1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,280 --> 00:00:11,680 Speaker 1: Tesla has paid more than one million dollars in an 3 00:00:11,760 --> 00:00:15,640 Speaker 1: arbitration award to a black former employee who claimed the 4 00:00:15,680 --> 00:00:19,000 Speaker 1: company failed to stop his supervisors from calling him the 5 00:00:19,239 --> 00:00:23,680 Speaker 1: N word at the electric carmaker's Northern California plant. The 6 00:00:23,800 --> 00:00:27,880 Speaker 1: rare discrimination award by an arbitrator to Melvin Berry caps 7 00:00:27,960 --> 00:00:31,440 Speaker 1: years of complaints from black workers that Tesla turned a 8 00:00:31,480 --> 00:00:34,839 Speaker 1: blind eye to the commonplace use of racial slurs on 9 00:00:34,880 --> 00:00:37,960 Speaker 1: the assembly line and was slow to clean up graffiti 10 00:00:38,040 --> 00:00:41,760 Speaker 1: with swastikas and other hate symbols scrawled in common areas. 11 00:00:42,120 --> 00:00:45,400 Speaker 1: Joining me, his employment attorney, Anthony on CD, a partner 12 00:00:45,440 --> 00:00:49,479 Speaker 1: at Proskauer rose So was the basis of his complaint 13 00:00:49,560 --> 00:00:54,760 Speaker 1: that his supervisor referred to him with a racial slur. Well, 14 00:00:54,800 --> 00:00:57,080 Speaker 1: it's that, I mean that touched it off. Obviously. There's 15 00:00:57,080 --> 00:01:00,240 Speaker 1: other evidence that is referred to in the arbitrary There's 16 00:01:00,320 --> 00:01:03,440 Speaker 1: opinion that there were sort of environmental things, that there 17 00:01:03,480 --> 00:01:07,400 Speaker 1: were apparently plastic as in the workplace, that the use 18 00:01:07,440 --> 00:01:10,240 Speaker 1: of the N word was somewhat prevalent, is what the 19 00:01:10,280 --> 00:01:14,279 Speaker 1: evidence seems to suggest. This was apparently the line where 20 00:01:14,440 --> 00:01:17,960 Speaker 1: they produced Teslas. So it's somewhat of a blue collar environment, 21 00:01:18,200 --> 00:01:21,080 Speaker 1: and I suspect that might have been the environment that 22 00:01:21,120 --> 00:01:23,839 Speaker 1: he was working in where these kinds of working conditions 23 00:01:23,880 --> 00:01:27,600 Speaker 1: were allegedly somewhat more prevalent than one would expect or 24 00:01:28,080 --> 00:01:31,080 Speaker 1: certainly one would hope in any workplace the arbist who's 25 00:01:31,120 --> 00:01:33,480 Speaker 1: working in it. So, yes, he's claiming that he was 26 00:01:33,560 --> 00:01:38,080 Speaker 1: harassed by it, but the emotional distress that the company 27 00:01:38,240 --> 00:01:41,200 Speaker 1: that resulted in an award of only a hundred thousand 28 00:01:41,240 --> 00:01:45,160 Speaker 1: dollars to him. The other claim, the one that actually 29 00:01:45,160 --> 00:01:49,480 Speaker 1: involves lost wages, which actually was a more valuable claim 30 00:01:49,520 --> 00:01:52,920 Speaker 1: for him in this case, arises from constructive discharge. So 31 00:01:53,000 --> 00:01:56,640 Speaker 1: what he argued and succeeded in proving to the arbitrator 32 00:01:57,520 --> 00:02:01,840 Speaker 1: is that he was for to resign his employment. That's 33 00:02:01,920 --> 00:02:06,680 Speaker 1: what constructive termination is, because of the intolerable work conditions 34 00:02:06,680 --> 00:02:10,520 Speaker 1: that existed in the workplace. In its defense, Tesla said 35 00:02:10,880 --> 00:02:15,000 Speaker 1: that there was no written evidence, even in Barry's medical records, 36 00:02:15,000 --> 00:02:19,160 Speaker 1: that he had complained to coworkers or human resources about 37 00:02:19,240 --> 00:02:24,000 Speaker 1: his supervisors addressing him that way. Isn't that usually detrimental 38 00:02:24,080 --> 00:02:28,480 Speaker 1: to a lawsuit. When you don't report it, it is uh. 39 00:02:28,480 --> 00:02:31,280 Speaker 1: And obviously his claims might have been stronger and he 40 00:02:31,360 --> 00:02:33,760 Speaker 1: might have been able to recover more in the form 41 00:02:33,800 --> 00:02:37,840 Speaker 1: of emotional stress damages, perhaps if he had some evidence 42 00:02:37,919 --> 00:02:41,680 Speaker 1: that he had reported any of this contemporaneously to his 43 00:02:41,760 --> 00:02:45,520 Speaker 1: supervisors or his co workers. I also didn't see in 44 00:02:45,560 --> 00:02:47,839 Speaker 1: the record there was any evidence that there were any 45 00:02:47,840 --> 00:02:51,720 Speaker 1: photographs of the swastikas that supposedly were in this workplace. 46 00:02:51,760 --> 00:02:53,440 Speaker 1: And the use of the N word to the extent 47 00:02:53,560 --> 00:02:56,560 Speaker 1: that it was written anywhere, doesn't mean that it didn't exist. 48 00:02:56,680 --> 00:02:59,000 Speaker 1: But again, not in this day and age, when everybody 49 00:02:59,000 --> 00:03:01,480 Speaker 1: has cell phones, and everybody has cell phones that have 50 00:03:01,600 --> 00:03:03,760 Speaker 1: cameras in them, you would expect that there would be 51 00:03:03,800 --> 00:03:06,640 Speaker 1: some documentary evidence of some of this, and maybe that 52 00:03:06,680 --> 00:03:08,440 Speaker 1: did exist. I just didn't say reference to it in 53 00:03:08,480 --> 00:03:13,480 Speaker 1: the record. I'm wondering if the arbitrator also took into consideration, 54 00:03:14,040 --> 00:03:16,520 Speaker 1: you know, many of the complaints that have been made 55 00:03:16,520 --> 00:03:19,640 Speaker 1: against Tesla. Was she allowed to consider that because there 56 00:03:19,680 --> 00:03:25,200 Speaker 1: have been other complaints against Tesler for similar allegations. I 57 00:03:25,240 --> 00:03:27,760 Speaker 1: suppose so. I mean, I think it gives credibility to 58 00:03:28,320 --> 00:03:30,600 Speaker 1: the claimants in a case such as this. In other words, 59 00:03:30,639 --> 00:03:33,400 Speaker 1: if if he alone was claiming that the N word 60 00:03:33,440 --> 00:03:36,600 Speaker 1: was used around him or was directed toward him, and 61 00:03:36,720 --> 00:03:38,440 Speaker 1: that was in a vacuum, and that nobody else would 62 00:03:38,440 --> 00:03:41,320 Speaker 1: ever complained about that, that HR, you know, confirmed that 63 00:03:41,320 --> 00:03:44,120 Speaker 1: there had never been any other allegations of that, I 64 00:03:44,160 --> 00:03:46,400 Speaker 1: think it would have it would have undermined his credibility 65 00:03:46,440 --> 00:03:49,720 Speaker 1: to some extent. So, although I don't think she awarded 66 00:03:49,760 --> 00:03:54,320 Speaker 1: this primarily because of or even in substantial part because 67 00:03:54,400 --> 00:03:58,560 Speaker 1: of the existence of these other allegations, I think that 68 00:03:58,640 --> 00:04:00,520 Speaker 1: probably had an influence on her. And by the way, 69 00:04:00,520 --> 00:04:02,040 Speaker 1: I think if if there had been a jury in 70 00:04:02,080 --> 00:04:04,360 Speaker 1: this case, which I do think we should mention as well, 71 00:04:04,440 --> 00:04:06,480 Speaker 1: it would have had a much bigger impact. It would 72 00:04:06,480 --> 00:04:08,560 Speaker 1: have had a much bigger impact in terms of the 73 00:04:08,600 --> 00:04:12,120 Speaker 1: outcome in this case. So she said that case law 74 00:04:12,240 --> 00:04:15,760 Speaker 1: is clear that one instance of a supervisor directing the 75 00:04:15,920 --> 00:04:20,760 Speaker 1: N word at a subordinate is sufficient to constitute severe harassment. 76 00:04:21,480 --> 00:04:23,919 Speaker 1: Is that true? Do you agree with that? Well? I 77 00:04:23,960 --> 00:04:27,400 Speaker 1: looked at that. She doesn't cite any California case for that. 78 00:04:27,520 --> 00:04:30,039 Speaker 1: I'm a California lawyer, so I'm most familiar with it. 79 00:04:30,120 --> 00:04:32,839 Speaker 1: And you know, California is pretty robust when it comes 80 00:04:32,839 --> 00:04:35,039 Speaker 1: to these kinds of issues. I'm not aware of any 81 00:04:35,040 --> 00:04:39,400 Speaker 1: California case cites one example as being sufficient. The arbitrators 82 00:04:39,440 --> 00:04:42,320 Speaker 1: cited a ap pelleate case from the d C Circuit 83 00:04:42,400 --> 00:04:44,800 Speaker 1: and also from the Ninth Circuit, but there was, as 84 00:04:44,800 --> 00:04:46,520 Speaker 1: I say, no state law case. Not may have been 85 00:04:46,560 --> 00:04:48,920 Speaker 1: because there weren't state claims that issue in this so 86 00:04:49,040 --> 00:04:52,479 Speaker 1: that would make sense that she would necessarily uh site 87 00:04:52,520 --> 00:04:55,920 Speaker 1: California law. But the law, and this is is somewhat similar 88 00:04:56,080 --> 00:04:58,640 Speaker 1: both under federal and state law, and it is as followed, 89 00:04:59,080 --> 00:05:04,240 Speaker 1: an employee hand recovered for harassment or discrimination, especially harassment 90 00:05:04,240 --> 00:05:07,440 Speaker 1: in this context is what we're talking about, where there 91 00:05:07,600 --> 00:05:12,840 Speaker 1: is either severe or pervasive activity by the employer sufficient 92 00:05:12,880 --> 00:05:15,960 Speaker 1: to alter the terms and conditions of employment. Severe or pervasive, 93 00:05:16,279 --> 00:05:18,960 Speaker 1: So what does that mean. That means that even one instance, 94 00:05:19,080 --> 00:05:22,960 Speaker 1: if it's severe enough, can trigger a harassment claim, or 95 00:05:23,320 --> 00:05:27,240 Speaker 1: it could be a multiple number of instances that may 96 00:05:27,279 --> 00:05:30,280 Speaker 1: not be as severe. Doesn't have to be severe and pervasive, 97 00:05:30,279 --> 00:05:31,599 Speaker 1: it just needs to be one or the other. And 98 00:05:31,680 --> 00:05:34,159 Speaker 1: so I think the argument here was that even the 99 00:05:34,279 --> 00:05:37,280 Speaker 1: use once of the term of the N word would 100 00:05:37,320 --> 00:05:40,080 Speaker 1: be severe enough to trigger liability, and that's kind of 101 00:05:40,080 --> 00:05:42,320 Speaker 1: what's getting the headlines about this case. But I've never 102 00:05:42,320 --> 00:05:44,280 Speaker 1: seen a case, at least in the California law that's 103 00:05:44,279 --> 00:05:46,479 Speaker 1: held that. I'm not aware of a Title seven case 104 00:05:46,520 --> 00:05:49,200 Speaker 1: holding that either, But I think in this case, in 105 00:05:49,279 --> 00:05:52,360 Speaker 1: any event, there appears to have been evidence of pervasive 106 00:05:52,520 --> 00:05:55,360 Speaker 1: use of that word or so it seems, as well 107 00:05:55,360 --> 00:06:00,720 Speaker 1: as other discriminatory symbols and words. Now, let's talk about arbitration, 108 00:06:00,839 --> 00:06:04,520 Speaker 1: because the plaintiff said, looking back at the contract he 109 00:06:04,600 --> 00:06:07,960 Speaker 1: signed with Tesla, which included an arbitration clause, he says, 110 00:06:08,000 --> 00:06:09,800 Speaker 1: if you knew that it meant giving up the right 111 00:06:09,839 --> 00:06:11,880 Speaker 1: to sue in court, he's not sure he would have 112 00:06:11,960 --> 00:06:14,360 Speaker 1: signed it. The reason why you do it is if 113 00:06:14,360 --> 00:06:16,440 Speaker 1: you don't sign it, you don't get the job. That's 114 00:06:16,480 --> 00:06:19,679 Speaker 1: the catch twenty two? So is that true in most 115 00:06:19,839 --> 00:06:22,760 Speaker 1: of these cases where employees signed contracts, they have to 116 00:06:22,800 --> 00:06:26,440 Speaker 1: sign the arbitration clause otherwise they won't get the job. 117 00:06:26,880 --> 00:06:28,960 Speaker 1: That's correct. And by the way, you know it's not 118 00:06:29,080 --> 00:06:31,680 Speaker 1: unique to the employment field. Next time you go to 119 00:06:31,720 --> 00:06:34,240 Speaker 1: the dentist, noticed the forms you're signing. Next time you 120 00:06:34,279 --> 00:06:36,920 Speaker 1: go to your doctor, noticed the forms you're signing next 121 00:06:36,920 --> 00:06:40,040 Speaker 1: time you go to most parking structures, noticed the signs 122 00:06:40,080 --> 00:06:43,760 Speaker 1: that are opposed to. Arbitration is part of many, many 123 00:06:43,760 --> 00:06:47,360 Speaker 1: commercial transactions we engage in every single day. Now, employment 124 00:06:47,440 --> 00:06:50,839 Speaker 1: rights obviously are I think more important in many respects 125 00:06:50,839 --> 00:06:53,760 Speaker 1: than perhaps some of these other rights. But yes, many 126 00:06:53,800 --> 00:06:57,320 Speaker 1: employers now to require and in fact this is of 127 00:06:57,360 --> 00:07:00,080 Speaker 1: course a hotly contested issue, both at the stage and 128 00:07:00,160 --> 00:07:02,600 Speaker 1: the federal level. California has in the last I think 129 00:07:02,680 --> 00:07:07,320 Speaker 1: five years, three times tried to outlaw pre dispute arbitration agreements, 130 00:07:07,320 --> 00:07:09,440 Speaker 1: which is what this is. Meaning it's an agreement that 131 00:07:09,520 --> 00:07:12,560 Speaker 1: was signed before anybody had a quarrel with anybody else, 132 00:07:12,840 --> 00:07:16,400 Speaker 1: called a pre dispute arbitration agreement. Nobody has an objection 133 00:07:16,480 --> 00:07:19,120 Speaker 1: to a post dispute arbitration agreement meaning I know you 134 00:07:19,160 --> 00:07:22,080 Speaker 1: want to assume me and you can sue me in court. However, 135 00:07:22,160 --> 00:07:25,320 Speaker 1: let's go to arbitration the flaw with that. However, very 136 00:07:25,320 --> 00:07:27,880 Speaker 1: few plaineants or claimants are going to agree to go 137 00:07:28,000 --> 00:07:30,880 Speaker 1: to arbitration once they have a lawyer, because very few 138 00:07:30,960 --> 00:07:34,000 Speaker 1: lawyers on the employee side will ever agree to go 139 00:07:34,120 --> 00:07:38,480 Speaker 1: to arbitration and will almost always prefer to go to juries, 140 00:07:38,960 --> 00:07:42,560 Speaker 1: and that is for a number of reasons, the most 141 00:07:42,640 --> 00:07:45,280 Speaker 1: important of which is that they I think believe the 142 00:07:45,280 --> 00:07:48,640 Speaker 1: planets lawyers that their chances of ringing the bell, as 143 00:07:48,680 --> 00:07:51,880 Speaker 1: they say, and getting a large verdict are much greater 144 00:07:52,520 --> 00:07:54,520 Speaker 1: in front of a jury than they are in front 145 00:07:54,640 --> 00:07:56,440 Speaker 1: of an arbitrator. And I think this is a good 146 00:07:56,440 --> 00:08:01,280 Speaker 1: example of that that very principle. And it's plain why 147 00:08:01,440 --> 00:08:05,559 Speaker 1: the use of mandatory arbitration by employers has come under 148 00:08:05,640 --> 00:08:10,160 Speaker 1: fire for sexual harassment complaints during the Me Too movement 149 00:08:10,280 --> 00:08:16,400 Speaker 1: and for racial discrimination complaints. Sure well, I think there's 150 00:08:16,400 --> 00:08:18,120 Speaker 1: a little bit of a shell game going on. I 151 00:08:18,120 --> 00:08:20,760 Speaker 1: don't know if we've said it already, but i'll say 152 00:08:20,800 --> 00:08:22,520 Speaker 1: it now. I'm a defense lawyer, so I do have 153 00:08:22,720 --> 00:08:24,920 Speaker 1: my own point of view on these things. The plaintift 154 00:08:25,000 --> 00:08:29,080 Speaker 1: lawyers often say they don't like arbitration because it is 155 00:08:29,240 --> 00:08:34,280 Speaker 1: a confidential, closed door, star chamber kind of proceeding. I'm 156 00:08:34,360 --> 00:08:36,120 Speaker 1: exaggerating a bit, but that's that's kind of what the 157 00:08:36,120 --> 00:08:38,680 Speaker 1: plaintfts lawyers say, and this should all be subject to 158 00:08:38,720 --> 00:08:42,839 Speaker 1: the sunshine of an open trial. This case puts the 159 00:08:42,920 --> 00:08:45,439 Speaker 1: lie to that, because, by the way, this was an arbitration, 160 00:08:45,679 --> 00:08:48,600 Speaker 1: and you and I are now talking about this in 161 00:08:48,640 --> 00:08:50,760 Speaker 1: a very public way, and there obviously have been very 162 00:08:50,760 --> 00:08:53,520 Speaker 1: many stories on this already. In this case that was 163 00:08:53,600 --> 00:08:58,200 Speaker 1: decided in arbitration, Bloomberg successfully first published this article and 164 00:08:58,200 --> 00:09:00,800 Speaker 1: it's been picked up all over all over the world now. 165 00:09:01,200 --> 00:09:04,760 Speaker 1: So to suggest that arbitration is this deep, dark, secret 166 00:09:05,000 --> 00:09:08,920 Speaker 1: proceeding is just not true. Why is that, Well, because 167 00:09:09,040 --> 00:09:12,880 Speaker 1: many plaintiffs lawyers, once they get a verdict like this, 168 00:09:13,000 --> 00:09:15,240 Speaker 1: or an award as it's called an arbitration, they'll file 169 00:09:15,280 --> 00:09:19,200 Speaker 1: it in court publicly in order to confirm the award. 170 00:09:19,600 --> 00:09:22,200 Speaker 1: That's what happened here, That's why it's public. So the 171 00:09:22,280 --> 00:09:24,880 Speaker 1: notion that somehow this is a secretive proceeding is just 172 00:09:24,920 --> 00:09:27,920 Speaker 1: not true. The other thing that happens with great frequency 173 00:09:28,000 --> 00:09:31,200 Speaker 1: is that employees who want to see their employers, even 174 00:09:31,240 --> 00:09:34,400 Speaker 1: if there is an arbitration agreement in place, their lawyers 175 00:09:34,400 --> 00:09:38,080 Speaker 1: will file in court anyway to get the publicity associated 176 00:09:38,120 --> 00:09:41,240 Speaker 1: with the case, and they will then essentially throw down 177 00:09:41,240 --> 00:09:44,640 Speaker 1: the gauntlet and make the employer while emotion to compel 178 00:09:44,760 --> 00:09:49,320 Speaker 1: arbitration in court, meaning that once again it's all public. 179 00:09:49,360 --> 00:09:51,400 Speaker 1: Everyone's going to know what all the allegations are they 180 00:09:51,440 --> 00:09:54,680 Speaker 1: may not be able to know exactly what's happening once 181 00:09:54,720 --> 00:09:57,480 Speaker 1: the case does go to arbitration. But if the judge 182 00:09:58,080 --> 00:10:02,479 Speaker 1: who receives the filing believes that the arbitration agreement is enforceable, 183 00:10:02,720 --> 00:10:05,280 Speaker 1: he or she will send the case to arbitration anyway, 184 00:10:05,360 --> 00:10:07,679 Speaker 1: and you'll end up in arbitration. But the so called 185 00:10:07,840 --> 00:10:10,800 Speaker 1: secret proceeding will will no longer be secret because I 186 00:10:10,920 --> 00:10:12,520 Speaker 1: do at the front end or at the back end, 187 00:10:12,559 --> 00:10:16,040 Speaker 1: the plainet lawyers will do something to make it public. 188 00:10:16,600 --> 00:10:20,400 Speaker 1: The real reason plainets lawyers don't like arbitration is because 189 00:10:20,480 --> 00:10:23,400 Speaker 1: of the amount of money that arbitrateds award versus the 190 00:10:23,400 --> 00:10:26,439 Speaker 1: amount of money the jury's award. Juries are far more 191 00:10:26,440 --> 00:10:30,559 Speaker 1: sympathetic two employees who have been fired, far more sympathetic 192 00:10:30,600 --> 00:10:32,920 Speaker 1: to employees who have been harassed, far more sympathetic to 193 00:10:32,920 --> 00:10:36,160 Speaker 1: employees who have been discriminated again, and they are much 194 00:10:36,160 --> 00:10:42,679 Speaker 1: more likely to give much greater volume verdicts to employee 195 00:10:43,160 --> 00:10:46,640 Speaker 1: in California. In many jurisdictions, not just California, there's essentially 196 00:10:46,640 --> 00:10:49,480 Speaker 1: an unlimited amount of money that a jury can award 197 00:10:49,760 --> 00:10:53,560 Speaker 1: in cases such as this Number one. Every employee in 198 00:10:53,559 --> 00:10:56,439 Speaker 1: these cases if they've lost their job, is going to 199 00:10:56,520 --> 00:11:00,319 Speaker 1: have an expert economist. The expert economists will testify and 200 00:11:00,400 --> 00:11:06,120 Speaker 1: will put forth the best, most aggressive lost wage analysis 201 00:11:06,360 --> 00:11:08,160 Speaker 1: that they can come up with, and oftentimes you end 202 00:11:08,240 --> 00:11:10,680 Speaker 1: up with hundreds of thousands or even millions of dollars 203 00:11:11,360 --> 00:11:15,160 Speaker 1: in lost wages. Are relatively low paid employee because what 204 00:11:15,200 --> 00:11:17,760 Speaker 1: they will do is they will say, this employee and 205 00:11:18,200 --> 00:11:21,440 Speaker 1: that's essentially what this this arbitrator did. This employee would 206 00:11:21,440 --> 00:11:25,280 Speaker 1: have remained employed through the trial, so that's so called 207 00:11:25,320 --> 00:11:29,760 Speaker 1: lost wages or back pay. And then this employee, you know, 208 00:11:30,120 --> 00:11:33,600 Speaker 1: probably would have remained deployed for the next ten fifteen years. 209 00:11:34,160 --> 00:11:36,000 Speaker 1: And then they will do a present value of the 210 00:11:36,040 --> 00:11:38,560 Speaker 1: future lost wages, and it doesn't take a lot of 211 00:11:38,640 --> 00:11:41,520 Speaker 1: calculation for an expert economist to come up with a 212 00:11:41,640 --> 00:11:45,520 Speaker 1: very substantial six figure and sometimes even seven figure number 213 00:11:45,880 --> 00:11:49,520 Speaker 1: in terms of lost wages. The second components emotional distress damages, 214 00:11:49,640 --> 00:11:52,480 Speaker 1: and there there's no limit the employees lawyer can ask 215 00:11:52,760 --> 00:11:55,880 Speaker 1: or any amount of money they want. Now, this case 216 00:11:56,320 --> 00:11:59,240 Speaker 1: that we're talking about is very unusual in that the 217 00:11:59,280 --> 00:12:01,200 Speaker 1: plaintiffs lawyer, and I'm not sure why they did this, 218 00:12:01,480 --> 00:12:05,520 Speaker 1: stipulated to so called garden variety emotional distress damages. What 219 00:12:05,640 --> 00:12:09,000 Speaker 1: that means is that they weren't essentially making a big 220 00:12:09,000 --> 00:12:13,320 Speaker 1: deal of whatever emotion distressed damages this employee suffered. I've 221 00:12:13,360 --> 00:12:16,600 Speaker 1: actually never seen that because no plaintiffs lawyers, certainly no 222 00:12:16,679 --> 00:12:19,319 Speaker 1: plaintift lawyer in front of a jury whatever stipulates to 223 00:12:19,360 --> 00:12:21,920 Speaker 1: that they always will have, in addition to the expert 224 00:12:21,960 --> 00:12:26,400 Speaker 1: economists and expert psychiatrists or psychologists who will testify in 225 00:12:26,400 --> 00:12:29,480 Speaker 1: front of the jury and who will say this person 226 00:12:29,840 --> 00:12:32,400 Speaker 1: is a shattered shell of human being. They can't eat, 227 00:12:32,440 --> 00:12:36,720 Speaker 1: they can't sleep, they barely recognize their children. I'm obviously exaggerating, 228 00:12:36,720 --> 00:12:40,400 Speaker 1: but what the expert psychologists will do is tell the 229 00:12:40,480 --> 00:12:44,880 Speaker 1: jury that this person has been badly injured psychologically and 230 00:12:44,880 --> 00:12:47,319 Speaker 1: and every other way by virtue of what happened in 231 00:12:47,360 --> 00:12:50,320 Speaker 1: the workplace. These psychologists and psychiatrists, for the most part 232 00:12:50,360 --> 00:12:52,440 Speaker 1: of professional witness, there's very few of them are actual 233 00:12:52,640 --> 00:12:56,760 Speaker 1: practicing positions. And that's true both on the side of 234 00:12:56,800 --> 00:12:58,520 Speaker 1: the employee as well as the side of the defense. 235 00:12:58,559 --> 00:13:01,600 Speaker 1: The defense sometimes will have a psychiatrists or psychologists of 236 00:13:01,640 --> 00:13:05,120 Speaker 1: its own who will also examine the plaintiff and will 237 00:13:05,160 --> 00:13:08,960 Speaker 1: testify about the extent to which, if any, this individual 238 00:13:09,000 --> 00:13:12,080 Speaker 1: has suffered, but at the appropriate time during the trial. 239 00:13:12,520 --> 00:13:16,079 Speaker 1: In a jury trial, uh, the plaintiffs lawyer will ask 240 00:13:16,200 --> 00:13:20,439 Speaker 1: the jury for almost always hundreds of thousands and again 241 00:13:20,520 --> 00:13:24,480 Speaker 1: sometimes a seven figure number or emotional stress damages alone. 242 00:13:24,920 --> 00:13:29,160 Speaker 1: So now you've already got lost wages in the mid 243 00:13:29,200 --> 00:13:32,240 Speaker 1: to high six figures, and then you add to that 244 00:13:33,000 --> 00:13:36,000 Speaker 1: emotional stress damages in the mid to high six figures 245 00:13:36,080 --> 00:13:39,280 Speaker 1: or maybe more. And then the third element that's sort 246 00:13:39,280 --> 00:13:42,560 Speaker 1: of the trifecta here, is to try to get punitive damages. 247 00:13:42,960 --> 00:13:45,960 Speaker 1: And punitive damages then are a combination of those first 248 00:13:46,000 --> 00:13:49,800 Speaker 1: two elements. The jury is permitted to add the emotional 249 00:13:49,880 --> 00:13:53,079 Speaker 1: stress damages and the loss wages together and then award 250 00:13:53,160 --> 00:13:56,040 Speaker 1: a multiple of those two numbers in the form of 251 00:13:56,040 --> 00:13:59,600 Speaker 1: punitive damages. And that's how you very easily convult one 252 00:13:59,640 --> 00:14:03,199 Speaker 1: of these verticts into the low or even mid seven 253 00:14:03,240 --> 00:14:07,640 Speaker 1: figure amounts. In this case, he was awarded only two 254 00:14:07,720 --> 00:14:11,000 Speaker 1: hundred and sixty six thou dollars in damages, but the 255 00:14:11,000 --> 00:14:15,120 Speaker 1: attorney's fees were seven hundred fifty five thousand dollars, almost 256 00:14:15,200 --> 00:14:19,440 Speaker 1: three times His recovery is that unusual. It seems like 257 00:14:19,640 --> 00:14:22,920 Speaker 1: a huge amount of money. It is what happens, and 258 00:14:22,960 --> 00:14:24,520 Speaker 1: there was some debate about this. You can see in 259 00:14:24,560 --> 00:14:28,880 Speaker 1: the opinion from the arbitrator what some PLAINTFFT lawyers in 260 00:14:28,960 --> 00:14:31,240 Speaker 1: California do at least, and I think this is true elsewhere. 261 00:14:31,520 --> 00:14:34,840 Speaker 1: The notion that plaintiff lawyers take cases on a contingency 262 00:14:34,960 --> 00:14:37,320 Speaker 1: is true, meaning that they usually just get a percentage 263 00:14:37,320 --> 00:14:40,360 Speaker 1: of what the employee recovers. When I first started practicing, 264 00:14:40,400 --> 00:14:43,720 Speaker 1: that was generally a third usually. I don't know if 265 00:14:43,720 --> 00:14:48,160 Speaker 1: it's because of inflation or what, but that number, or 266 00:14:48,160 --> 00:14:51,640 Speaker 1: that percentage rather has now creeped up from thirty to 267 00:14:51,760 --> 00:14:57,080 Speaker 1: in almost all instances. And I've even heard of plaintiff lawyers, 268 00:14:57,120 --> 00:15:00,840 Speaker 1: notable Plainteft lawyers in California, who charged fifty percent fifty 269 00:15:00,920 --> 00:15:03,360 Speaker 1: percent of what is recovered by the employee. But they're 270 00:15:03,360 --> 00:15:06,080 Speaker 1: not done there. What they then do, and I'm not 271 00:15:06,120 --> 00:15:09,120 Speaker 1: sure most employees even know about this. Then they can 272 00:15:09,160 --> 00:15:12,880 Speaker 1: file their own application for attorney's fees on top of 273 00:15:13,120 --> 00:15:16,280 Speaker 1: the percentage of the of the recovery. To say, the 274 00:15:16,280 --> 00:15:19,120 Speaker 1: employer that covers a million dollars, the attorney can get 275 00:15:19,240 --> 00:15:21,640 Speaker 1: up to forty of that, so that's four or five. 276 00:15:22,800 --> 00:15:25,120 Speaker 1: Then they go in and they ask the judge to 277 00:15:25,160 --> 00:15:29,200 Speaker 1: award them attorney spees under the statutory scheme that exists 278 00:15:29,520 --> 00:15:31,880 Speaker 1: um and they can get in addition to that then 279 00:15:31,920 --> 00:15:34,240 Speaker 1: what their hourly rate is, and they don't share that 280 00:15:34,280 --> 00:15:38,160 Speaker 1: with the employee. They just take that themselves. So getting 281 00:15:38,240 --> 00:15:42,440 Speaker 1: into a situation where the lawyer is getting multiples of 282 00:15:42,440 --> 00:15:45,560 Speaker 1: what the employee recovers. In this case, as you say, 283 00:15:45,640 --> 00:15:48,040 Speaker 1: more than three times, but it can be four or five, 284 00:15:48,120 --> 00:15:53,200 Speaker 1: six times. But some some lawyers don't share that second component, 285 00:15:53,280 --> 00:15:55,320 Speaker 1: that is the attorney's speed to get under the statute 286 00:15:55,720 --> 00:15:58,080 Speaker 1: with their clients. They take that for themselves, and they 287 00:15:58,120 --> 00:16:03,440 Speaker 1: also take the percentage of recovery that the employee is worded. 288 00:16:04,280 --> 00:16:09,160 Speaker 1: Tesla has been sued many times for similar allegations to 289 00:16:09,720 --> 00:16:15,600 Speaker 1: various allegation and also in complaints were filed with California's 290 00:16:15,640 --> 00:16:20,640 Speaker 1: Department of Fair Employment and Housing. Those numbers seem really high. 291 00:16:20,640 --> 00:16:23,160 Speaker 1: It's unusual, I think for a single employer to have 292 00:16:23,760 --> 00:16:26,920 Speaker 1: even that number, or even probably a fraction of that 293 00:16:27,040 --> 00:16:30,440 Speaker 1: number of complaints. So I'm not sure what's happening there. 294 00:16:30,600 --> 00:16:33,480 Speaker 1: There is truth say only to half or a third 295 00:16:33,520 --> 00:16:36,760 Speaker 1: of those claims, and I'm just guessing that still is 296 00:16:36,800 --> 00:16:39,480 Speaker 1: a lot in today's workplace. But I can't offer an 297 00:16:39,520 --> 00:16:42,000 Speaker 1: opinion as to whether that's something that's actually occurring there 298 00:16:42,240 --> 00:16:43,960 Speaker 1: or not. But I can just say, you know, I 299 00:16:44,000 --> 00:16:47,280 Speaker 1: do nothing all day long but represent employers, and very 300 00:16:47,280 --> 00:16:49,640 Speaker 1: few clients ever have one of these plans as opposed 301 00:16:49,680 --> 00:16:53,720 Speaker 1: to multiple time. Thanks Tony. That's Anthony on CD of Proskauer. 302 00:16:55,320 --> 00:16:59,120 Speaker 1: Competing congressional proposals to add federal judge ships give the 303 00:16:59,200 --> 00:17:03,520 Speaker 1: judiciary its first chance in thirty years for a comprehensive 304 00:17:03,560 --> 00:17:07,320 Speaker 1: slate of trial court seats. The measures introduced in the 305 00:17:07,359 --> 00:17:10,480 Speaker 1: House and Senate offer very different assessments of the need 306 00:17:10,520 --> 00:17:13,640 Speaker 1: to add positions to the district court system that's where 307 00:17:13,720 --> 00:17:16,639 Speaker 1: much of federal court business is done. Joining me is 308 00:17:16,720 --> 00:17:20,399 Speaker 1: Madison Alder, a reporter with Bloomberg Law. So, Maddie, is 309 00:17:20,440 --> 00:17:24,800 Speaker 1: there a need for more federal judge ships? So despite 310 00:17:25,000 --> 00:17:29,439 Speaker 1: years of request from the federal judiciary, UM, they haven't 311 00:17:29,440 --> 00:17:32,560 Speaker 1: gotten new judge ships. And more than thirty years the 312 00:17:32,640 --> 00:17:37,120 Speaker 1: last judge ship bill was in and since then, district 313 00:17:37,200 --> 00:17:44,280 Speaker 1: court caseloads have increased, population has increased, and the courts 314 00:17:44,400 --> 00:17:46,960 Speaker 1: have been trying to express the Congress that this is 315 00:17:47,000 --> 00:17:50,879 Speaker 1: really in need of their especially in states like California, 316 00:17:50,920 --> 00:17:54,200 Speaker 1: for example, which has a number of judicial emergencies. This 317 00:17:54,280 --> 00:17:58,280 Speaker 1: is something that you know, they told me recently. Uh, 318 00:17:58,520 --> 00:18:01,359 Speaker 1: you know, even if they get their ships bills that 319 00:18:01,400 --> 00:18:03,480 Speaker 1: are vacant right now, they're still going to need more 320 00:18:03,560 --> 00:18:06,639 Speaker 1: judges to be able to deal with raising caseloads. The 321 00:18:06,760 --> 00:18:10,639 Speaker 1: last time that judges were added was when Joe Biden 322 00:18:10,720 --> 00:18:14,399 Speaker 1: was a Senator. That's correct. So I actually found in 323 00:18:14,440 --> 00:18:19,480 Speaker 1: my research that the last time that a judge ship 324 00:18:19,520 --> 00:18:22,600 Speaker 1: still was passed by Congress, a comprehensive judge ship still, 325 00:18:22,720 --> 00:18:26,640 Speaker 1: I should note, was in the effort was spearheaded by 326 00:18:26,840 --> 00:18:31,639 Speaker 1: then Senate Judiciary Committee chairman and Delary Senator Joe Biden. 327 00:18:31,960 --> 00:18:34,520 Speaker 1: It was actually called the Biden Bill for the role 328 00:18:34,600 --> 00:18:37,120 Speaker 1: that he played in getting out across the finish line. 329 00:18:37,480 --> 00:18:41,719 Speaker 1: So there are two different proposals or bills. Tell us 330 00:18:41,720 --> 00:18:45,520 Speaker 1: about them and explain the differences. So the Judges Act 331 00:18:45,880 --> 00:18:49,040 Speaker 1: is a bill that was introduced in the Senate by 332 00:18:49,200 --> 00:18:54,440 Speaker 1: Senators Chris Coon's Democrat from Delawar and Todd Young, Republican 333 00:18:54,520 --> 00:18:59,200 Speaker 1: from Indiana and their bill would give the judiciary seventies 334 00:18:59,200 --> 00:19:03,600 Speaker 1: seven judgeship and those judge ships are exactly what the 335 00:19:03,680 --> 00:19:06,800 Speaker 1: Judicial Conference asked for and its most recent requests. The 336 00:19:06,840 --> 00:19:09,440 Speaker 1: only difference is that they would only start to become 337 00:19:09,480 --> 00:19:13,880 Speaker 1: available in and then the second half would become available 338 00:19:13,880 --> 00:19:18,040 Speaker 1: in and that's timed after the next two presidential elections. 339 00:19:18,119 --> 00:19:20,720 Speaker 1: So basically trying to make it as non political as 340 00:19:20,720 --> 00:19:23,159 Speaker 1: possible and to be able to get something that the 341 00:19:23,200 --> 00:19:25,800 Speaker 1: people can agree on. And that also has a companion 342 00:19:26,000 --> 00:19:29,640 Speaker 1: in the House um that was introduced by Representative Eryl 343 00:19:29,680 --> 00:19:34,520 Speaker 1: Isa of California Republicans, and that also has Democratic cot sponsors, 344 00:19:34,600 --> 00:19:38,520 Speaker 1: So that legislation seems like it's the most likely to 345 00:19:38,960 --> 00:19:42,720 Speaker 1: maybe get support enough to pass by cameral and bipartisans. 346 00:19:43,200 --> 00:19:45,399 Speaker 1: But on the other hand, you have a bill that 347 00:19:45,480 --> 00:19:49,760 Speaker 1: was introduced by House Democrats that would propose two thirty 348 00:19:49,840 --> 00:19:54,000 Speaker 1: judgeships for the federal judiciary immediately, and they argue that 349 00:19:54,040 --> 00:19:57,359 Speaker 1: the judiciary needs more than it's letting on more than 350 00:19:57,400 --> 00:20:01,480 Speaker 1: it asked for because they're using a metric that they 351 00:20:01,560 --> 00:20:07,160 Speaker 1: changed because they felt like they were maybe asking for 352 00:20:07,320 --> 00:20:11,240 Speaker 1: too many judges, So they're indicating of how stamocrasts are 353 00:20:11,280 --> 00:20:15,800 Speaker 1: indicating that perhaps the Judicial conference in the Judiciary need 354 00:20:15,840 --> 00:20:18,560 Speaker 1: a little bit more help, and they need it now, 355 00:20:18,800 --> 00:20:21,879 Speaker 1: so they need it as soon as the bill would 356 00:20:21,960 --> 00:20:25,320 Speaker 1: be passed. Um, of course, that would give Biden two 357 00:20:25,720 --> 00:20:29,439 Speaker 1: three judges ships to so immediately, which Republicans might not 358 00:20:29,520 --> 00:20:33,120 Speaker 1: be as on board with. We hear all the time 359 00:20:33,160 --> 00:20:35,720 Speaker 1: about how there is a crisis in this district and 360 00:20:35,800 --> 00:20:41,080 Speaker 1: that district, and how you know judges have such heavy caseloads. 361 00:20:41,560 --> 00:20:45,800 Speaker 1: Why wait so many years before you put these judges 362 00:20:45,800 --> 00:20:48,040 Speaker 1: in Why not just at least put some in now. 363 00:20:49,680 --> 00:20:53,240 Speaker 1: So there have been discussions about this on the Hill 364 00:20:54,040 --> 00:20:57,200 Speaker 1: and it seems to be that, you know, people kind 365 00:20:57,200 --> 00:21:00,680 Speaker 1: of have qualified that the judges would be unavailable for 366 00:21:00,720 --> 00:21:04,480 Speaker 1: the election. Leonner, that would be the most bipartisan way 367 00:21:04,520 --> 00:21:08,240 Speaker 1: to deal with this. So before the last election, then 368 00:21:08,359 --> 00:21:12,159 Speaker 1: send a Judiciary Committee Chairman Lindsey Graham said that he 369 00:21:12,240 --> 00:21:15,720 Speaker 1: would be open to adding speed to the judiciary right 370 00:21:15,760 --> 00:21:18,360 Speaker 1: then if they got some kind of art by pertician's 371 00:21:18,359 --> 00:21:22,320 Speaker 1: proposals together for the election winner. After that it becomes 372 00:21:22,359 --> 00:21:24,879 Speaker 1: a little bit more of a political question because you 373 00:21:24,920 --> 00:21:28,280 Speaker 1: know exactly who those speeds are going to. So when 374 00:21:28,560 --> 00:21:31,200 Speaker 1: no one knows who is going to win the election. 375 00:21:31,280 --> 00:21:33,879 Speaker 1: It seems like there's more rooms for agreement on one 376 00:21:33,880 --> 00:21:38,880 Speaker 1: of these proposals because you're essentially just giving this opportunity 377 00:21:39,000 --> 00:21:44,040 Speaker 1: to whoever becomes presidents. The progressives who said that the 378 00:21:44,119 --> 00:21:48,480 Speaker 1: judiciaries proposed eight percent expansion of the lower courts doesn't 379 00:21:48,680 --> 00:21:52,480 Speaker 1: meet the needs, how did they come to that conclusion? 380 00:21:53,040 --> 00:21:56,720 Speaker 1: So they came to that conclusion by using an old 381 00:21:56,800 --> 00:22:01,399 Speaker 1: metric that the Judicial Conference used to use prior. So 382 00:22:01,680 --> 00:22:05,359 Speaker 1: their metric now is four thirty firelens per judge, And 383 00:22:05,400 --> 00:22:07,640 Speaker 1: what that means is that at four hudred and thirty 384 00:22:07,640 --> 00:22:10,760 Speaker 1: filens for judge, they're basically saying that's too much work. 385 00:22:10,840 --> 00:22:12,760 Speaker 1: Beyond that would be too much work for a single 386 00:22:12,840 --> 00:22:16,360 Speaker 1: judge to do. The ideal caseload is four hundred three. 387 00:22:16,640 --> 00:22:18,879 Speaker 1: So they went back to an older metric that was 388 00:22:18,920 --> 00:22:22,440 Speaker 1: four hundred that they used prior to nine. And the 389 00:22:22,520 --> 00:22:25,760 Speaker 1: Judicial Conference itself said in making that change that it 390 00:22:25,840 --> 00:22:29,320 Speaker 1: was because of the size of the requests, basically alluding 391 00:22:29,359 --> 00:22:31,359 Speaker 1: to the fact that they were trying to control how 392 00:22:31,400 --> 00:22:35,080 Speaker 1: big those requests were getting. And Democrats say that the 393 00:22:35,160 --> 00:22:37,919 Speaker 1: four hundred filing for judge is a better way of 394 00:22:38,000 --> 00:22:41,479 Speaker 1: measuring this because it is the number that they were 395 00:22:41,560 --> 00:22:45,240 Speaker 1: using before they were maybe factoring in politics. An aid 396 00:22:45,320 --> 00:22:48,280 Speaker 1: I Stosk who said that they could sense some politicking 397 00:22:48,359 --> 00:22:51,160 Speaker 1: and pessimism and the requests over the last few years, 398 00:22:51,200 --> 00:22:54,960 Speaker 1: even if they might need more judgeships immediately. It's interesting 399 00:22:55,000 --> 00:23:00,200 Speaker 1: you spoke to Brookings Institution fellow Russell Wheeler, and he's said, 400 00:23:00,680 --> 00:23:04,320 Speaker 1: if the history of judge ship legislation means anything, it 401 00:23:04,359 --> 00:23:06,800 Speaker 1: means that you better take your best shot now because 402 00:23:06,840 --> 00:23:09,640 Speaker 1: you may not get another one. So he's just saying, 403 00:23:09,760 --> 00:23:12,440 Speaker 1: get whatever you can at this point, pass whatever bill 404 00:23:12,520 --> 00:23:16,520 Speaker 1: will get approved. I think he's saying the window could 405 00:23:16,520 --> 00:23:19,639 Speaker 1: be pretty short here. If if history is in the indication, 406 00:23:19,960 --> 00:23:22,800 Speaker 1: of course, that doesn't necessarily mean that they couldn't come 407 00:23:22,840 --> 00:23:26,120 Speaker 1: to another agreement for for some kind of judge ship 408 00:23:26,160 --> 00:23:29,560 Speaker 1: release in the interms. But if history is any indication, 409 00:23:29,800 --> 00:23:32,679 Speaker 1: then this might be the only shot that wall makers 410 00:23:32,720 --> 00:23:35,720 Speaker 1: have for quite some time to be able to add 411 00:23:35,800 --> 00:23:39,040 Speaker 1: seats to the schedule judiciary. And if it is the 412 00:23:39,119 --> 00:23:41,920 Speaker 1: Judges Act, that means that that release won't come until 413 00:23:43,240 --> 00:23:47,639 Speaker 1: and are there any moves to increase the number of 414 00:23:47,720 --> 00:23:52,280 Speaker 1: judges on the Circuit courts. So in the Digital Conference's request, 415 00:23:52,520 --> 00:23:55,479 Speaker 1: they did also ask for two seats in the Ninth Circuit. 416 00:23:56,000 --> 00:23:59,280 Speaker 1: This year, they actually decreased that their request to happen 417 00:23:59,320 --> 00:24:01,840 Speaker 1: every two years. They decreased that from the last time 418 00:24:01,880 --> 00:24:04,560 Speaker 1: they requested. They requested, i think with five judges for 419 00:24:04,600 --> 00:24:08,360 Speaker 1: the Ninth Circuit, and this year they said, okay, only two. 420 00:24:09,080 --> 00:24:11,479 Speaker 1: That didn't make it into either of the proposals, And 421 00:24:11,640 --> 00:24:14,840 Speaker 1: at a house hearing on lower court judge ships, the 422 00:24:14,960 --> 00:24:18,400 Speaker 1: Ninth Circuit seemed to pose a sticking point for Republicans 423 00:24:18,680 --> 00:24:23,040 Speaker 1: representative their eyes again the Republicans from California. He mentioned, 424 00:24:23,440 --> 00:24:26,639 Speaker 1: you know, splitting the Ninth Circuit might potentially be something 425 00:24:26,800 --> 00:24:29,480 Speaker 1: that whilemakers would look at if they're going to add 426 00:24:29,480 --> 00:24:32,000 Speaker 1: more steeds the Ninth Circuit, which has twenty nine judges. 427 00:24:32,480 --> 00:24:35,040 Speaker 1: So the Ninth Circuit and Circuit Court judge ships seem 428 00:24:35,160 --> 00:24:38,760 Speaker 1: like they might pose enough of the sticking point that 429 00:24:38,760 --> 00:24:41,240 Speaker 1: that has been separated out into a different issue. So 430 00:24:41,359 --> 00:24:44,359 Speaker 1: both of these bills focused specifically on the district courts 431 00:24:45,080 --> 00:24:49,760 Speaker 1: and tell us how the Presidential Commission on the Supreme 432 00:24:49,880 --> 00:24:54,240 Speaker 1: Court is going. The Presidential Commission on the Supreme Court 433 00:24:54,400 --> 00:24:58,679 Speaker 1: is looking at different reforms for the Supreme Court itself 434 00:24:58,800 --> 00:25:03,679 Speaker 1: and looking at different ways to change the Supreme Court potentially, 435 00:25:04,119 --> 00:25:07,920 Speaker 1: but ultimately that that commission isn't going to make any recommendation. 436 00:25:08,480 --> 00:25:12,720 Speaker 1: It will provide an analysis of some sort of a 437 00:25:12,800 --> 00:25:15,920 Speaker 1: lot of different proposals on how to change the Supreme 438 00:25:15,960 --> 00:25:20,760 Speaker 1: Court and present that su Biden, who will ultimately, you know, 439 00:25:20,960 --> 00:25:24,480 Speaker 1: maybe make some kind of final recommendation. The ball will 440 00:25:24,480 --> 00:25:26,600 Speaker 1: be in his court there. But a lot of these 441 00:25:26,680 --> 00:25:29,280 Speaker 1: changes really rely on Congress. So it all comes down 442 00:25:29,320 --> 00:25:32,919 Speaker 1: to what Congress wants to do. And with us one 443 00:25:33,040 --> 00:25:36,720 Speaker 1: Democratic majority, those options seem pretty limited. And we've talked 444 00:25:36,760 --> 00:25:41,639 Speaker 1: before about how progressives are disappointed with that commission, with 445 00:25:41,720 --> 00:25:44,600 Speaker 1: people who are on the commission, as well as the 446 00:25:44,640 --> 00:25:47,360 Speaker 1: fact that they're not going to be making any recommendations. 447 00:25:47,560 --> 00:25:50,639 Speaker 1: Our progressive still pushing to pack the court or have 448 00:25:50,800 --> 00:25:55,160 Speaker 1: they given up on that for now? Progressives are still 449 00:25:55,200 --> 00:25:58,359 Speaker 1: pushing to pack the court or expand the Supreme Court 450 00:25:58,400 --> 00:26:01,960 Speaker 1: and not a few more seeds and um, it's been 451 00:26:02,160 --> 00:26:04,040 Speaker 1: you know, kind of explaining you by some of these groups. 452 00:26:04,040 --> 00:26:06,720 Speaker 1: They demand justice, but this is something but they see 453 00:26:06,760 --> 00:26:09,560 Speaker 1: as a long term goal. This is something that they 454 00:26:09,640 --> 00:26:13,720 Speaker 1: see as you know, they see the reality of of 455 00:26:14,000 --> 00:26:19,480 Speaker 1: of Congress and that, uh, you know, Democrats have the 456 00:26:19,520 --> 00:26:23,239 Speaker 1: slullmest of margins when the SunNet, and uh, this is 457 00:26:23,280 --> 00:26:27,919 Speaker 1: something that they see as potentially you know, becoming more 458 00:26:27,960 --> 00:26:30,919 Speaker 1: popular over time and getting more support over time. That 459 00:26:30,960 --> 00:26:34,080 Speaker 1: they are still definitely pushing for that. So let's talk 460 00:26:34,080 --> 00:26:39,440 Speaker 1: now about President Biden discontinuing to nominate judges. He's nominated 461 00:26:39,440 --> 00:26:42,440 Speaker 1: a judge for the Second Circuit who will be a 462 00:26:42,560 --> 00:26:48,680 Speaker 1: first right so, Justice Beth Robinson, who is currently Justice 463 00:26:48,680 --> 00:26:52,639 Speaker 1: on the Vermont Supreme Court, was nominated for an appeal 464 00:26:52,640 --> 00:26:56,239 Speaker 1: of Court seat on the Second Circuit and she is 465 00:26:56,840 --> 00:27:00,040 Speaker 1: currently the first openly LGBT judge on on the on 466 00:27:00,119 --> 00:27:02,720 Speaker 1: lot of Supreme Court, and she would be the first 467 00:27:02,960 --> 00:27:06,719 Speaker 1: LGBT woman to serve on a federal appeals court in 468 00:27:06,840 --> 00:27:11,720 Speaker 1: the US. But there is an openly LGBT District Court 469 00:27:11,800 --> 00:27:16,359 Speaker 1: judge already there. Well, there have been several yes and 470 00:27:16,680 --> 00:27:20,919 Speaker 1: the first though was Deborah Batts, who was a judge 471 00:27:20,920 --> 00:27:22,960 Speaker 1: on the Southern District of New York. She was the 472 00:27:23,000 --> 00:27:27,200 Speaker 1: first openly day judge confirmed to a federal court and 473 00:27:27,440 --> 00:27:32,080 Speaker 1: she was appointed in in ninetour and passed away last year, 474 00:27:32,640 --> 00:27:37,160 Speaker 1: but there have been several LGBT judges, and Biden also 475 00:27:37,240 --> 00:27:42,000 Speaker 1: nominated another LGBT judge, Charlotte Sweeney, who was nominated to 476 00:27:42,200 --> 00:27:45,760 Speaker 1: the District of Colorado, would be the first openly LGBT 477 00:27:46,320 --> 00:27:49,679 Speaker 1: US judge in the state of Colorado, according to the 478 00:27:49,720 --> 00:27:53,040 Speaker 1: White House statement that came out last week. So Robinson 479 00:27:53,560 --> 00:27:56,960 Speaker 1: is nominated to the Second Circuit, and there were two 480 00:27:57,080 --> 00:28:02,040 Speaker 1: other Second Circuit nominees making their way through the process, 481 00:28:02,160 --> 00:28:08,359 Speaker 1: so unically was approved over the weekends her nomination. She 482 00:28:08,480 --> 00:28:12,119 Speaker 1: was confirmed to the Second Circuit, and the other nominee 483 00:28:12,240 --> 00:28:17,320 Speaker 1: is miRNA Perez who is awaiting a vote on her nomination. 484 00:28:18,040 --> 00:28:21,280 Speaker 1: And the Second Circuit is the only circuit court that 485 00:28:21,359 --> 00:28:25,200 Speaker 1: Biden really has available right now to flip so to speak, 486 00:28:25,520 --> 00:28:28,520 Speaker 1: which means that he would be able to make it 487 00:28:28,880 --> 00:28:32,280 Speaker 1: a majority of Democratic appointees, that's in a majority of 488 00:28:32,400 --> 00:28:36,840 Speaker 1: Republican appointees. So that might indicate why there's uh the 489 00:28:37,000 --> 00:28:40,760 Speaker 1: speeds there of nominations. I think New York has also 490 00:28:40,960 --> 00:28:45,840 Speaker 1: gotten nominations into the White House pretty quickly, recommendations into 491 00:28:45,880 --> 00:28:49,440 Speaker 1: into the White House. But those are our three nominees 492 00:28:49,440 --> 00:28:52,760 Speaker 1: that are going for a court that is really a 493 00:28:52,840 --> 00:28:56,880 Speaker 1: chief venue for cases involving incorporations and in Wall Street. 494 00:28:57,480 --> 00:29:01,040 Speaker 1: Why were there so many vacancies on the second Circuit? 495 00:29:01,240 --> 00:29:06,160 Speaker 1: That's a lot three. So there evctually been two judges 496 00:29:06,240 --> 00:29:11,760 Speaker 1: recently who stepped down. They took senior status and passed 497 00:29:11,760 --> 00:29:16,000 Speaker 1: away shortly thereafter. So Robert Kassiman took senior status in 498 00:29:16,120 --> 00:29:20,960 Speaker 1: January and passed away this summer, and Peter hall Um 499 00:29:21,040 --> 00:29:24,040 Speaker 1: six senior status in March and passed away the following week. 500 00:29:24,920 --> 00:29:28,320 Speaker 1: And there was another judge who has stepped down and 501 00:29:28,360 --> 00:29:31,720 Speaker 1: taken senior status. But the Second Circuit is definitely dealing 502 00:29:31,760 --> 00:29:34,200 Speaker 1: with a lot of heartache right now over over the 503 00:29:34,240 --> 00:29:37,160 Speaker 1: losses of two of its judges. So these judges would 504 00:29:37,160 --> 00:29:40,600 Speaker 1: be coming into a circuit in time to help them 505 00:29:40,600 --> 00:29:43,480 Speaker 1: out with their caseload um but also at you know, 506 00:29:43,600 --> 00:29:46,560 Speaker 1: a time of great laws for the court community. That's 507 00:29:46,600 --> 00:29:51,080 Speaker 1: really unusual and quite said. Thanks Madison. That's Madison Alder, 508 00:29:51,120 --> 00:29:54,040 Speaker 1: a reporter with Bloomberg Law. Remember you can always get 509 00:29:54,040 --> 00:29:56,920 Speaker 1: the latest legal news on our Bloomberglaw podcast. You can 510 00:29:56,960 --> 00:30:00,000 Speaker 1: find them on Apple Podcasts, Spotify and at W double 511 00:30:00,040 --> 00:30:03,400 Speaker 1: u W dot Bloomberg dot com. Slash podcast slash law. 512 00:30:03,720 --> 00:30:06,200 Speaker 1: I'm June Grasso and you're listening to Bloomberg