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

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Speaker 2: It's a case that you dismissed immediately. The fraudlers of

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Speaker 2: the airport, the court. The court was the fraud story

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Speaker 2: of this case. They made references through assets that were

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Speaker 2: very valuable, and they said they had no idea, they

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Speaker 2: had no idea what the numbers were when they said

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Speaker 2: eighteen million dollars from our autumn, and it's fifty two,

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Speaker 2: one hundred times.

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Speaker 3: That amount by any estimation.

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Speaker 4: It was a wild day in the courtroom as Donald

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Speaker 4: Trump took the witness stand in the two hundred and

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Speaker 4: fifty million dollars civil fraud trial over asset valuations at

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Speaker 4: the Trump organization, the family real estate business at the

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Speaker 4: heart of his PERSONA less than an hour into his testimony,

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Speaker 4: Judge Arthur and Goron, who will determine the verdict and

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Speaker 4: the penalty without a jury, threatened to remove of Trump

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Speaker 4: from the stand for giving long, rambling answers to yes

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Speaker 4: or no questions, even after being asked not to do so.

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Speaker 4: Following Trump's testimony, New York Attorney General Letitia James had

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Speaker 4: this to say.

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Speaker 3: He rambled, he hurled insults, but we expected that. At

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Speaker 3: the end of the day, the documentary evidence demonstrated that,

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Speaker 3: in fact, he falsely inflated his assets to basically enrich

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Speaker 3: himself and his family. He continued to persistently engage in fraud.

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Speaker 3: The numbers don't lie.

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Speaker 4: Joining me is Bloomberg Legal reporter Patricia Hurtado, who was

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Speaker 4: in the courtroom. So, pat what was it like in

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Speaker 4: the courtroom, because reading about the testimony, it seemed so

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Speaker 4: contentious and.

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Speaker 1: Just off the rails.

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Speaker 5: At some point it was basically, you know, we are

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Speaker 5: all those of US trial reporters are used to the

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Speaker 5: controlled environment where the lawyer asked questions and the witnesses

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Speaker 5: under oath, and they're supposed to answer truthfully, and they're

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Speaker 5: supposed to answer.

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Speaker 6: To the best of their ability to give honest, truthful answers.

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Speaker 6: Trump used it as an opportunity, as a soapbox, to

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Speaker 6: take the stand and basically give the answer and make

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Speaker 6: the statement and give the spin that he wanted to

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Speaker 6: give and how he felt about this lawsuit. So he

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Speaker 6: called it a witch hunt. He would basically add hoc

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Speaker 6: answers that were not to the exact question. He would

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Speaker 6: just go off on a diatribe or a long long

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Speaker 6: comment that the judge said, are we having to listen

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Speaker 6: to an essay? You know? I mean, at some point

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Speaker 6: the judge was trying to rain him in, because that's

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Speaker 6: his job, because the trial was veering off the rails

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Speaker 6: to not specifically answer what he was supposed to answer.

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Speaker 6: He was talking about, you know, motives and applying all

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Speaker 6: kinds of nefarious machinations behind the seat, or why the

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Speaker 6: led Trump with a lawsuit got brought. He called it fraud.

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Speaker 6: He said the judge sitting right next to him was biased,

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Speaker 6: and said the case was crazy. And then the attorney

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Speaker 6: for the state said done, and then Trump said done.

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Speaker 6: But then he continued on and used every other question

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Speaker 6: to use it as a forum to air his grievances

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Speaker 6: about the feelings about the lawsuit, how great his company was,

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Speaker 6: how he has a beautiful company with beautiful numbers and

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Speaker 6: these are amazing, and he's so wealthy, could do whatever

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Speaker 6: he wanted.

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Speaker 4: Well, the judge at one point said, you can attack me,

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Speaker 4: but just answer the question.

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Speaker 1: Did he lose his temper?

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Speaker 6: Well, the judge several times stopped and said, can you

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Speaker 6: please control your client? And he turned to Kaist Christopher Kaist,

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Speaker 6: who is a lawyer for Trump, and he asked him,

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Speaker 6: could you please control your client, And he was basically

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Speaker 6: suggesting that he would dismiss Trump from the witness stand.

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Speaker 6: And he is allowed in civil law, in the civil

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Speaker 6: lawsuit to draw what was called an adverse inference, and

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Speaker 6: he called it a negative I could dismiss mister Trump

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Speaker 6: from the witness stand. And he didn't say Trump. He

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Speaker 6: kept saying the witness and I could declare a negative inference.

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Speaker 6: So you know, basically all bets are off, and I'm

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Speaker 6: going to vote against mister Trump. Because he didn't think

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Speaker 6: he was being honest in his answer.

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Speaker 4: So did Kays at one point argue that Trump had

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Speaker 4: a right to speak as a presidential candidate.

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Speaker 6: Yes, he called him the former and seemed to be

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Speaker 6: chief executive of the United States who understands the rules,

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Speaker 6: and the judge says, but he doesn't abide by them.

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Speaker 1: But he was saying that he had the right to

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Speaker 1: do that on the stand.

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Speaker 6: Yes, And Kys was basically arguing, he has a right

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Speaker 6: to do whatever he wants because of this he's running

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Speaker 6: for president and otherwise, his rights and free speech rights

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Speaker 6: as a presidential candidate were being impaired.

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Speaker 4: So what did he say about the financial statements? Did

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Speaker 4: he make any admissions?

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Speaker 6: He did acknowledge that he had signed. There were many

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Speaker 6: times where they showed him guarantees. They gave banks like

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Speaker 6: Deutsche Bank for loans or loan guarantees, and for the

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Speaker 6: Darrell Golf Club in Florida as well as for Chicago

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Speaker 6: Trump Tower in Chicago, that he would guarantee that he

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Speaker 6: had a certain amount of net worth. So basically he

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Speaker 6: had guaranteed it. So he was having to admit on

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Speaker 6: the stand that he had indeed signed and endorsed and

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Speaker 6: affirmed the accuracy of the financial documents. They're called statements

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Speaker 6: of financial condition that that Trump Org had submitted attesting

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Speaker 6: to the value of their properties and how much money

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Speaker 6: they had on hand, for example, testing that he had

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Speaker 6: twenty billion dollars in net worth for example, or on cash.

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Speaker 6: And Trump's like, yeah, it's a beautiful document, you see that.

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Speaker 6: It's beautiful numbers, beautiful numbers. So in the end, he

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Speaker 6: could not distance himself from something that he had affirmed

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Speaker 6: and signed and sworn that was accurate. Because that's a

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Speaker 6: small victory. I mean, you know, these these things that

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Speaker 6: are being proven by the Attorney general. It's a case

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Speaker 6: that's basically built on you want to think about him

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Speaker 6: as little building blocks, this little element, this element, this element.

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Speaker 6: He attested that Joeutscha Bank, for example, he said, was

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Speaker 6: not defrauded. They got great loans and there were worth

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Speaker 6: a lot of money, and the bank was not a victim.

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Speaker 6: And so for the lawsuit that Leticia James, the Attorney

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Speaker 6: generalist brought was basically nonsense and quote unquote crazy. But

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Speaker 6: you know, Deoetscha Bank has said, have they known the

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Speaker 6: true value? They may have not agreed to certain terms

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Speaker 6: that they let Trump have. So you know, this is

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Speaker 6: now going to be up to the judge. And at

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Speaker 6: one point the judge interrupted Trump and asked the state lawyer,

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Speaker 6: are you okay with this because it seems like he's

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Speaker 6: going off again, and are you all right? And basically

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Speaker 6: the state lawyer, Kevin Wallace, said, he thinks it's great.

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Speaker 6: It sounds like what the state is happy about is

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Speaker 6: Trump did not distance himself. He acknowledged those were his signatures.

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Speaker 6: He acknowledged he did sign those documents which eventually did

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Speaker 6: go to the banks. He said it was up to

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Speaker 6: the banks to do their own due diligence, and that

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Speaker 6: there's this clause at the very bottom that basically plausible deniability,

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Speaker 6: that it's up.

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Speaker 7: To the banks.

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Speaker 6: You know, it's like an escape clause that Trump claimed

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Speaker 6: the banks with onus was on them to do their

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Speaker 6: own due diligence and not rely on the accuracy of

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Speaker 6: the numbers that Trump Board gave them. So you know,

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Speaker 6: he's saying it's up to them, and it's the fall

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Speaker 6: to the banks and the insurers for not doing better

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Speaker 6: due diligence. But the documents are what they say, so

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Speaker 6: I can see why the Attorney General may feel that

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Speaker 6: they've actually gotten a lot out of Trump today, just

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Speaker 6: basically what they needed.

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Speaker 4: A lot's been made about the size of his triplex

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Speaker 4: in Trump Tower. Did he admit that the size was misstated?

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Speaker 6: Yeah, he is basically saying that, oh, that might have

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Speaker 6: been a mistake because that wasn't counting to elevator banks,

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Speaker 6: and that, oh, somebody might have mistakenly tripled it when

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Speaker 6: it's really only ten thousand and not thirty thousand, and

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Speaker 6: they got the number wrong. But as soon as it

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Speaker 6: was discovered incorrect, it was corrected and put out accurately.

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Speaker 6: But there are many times we have seen throughout this

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Speaker 6: trial and other documents where they continue to tell lenders

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Speaker 6: and insurers that this was not accurate.

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Speaker 4: And also, is he claiming that mar A Lago is

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Speaker 4: worth like a billion dollars?

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Speaker 6: Yes, he said it was worth a billion. And this

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Speaker 6: is a strange answer that's been given by both by

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Speaker 6: the Trump sons, Don Junior as well as Eric, that

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Speaker 6: mar A Lago was supposedly had a National Register of

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Speaker 6: Historic Places preventing it from being developed as anything. But

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Speaker 6: this historic property, it's beautiful and you know, built by

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Speaker 6: Merriweather Posts or whatever it's you know, it's a beautiful

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Speaker 6: as nineteen twenties mansion and it's.

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Speaker 5: On the water.

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Speaker 6: And Trump bought it and then claims that he could

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Speaker 6: develop that. And he did this also for a Scottish

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Speaker 6: golf club that he wanted to develop. So he claims

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Speaker 6: these properties he could do whatever he wanted. So if

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Speaker 6: it was okay for them to overvalue properties like mar

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Speaker 6: A Lago, because someday in the future it could be

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Speaker 6: it's a club, but it could also be a residence.

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Speaker 6: But it cannot be both. But Trump and his sons

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Speaker 6: Eric and Don Junior have said it's a club and

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Speaker 6: a home, so he can do whatever he wants, and

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Speaker 6: he's the owner, and so sometime later it could be changed,

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Speaker 6: totally ignoring the fact that you know, the National Register

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Speaker 6: of Much to our Places says you can't change the

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Speaker 6: construction of the building because it's a store.

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Speaker 4: Thanks so much, pat, We'll check with you on Wednesday

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Speaker 4: after Ivanka Drum's testimony. That's Bloomberg legal reporter Patricia Hurtado.

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Speaker 4: I'm Drewn Grasso, and you're listening to Bloomberg. Kyle Hanagami's

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Speaker 4: choreography has been used by Justin Bieber, Britney Spears, Ariana Grande,

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Speaker 4: and he says it's also been used by Epic Games Fortnite,

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Speaker 4: but without his permission. Hanagami owns a federal copyright registration

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Speaker 4: covering a full five minute dance routine from his video

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Speaker 4: to Charlie Poof's song how Long. He's claiming that Fortnite

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Speaker 4: infringed on his copyright by using his choreography as an

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Speaker 4: emote in the game. That's a biable dance for a

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Speaker 4: player's avatar. Other choreographers have not fared well with suits

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Speaker 4: against Fortnite, but a new ruling by the Ninth Circuit

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Speaker 4: Court of Appeals puts a new.

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Speaker 1: Spin on the moves.

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Speaker 4: Joining me is intellectual property. Attorney Ryan Meyer of Dorsey

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Speaker 4: and Whitney. Ryan tell us what kind of dance is copyrightable?

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Speaker 7: So with dance and copyright, there is a spectrum, and

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Speaker 7: at one end is the copyrightable zone, which is choreography. Unfortunately,

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Speaker 7: the Copyright Act itself doesn't expressly define choreography, and the

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Speaker 7: courts haven't well defined it until this decision, But it's

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Speaker 7: generally something that's a composition and arrangement of a series

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Speaker 7: of dance movements. By contrast, at the other end of

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Speaker 7: the spectrum, you have simple dance that are just sequence

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Speaker 7: of body movements, generally short and simple, often something that's social,

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Speaker 7: like the waltz or foxtrot step, and that is not copyrightable.

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Speaker 4: So does it have to be a certain length or

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Speaker 4: does it have to be complex? Are there any sort

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Speaker 4: of bright line rules?

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Speaker 7: There aren't any bright line rules. What there are is

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Speaker 7: there's a series of non determinative elements, and if any

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Speaker 7: one of these is present or not present, it doesn't

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Speaker 7: necessarily affect the outcome. But those elements are whether there

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Speaker 7: is rhythmic movement in a defined space, the compositional arrangement,

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Speaker 7: musical or textual accompaniment, dramatic content, presentation before an audience,

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Speaker 7: and execution by skilled performers. The length doesn't necessarily matter,

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Speaker 7: although the longer and more complex, the more likely it

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Speaker 7: is to be protectable.

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Speaker 4: So how would a choreographer go about getting copyright? I

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Speaker 4: mean do they write down, you know, explain the moves.

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Speaker 4: Do they show a clip of dancers doing the moves?

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Speaker 1: How does the copyright office see what's there?

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Speaker 7: So there could be more than one way, and both

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Speaker 7: of the ways that you mentioned might work. They could,

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Speaker 7: for example, write down and explain in detail the set

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Speaker 7: of dance moves and cut ways between the dance moves.

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Speaker 7: Here in this case, there was actually a five minute

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Speaker 7: video clip that was performed to a song and that's

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Speaker 7: what was registered with the copyright office.

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Speaker 4: Tell us about what is an issue here? What was

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Speaker 4: the dance and the issue with Fortnite using it?

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Speaker 7: Sure? So the dance is a five minute dance performed

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Speaker 7: to the song how Long by Charlie coof. It contains

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Speaker 7: about four hundred and eighty counts of choreography with ninety

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Speaker 7: six repeated counts, But what was actually allegedly misappropriated are

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Speaker 7: just four counts of the choreographer's work, which the district

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Speaker 7: court described as a two second combination of eight bodily

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Speaker 7: movements set to four beats of music. Now, Fortnite is

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Speaker 7: a video game published by Epic Games, and what they

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Speaker 7: did is in that game you have an avatar. And

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Speaker 7: one of the ways that they make money is in

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Speaker 7: a marketplace they sell what are called emotes, which are

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Speaker 7: dance movements or other kinds of movements that you can

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Speaker 7: buy and have your avatar perform them like a victory

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Speaker 7: dance er, just for fun. And so here the emote

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Speaker 7: is called It's complicated, and it's this small portion of

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Speaker 7: Kyle Hanagami's copyrighted five minute work.

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Speaker 4: He sued and tell us what happened at the district

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Speaker 4: court level.

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Speaker 7: Well, at the district court level, he didn't make it

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Speaker 7: very far. He filed his complaint, and in response, Epic

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Speaker 7: Games filed what is called a motion to dismiss for

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Speaker 7: failure to state acclaim and claiming that the choreographer had

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Speaker 7: not sufficiently alleged that there was substantial similarity between what

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Speaker 7: was copied, and the district court agreed and found that

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Speaker 7: when the dance that was copied is divided up into

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Speaker 7: a series of poses, those poses are not copyright protectable. Moreover,

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Speaker 7: the part that was actually copied, it was just a short,

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Speaker 7: relatively simple part of the overall work, and that short

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Speaker 7: sequence is a short dance which is not protectable by copyright.

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Speaker 7: So the court dismissed mister Hanagami's case. That's the choreographer,

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Speaker 7: and mister Hanagami appealed up to the Ninth Circuit.

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Speaker 4: You know, I always wonder in these cases when it's

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Speaker 4: artwork to how the judges have the expertise to figure

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Speaker 4: this out, And it seems like in dance it's it

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Speaker 4: would be even harder for a judge.

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Speaker 7: Yeah, And the truth is typically they don't have the

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Speaker 7: expertise because most judges aren't experts in dance, or they

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Speaker 7: aren't necessarily experts in any particular area of copyright. And

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Speaker 7: that's why copyright the law generally says the copyright cases

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Speaker 7: shouldn't be shouldn't be dismissed in emotion to dismiss that.

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Speaker 7: The lad just doesn't favor dismissal at the pleating stage.

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Speaker 4: Is it easier if you have a traditional form of dance,

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Speaker 4: for example, ballet or modern dance.

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Speaker 1: Do you think that makes it easier to get a copyright?

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Speaker 7: I would say probably not. I would say what is

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Speaker 7: going to make it easier is the complicatedness and distinctiveness

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Speaker 7: of the dance, the positions and all the other elements

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Speaker 7: that go into the dance.

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Speaker 4: So he took this up to the Ninth Star. First

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Speaker 4: of all, did the Ninth Circuits rule income as a

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Speaker 4: surprise a little bit?

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Speaker 7: I think it did, And there's a couple of reasons

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Speaker 7: for that. One reason is that this area of the law,

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Speaker 7: not just in the Ninth Circuit, but in all the US,

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Speaker 7: is not well defined. There have not been very many

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Speaker 7: binding cases relating to copyright and choreography, so what was

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Speaker 7: going to happen was a little bit up in the air.

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Speaker 7: And another reason why it probably came as a surprise

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Speaker 7: was because previous cases involving dances and Fortnite epic prevailed

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Speaker 7: every time. However, in those cases copyright wasn't specifically at issue.

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Speaker 1: So tell us what the Ninth Circuit decided.

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Speaker 7: So the Ninth Circuit decided that the Court had essentially

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Speaker 7: applied the long standard for determining substantial similarity. A copyrighted

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Speaker 7: were like choreography, when parsed into individual movements, each individual

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Speaker 7: movement might not be protectable, which is essentially what the

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Speaker 7: judge with the District Court found and stopped there. But

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Speaker 7: the combination of them, the selection and the arrangement, the

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Speaker 7: other elements, the pathways between each movement. When all of

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Speaker 7: that is combined, the Ninth Circuit found that it could

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Speaker 7: be a copyrightable work. And the Ninth Circuit also said

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Speaker 7: it was an air for the court to find that

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Speaker 7: this particular sequence was too simple and short to be

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Speaker 7: copyright protectable, because, as the court pointed out, even a

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Speaker 7: very simple, sorry very short sequence can still be relatively complex.

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Speaker 7: The court actually compared it to dividing a choreographic work

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Speaker 7: up into just its individual poses would be like dividing

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Speaker 7: a musical work just into its individual notes.

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Speaker 1: So this is the.

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Speaker 4: First time that a federal appellate court has ruled on

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Speaker 4: a copyright for choreography.

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Speaker 7: It's the first time that they've ruled on choreography in

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Speaker 7: a really substantive way, and especially in the context of

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Speaker 7: video games, which are using a part of an overall

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Speaker 7: copyrighted work.

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Speaker 4: This opinion, then it's good for choreographers. It broadens what

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Speaker 4: courts and I suppose the Copyright Office can consider.

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Speaker 7: One of the big things that the Ninth Circuit did

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Speaker 7: here was it actually gave a definition to choreography. Previously,

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Speaker 7: the I think I might have said earlier, the statue

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Speaker 7: doesn't expressly define choreography. However, the compendium of the of

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Speaker 7: the United States Copyright Office their practices, it does define choreography,

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Speaker 7: and the Ninth Circuit adopted that definition, which is I

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Speaker 7: think will make it a lot easier for choreographers people

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Speaker 7: trying to avoid lawsuits to know the balance of what

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Speaker 7: they can and can't do.

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Speaker 1: So you think the Ninth Circuit gave enough guidance.

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Speaker 7: That remains to be seen. The definition that they adopted

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Speaker 7: still has It's sort of like every legal definition, it's

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Speaker 7: open to interpretation. It's the composition and arrangement of a

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Speaker 7: related series of dance movements and patterns organized into a

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Speaker 7: coherent whole. And I think you can see that within

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Speaker 7: that definition there's lots of room for variation. There's lots

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Speaker 7: of room for questions about how exactly how long this

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Speaker 7: does it need to be? Exactly, how complex does it

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Speaker 7: need to be? What is a pattern all these questions?

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Speaker 7: I think will this case sort of opens the door

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Speaker 7: for those issues to be further worked out.

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Speaker 1: So what happens now in the.

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Speaker 7: Case, so it will return to the district court and

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Speaker 7: they will proceed into discovery. Right now, it's at the

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Speaker 7: pleating stage, and I'm sure Hanagami has survived. But surviving

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Speaker 7: the motion to dismiss is relatively easy compared to actually

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Speaker 7: marshaling all the evidence, the expert testimony, whatever, he will

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Speaker 7: need to prove his actual claims, either through later summary

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Speaker 7: judgment or at trial.

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Speaker 1: These cases are often settled, but might Fortnite be reluctant

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Speaker 1: to settle because they don't want to establish a precedent

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Speaker 1: that every time they use a piece of dance that

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Speaker 1: they have to pay someone.

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Speaker 7: That is certainly part of the reason. And then another

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Speaker 7: reason up to this point might be that they've had

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Speaker 7: a string of other cases involving dances in Fortnite, and

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Speaker 7: in all of those they appear to have prevailed. Either

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Speaker 7: it was the planet's case was dismissed by the court

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Speaker 7: or the plaintiff voluntarily dismissed for reasons unknown. So clearly

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Speaker 7: EPIC doesn't necessarily want to to settle if they don't

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Speaker 7: have to and if it's not advantageous to them. I

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Speaker 7: would just conclude by saying that anyone who is interested

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Speaker 7: in copyright and choreography should really keep an eye on

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Speaker 7: the Honagomi case, since cases in this area have been

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Speaker 7: relatively rare. However, after the Ninth Circuit revived this case,

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Speaker 7: we might end up seeing more choreographers using the law

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Speaker 7: to protect their works and enforce the rights.

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Speaker 4: We will certainly follow this case. Thanks so much, Ryan.

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Speaker 4: That's Ryan Meyer of Dorsey and Whitney. Should the government

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Speaker 4: face lawsuits when it failed to correct false credit reports?

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Speaker 4: That was the basic issue before the Supreme Court in

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Speaker 4: a case where incorrect reporting left a Pennsylvania man with

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Speaker 4: damaged credit. Joining me is Harold Krant, a professor at

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Speaker 4: the Chicago Kent College of Law. I know you were

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Speaker 4: in the courtroom today for the oral arguments. Do you

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Speaker 4: have a prediction right off the top?

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Speaker 5: No.

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Speaker 8: I think the argument that their Credit Reporting Act revealed

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Speaker 8: justices on both sides. My prediction is that the government

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Speaker 8: will lose. It has a very tough case to show

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Speaker 8: that it retained sovereign unity under the Reporting Act. But

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Speaker 8: the justices asked very probing questions to both sides.

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Speaker 4: Give us some context to you, or how explain what

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Speaker 4: the case is all about.

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Speaker 8: So Congress created a Fair Credit Reporting Act to ensure

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Speaker 8: not only that credit reporting agencies such as TransUnion made

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Speaker 8: sure to change records when people thought that they were

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Speaker 8: disadvantaged by incorrect information and reports therefore suffered in terms

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Speaker 8: of their credit rating, and extended the Act in nineteen

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Speaker 8: ninety six to require duties of private individuals who had

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Speaker 8: information about detters and failed to correct the reports to

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Speaker 8: the credit reporting agencies such as TransUnion. And the word

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Speaker 8: that they defined in the statute was persons, and they

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Speaker 8: later defined persons to include not just private individuals and corporations,

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Speaker 8: but also government. And so the question in this case

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Speaker 8: is when, by extending this duty to not just the

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Speaker 8: federal credit reporting agencies but also to private entities and

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Speaker 8: public entities, whether that is sufficient to waive the sovereign

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Speaker 8: immunity of the federal government and therefore open it up

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Speaker 8: to potential damages actions for failure to correct a record.

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Speaker 8: In this particular case, an individual had taken out a

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Speaker 8: loan for a rural housing development for housing so that

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Speaker 8: he could afford, and a subunit of the Department of

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Speaker 8: Agriculture said that he defaulted on his loan. He contested that,

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Speaker 8: and he alleged that the Department of Agriculture did not

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Speaker 8: correct the record, and therefore he sued the department as

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Speaker 8: well as private entities to recover the damages because what

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Speaker 8: he said was a false record off his credit status.

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Speaker 8: And so this is a typical sovereign immunity case about

403
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Speaker 8: whether Congress has been clear enough to subject the federal

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Speaker 8: agencies to suit over their failure to comply with the

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Speaker 8: Fair Credit Supporting Acts provisions.

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Speaker 4: Was it mostly reading of the statute and interpretation of that.

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Speaker 8: Yeah, so everybody agrees that better reading of the statute

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Speaker 8: is for the private parties. The statute again says that

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Speaker 8: every person shall be liable and then defines liable in

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Speaker 8: a different section to include instrumentalities of the federal government.

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Speaker 8: But there are some problems with that reading, even though

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Speaker 8: that was the acknowledged better reading of the statute. One

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Speaker 8: problem was that there was no recognition in the legislative

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Speaker 8: history the extent that that matters that Congress's decision nineteen

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Speaker 8: ninety six would open up federal entities to damage's actions.

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Speaker 8: And another problem was the fact that in other parts

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Speaker 8: of the statute, any person the word under the statute

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Speaker 8: can be subject to criminal penalties and punitive damages. And

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Speaker 8: all the parties agreed that simply couldn't conceive of the

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Speaker 8: fact that Congress would have wanted to apply puni damages

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Speaker 8: or criminal penalties to governmental entities as opposed to private parties.

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Speaker 8: So the issue really boils docut how clear must Congress

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Speaker 8: be in waving the immunity from a damage's action for

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Speaker 8: the federal government. And so it's a relatively close case.

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Speaker 8: But most of the justices, and my view could be wrong.

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Speaker 8: They were leading to the fact that if you simply

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Speaker 8: have a statute requiring persons to pay damages, and you

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Speaker 8: then defined i'll be in a different section persons to

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Speaker 8: include instrumentality in the federal government. That should be enough.

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Speaker 4: Justice Britt Kavanaugh said, so, you said at the beginning

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Speaker 4: that Congress knew what it was doing when it amended

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Speaker 4: the Act, but I don't think it realized that it

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Speaker 4: was imposing this liability.

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Speaker 8: You know, it does mean that it was an inartfully

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Speaker 8: drafted statute to some extent, but I think that except

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Speaker 8: for Justice Kavanaugh and maybe one other justice or two,

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00:27:05,440 --> 00:27:09,160
Speaker 8: it was close enough. I mean, certainly, I think if

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Speaker 8: Congress had to do it over again, it could have

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00:27:11,600 --> 00:27:15,359
Speaker 8: clarify with the more specificity when the government could be

440
00:27:15,359 --> 00:27:18,760
Speaker 8: sued for damages, when who could be prosecuted for a

441
00:27:18,800 --> 00:27:21,240
Speaker 8: criminal infraction of the Act, And it used the same

442
00:27:21,320 --> 00:27:25,119
Speaker 8: term persons in both and hence the confusion. And I

443
00:27:25,160 --> 00:27:28,600
Speaker 8: think Justice Kavanaugh had drawn the line and said that

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00:27:28,880 --> 00:27:32,359
Speaker 8: the waves sovereign immunity, Congress must say in creating cause

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00:27:32,359 --> 00:27:36,160
Speaker 8: of action that they mean it to cover not only persons,

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00:27:36,520 --> 00:27:43,000
Speaker 8: but persons comma, including federal instrumentalities. And that is perhaps

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00:27:43,040 --> 00:27:46,880
Speaker 8: a conceivable drafting exercise, But most of the justices didn't

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00:27:46,920 --> 00:27:49,359
Speaker 8: think Congress had to be that specific, and it was

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00:27:49,440 --> 00:27:54,280
Speaker 8: unrealistic to make Congress be that specific in drafting these

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00:27:54,400 --> 00:27:55,359
Speaker 8: kinds of provisions.

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00:27:55,880 --> 00:27:59,439
Speaker 4: Justice Elena Kagan suggested the case could be resolved by

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00:27:59,520 --> 00:28:01,520
Speaker 4: applying statutory interpretation.

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Speaker 1: One oh one. Was it that simple? Doesn't seem that simple?

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Speaker 8: Well, you know, it's that fiple on's face, right. If

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00:28:07,400 --> 00:28:10,800
Speaker 8: you just looked at the fact that Congress specified that

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00:28:11,160 --> 00:28:13,840
Speaker 8: all persons would be subject to these civil penalties, and

457
00:28:13,880 --> 00:28:19,320
Speaker 8: the civil penalties included federal instrumentalities. That's statory interpretation one

458
00:28:19,359 --> 00:28:21,520
Speaker 8: oh one. But when you look and see that the

459
00:28:21,520 --> 00:28:26,320
Speaker 8: same construction then allowed for punitive damage and for criminal penalties,

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00:28:26,720 --> 00:28:29,919
Speaker 8: then the question seems to be much more complicated. And

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00:28:30,000 --> 00:28:33,480
Speaker 8: so even though just as Kagan would like this to

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00:28:33,520 --> 00:28:37,800
Speaker 8: be tetritory construction one oh one and may ultimately right

463
00:28:37,840 --> 00:28:42,680
Speaker 8: the case that way, certainly Congress wasn't abundantly clear because

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00:28:42,720 --> 00:28:45,760
Speaker 8: of these other provisions that are in the same act itself,

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00:28:45,920 --> 00:28:49,000
Speaker 8: and all parties agreed that you could not subject to

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00:28:49,160 --> 00:28:53,160
Speaker 8: the government to criminal penalties or punitive damages for failure

467
00:28:53,200 --> 00:28:55,000
Speaker 8: to follow the Fair Credit Reporting Act.

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00:28:55,560 --> 00:28:58,480
Speaker 1: What are the implications of this decision? I mean, are

469
00:28:58,480 --> 00:28:59,920
Speaker 1: there a lot of cases like that?

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00:29:01,440 --> 00:29:05,560
Speaker 8: So, just as Sotomayor noted, at least three statutes that

471
00:29:05,640 --> 00:29:09,480
Speaker 8: had very similar constructions, including the Clean Air Act and

472
00:29:09,840 --> 00:29:12,600
Speaker 8: some Water Act, and some other statutes as well. So

473
00:29:12,640 --> 00:29:19,240
Speaker 8: there are other types of congressional enactments which define the

474
00:29:19,280 --> 00:29:22,440
Speaker 8: scope of people to be liable as persons and then

475
00:29:22,440 --> 00:29:27,200
Speaker 8: in another section of the statute construe or define persons

476
00:29:27,240 --> 00:29:31,760
Speaker 8: to include the federal instrumentalities, and so under these statutes

477
00:29:31,760 --> 00:29:35,720
Speaker 8: as well, the question could arise as to whether civil

478
00:29:35,760 --> 00:29:40,160
Speaker 8: penalties can be obtainable from federal agencies which you violate

479
00:29:40,240 --> 00:29:43,840
Speaker 8: the Safe Drinking Water Act or Clean Water Act and

480
00:29:44,320 --> 00:29:47,320
Speaker 8: a couple of others. So there are consequences here, But

481
00:29:47,440 --> 00:29:52,040
Speaker 8: more broadly, the issue is to what extent will the

482
00:29:52,120 --> 00:29:57,360
Speaker 8: Court demand a clear statement before agreeing that Congresses waived

483
00:29:57,360 --> 00:30:00,640
Speaker 8: the sovereign immunity of the United States and therefore exposed

484
00:30:00,800 --> 00:30:05,239
Speaker 8: a federal instum mentality to suit. Justice Gorsus asked a

485
00:30:05,360 --> 00:30:09,240
Speaker 8: very probing question. I thought that wasn't answered Title litigant,

486
00:30:09,720 --> 00:30:13,680
Speaker 8: and he said, is it possible that we would create

487
00:30:14,120 --> 00:30:19,720
Speaker 8: a greater specificity of Congress when it waves a state's

488
00:30:19,880 --> 00:30:22,959
Speaker 8: sovereign immunity or an Indian tribe sovereign immunity, or a

489
00:30:23,000 --> 00:30:27,840
Speaker 8: form instrumentalities community as opposed to that of the federal

490
00:30:27,880 --> 00:30:32,240
Speaker 8: government itself? Because Congress keeps the fisk, and so Congress

491
00:30:32,280 --> 00:30:36,040
Speaker 8: is always thinking about what is the impact of its

492
00:30:36,280 --> 00:30:39,760
Speaker 8: statutory provisions on the fisk where it may not be

493
00:30:39,840 --> 00:30:44,640
Speaker 8: as respectful of the immunity of other entities such as

494
00:30:44,640 --> 00:30:47,480
Speaker 8: states again or Indian tribes and I thought that was

495
00:30:47,680 --> 00:30:51,600
Speaker 8: an interesting way to distinguish other cases and perhaps to

496
00:30:51,640 --> 00:30:55,920
Speaker 8: put a new sort of wrinkle on the extent that

497
00:30:56,040 --> 00:31:01,080
Speaker 8: sovereign immunity should continue, but neither side really with justice

498
00:31:01,120 --> 00:31:05,160
Speaker 8: courses in this question, but that may re emerge in

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00:31:05,200 --> 00:31:06,680
Speaker 8: an opinion or two of the Court.

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Speaker 4: Thanks so much, Hal. That's Harold Krant, professor at the

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00:31:09,960 --> 00:31:12,960
Speaker 4: Chicago Kent College of Law. And that's it for this

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00:31:13,080 --> 00:31:15,800
Speaker 4: edition of the Bloomberg Law Show. Remember you can always

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00:31:15,840 --> 00:31:18,760
Speaker 4: get the latest legal news on our Bloomberg Law Podcast.

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00:31:19,040 --> 00:31:22,080
Speaker 4: You can find them on Apple Podcasts, Spotify, and at

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00:31:22,240 --> 00:31:27,240
Speaker 4: www dot Bloomberg dot com, slash podcast Slash Law, and

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00:31:27,320 --> 00:31:30,400
Speaker 4: remember to tune into The Bloomberg Law Show every weeknight

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00:31:30,480 --> 00:31:33,920
Speaker 4: at ten pm Wall Street Time. I'm June Grosso, and

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00:31:34,000 --> 00:31:35,440
Speaker 4: you're listening to Bloomberg