker 1: a high demand program.

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Speaker 2: Congress extended the EB five program until twenty twenty seven.

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Speaker 2: So would no wealthy foreigner prefer to invest under that

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Speaker 2: program rather than pay under the new golden visa?

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Speaker 1: Well, why would anyone pay five million when they can

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Speaker 1: currently pay eight hundred thousand. And that's where he will

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Speaker 1: have to figure out, Okay, what am I going to

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Speaker 1: do to disincentivize the eight hundred thousand part of this program.

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Speaker 3: Am I going to wait till.

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Speaker 1: Twenty twenty seven and just when it expires not reauthorize it,

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Speaker 1: meaning you will have to use my five million dollar programs?

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Speaker 1: Or is he going to use the Tribal band Statute

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Speaker 1: which allows him to ban any non citizens, so even

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Speaker 1: the green card or whatever. He can ban anything from

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Speaker 1: coming into the United States, And so he may say,

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Speaker 1: if you're outside the United States and you're trying to

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Speaker 1: do this application process from abroad, I'm not going to

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Speaker 1: let you do it now. That ban won't work for

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Speaker 1: people who are already here, but the ban would work

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Speaker 1: for people waiting for abroad. I mean, there will be

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Speaker 1: litigation over that.

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Speaker 3: So he's either going to have to get.

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Speaker 1: Congress to change it when the program expires in twenty

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Speaker 1: twenty seven, or try to force Congress's hand to change

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Speaker 1: it now by using the ban authority in order to

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Speaker 1: do that.

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Speaker 2: There are golden visa programs in other countries, and some

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Speaker 2: countries have discontinued them, like Spain, because having these programs

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Speaker 2: drove up home prices.

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Speaker 3: Is that possibility, Well, here's the thing, So the answer

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Speaker 3: to that question is yes, Ridge Foreign investors can increase.

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Speaker 1: The cost of housing. But the truth is that's already

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Speaker 1: happened in the United States, meaning that ship has already sailed.

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Speaker 1: If you go to Miami, that's happened with a large

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Speaker 1: amount of foreign investors from Latin America. And if you

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Speaker 1: go on the West Coast, you've seen that with a

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Speaker 1: large number of foreign investors from Asia. And so from

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Speaker 1: that standpoint, that's not something that's not happening. That's already happened,

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Speaker 1: and so I don't think this program would be likely

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Speaker 1: to increase that any further. If you are a wealthy

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Speaker 1: person from abroad, you already have many options to live

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Speaker 1: in the United States. You can do the EB five visa.

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Speaker 1: You can do it's called an E too investment visa,

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Speaker 1: which is where you come and you start a company

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Speaker 1: and you invest in the United States and a company.

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Speaker 1: Now that's not a green card, but it allows you

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Speaker 1: to live here in the United States. You can actually

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Speaker 1: transfer yourself from a company you have abroad to a

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Speaker 1: new company you're going to start here in America, or

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Speaker 1: a company that's already here. There actually are a lot

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Speaker 1: of options already, and so from that standpoint, any person

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Speaker 1: with money who wants to live in the United States

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Speaker 1: can do that already, and so I don't think this

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Speaker 1: fills a market need from that standpoint. But more importantly

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Speaker 1: to your question, I don't think it adds a single

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Speaker 1: person who's buying a house who wasn't already buying a

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Speaker 1: house in the United States.

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Speaker 2: As we've discussed many times, Trump promised this historic mass

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Speaker 2: deportation of millions of immigrants and we haven't seen that.

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Speaker 3: Well.

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Speaker 1: I think you have to look at from a global

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Speaker 1: assessment of what was possible, the pipeline of people who

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Speaker 1: were eligible to be deported was very low in terms

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Speaker 1: of what the Biden administration had left over by the

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Speaker 1: time that President Trump was inaugurated.

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Speaker 3: So from picking up from that.

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Speaker 1: Low pipeline, they are increasing the pipeline of people that

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Speaker 1: are being placed into removal proceedings. Now. In terms of

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Speaker 1: actual removals outside the United States, that's going to be

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Speaker 1: difficult because the only people they can remove right now

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Speaker 1: are people either with final orders of removal who already

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Speaker 1: had these final orders pending, or people who are such

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Speaker 1: criminals that you can get them into court quickly, and

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Speaker 1: there isn't a way for them to actually be eligible

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Speaker 1: to be saved so that you can remove them very quickly.

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Speaker 1: So what we've seen is a significant number of sort

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Speaker 1: of media related viewings of people being picked up and

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Speaker 1: moved abroad. But those numbers are not at the moment

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Speaker 1: appreciably bigger than anything that was in for sure the

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Speaker 1: Obama administration, but even sometimes during the Bide administration. Is

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Speaker 1: it a higher focus, yes, higher intensity yes, And will

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Speaker 1: it eventually yield more numbers, yes, But the problem is

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Speaker 1: really to yield more numbers, you're going to have to

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Speaker 1: take people through the immigration court system unless some of

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Speaker 1: these other changes we're talking about are allowed to happen.

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Speaker 1: But trying to take them through the immigration court system

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Speaker 1: becomes very, very complicated because you have millions of cases

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Speaker 1: in the backlog, you have cases being scheduled right now

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Speaker 1: to twenty twenty nine, twenty thirty, and as you remove

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Speaker 1: some of these legal statuses that people have, their next

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Speaker 1: move is going to be to apply for asylum, which

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Speaker 1: is only going to add to the number of cases

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Speaker 1: in that system.

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Speaker 2: Coming up next, can AOC be prosecuted for hosting on

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Speaker 2: Know Your Rights seminar on immigration? This is bloomberg. We

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Speaker 2: haven't seen the mass deportations of millions of immigrants that

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Speaker 2: President Donald Trump campaigned on. So the Trump administration is

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Speaker 2: now going to try fast track deportations of hundreds of

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Speaker 2: thousands of migrants. I've been talking to immigration law expertly

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Speaker 2: on Fresco, a partner at Holland and Knight, Leon tell

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Speaker 2: Us about expedited removal.

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Speaker 1: So here's what happened. So expedited removal has a bunch

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Speaker 1: of different applications in a bunch of different contexts. So

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Speaker 1: what it normally is for is you show up at

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Speaker 1: the border with no status of any kind, or you

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Speaker 1: show up at the airport somehow you've manage to sneak

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Speaker 1: on a plane with no status of any kind. And

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Speaker 1: so what we can do under the Expedited Removal Statute,

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Speaker 1: which was passed in nineteen ninety six, is to say

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Speaker 1: we don't need to take you through a fancy immigration

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Speaker 1: court process. We can literally send you back immediately unless

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Speaker 1: you claim that you're eligible for asylum, in which case

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Speaker 1: we have to determine if you have a credible fear

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Speaker 1: and if you do that, and we have to put

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Speaker 1: you in that asylum process. So then that clows it down.

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Speaker 1: So here's the thing. That's how we've always applied it.

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Speaker 1: But the statue theoretically allows it to be applied for

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Speaker 1: people who've been here less than two years. Now what

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Speaker 1: gets icy is if you do it for people who

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Speaker 1: snuck across the border, you start getting into this debate

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Speaker 1: about how long they were here, and that becomes messy.

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Speaker 1: But it isn't the case for the people that the

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Speaker 1: Biden administration paroled into the United States. So, if you

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Speaker 1: may recall, the Biden administration did this think called the

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Speaker 1: CCH and Z Parole, the Cuban, Haitian, Nicaragua and Venezuelan Parole,

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Speaker 1: where it was letting in during the last two years

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Speaker 1: of the Biden administration thirty thousand people per month from

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Speaker 1: these countries under the idea that if we let people

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Speaker 1: in legally, then they won't come illegally through the border,

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Speaker 1: they'll just wait and come legally. Well, we know the

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Speaker 1: exact date those people entered the United States, and so.

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Speaker 3: The idea would be anybody who.

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Speaker 1: Entered with one of those paroles will be unparoled, because

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Speaker 1: parole is actually a status that can be revoked at

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Speaker 1: any second and give in an expedited removal order. So

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Speaker 1: that's going to be the idea that the Trump administration

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Speaker 1: says it's going to pursue. So I will try to

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Speaker 1: take all of these people, so the thirty thousand times twelve,

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Speaker 1: which is four hundred and twenty thousand, and then maybe

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Speaker 1: you know, maybe a little more than that, and revoke

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Speaker 1: their paroles and try to get them out. Now, what

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Speaker 1: will actually happen in practice, Well, for the Cubans, it's

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Speaker 1: going to be very difficult to get them out because

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Speaker 1: there's this thing called the Cuban Adjustment Act, which says

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Speaker 1: once they've been here for a year, they're eligible for

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Speaker 1: a green card. And so if they've been here longer

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Speaker 1: than a year, you're not going to be able to

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Speaker 1: solve that problem. And even if they've been here less

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Speaker 1: than a year, then you're still going to have to

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Speaker 1: try to figure out where you send those people to.

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Speaker 1: And if nobody accepts them and Cuba doesn't accept them,

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Speaker 1: and they get to stay here for a year, then

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Speaker 1: once they hit that year number, they're eligible for the

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Speaker 1: green card again. So that doesn't solve that problem. For

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Speaker 1: the Nicaraguans and the Venezuelans, probably a large number of

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Speaker 1: them will apply for asylum and so then they will

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Speaker 1: be stuck in that large millions of cases backlog that's

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Speaker 1: an immigration cord. And for the Haitians, even though they

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Speaker 1: may not be eligible for asylum in many cases, they

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Speaker 1: still probably apply. And I don't know how many you'll

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Speaker 1: be able to get out in expedited removal. So really

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Speaker 1: what ends up happening is, yes, you'll be able to

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Speaker 1: get some number out who aren't sophisticated enough to then

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Speaker 1: take this next step that I talked to you about.

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Speaker 1: But for the people who are sophisticated enough to take

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Speaker 1: the next step, what you really end up doing is

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Speaker 1: you end up transferring them from a status where they

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Speaker 1: were here on a parole now to a status where

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Speaker 1: they're trying to seek asylum in the immigration cord. And

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Speaker 1: now they're just adding two hundreds of thousands of more

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Speaker 1: cases to millions of backlog cord. And so that puts

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Speaker 1: strain on any new people you're going to try to

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Speaker 1: put into the removal process.

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Speaker 2: If Cubans can get a green card if they're here

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Speaker 2: for a year, then that Binden program allowing a certain

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Speaker 2: number of Cubans in legally basically meant that he was

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Speaker 2: giving them a green card.

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Speaker 1: Yes, there was this thing called the wet foot dry

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Speaker 1: foot policy in the past that got taken away. But

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Speaker 1: the point of that policy was as long as you

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Speaker 1: were parolled or admitted into the United States under the

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Speaker 1: Cuban Adjustment active, you then one year from that date

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Speaker 1: that you were parolled or admitted you could actually get

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Speaker 1: a green card. So because these Cubans didn't sneak in,

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Speaker 1: but were actually parolled into the United States, they were

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Speaker 1: allowed to then start that one year clock. So a

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Speaker 1: large number of these Cubans will have reached the one

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Speaker 1: year clock at some point and that will allow them

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Speaker 1: to apply for a green card. And there's nothing that

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Speaker 1: Trump administration would be able to do about that because.

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Speaker 3: If they try to put them in deportation.

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Speaker 1: Proceedings, they would obtain the green card in the deportation

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Speaker 1: proceedings unless they're somehow not eligible, which only happens if

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Speaker 1: you are a criminal or if you are known communists.

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Speaker 2: So now the Haitians and the Venezuelans just filed a lawsuit.

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Speaker 2: They're suing the choice.

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Speaker 1: They'll end up just applying for asylum. Correct. They have

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Speaker 1: no other choice because their temporary protective status has been removed,

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Speaker 1: and litigation that's just been filed on that front trying

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Speaker 1: to challenge the removal of the temporary protected status, saying, look,

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Speaker 1: when under the statue you give it for eighteen months,

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Speaker 1: you can't revoke it at that point. And I think

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Speaker 1: that's going to be a very powerful argument. I will

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Speaker 1: have to see what the courts say, but I do

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Speaker 1: think it's a very powerful argument to say the eighteen

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Speaker 1: months has to be honored at that point and you

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Speaker 1: can't remove it. And then they make the same arguments

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Speaker 1: that were made during the first Trump administration, which was,

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Speaker 1: in addition, there's an equal protection violation because there was

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Speaker 1: racial animates that played a role in removing the temporary

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Speaker 1: protective status, and that one will have to wait and see.

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Speaker 1: The Ninth Circuit agreed with that argument in the first

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Speaker 1: Trump administration, so we'll have to see in the second

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Speaker 1: Trump administration what the courts will say about.

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Speaker 2: That work and how many years? Again is the backlog

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Speaker 2: for asylum cases?

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Speaker 1: Wow, I mean there's cases right now. If you get

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Speaker 1: your case right now in a lot of the immigration

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Speaker 1: courts in America and you're not in detention, you will

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Speaker 1: have your asylum hearing in twenty thirty, twenty thirty one

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Speaker 1: right now. And the big problem is, by the way,

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Speaker 1: on that yeah, I mean, I mean, I have a

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Speaker 1: client that just came to me the other day. They

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Speaker 1: filed their asylum case in twenty ten, and now it's

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Speaker 1: twenty twenty five. The whole world is completely different.

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Speaker 2: Now. Another thing that Trump administration is trying is requiring

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Speaker 2: all immigrants to register. Tell us about that.

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Speaker 1: Well, So the registration requirement is as follows. It's the

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Speaker 1: law that actually was created in the nineteen forties during

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Speaker 1: the World War Two, and it said we wanted people

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Speaker 1: to be able to register with the federal government so

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Speaker 1: that we know who was who, we were able to

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Speaker 1: keep track of people. But that law has sort of

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Speaker 1: faded into oblivion and hasn't been used because it's been

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Speaker 1: difficult to administer there. But the idea is, if you

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Speaker 1: didn't originally check in with a visa and fingerprints and

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Speaker 1: everything else, meaning you unlawfully cross the border. Now the

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Speaker 1: idea is you're going to have to register so that

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Speaker 1: we can get some understanding of who's here legally or not.

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Speaker 1: And then if you fail to register, you can actually

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Speaker 1: be subject to criminal prosecution for failure to register or

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Speaker 1: if you don't have your documents with you, you can

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Speaker 1: be subject to criminal prosecution for failure to have your

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Speaker 1: documents with you. And so the idea of behind that

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Speaker 1: is twofold number one. If you can arrest people for

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Speaker 1: doing that, that certainly creates a bigger sort of deterrence

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Speaker 1: factor which tells people, look, you don't want to be

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Speaker 1: here if you're here unlawfully, because you're subject to arrest

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Speaker 1: at any time. So that adds tension. But secondly, and

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Speaker 1: more importantly, what it does is it creates a rhetoric

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Speaker 1: where you know, many times people are having this debate,

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Speaker 1: are you here elite? Does that mean you're a criminal

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Speaker 1: or not? Well, if you actually create this registration requirement

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Speaker 1: and people failed to register, then you can rhetorically call

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Speaker 1: people criminals and you're not in the wrong anymore because

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Speaker 1: you're allowed to say every one of these people who

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Speaker 1: didn't register is a criminal.

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Speaker 2: Let's talk about borders. Are Tom Homan and New York

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Speaker 2: Democratic Representative Alexandria Ocasio Cortes. So Holman has been making

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Speaker 2: veiled threats, I'd say because aoc held Unno Your Rights

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Speaker 2: seminar for Immigrants is there anything wrong with her doing that.

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Speaker 1: So here's the complication. You may recall we spoke a

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Speaker 1: year ago about a Supreme Court case that actually dealt

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Speaker 1: with this inducing statue where there was this lawyer who

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Speaker 1: had this kakameni scheme to defraud people in order to

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Speaker 1: get them to stay into the United States. He said, look,

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Speaker 1: if you painting this money, I can file this crazy

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Speaker 1: application and you can stay. And he got prosecuted under

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Speaker 1: the statue which says it's illegal to induce people who

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Speaker 1: are here without status to either remain or to enter

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Speaker 1: the United States. And the Ninth Circuit I actually declared

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Speaker 1: that statute unconstitutional as vague, and the Supreme Court was

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Speaker 1: actually having arguments about this, saying, what if you just

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Speaker 1: ask your grandmother, Hey, grandma, please don't leave the country.

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Speaker 3: I love you.

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Speaker 1: Stay. You know you're a US citizen because you were

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Speaker 1: born here, but you have this undocumented grandma, and you

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Speaker 1: say that, could this be a prosecution? And the DOJ

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Speaker 1: at that time under the Biden administration said well, we

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Speaker 1: would never prosecute anyone under this. Don't invalidate the whole

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Speaker 1: statute for that. Because this case of the lawyer who

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Speaker 1: has this Kakamane scheme doesn't fit what you're talking about,

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Speaker 1: so we'll wait till that case later. So now this

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Speaker 1: Tom Home and AOC situation, we're right back here again,

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Speaker 1: which is what does it mean to induce someone without

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Speaker 1: status to remain in the United States? And if you're

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Speaker 1: doing and know your Rights presentation, knowing that the people

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Speaker 1: are undocumented, are you still inducing them to stay in

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Speaker 1: the United States with your advice? And so you would say, well,

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Speaker 1: I have First Amendment rights to tell people what their

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Speaker 1: rights are, and there's certainly some truth to that, but

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Speaker 1: this statute, if somebody actually gets prosecuted under this statute,

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Speaker 1: it's going to need some scrutiny from the courts to

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Speaker 1: decide what is permitted or not because the broad language

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Speaker 1: of the statue, as just the sort of Mayor was

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Speaker 1: saying during the oral argument, certainly allows this, which is,

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Speaker 1: you know you're a US citizen, you have to undocument

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Speaker 1: the grandma, you say stay, please stay. That's enough to

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Speaker 1: apparently induce someone to stay illegally knowing that they're illegal.

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Speaker 1: And so if you're giving a know your Rights presentation

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Speaker 1: to people who you know are undocumented, you would be

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Speaker 1: doing potentially the same thing. And so that's where this

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Speaker 1: gets dangerous. I'm not saying people shouldn't do this, but

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Speaker 1: the statute is so broad, both with regard to inducement

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Speaker 1: and also with regard to harboring, which just says any

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Speaker 1: act that you take that allows a person to be

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Speaker 1: evaded from detection from the immigration authorities knowing that the

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Speaker 1: person is undocumented, is considered harboring. And so the question

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Speaker 1: is what do you do with these two statutes because

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Speaker 1: they're so broad that if they're not actually prosecuted for

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Speaker 1: the people that this was meant to prosecute, meeting the

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Speaker 1: people who do the safe houses, the traffickers, the smugglers,

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Speaker 1: that kind of thing, and you start applying it to

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Speaker 1: these broader contexts, that's where the courts are going to

437
00:23:38,760 --> 00:23:41,720
Speaker 1: start getting involved in having to decide if this statute

438
00:23:41,760 --> 00:23:43,639
Speaker 1: is unconstitutionally vague.

439
00:23:43,840 --> 00:23:46,840
Speaker 2: So, I mean, she's speaking as an elected official, so

440
00:23:46,920 --> 00:23:50,440
Speaker 2: it's also within the speech and debate clause, right.

441
00:23:50,640 --> 00:23:53,679
Speaker 1: Correct, There's all of these different defenses that one can

442
00:23:53,720 --> 00:23:58,399
Speaker 1: put speech in debate clause, legislative immunity. In addition to that,

443
00:23:58,520 --> 00:24:02,440
Speaker 1: the statute is vague to First Amendment, so she would

444
00:24:02,440 --> 00:24:06,320
Speaker 1: obviously be the hardest target to try to prosecute, as

445
00:24:06,320 --> 00:24:09,320
Speaker 1: opposed to someone who is, you know, again a lawyer

446
00:24:09,359 --> 00:24:12,800
Speaker 1: with a kakamane scheme that's the easiest target, or someone

447
00:24:12,800 --> 00:24:16,040
Speaker 1: with a safe house or a trafficker. But in terms

448
00:24:16,040 --> 00:24:20,240
Speaker 1: of the broadest language of the statute, one could say

449
00:24:20,760 --> 00:24:24,080
Speaker 1: that the elements of the criminal offense of inducement are harboring,

450
00:24:24,520 --> 00:24:27,720
Speaker 1: could even be violated by someone who's doing to know

451
00:24:27,840 --> 00:24:31,080
Speaker 1: your Rights presentation to people that they know are undocumented

452
00:24:31,520 --> 00:24:35,320
Speaker 1: and they're telling them how to toward an ICE investigation.

453
00:24:35,480 --> 00:24:38,760
Speaker 1: And so this is where this gets very challenging for

454
00:24:38,800 --> 00:24:42,560
Speaker 1: people in the legal community, for people outside the legal community,

455
00:24:42,560 --> 00:24:44,879
Speaker 1: where it's even more challenging because at least as a lawyer,

456
00:24:45,080 --> 00:24:47,840
Speaker 1: you're trying to give legal advice, But what if you're

457
00:24:47,880 --> 00:24:50,640
Speaker 1: just someone who works at a nonprofit that helps immigrants.

458
00:24:50,720 --> 00:24:54,040
Speaker 1: And so we'll have to see if the Trump administration

459
00:24:54,240 --> 00:24:57,760
Speaker 1: tries to use this statute in a broad way moving forward.

460
00:24:58,080 --> 00:25:00,400
Speaker 2: So do you think Holman is making these He's made

461
00:25:00,480 --> 00:25:03,399
Speaker 2: these remarks several times. You think he's doing it just

462
00:25:03,480 --> 00:25:07,920
Speaker 2: to sort of scare people into not taking any action

463
00:25:08,080 --> 00:25:09,080
Speaker 2: to help immigrants.

464
00:25:09,400 --> 00:25:11,920
Speaker 1: I think the problem is that ICE has very limited

465
00:25:12,840 --> 00:25:19,440
Speaker 1: enforcement authorities that rely predominantly on administrative warrants, not judicial wars,

466
00:25:19,440 --> 00:25:22,400
Speaker 1: because judicial wars are very time consuming and very hard

467
00:25:22,440 --> 00:25:24,560
Speaker 1: to get and trying to get them in millions of

468
00:25:24,640 --> 00:25:28,200
Speaker 1: cases is impossible. So they have to use administrative warrants.

469
00:25:28,200 --> 00:25:32,560
Speaker 1: And the problem with administrative warrants is they're rarely enforceable,

470
00:25:32,680 --> 00:25:36,600
Speaker 1: so they require volunteers to let you into their houses

471
00:25:36,720 --> 00:25:40,040
Speaker 1: or to let you into their schools or wherever. And

472
00:25:40,080 --> 00:25:42,600
Speaker 1: so if everybody's given to Know your Rights presentation that

473
00:25:42,680 --> 00:25:47,320
Speaker 1: says there's an administrative warrant, don't honor it, then that

474
00:25:47,400 --> 00:25:50,720
Speaker 1: does forward ninety percent of what ICE is trying to accomplish.

475
00:25:50,760 --> 00:25:53,119
Speaker 1: And so this is what gets frustrating to someone in

476
00:25:53,160 --> 00:25:54,240
Speaker 1: Tom Holman's position.

477
00:25:54,920 --> 00:25:58,840
Speaker 2: So many interesting lawsuits on the horizon. Thanks so much,

478
00:25:58,960 --> 00:26:04,040
Speaker 2: leon Asa. That's Leon Fresco of Honda Night. Coming up

479
00:26:04,080 --> 00:26:07,840
Speaker 2: next on The Bloomberg Law Show. The Netflix show Running

480
00:26:07,880 --> 00:26:10,639
Speaker 2: Point had to go through some legal hoops before it

481
00:26:10,720 --> 00:26:14,959
Speaker 2: started streaming. I'm June Grosso and you're listening to Bloomberg.

482
00:26:18,040 --> 00:26:22,280
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

483
00:26:24,760 --> 00:26:27,920
Speaker 2: Work in a family business, The greatest basketball franchise in

484
00:26:28,000 --> 00:26:31,560
Speaker 2: the history of the game, The Los Angeles Waves, the

485
00:26:31,640 --> 00:26:34,840
Speaker 2: new Netflix show Running Point, had to go through some

486
00:26:35,040 --> 00:26:39,159
Speaker 2: legal hoops before it started streaming. Pepper Down University sued

487
00:26:39,200 --> 00:26:43,040
Speaker 2: to stop the show from airing over trademark infringement claims,

488
00:26:43,520 --> 00:26:48,000
Speaker 2: alleging that the fictional Los Angeles Waves professional basketball team

489
00:26:48,040 --> 00:26:52,080
Speaker 2: in the show uses the university's orange and blue colors

490
00:26:52,320 --> 00:26:55,479
Speaker 2: as well as its school's nickname, but a judge denied

491
00:26:55,520 --> 00:26:59,160
Speaker 2: the motion for a temporary restraining order, saying the university's

492
00:26:59,240 --> 00:27:04,240
Speaker 2: request fell short. Joining me is intellectual property attorney Jonathan Hyman,

493
00:27:04,640 --> 00:27:08,800
Speaker 2: a partner Bob Martin's, tell us what Pepperdine was complaining about.

494
00:27:09,000 --> 00:27:12,439
Speaker 4: Yeah, the case is a pretty interesting one. So it

495
00:27:12,600 --> 00:27:17,160
Speaker 4: revolves around Netflix's new show called Running Point, in which

496
00:27:17,200 --> 00:27:20,280
Speaker 4: there's a fictional team name called the Los Angeles Waves

497
00:27:20,280 --> 00:27:23,560
Speaker 4: that's the professional team. The show is actually based loosely

498
00:27:23,640 --> 00:27:26,119
Speaker 4: on one of the producers, Genie Buss's life and her

499
00:27:26,160 --> 00:27:31,400
Speaker 4: experience in running to La Lakers, and Pepperdine's main complaint

500
00:27:31,600 --> 00:27:35,400
Speaker 4: is that the team name is Waves and that Pepperdine's

501
00:27:35,400 --> 00:27:39,160
Speaker 4: thoughts are that everyone would associate the team name Waves

502
00:27:39,160 --> 00:27:42,120
Speaker 4: with Pepperdine and that anyone seeing the show would think

503
00:27:42,160 --> 00:27:45,960
Speaker 4: it's about Pepperdine, and the show is an adult show

504
00:27:46,080 --> 00:27:48,920
Speaker 4: and it has some content that Pepperdine didn't want to

505
00:27:48,920 --> 00:27:51,240
Speaker 4: be associated with. They kept referencing it as being a

506
00:27:51,320 --> 00:27:56,160
Speaker 4: raunchy comedy that's ante ethical to its two Pepperdine Christian values,

507
00:27:56,240 --> 00:27:59,080
Speaker 4: and even in oral argument in the case, Pepperdine had

508
00:27:59,160 --> 00:28:03,359
Speaker 4: raised that it has an anti drug policy and anti

509
00:28:03,400 --> 00:28:05,800
Speaker 4: alcohol policy and they just didn't want to be associated

510
00:28:05,840 --> 00:28:08,480
Speaker 4: with that show. And those are real concerns for brands.

511
00:28:08,680 --> 00:28:11,040
Speaker 4: You know, brands want to be able to control how

512
00:28:11,119 --> 00:28:14,800
Speaker 4: people perceive their brand and not be associated with anything

513
00:28:14,880 --> 00:28:18,320
Speaker 4: that's on savory. But the issue is whether anyone would

514
00:28:18,359 --> 00:28:22,800
Speaker 4: really associate the Waves with Peppernine. And before you could

515
00:28:22,800 --> 00:28:26,920
Speaker 4: even get to that issue, the courts in these types

516
00:28:26,960 --> 00:28:29,960
Speaker 4: of issues of using a trademark and expressive work will

517
00:28:30,000 --> 00:28:32,720
Speaker 4: apply to Rogers tests and that's kind of where the

518
00:28:32,760 --> 00:28:36,200
Speaker 4: decision and Pepperdine's arguments kind of got sidetracked.

519
00:28:36,359 --> 00:28:39,320
Speaker 2: It's more than just the name, right, it's also the

520
00:28:39,360 --> 00:28:42,480
Speaker 2: orange and blue collars and other things.

521
00:28:42,480 --> 00:28:45,200
Speaker 4: Correct. Yes, the case Pepperdine complain was not just about

522
00:28:45,200 --> 00:28:47,760
Speaker 4: the name the team named the Waves. They were also

523
00:28:47,920 --> 00:28:51,800
Speaker 4: complaining about the use of the orange and blue uniforms,

524
00:28:51,840 --> 00:28:56,280
Speaker 4: the fact that the logos looked similar, that the mascot

525
00:28:56,360 --> 00:28:59,360
Speaker 4: for Pepperdine is a blue Wave or humanized version of

526
00:28:59,360 --> 00:29:01,920
Speaker 4: a blue Wave. And the other issue was that in

527
00:29:01,960 --> 00:29:05,280
Speaker 4: some of the backgrounds of the scenes, there are jerseys

528
00:29:05,320 --> 00:29:09,600
Speaker 4: in the fictional NBA team's offices, and one of the

529
00:29:09,680 --> 00:29:13,120
Speaker 4: jersey numbers was number thirty seven, and that's the jersey

530
00:29:13,200 --> 00:29:17,680
Speaker 4: that the mascot for Pepperdine wears. So Pepperdine has obviously

531
00:29:17,760 --> 00:29:21,080
Speaker 4: a heightened sensitivity to what is being shown in the show,

532
00:29:21,480 --> 00:29:24,840
Speaker 4: and it seems to be Pepperdine's argument is very nefarious

533
00:29:24,840 --> 00:29:28,640
Speaker 4: and was intentionally done to trade and associate with Pepperdine.

534
00:29:29,120 --> 00:29:32,880
Speaker 4: But Netflix had testimony from its executives and Warner Brothers

535
00:29:32,920 --> 00:29:38,400
Speaker 4: executives that any similarity was unintentional and that the team

536
00:29:38,640 --> 00:29:41,360
Speaker 4: colors orange and blue were chosen because orange is the

537
00:29:41,360 --> 00:29:44,520
Speaker 4: color of basketball and blue is the color of Waves,

538
00:29:44,840 --> 00:29:48,040
Speaker 4: and the team name The Waves was associated with They

539
00:29:48,080 --> 00:29:52,600
Speaker 4: wanted something to associate the fictional NBA team with Los Angeles,

540
00:29:53,240 --> 00:29:56,720
Speaker 4: and they were right by the ocean and so it

541
00:29:56,760 --> 00:29:59,960
Speaker 4: was natural for what Warner Brothers argued was as natural

542
00:30:00,080 --> 00:30:01,680
Speaker 4: of choose the team name Waves.

543
00:30:02,120 --> 00:30:06,400
Speaker 2: In a trademark infringement case, does it matter what the

544
00:30:06,440 --> 00:30:11,040
Speaker 2: intention of Netflix was. Suppose it was accidental.

545
00:30:11,440 --> 00:30:13,680
Speaker 4: Right under the Rogers test, it has to have some

546
00:30:13,920 --> 00:30:17,280
Speaker 4: artistic relevance to There's two factors in the Rogers test,

547
00:30:17,680 --> 00:30:19,239
Speaker 4: and the first factor is that it has to have

548
00:30:19,280 --> 00:30:22,040
Speaker 4: some artistic relevance to the work, And the second factor

549
00:30:22,120 --> 00:30:24,800
Speaker 4: is that the use is not explicitly misleading as the

550
00:30:24,840 --> 00:30:28,200
Speaker 4: source or the content of the work. And normally in

551
00:30:28,200 --> 00:30:31,280
Speaker 4: some of these cases you're dealing with taking the brand

552
00:30:31,840 --> 00:30:34,920
Speaker 4: itself and putting it in or using as a reference

553
00:30:35,040 --> 00:30:38,560
Speaker 4: in the movie itself to the plane of s brand. Here,

554
00:30:38,720 --> 00:30:41,680
Speaker 4: the mark that issue was a fictional team name within

555
00:30:41,720 --> 00:30:44,680
Speaker 4: the show. But Netflix and Warner Brothers argue that that's

556
00:30:44,840 --> 00:30:48,160
Speaker 4: artistically relevant to the show because they were trying to

557
00:30:48,200 --> 00:30:51,440
Speaker 4: make it a NBA team based in Los Angeles that

558
00:30:51,520 --> 00:30:55,440
Speaker 4: had to associate with Team names are always usually associated

559
00:30:55,520 --> 00:30:59,400
Speaker 4: with the locations where they're located, and so like the

560
00:30:59,480 --> 00:31:04,280
Speaker 4: Miami Heat for example. And so the argument again is

561
00:31:04,320 --> 00:31:09,040
Speaker 4: that from Pepperdize perspective, is that it called to mind

562
00:31:09,520 --> 00:31:12,760
Speaker 4: their teammate. But under the Rogers test, if it has

563
00:31:12,880 --> 00:31:15,360
Speaker 4: artistic relevance, well then you get to the whether it's

564
00:31:15,360 --> 00:31:19,160
Speaker 4: explicitly misleading. And basically what Netflix is arguing was that

565
00:31:19,240 --> 00:31:23,080
Speaker 4: it's an arbitrary use of waste and I'm mixing trademark metaphors.

566
00:31:23,120 --> 00:31:26,600
Speaker 4: But it had nothing to do with Pepperdine. And even

567
00:31:26,640 --> 00:31:28,760
Speaker 4: if it did have something to do with Pepperdine, if

568
00:31:28,760 --> 00:31:30,760
Speaker 4: the show was about Pepperdine, well then there'd be no

569
00:31:30,840 --> 00:31:34,520
Speaker 4: issue either. So the first gateway for Netflix was to

570
00:31:34,520 --> 00:31:37,720
Speaker 4: put this case into Rogers And even if the court

571
00:31:37,760 --> 00:31:42,360
Speaker 4: decided that Rogers didn't apply, then you would then go

572
00:31:42,480 --> 00:31:45,760
Speaker 4: into the likely confusion factors, which is under the Ninth

573
00:31:45,800 --> 00:31:49,480
Speaker 4: Circuit flee Craft factors, and that would even be tough

574
00:31:49,520 --> 00:31:53,560
Speaker 4: for Pepperdine to show that it prevails under that construct.

575
00:31:54,000 --> 00:31:58,600
Speaker 2: This was for a tro a temporary restraining order, So

576
00:31:58,720 --> 00:32:01,600
Speaker 2: did the judge consider both factors of the Rogers test.

577
00:32:02,480 --> 00:32:05,640
Speaker 4: The judge found that that Pepperdine was unlikely to succeed

578
00:32:05,680 --> 00:32:08,400
Speaker 4: on the merits of its claim under the Rogers test.

579
00:32:08,440 --> 00:32:11,680
Speaker 4: The judge found that the waves mark had artistic relevance

580
00:32:11,720 --> 00:32:14,280
Speaker 4: to the work and it was not explicitly misleading as well.

581
00:32:14,760 --> 00:32:18,240
Speaker 4: The court denied the TRO because of this kind of

582
00:32:18,320 --> 00:32:20,520
Speaker 4: use squarely fits within the Rogers test.

583
00:32:21,240 --> 00:32:24,800
Speaker 2: So this was for a TRO. The standard is high

584
00:32:24,880 --> 00:32:29,280
Speaker 2: for a TRO, and Pepperdine says they're going to continue

585
00:32:29,280 --> 00:32:32,600
Speaker 2: the lawsuit. What are their chances going forward?

586
00:32:33,320 --> 00:32:37,000
Speaker 4: Standard for a TRO. It's an extraordinary remedy, especially in

587
00:32:37,000 --> 00:32:41,080
Speaker 4: this context where the suit was filed days and then

588
00:32:41,240 --> 00:32:43,760
Speaker 4: the judge's decision was within hours of when the show

589
00:32:43,800 --> 00:32:46,600
Speaker 4: was supposed to air. And the problem for Pepperdine is

590
00:32:46,600 --> 00:32:49,320
Speaker 4: that the standard for preliminary injunction is the same as

591
00:32:49,320 --> 00:32:51,760
Speaker 4: the TRO in the Ninth Circuit, and even the judge

592
00:32:52,120 --> 00:32:54,640
Speaker 4: noted that, and she ended her order saying Pepperdine may

593
00:32:54,640 --> 00:32:57,960
Speaker 4: file It's a regularly noticed motion for preliminary junction if

594
00:32:58,000 --> 00:33:00,239
Speaker 4: it has evidence to do so. And so I think

595
00:33:00,320 --> 00:33:03,400
Speaker 4: Judgment of Venezuela was tipping her hand and saying Pepperdine

596
00:33:03,440 --> 00:33:06,320
Speaker 4: needs to come in with something more than what it

597
00:33:06,320 --> 00:33:09,200
Speaker 4: had to TRO, some kind of evidence. But that still

598
00:33:09,280 --> 00:33:12,320
Speaker 4: is also problematic for Pepperdine because the Rogers test would

599
00:33:12,320 --> 00:33:14,680
Speaker 4: still apply. And so even if you get to an

600
00:33:14,680 --> 00:33:19,280
Speaker 4: evidentiary standpoint where Pepperdine is coming in with maybe a survey.

601
00:33:19,680 --> 00:33:23,160
Speaker 4: It still has to show that the Rogers test doesn't apply,

602
00:33:23,480 --> 00:33:26,280
Speaker 4: and then would need to show that under the LIKELHO

603
00:33:26,280 --> 00:33:29,120
Speaker 4: too confusion factors that it can prevail on the trade

604
00:33:29,120 --> 00:33:32,280
Speaker 4: more infringement plane, and there could be some discovery and

605
00:33:32,320 --> 00:33:36,080
Speaker 4: maybe this case would change. It seems unlikely, but maybe

606
00:33:36,120 --> 00:33:38,240
Speaker 4: there would be some discovery and there could be documents

607
00:33:38,280 --> 00:33:40,760
Speaker 4: from Netflix that show an intention to trade on Pepperdine.

608
00:33:41,600 --> 00:33:43,840
Speaker 4: I'm saying it seems unlikely because of the testimony so

609
00:33:43,920 --> 00:33:47,200
Speaker 4: far was that Waves was almost an arbitrary use and

610
00:33:47,240 --> 00:33:50,400
Speaker 4: it was selected because of what the association with Los

611
00:33:50,440 --> 00:33:52,880
Speaker 4: Angeles as opposed to the association with Pepperdine.

612
00:33:53,160 --> 00:33:56,160
Speaker 2: If they don't get the preliminary injunction, what about suing

613
00:33:56,280 --> 00:33:58,040
Speaker 2: Netflix for damages.

614
00:33:58,400 --> 00:34:01,479
Speaker 4: Right, and that would be that would then still have

615
00:34:01,600 --> 00:34:04,640
Speaker 4: to They would still have to get through the Rogers

616
00:34:04,680 --> 00:34:08,200
Speaker 4: deaths and show that this wasn't an expressive work or

617
00:34:08,480 --> 00:34:12,640
Speaker 4: that they explicitly misled viewers to thinking there was a

618
00:34:12,680 --> 00:34:17,759
Speaker 4: connection there and or association. And if they it still

619
00:34:17,840 --> 00:34:20,719
Speaker 4: seems that this case won't get out of what we'll

620
00:34:20,760 --> 00:34:24,480
Speaker 4: say Rogers lands that they're still squarely within Rogers. But

621
00:34:24,520 --> 00:34:26,799
Speaker 4: then even if they can survive that and get to

622
00:34:26,840 --> 00:34:30,200
Speaker 4: a likely confusion analysis, I think they've still got problems

623
00:34:29,920 --> 00:34:33,840
Speaker 4: with their case. One of the issues is while Pepperdine

624
00:34:33,840 --> 00:34:36,319
Speaker 4: has federal registrations and they're given a presumption that they're

625
00:34:36,360 --> 00:34:40,719
Speaker 4: valid and protectable, the question is how strong is the

626
00:34:40,800 --> 00:34:45,440
Speaker 4: Pepperdine wave mark and whether consumers really associate wave would

627
00:34:45,480 --> 00:34:48,440
Speaker 4: just Pepperdine. There are a number of Netflix and Warner Bros.

628
00:34:48,440 --> 00:34:51,279
Speaker 4: That show, there's a number of teams in California, and

629
00:34:51,320 --> 00:34:55,799
Speaker 4: there's also teams nationwide like Tulane Green Waves that use

630
00:34:55,840 --> 00:35:00,040
Speaker 4: waves and any third party use or other school A

631
00:35:00,280 --> 00:35:04,680
Speaker 4: team names they use waves couldn't limit the ability for

632
00:35:04,800 --> 00:35:08,200
Speaker 4: Pepperdine to succeed on a likely confusion analysis.

633
00:35:08,600 --> 00:35:11,880
Speaker 2: Thanks for being on the show. That's Jonathan Hymen of

634
00:35:12,080 --> 00:35:14,960
Speaker 2: Knob Martin's and that's it for this edition of The

635
00:35:15,000 --> 00:35:17,960
Speaker 2: Bloomberg Law Show. Remember you can always get the latest

636
00:35:18,000 --> 00:35:21,120
Speaker 2: legal news on our Bloomberg Law Podcast. You can find

637
00:35:21,120 --> 00:35:25,719
Speaker 2: them on Apple Podcasts, Spotify, and at www dot Bloomberg

638
00:35:25,760 --> 00:35:29,560
Speaker 2: dot com, Slash podcast Slash Law, and remember to tune

639
00:35:29,560 --> 00:35:32,840
Speaker 2: into The Bloomberg Law Show every weeknight at ten pm

640
00:35:32,880 --> 00:35:36,440
Speaker 2: Wall Street Time. I'm June Grosso and you're listening to

641
00:35:36,480 --> 00:35:37,000
Speaker 2: Bloomberg