1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:09,560 --> 00:00:13,160 Speaker 1: More than three decades after his death, pop artist Andy 3 00:00:13,240 --> 00:00:18,800 Speaker 1: Warhol is everywhere in museum exhibitions, Christie's auction House, new 4 00:00:18,880 --> 00:00:23,799 Speaker 1: dramatic plays and musicals, upcoming movies, and the Netflix documentary 5 00:00:23,840 --> 00:00:29,680 Speaker 1: series The Andy Warhol Diaries. Actually, Andy Warhol's greatest work 6 00:00:29,720 --> 00:00:36,280 Speaker 1: of art is Andy Warhol genius art, music, film, fashion. 7 00:00:39,880 --> 00:00:42,440 Speaker 1: He broke every rule. He made you look at things 8 00:00:42,440 --> 00:00:44,600 Speaker 1: in a completely different way. But that's what art is. 9 00:00:45,280 --> 00:00:48,920 Speaker 1: And now the Supreme Court will decide whether Warhol's series 10 00:00:49,000 --> 00:00:52,559 Speaker 1: of images of rock icon prints made people look at 11 00:00:52,560 --> 00:00:55,760 Speaker 1: a photograph of the musician in a completely different way. 12 00:00:56,080 --> 00:00:59,640 Speaker 1: Were those paintings a transformative work of art or were 13 00:00:59,680 --> 00:01:03,480 Speaker 1: they in appropriation of the photograph by Lynn Goldsmith joining 14 00:01:03,520 --> 00:01:07,400 Speaker 1: me his intellectual property litigator Terence Ross a partner caton 15 00:01:07,520 --> 00:01:12,640 Speaker 1: Uten Rosenman. Warhol's painting of Prince was done back in 16 00:01:12,800 --> 00:01:17,400 Speaker 1: nine four the laws. It was just brought in. Tell 17 00:01:17,520 --> 00:01:21,320 Speaker 1: us about the history of this. You know what happened, June. 18 00:01:21,400 --> 00:01:27,000 Speaker 1: This all arises out of a photograph that Lynn Goldsmith 19 00:01:27,120 --> 00:01:31,199 Speaker 1: took a Prince in one that sort of caught Prince 20 00:01:31,280 --> 00:01:35,200 Speaker 1: in a very interesting light and received a lot of 21 00:01:35,240 --> 00:01:41,440 Speaker 1: recognition at the time. A few years later, four Goldsmith's 22 00:01:41,480 --> 00:01:48,040 Speaker 1: agent licenses that photograph to Vanity Fair, specifically so Vanity 23 00:01:48,200 --> 00:01:53,840 Speaker 1: Fair and creates some secondary artwork for an article they're 24 00:01:53,880 --> 00:01:57,800 Speaker 1: doing about Prince. They did not disclose that Andy warholt 25 00:01:58,120 --> 00:02:00,440 Speaker 1: was the artist they had hired to do that, but 26 00:02:00,640 --> 00:02:05,320 Speaker 1: arguably that used with license. However, here's what happens. Andy Warhol, then, 27 00:02:05,440 --> 00:02:09,880 Speaker 1: continuing to use the photograph, created fifteen other works that 28 00:02:10,000 --> 00:02:14,639 Speaker 1: were not used in Vanity Fair, apparently were sold, and 29 00:02:14,720 --> 00:02:18,160 Speaker 1: then he passed away three years later, relatively early in life. 30 00:02:18,200 --> 00:02:21,880 Speaker 1: In nine seven, Lingle Smith contends that the first time 31 00:02:21,919 --> 00:02:26,000 Speaker 1: she learned of the fifteen other works that Andy Warhol 32 00:02:26,200 --> 00:02:30,359 Speaker 1: had created, admittedly based on the photograph from one since 33 00:02:30,400 --> 00:02:32,280 Speaker 1: she had taken a print. She says, first time if 34 00:02:32,280 --> 00:02:34,400 Speaker 1: you learned that, it was two thousand sixteen, and so 35 00:02:34,480 --> 00:02:37,000 Speaker 1: she calls up. By this point, Andy Warhol has died, 36 00:02:37,040 --> 00:02:40,760 Speaker 1: so his rights are in the Andy Warhol Foundation for 37 00:02:40,800 --> 00:02:44,279 Speaker 1: the Visual Art. So she calls up that Warhol Foundation 38 00:02:44,360 --> 00:02:46,680 Speaker 1: and says, hey, what's going on here? This strikes me. 39 00:02:46,800 --> 00:02:50,880 Speaker 1: His copyright in Fringe Bent and the Foundation, rather than negotiating, 40 00:02:51,120 --> 00:02:55,160 Speaker 1: files a lawsuit against her in New York seeking a 41 00:02:55,280 --> 00:03:00,240 Speaker 1: declaration that Mr Warhol's used back in Night four her 42 00:03:00,280 --> 00:03:03,040 Speaker 1: photograph was a fair use and that brings us to 43 00:03:03,080 --> 00:03:06,120 Speaker 1: where we are today. So is it the concept of 44 00:03:06,280 --> 00:03:09,360 Speaker 1: fair use that's the key issue here? So the court 45 00:03:09,400 --> 00:03:12,440 Speaker 1: case was brought in New York Federal Court and the 46 00:03:12,520 --> 00:03:15,640 Speaker 1: judge who handled that United States Discourt for Southern District, 47 00:03:15,639 --> 00:03:19,280 Speaker 1: New York made a ruling pree trial that the use 48 00:03:19,360 --> 00:03:22,639 Speaker 1: of Mr Warhol made of the photograph was protected by 49 00:03:22,680 --> 00:03:25,120 Speaker 1: the fair youth that cheer, which is Section well seven 50 00:03:25,160 --> 00:03:29,000 Speaker 1: of the United States Copyright Act. Miss Goldsmith appealed that 51 00:03:29,360 --> 00:03:32,519 Speaker 1: finding to the Second Circuit, which handles peeled that of 52 00:03:32,880 --> 00:03:36,720 Speaker 1: Southern District, New York, and the Second Circuit disagreed with 53 00:03:36,800 --> 00:03:40,600 Speaker 1: the judgment of the District court and held that it 54 00:03:40,640 --> 00:03:44,160 Speaker 1: was not a fair use and reversed. The Foundation has 55 00:03:44,200 --> 00:03:47,480 Speaker 1: now gone to the United States Supreme Court what's known 56 00:03:47,480 --> 00:03:51,400 Speaker 1: as a retissert cr A, seeking permission to peel this 57 00:03:51,880 --> 00:03:55,640 Speaker 1: decision from the Second Circuit, And just within the last week, 58 00:03:56,040 --> 00:03:59,680 Speaker 1: the United States Supreme Court granted that retissart's r and 59 00:03:59,680 --> 00:04:04,200 Speaker 1: we'll hear the appeal sometime next fall. Can you simply 60 00:04:04,240 --> 00:04:07,760 Speaker 1: explain what fair uses or is it impossible to simply 61 00:04:07,800 --> 00:04:11,120 Speaker 1: explain it? That's true, I'll do my best. Fair use 62 00:04:11,480 --> 00:04:18,640 Speaker 1: is a statutory defense against copyright infringement. It's actually in 63 00:04:18,720 --> 00:04:23,359 Speaker 1: the Copyright Act. It provides that a secondary use of 64 00:04:23,360 --> 00:04:28,400 Speaker 1: a copyright work may be fair if the court considers 65 00:04:28,520 --> 00:04:33,120 Speaker 1: four factors. They're non exclusive factors, but they're four factors, 66 00:04:33,200 --> 00:04:36,200 Speaker 1: and makes a judgment that the us is appropriate on 67 00:04:36,240 --> 00:04:39,760 Speaker 1: the statute of four factors are the purpose and character 68 00:04:39,839 --> 00:04:43,000 Speaker 1: of the use, specifically whether it's a commercial use or 69 00:04:43,080 --> 00:04:46,960 Speaker 1: nonprofit educational use. That's a very important factor. Second factor 70 00:04:47,080 --> 00:04:49,359 Speaker 1: is the nature of the copyright at work. This is 71 00:04:49,400 --> 00:04:52,599 Speaker 1: the copyright at work a biography of the famous leader, 72 00:04:52,680 --> 00:04:55,600 Speaker 1: so that's all factual and would get less protection than 73 00:04:55,640 --> 00:04:59,680 Speaker 1: a holy fictional work. The third factor is the amount 74 00:04:59,839 --> 00:05:02,640 Speaker 1: to fanciality that was used by the second work. So 75 00:05:02,880 --> 00:05:06,040 Speaker 1: you're using of the work that's bad for a fair 76 00:05:06,120 --> 00:05:09,120 Speaker 1: use defenses. You're just taking a small, tiny equip from 77 00:05:09,160 --> 00:05:11,880 Speaker 1: out of the movie. Perhaps that's the better argument that 78 00:05:11,960 --> 00:05:14,080 Speaker 1: they're used to apply. And then the fourth factor is 79 00:05:14,120 --> 00:05:17,359 Speaker 1: the effect of the secondary use upon the potential market 80 00:05:17,440 --> 00:05:19,400 Speaker 1: or value of the copyright at work. Those are the 81 00:05:19,400 --> 00:05:22,760 Speaker 1: four factors, do not exclusive. Courts often look at other factors. 82 00:05:22,800 --> 00:05:26,039 Speaker 1: But the purpose here that Congress have in mind and 83 00:05:26,120 --> 00:05:30,680 Speaker 1: has existed the common law long before the six Copyright 84 00:05:30,720 --> 00:05:34,039 Speaker 1: Act was enacted. The concept here is that we have 85 00:05:34,200 --> 00:05:38,599 Speaker 1: to have a safety valve for certain types of uses 86 00:05:38,680 --> 00:05:43,880 Speaker 1: that society favors, wants to encourage, but might under an 87 00:05:43,920 --> 00:05:48,440 Speaker 1: overly strict interpretation of copyright constitute infringement. And so we 88 00:05:48,480 --> 00:05:52,920 Speaker 1: have the safety foul that allows courts in individual instances 89 00:05:52,960 --> 00:05:55,520 Speaker 1: to say, now, this is the sort of thing we 90 00:05:56,120 --> 00:05:58,920 Speaker 1: want people to be doing, so we're going to allow 91 00:05:59,040 --> 00:06:01,160 Speaker 1: it under this fair a doctor Because keep in mind, 92 00:06:01,360 --> 00:06:05,160 Speaker 1: the trade off that our country gives authors and creators 93 00:06:05,279 --> 00:06:08,320 Speaker 1: with the copyright is that you get certain limited rights 94 00:06:08,360 --> 00:06:10,960 Speaker 1: for a limited period of time in order to benefit 95 00:06:11,000 --> 00:06:15,320 Speaker 1: society as a whole and encourage creation. But unlike a patent, 96 00:06:15,560 --> 00:06:19,599 Speaker 1: that copyright is not a monopoly. And so that's really 97 00:06:19,600 --> 00:06:25,080 Speaker 1: what their use is about. Central questions that present it 98 00:06:25,120 --> 00:06:28,080 Speaker 1: here in this specific case is how many artists they 99 00:06:28,160 --> 00:06:31,920 Speaker 1: really use prior works in the creation of new works, 100 00:06:31,960 --> 00:06:34,400 Speaker 1: And that's where fail use comes in. What does it 101 00:06:34,480 --> 00:06:39,159 Speaker 1: tell you that the Supreme Court decided to take this case. Well, 102 00:06:39,640 --> 00:06:42,360 Speaker 1: I have said somewhat surprised that the Supreme Court granted 103 00:06:42,400 --> 00:06:45,039 Speaker 1: this case. I think commented generally, are a bit surprised. 104 00:06:45,279 --> 00:06:47,880 Speaker 1: The Court have I think this is fair for several 105 00:06:47,920 --> 00:06:52,159 Speaker 1: decades now decline to take these fair use cases. They 106 00:06:52,240 --> 00:06:56,280 Speaker 1: did take the Google versus Oracle case, the complicated case 107 00:06:56,560 --> 00:06:59,480 Speaker 1: for fair use, and that involves computer program and code, 108 00:06:59,640 --> 00:07:03,040 Speaker 1: and as saw in that decision last year, Superart essentially 109 00:07:03,040 --> 00:07:06,400 Speaker 1: punted on the fair use question. And I think they realized, 110 00:07:06,560 --> 00:07:10,240 Speaker 1: after briefing in oral argument employed, this is really we 111 00:07:10,280 --> 00:07:12,080 Speaker 1: don't know what to do. It is really hard. We'll 112 00:07:12,120 --> 00:07:14,360 Speaker 1: decide this one, but we're not going to set any 113 00:07:14,360 --> 00:07:17,280 Speaker 1: precedent with reflect the fair use generally, and so this 114 00:07:17,440 --> 00:07:21,360 Speaker 1: sort of surprising that they took this case. We will 115 00:07:21,400 --> 00:07:24,280 Speaker 1: never know until some justice or what court writes the 116 00:07:24,280 --> 00:07:28,840 Speaker 1: biography what went on. But the speculation is that the 117 00:07:28,920 --> 00:07:33,120 Speaker 1: Court looked at the split that is developing between the 118 00:07:33,200 --> 00:07:36,800 Speaker 1: Second Circuit and the Ninth Circuit on what constitutes fair use, 119 00:07:37,080 --> 00:07:40,440 Speaker 1: and indeed the split that seems to be occurring within 120 00:07:40,640 --> 00:07:43,760 Speaker 1: the Second Circuit as to what constitutes fair use, and 121 00:07:43,800 --> 00:07:45,840 Speaker 1: a split between the Second and the Ninth Circuits on 122 00:07:45,960 --> 00:07:48,280 Speaker 1: copyright law. It is very important because that's where the 123 00:07:48,520 --> 00:07:52,320 Speaker 1: overwhelming majority of copyright cases are brought in. So it's 124 00:07:52,360 --> 00:07:55,600 Speaker 1: somewhat disconcerting that there's a split, and arguably the copyright 125 00:07:55,640 --> 00:07:57,680 Speaker 1: owner could get a different results depending on which one 126 00:07:57,960 --> 00:08:01,320 Speaker 1: they go to. And so I think that's probably what 127 00:08:01,520 --> 00:08:04,600 Speaker 1: the thinking was here on accepting this case. We spoke 128 00:08:04,600 --> 00:08:08,000 Speaker 1: about the Second Circuit's decision, which sided with the photographer 129 00:08:08,360 --> 00:08:11,800 Speaker 1: and it said the fair use doctrine requires a fundamentally 130 00:08:11,880 --> 00:08:16,840 Speaker 1: different and new artistic purpose and character. Is that contrary 131 00:08:16,880 --> 00:08:21,560 Speaker 1: to generally accepted ideas or definitions of fair use? Did 132 00:08:21,600 --> 00:08:26,160 Speaker 1: the Second Circuit go further? So it's a very interesting question, June, 133 00:08:26,160 --> 00:08:29,520 Speaker 1: so that the Second Circuit specifically judged Vow there, who 134 00:08:29,600 --> 00:08:33,200 Speaker 1: is very influential in copyright law, developed a number of 135 00:08:33,240 --> 00:08:37,839 Speaker 1: years ago what is known as a transformative youth task 136 00:08:38,040 --> 00:08:40,680 Speaker 1: for fair use. It is a word that's nowhere found 137 00:08:40,840 --> 00:08:43,200 Speaker 1: in the statute, nowhere found in the ledge life history. 138 00:08:43,480 --> 00:08:46,560 Speaker 1: But it's a very complicated factor to try to understand 139 00:08:46,640 --> 00:08:49,800 Speaker 1: in many contexts. So what Judge Vow essentially said in 140 00:08:49,800 --> 00:08:53,600 Speaker 1: the second sorguitor, what are you doing with the second 141 00:08:53,640 --> 00:08:59,160 Speaker 1: dary youth, are you doing something significantly transformative? And so 142 00:08:59,440 --> 00:09:02,240 Speaker 1: the classic example of this is parity. If you parity 143 00:09:02,280 --> 00:09:05,800 Speaker 1: the work, you've transformed it from sarious work into sort 144 00:09:05,800 --> 00:09:09,439 Speaker 1: of a comic look at that work. Book reviews, movie reviews, 145 00:09:09,600 --> 00:09:12,959 Speaker 1: any sort of criticisms. That sort have always been regarded 146 00:09:13,120 --> 00:09:15,640 Speaker 1: as a fair use. And so the concept was that 147 00:09:15,800 --> 00:09:19,520 Speaker 1: in each of those instances, yes, you were using parts 148 00:09:19,600 --> 00:09:22,480 Speaker 1: or maybe even substantial parts of the original work, but 149 00:09:22,720 --> 00:09:25,719 Speaker 1: it was being transformed, and genial about said, and we 150 00:09:25,760 --> 00:09:28,160 Speaker 1: should just say that what we're looking for in these 151 00:09:28,200 --> 00:09:31,080 Speaker 1: close cases is some sort of transformative use. Now that 152 00:09:31,200 --> 00:09:35,160 Speaker 1: has creaked into the language of fair use cases across 153 00:09:35,200 --> 00:09:39,000 Speaker 1: the country over time, and the fighting point really has 154 00:09:39,120 --> 00:09:44,559 Speaker 1: been whether or not an artist intent or concept in 155 00:09:44,679 --> 00:09:48,520 Speaker 1: the secondary use as articulated by that artist is sufficient 156 00:09:48,600 --> 00:09:52,640 Speaker 1: in itself to be a transformative use. And so the 157 00:09:52,679 --> 00:09:55,640 Speaker 1: Knife circuit said that the meaning of the secondary use, 158 00:09:55,880 --> 00:09:59,120 Speaker 1: even if there are very few physical changes to it, 159 00:09:59,160 --> 00:10:01,440 Speaker 1: is sufficient for John to five fair use. In the 160 00:10:01,679 --> 00:10:04,360 Speaker 1: second circuit, they have in a couple of cases, like 161 00:10:04,520 --> 00:10:07,040 Speaker 1: the Crew case, gone that far, but for the most 162 00:10:07,040 --> 00:10:11,080 Speaker 1: part they've refused to accept this notion that the artists 163 00:10:11,080 --> 00:10:14,520 Speaker 1: intend to give new meaning to a copyright at work 164 00:10:14,840 --> 00:10:18,360 Speaker 1: is transformative, and this is a great example of that 165 00:10:18,440 --> 00:10:21,640 Speaker 1: doctor in practice. The Second Circuit offensively said to the 166 00:10:21,679 --> 00:10:24,080 Speaker 1: distric Court judge, look, you're not an art critic. It 167 00:10:24,200 --> 00:10:27,800 Speaker 1: is not for you to engage in subjective decisions about 168 00:10:27,840 --> 00:10:32,440 Speaker 1: the meaning of art. The question is was this sufficiently transformative? 169 00:10:32,880 --> 00:10:35,360 Speaker 1: And we indeed in an opinion they put the two 170 00:10:35,360 --> 00:10:37,640 Speaker 1: work side by side as they go through and you know, 171 00:10:37,760 --> 00:10:40,959 Speaker 1: this really wasn't transformative. Changing a black and white photo 172 00:10:41,080 --> 00:10:45,480 Speaker 1: to a colorized version bright colors just doesn't represent enough 173 00:10:45,480 --> 00:10:48,000 Speaker 1: of a change, even if it conveys some sort of 174 00:10:48,080 --> 00:10:52,240 Speaker 1: different meaning, because that's not what the fair use defense 175 00:10:52,320 --> 00:10:55,880 Speaker 1: is all about. And I always found that decision to 176 00:10:56,000 --> 00:11:01,600 Speaker 1: be perplexing because Andy Warhol's work is transformative. He transformed 177 00:11:01,840 --> 00:11:05,200 Speaker 1: campbell soup cans into art. Well, I would agree with you, 178 00:11:05,280 --> 00:11:11,439 Speaker 1: his work generally speaking, transforms everyday objects. The question was 179 00:11:11,679 --> 00:11:16,280 Speaker 1: in this case was it transformative? And you know, we 180 00:11:16,360 --> 00:11:19,319 Speaker 1: s It's a very challenging call. But this case is 181 00:11:19,360 --> 00:11:22,840 Speaker 1: a classic example of the fundamental difference between the Second 182 00:11:22,880 --> 00:11:26,400 Speaker 1: Circuit and the Ninth Circuits approach to fair use. I 183 00:11:26,440 --> 00:11:28,960 Speaker 1: think that's got to be what bugging the Supreme Court 184 00:11:29,240 --> 00:11:32,240 Speaker 1: and why they wouldn't resolve this. What's at stake here? 185 00:11:32,559 --> 00:11:38,440 Speaker 1: Could the Court's decision have far reaching implications for creators? Well, 186 00:11:38,480 --> 00:11:40,960 Speaker 1: there's no doubt that it will have an impact on 187 00:11:41,160 --> 00:11:44,200 Speaker 1: secondary use of copyright it works. As a practitioner, my 188 00:11:44,400 --> 00:11:48,160 Speaker 1: immediate reaction the question is that, boy, we would love 189 00:11:48,200 --> 00:11:50,720 Speaker 1: to have some clarity as to fair use, because we're 190 00:11:50,760 --> 00:11:53,600 Speaker 1: called upon day in and day out to advise clients 191 00:11:53,960 --> 00:11:56,200 Speaker 1: as to can I do this? Can I do that? 192 00:11:56,480 --> 00:11:58,520 Speaker 1: If I really want to do this with the copyrighted work, 193 00:11:58,679 --> 00:12:00,960 Speaker 1: how far do I have to go to get transformative? 194 00:12:01,160 --> 00:12:05,160 Speaker 1: Those are very challenging questions for lawyers. We've struggled with 195 00:12:05,200 --> 00:12:09,040 Speaker 1: that for years, and so as a practitioner, and I 196 00:12:09,080 --> 00:12:12,640 Speaker 1: think for most copyright owners, they really just want clarity. 197 00:12:12,720 --> 00:12:15,920 Speaker 1: They want some hard and fast, black and white rules 198 00:12:16,320 --> 00:12:20,600 Speaker 1: as to what is allowing what's not. And my fear 199 00:12:20,679 --> 00:12:23,360 Speaker 1: here is that we're not going to get that. The 200 00:12:23,480 --> 00:12:25,880 Speaker 1: nature of their use in and of itself is that 201 00:12:25,960 --> 00:12:29,080 Speaker 1: we can't make it too black and white. We have 202 00:12:29,280 --> 00:12:32,160 Speaker 1: to have wiggle room for to function effectively. Is that 203 00:12:32,360 --> 00:12:37,319 Speaker 1: safety valve to allow society's desired uses of copyright works 204 00:12:37,400 --> 00:12:41,640 Speaker 1: to go forward, creating some dulling effect. So we've talked 205 00:12:41,679 --> 00:12:46,000 Speaker 1: before about the dynamic and copyright cases between the late 206 00:12:46,360 --> 00:12:50,520 Speaker 1: Justice Ruth Bader Ginsburg and Justice Stephen Bryer. Both their 207 00:12:50,600 --> 00:12:54,560 Speaker 1: perspectives will be missing when this case is decided. It 208 00:12:54,720 --> 00:12:57,760 Speaker 1: is a very interesting question that a lot of people 209 00:12:57,800 --> 00:13:02,160 Speaker 1: follow copyright will closely follow. Justice Ginsburg and Justice Brier 210 00:13:02,280 --> 00:13:08,080 Speaker 1: had fundamentally different views of copyright law. Justice Ginsburg was 211 00:13:08,400 --> 00:13:11,800 Speaker 1: much more in favor of broad protections for copyright law, 212 00:13:11,920 --> 00:13:16,280 Speaker 1: and Justice Brier believed in more limited protections for copyrighted laws. 213 00:13:16,440 --> 00:13:19,560 Speaker 1: So the opposite ends of the polar spectrum often leading 214 00:13:19,679 --> 00:13:22,480 Speaker 1: different factions of court. And here's the equiporant of both 215 00:13:22,760 --> 00:13:26,600 Speaker 1: very knowledgable a that copyright law. Justice Brier wrote, I 216 00:13:26,600 --> 00:13:29,000 Speaker 1: believe his ten year piece and the Harvard Law Review 217 00:13:29,040 --> 00:13:32,280 Speaker 1: when he was still professor on copyright is computer software 218 00:13:32,280 --> 00:13:34,000 Speaker 1: program That was way back, if I would call correct, 219 00:13:34,000 --> 00:13:37,200 Speaker 1: Suny sent people weren't thinking about what's this issue of 220 00:13:37,320 --> 00:13:41,360 Speaker 1: copyright and computers. Justice Ginsburg was on the DC Circuit 221 00:13:41,640 --> 00:13:44,320 Speaker 1: as a judge before she was elevated Spring Court at 222 00:13:44,360 --> 00:13:46,000 Speaker 1: the same time that I was working for a different 223 00:13:46,040 --> 00:13:49,400 Speaker 1: judge on the DC Circuit, and I remember having conversations 224 00:13:49,400 --> 00:13:52,160 Speaker 1: were there in the lunch rooms in the hallways about 225 00:13:52,200 --> 00:13:55,840 Speaker 1: copyright law at this deep and abiding passion for copyright law. 226 00:13:55,880 --> 00:13:57,880 Speaker 1: Her daughter grew up to be one of the most 227 00:13:57,880 --> 00:14:01,319 Speaker 1: prominent copyright professors and I think called the university law school. 228 00:14:01,480 --> 00:14:03,800 Speaker 1: So they both were very knowledgeable, came at it from 229 00:14:03,840 --> 00:14:07,040 Speaker 1: different point of view, and that knowledge base and those 230 00:14:07,080 --> 00:14:11,320 Speaker 1: points of view will be missing in this case next fall. 231 00:14:12,120 --> 00:14:15,640 Speaker 1: And the question is what does that mean? Sort of 232 00:14:15,679 --> 00:14:19,280 Speaker 1: wipes the slight plane. The pre existing dynamic is gone. 233 00:14:19,720 --> 00:14:22,480 Speaker 1: There is no one currently on the corridor about to 234 00:14:22,480 --> 00:14:25,200 Speaker 1: be added to the court who has anywhere near the 235 00:14:25,280 --> 00:14:28,640 Speaker 1: background or the passion for copyright law that Justice Bryan 236 00:14:28,680 --> 00:14:31,880 Speaker 1: and just Ginsburg brought to the court. And it creates 237 00:14:32,200 --> 00:14:36,720 Speaker 1: enormous uncertainty as to how this case will come out. 238 00:14:37,080 --> 00:14:40,920 Speaker 1: And I think that may also tend to lend itself 239 00:14:40,960 --> 00:14:44,320 Speaker 1: for the Court to again punt on this find some 240 00:14:44,560 --> 00:14:47,640 Speaker 1: way short of rewriting the fair youth law and come 241 00:14:47,720 --> 00:14:50,680 Speaker 1: up with something less than the sort of clarity that 242 00:14:50,760 --> 00:14:53,000 Speaker 1: we all are seeking in this field. I learned something 243 00:14:53,040 --> 00:14:56,520 Speaker 1: new about you, Terry talking about copyright with a notorious 244 00:14:56,720 --> 00:15:00,680 Speaker 1: RBG in the lunch room. Thanks so much as always, 245 00:15:00,720 --> 00:15:06,680 Speaker 1: that's Terence Fross of Captain Muchen Rosenman. A pair of 246 00:15:06,760 --> 00:15:09,840 Speaker 1: cases at the Supreme Court will test the expansion of 247 00:15:09,920 --> 00:15:14,320 Speaker 1: workplace arbitration after years of courts dealing with this blurry 248 00:15:14,400 --> 00:15:17,600 Speaker 1: area of law. The cases will have ripple effects on 249 00:15:17,640 --> 00:15:22,200 Speaker 1: disputes involving Amazon, major gig companies, and the US Chamber 250 00:15:22,240 --> 00:15:25,800 Speaker 1: of Commerce, and at least nine federal court cases have 251 00:15:25,920 --> 00:15:29,880 Speaker 1: been paused waiting for these Supreme Court decisions. The Court 252 00:15:29,920 --> 00:15:33,160 Speaker 1: heard arguments on Wednesday in a case against Viking River 253 00:15:33,200 --> 00:15:37,920 Speaker 1: Cruises over whether a unique California law that allows employees 254 00:15:37,960 --> 00:15:41,600 Speaker 1: to bring actions on behalf of the state overrides an 255 00:15:41,680 --> 00:15:46,040 Speaker 1: arbitration clause signed by the employee. Here's Chief Justice John 256 00:15:46,120 --> 00:15:50,160 Speaker 1: Roberts and Justice Elena Kagan. What strikes me is one 257 00:15:50,320 --> 00:15:53,840 Speaker 1: one difference is that this is not her cause of action. 258 00:15:53,920 --> 00:15:57,680 Speaker 1: This is the state's cause of action. That is what 259 00:15:57,880 --> 00:16:02,280 Speaker 1: the state has decided as necessary a tip adequately enforced 260 00:16:02,320 --> 00:16:04,480 Speaker 1: its own labor laws. I mean, the state has made 261 00:16:04,480 --> 00:16:07,560 Speaker 1: a decision here and it's we don't have the capacity 262 00:16:07,640 --> 00:16:11,320 Speaker 1: to do this ourselves. We need private people to do it, 263 00:16:11,520 --> 00:16:13,960 Speaker 1: and we need private people to do it in this way. 264 00:16:14,120 --> 00:16:17,640 Speaker 1: My guest is Emory Sella E, a professor at Loyola University, 265 00:16:17,680 --> 00:16:22,200 Speaker 1: New Orleans College of Law. Explain what California's Private Attorneys 266 00:16:22,320 --> 00:16:26,520 Speaker 1: General Act or PAGA does, and it allows for a 267 00:16:26,640 --> 00:16:30,920 Speaker 1: special type of group or representative action where one worker 268 00:16:30,960 --> 00:16:32,920 Speaker 1: can stand up in the name of the state of 269 00:16:32,960 --> 00:16:36,640 Speaker 1: California and collect penalties for the employers violations of the 270 00:16:36,680 --> 00:16:40,360 Speaker 1: state Labor Code, even if the violations involve other co workers, 271 00:16:40,400 --> 00:16:42,920 Speaker 1: and seventy percent of the penalties go to the state 272 00:16:43,120 --> 00:16:46,040 Speaker 1: with going to the workers like a bounty. And the 273 00:16:46,160 --> 00:16:48,880 Speaker 1: idea or the theories that the state of California, through 274 00:16:48,920 --> 00:16:51,960 Speaker 1: their Attorney general, they could bring these actions directly, but 275 00:16:52,120 --> 00:16:54,600 Speaker 1: because of limited resources and because of the size of 276 00:16:54,680 --> 00:16:58,440 Speaker 1: California's workforce, the state has bestowed this power of enforcement 277 00:16:58,520 --> 00:17:01,600 Speaker 1: on private workers. So the private workers are enforcing the 278 00:17:01,680 --> 00:17:04,080 Speaker 1: labor Code in the name of the state. Is this 279 00:17:04,280 --> 00:17:09,480 Speaker 1: law unique to California, Yes, yes, it is. However, in 280 00:17:09,560 --> 00:17:13,040 Speaker 1: the last year or two, about five or six other states, 281 00:17:13,240 --> 00:17:16,639 Speaker 1: mainly on the East Coast, like Maine, New York, Connecticut. 282 00:17:16,880 --> 00:17:19,440 Speaker 1: We're considering similar PAGA bills, and I think if the 283 00:17:19,520 --> 00:17:23,440 Speaker 1: workers win here in the Viking River case, I imagine 284 00:17:23,480 --> 00:17:25,920 Speaker 1: that the POGA system in California will be mimicked and 285 00:17:26,000 --> 00:17:28,720 Speaker 1: copied as a blueprint in other states. So other states 286 00:17:28,720 --> 00:17:32,120 Speaker 1: are actively considering something similar. And so in this case 287 00:17:32,160 --> 00:17:36,360 Speaker 1: you have PAGA conflicting with an arbitration clause the employees 288 00:17:36,520 --> 00:17:40,040 Speaker 1: signed and the Federal Arbitration Act. They're about sixty million 289 00:17:40,080 --> 00:17:42,800 Speaker 1: workers in America who have signed and are bound by 290 00:17:42,920 --> 00:17:45,800 Speaker 1: arbitration clauses. I've done my own resource and I found 291 00:17:45,840 --> 00:17:50,680 Speaker 1: that of America's largest companies use arbitration clauses for their workforce. 292 00:17:50,720 --> 00:17:52,399 Speaker 1: And this means you can't go to court. You go 293 00:17:52,480 --> 00:17:55,160 Speaker 1: to a private proceeding with limited procedural protections. And that's 294 00:17:55,160 --> 00:17:56,919 Speaker 1: what happened to the worker here. She has signed an 295 00:17:57,040 --> 00:18:01,000 Speaker 1: arbitration clause when being hired. And there's a federal statute 296 00:18:01,160 --> 00:18:04,200 Speaker 1: that's the Federal Arbitration Act, and it's been construed in 297 00:18:04,320 --> 00:18:07,919 Speaker 1: such a way as to eliminate class or collective action. 298 00:18:08,240 --> 00:18:10,479 Speaker 1: The idea is, if you agree to arbitrate with a company, 299 00:18:10,760 --> 00:18:12,840 Speaker 1: you can never sue in court. And this Preme Court 300 00:18:12,880 --> 00:18:15,280 Speaker 1: has explained that you're agreeing to arbitrate one on one, 301 00:18:15,560 --> 00:18:17,879 Speaker 1: not as part of a class or collective action. And 302 00:18:17,960 --> 00:18:20,639 Speaker 1: so the Federal Arbitration Act and arbitration in general seems 303 00:18:20,640 --> 00:18:23,119 Speaker 1: to be flashing with this PAGA action, which is more 304 00:18:23,400 --> 00:18:28,520 Speaker 1: collective in nature. So tell us about the lawsuit in general. Yes, 305 00:18:28,640 --> 00:18:31,280 Speaker 1: in this case, you have an employee doing for a 306 00:18:31,359 --> 00:18:35,879 Speaker 1: late paycheck, and the Pagas statute allows for this worker 307 00:18:35,920 --> 00:18:40,119 Speaker 1: to also seek penalties for all other labor code violations. 308 00:18:40,359 --> 00:18:42,240 Speaker 1: So if there's a filay to provide a meal break, 309 00:18:42,280 --> 00:18:45,000 Speaker 1: for example, you can seek a penalty for that. And 310 00:18:45,200 --> 00:18:47,879 Speaker 1: so the penalties here can cover a wide variety of 311 00:18:47,960 --> 00:18:52,359 Speaker 1: labor code violations. Actually, many workers today, they're about sixty 312 00:18:52,400 --> 00:18:55,280 Speaker 1: million workers in America who have signed and are bound 313 00:18:55,320 --> 00:18:58,639 Speaker 1: by arbitration clauses. I've done my own resource and I 314 00:18:58,680 --> 00:19:03,399 Speaker 1: found that of America's largest companies use arbitration clauses for 315 00:19:03,440 --> 00:19:05,440 Speaker 1: their workforce. And this means you can't go to court, 316 00:19:05,560 --> 00:19:08,240 Speaker 1: You go to a private proceeding with limited procedural protections. 317 00:19:08,280 --> 00:19:09,879 Speaker 1: And that's what happened to the worker here. She has 318 00:19:09,920 --> 00:19:14,080 Speaker 1: signed an arbitration clause when being hired, and there's a 319 00:19:14,320 --> 00:19:18,040 Speaker 1: federal Statute with the Federal Arbitration Act, and it's been 320 00:19:18,119 --> 00:19:21,480 Speaker 1: construed in such a way as to eliminate class or 321 00:19:21,520 --> 00:19:24,200 Speaker 1: collective actions. The idea is that if you agree to 322 00:19:24,320 --> 00:19:26,880 Speaker 1: arbitrate with a company, you can never sue in court. 323 00:19:26,960 --> 00:19:29,040 Speaker 1: And this Preme Court has explained that you're agreeing to 324 00:19:29,160 --> 00:19:31,639 Speaker 1: arbitrate one on one, not as part of a class 325 00:19:31,720 --> 00:19:34,960 Speaker 1: or collective action. And so that the Federal Arbitration Act 326 00:19:35,000 --> 00:19:37,680 Speaker 1: and arbitration in general seems to be in contrast or 327 00:19:38,000 --> 00:19:41,600 Speaker 1: clashing with this PAGA action, which is more collective in nature. 328 00:19:42,200 --> 00:19:46,040 Speaker 1: So then is the question when the Federal Arbitration Act 329 00:19:46,160 --> 00:19:50,640 Speaker 1: imposes limits on the states or is it a different question? Yes, 330 00:19:50,720 --> 00:19:52,800 Speaker 1: that's part of it. Here. You can do this case 331 00:19:52,880 --> 00:19:55,080 Speaker 1: in the clash between federal law and state law, and 332 00:19:55,240 --> 00:19:58,520 Speaker 1: usually in most cases, federal law tends to win. The 333 00:19:58,720 --> 00:20:03,119 Speaker 1: federal law here interprets arbitration agreements and arbitration proceedings as 334 00:20:03,160 --> 00:20:06,080 Speaker 1: inherently by their very nature being one on one, but 335 00:20:06,200 --> 00:20:09,520 Speaker 1: the state law is allowing some type of collective or 336 00:20:09,680 --> 00:20:13,080 Speaker 1: group proceeding. In other words, it's almost like we have 337 00:20:13,160 --> 00:20:15,560 Speaker 1: a David one worker. The question is will we only 338 00:20:15,640 --> 00:20:19,240 Speaker 1: have one person one worker? Proceeding alone like David versus Goliath, 339 00:20:20,000 --> 00:20:23,119 Speaker 1: or can David seek to recover penalties on behalf of 340 00:20:23,359 --> 00:20:27,120 Speaker 1: all other coworkers work for that same Goliath employer. State 341 00:20:27,240 --> 00:20:30,840 Speaker 1: law seems to allow that group action, but federal law 342 00:20:30,880 --> 00:20:34,600 Speaker 1: seems to require that individual one on one action. So 343 00:20:34,920 --> 00:20:37,720 Speaker 1: what did you hear as the concerns that the justices 344 00:20:37,880 --> 00:20:42,520 Speaker 1: raised during the oral arguments? The justices yesterday they struggled 345 00:20:42,600 --> 00:20:46,639 Speaker 1: with how to view or define or characterize PAGA claims, 346 00:20:47,040 --> 00:20:48,880 Speaker 1: And so I believe the end result in this case 347 00:20:48,920 --> 00:20:52,479 Speaker 1: will depend on how the justices conceptualized PAGA. Like if 348 00:20:52,520 --> 00:20:55,280 Speaker 1: you think of PAGA as an action brought by the state, 349 00:20:55,680 --> 00:20:57,840 Speaker 1: it's game over. The workers win because the State of 350 00:20:57,920 --> 00:21:01,200 Speaker 1: California never assigned an arbitration of the State's not a party. 351 00:21:01,359 --> 00:21:03,840 Speaker 1: They're not bound by the workers arbitration agreement. And I 352 00:21:04,000 --> 00:21:05,880 Speaker 1: love Star Wars. One of my favorite characters is both 353 00:21:06,040 --> 00:21:08,879 Speaker 1: at the bounty hunter. So if you think of bounty hunters, 354 00:21:08,920 --> 00:21:11,200 Speaker 1: they work up to have somebody else. If you view 355 00:21:11,240 --> 00:21:13,879 Speaker 1: the workers here as a bounty hunter working for the state, 356 00:21:14,240 --> 00:21:16,399 Speaker 1: so the State of California is the real party and interest, 357 00:21:16,480 --> 00:21:20,000 Speaker 1: the workers win. But if you conceptualize a pocket proceeding 358 00:21:20,119 --> 00:21:23,480 Speaker 1: as just a procedure a group or collective in nature, 359 00:21:24,119 --> 00:21:26,359 Speaker 1: as a special joinder rule to vindicate the right of 360 00:21:26,400 --> 00:21:29,840 Speaker 1: several people. The court may find that PAGA is incompatible 361 00:21:29,880 --> 00:21:31,920 Speaker 1: with arbitration, which is supposed to be one on one 362 00:21:32,160 --> 00:21:35,160 Speaker 1: individualized proceedings, and the employer would win there. I think 363 00:21:35,240 --> 00:21:37,200 Speaker 1: I think a lot will depend on how the court 364 00:21:37,280 --> 00:21:41,000 Speaker 1: conceptualizes PAGA. Is it really the state bringing a law suit, 365 00:21:41,119 --> 00:21:44,000 Speaker 1: or they're gonna view PAGA as a procedure. Some justice 366 00:21:44,080 --> 00:21:46,240 Speaker 1: is few PAGA as something like the claim for penalties, 367 00:21:46,280 --> 00:21:49,359 Speaker 1: like a claim for damages. And if you conceptualize PAGA 368 00:21:49,480 --> 00:21:52,160 Speaker 1: that way, simply a claim for damages, then the workers 369 00:21:52,200 --> 00:21:55,040 Speaker 1: should win because the Supreme Court is suggested the path 370 00:21:55,119 --> 00:21:58,320 Speaker 1: that arbitration can never be used to undermine substantive rights 371 00:21:58,400 --> 00:22:01,200 Speaker 1: like the claim for damages. Just think the this case 372 00:22:01,280 --> 00:22:04,119 Speaker 1: will turn on how does the court view PAGA. How 373 00:22:04,200 --> 00:22:08,119 Speaker 1: will they conceptualize pad as an individual substantive right, as 374 00:22:08,160 --> 00:22:11,840 Speaker 1: a procedural right, or um, it's really this APAGA action 375 00:22:11,920 --> 00:22:14,240 Speaker 1: just really the state acting on its own is is 376 00:22:14,280 --> 00:22:16,159 Speaker 1: the state with the real party and interest in PAGA? 377 00:22:16,600 --> 00:22:20,840 Speaker 1: Would you say that usually at the Supreme Court, arbitration 378 00:22:20,920 --> 00:22:23,879 Speaker 1: wins out. Yes, that has been the track record for 379 00:22:23,960 --> 00:22:27,080 Speaker 1: the past forty or fifty years. However, in two thousand 380 00:22:27,119 --> 00:22:30,320 Speaker 1: and nineteen there was one workers victory and a case 381 00:22:30,400 --> 00:22:33,399 Speaker 1: called new Prime Vi Olivera, and I never expected to 382 00:22:33,440 --> 00:22:36,080 Speaker 1: see that coming. And so there's a glimmer of hope 383 00:22:36,119 --> 00:22:39,159 Speaker 1: for workers here. But the past track record is not 384 00:22:39,280 --> 00:22:41,840 Speaker 1: really good for workers. And this Viking Rivers case here 385 00:22:41,920 --> 00:22:45,320 Speaker 1: is just one of several cases this term involving arbitration. 386 00:22:45,680 --> 00:22:48,520 Speaker 1: There are actually five total arbitration cases being heard, which 387 00:22:48,520 --> 00:22:50,159 Speaker 1: is unusual. The Court has heard like one or two 388 00:22:50,240 --> 00:22:52,199 Speaker 1: or three a year. And I believe the Court has 389 00:22:52,240 --> 00:22:55,360 Speaker 1: an interest in promoting arbitration. Arbitration is like a safety 390 00:22:55,440 --> 00:22:58,640 Speaker 1: valve for an overcrowded judicial docket. It's like every case 391 00:22:58,680 --> 00:23:00,879 Speaker 1: to get sent to arbitration is in less case the 392 00:23:00,960 --> 00:23:03,000 Speaker 1: courts have to hear. And I think the justices have 393 00:23:03,080 --> 00:23:05,800 Speaker 1: an interest in trying to keep arbitration fine tuned and 394 00:23:05,880 --> 00:23:08,600 Speaker 1: working well, particularly because in Congress right now there are 395 00:23:08,760 --> 00:23:12,600 Speaker 1: larger debates about eliminating We're cutting back on the expansive 396 00:23:12,680 --> 00:23:16,120 Speaker 1: use of predispute arbitration agreements. Just last month, President Biden 397 00:23:16,200 --> 00:23:20,080 Speaker 1: signed a law banning arbitration for sexual harassment and assault claims. 398 00:23:20,520 --> 00:23:23,040 Speaker 1: If arbitration is to continue in a larger scale, the 399 00:23:23,160 --> 00:23:26,080 Speaker 1: court has to clear off any confusion or abuse regarding arbitration. 400 00:23:26,200 --> 00:23:28,479 Speaker 1: Labship that the system is working well, and they've been 401 00:23:28,640 --> 00:23:31,679 Speaker 1: very pro business and very supportive of arbitration. But now 402 00:23:31,760 --> 00:23:34,320 Speaker 1: there's just a larger debate in society. There's more awareness. 403 00:23:34,480 --> 00:23:36,880 Speaker 1: I think that the media is helping just to sign 404 00:23:36,920 --> 00:23:39,560 Speaker 1: more light on this practice which often applies beneath the radar. 405 00:23:40,119 --> 00:23:42,440 Speaker 1: For me, we can have the most wonderful rights in 406 00:23:42,440 --> 00:23:45,160 Speaker 1: American We have some of the strongest rights and all 407 00:23:45,200 --> 00:23:49,040 Speaker 1: of human history, protecting uh consumers and workers. But those 408 00:23:49,160 --> 00:23:52,359 Speaker 1: rights are meaningless if you don't have robust enforcement, and 409 00:23:52,480 --> 00:23:56,200 Speaker 1: arbitration can sometimes undermine robust enforcement. And so I think 410 00:23:56,280 --> 00:23:58,440 Speaker 1: people in society were coming more aware of this with 411 00:23:58,560 --> 00:24:02,200 Speaker 1: more stories in this case. Could you tell which justices 412 00:24:02,280 --> 00:24:04,720 Speaker 1: were leaning which way? Was it a split of the 413 00:24:04,800 --> 00:24:07,560 Speaker 1: conservatives and liberals or were they all over the place. 414 00:24:08,040 --> 00:24:11,400 Speaker 1: You could definitely see a split with Justices Barrett Kavanaugh 415 00:24:11,720 --> 00:24:15,520 Speaker 1: and Gorse It's supporting the employers through their questioning, and 416 00:24:16,320 --> 00:24:20,080 Speaker 1: with Justices Sodomy or and Keg and supporting the workers 417 00:24:20,359 --> 00:24:23,440 Speaker 1: and Justice Brier as well. Justice Thomas is a little 418 00:24:23,480 --> 00:24:27,119 Speaker 1: bit unusual here. He tends to dissent whenever there's a 419 00:24:27,280 --> 00:24:31,600 Speaker 1: state case involving the Federal Arbitration Act. And his view 420 00:24:31,760 --> 00:24:36,280 Speaker 1: is that the Federal Arbitration Act doesn't apply states. He's 421 00:24:36,600 --> 00:24:38,560 Speaker 1: a believing that states have the right to control their 422 00:24:38,600 --> 00:24:43,359 Speaker 1: own procedures and arbitrations very procedural law. And so Justice Thomas, um, 423 00:24:43,400 --> 00:24:46,160 Speaker 1: I think he's going to dissent, and so you potentially 424 00:24:46,200 --> 00:24:48,920 Speaker 1: have eight other justices would have to take aside. And 425 00:24:49,040 --> 00:24:50,920 Speaker 1: I still think if you count the vote so far, 426 00:24:51,040 --> 00:24:53,800 Speaker 1: it looks like the majority would hold for the for 427 00:24:53,920 --> 00:24:56,639 Speaker 1: the business. Here, tell me about the importance of this 428 00:24:56,880 --> 00:25:00,520 Speaker 1: case together with another case that was heard, testing the 429 00:25:00,600 --> 00:25:04,680 Speaker 1: expansion of workplace arbitration and the ripple effects of these cases. 430 00:25:05,440 --> 00:25:09,440 Speaker 1: Of course, so there are sixty million arbitration agreements in 431 00:25:09,520 --> 00:25:13,240 Speaker 1: the workplace in the American workplace today, and this means 432 00:25:13,320 --> 00:25:15,520 Speaker 1: that you have limited procedural protections if you want to 433 00:25:15,520 --> 00:25:19,040 Speaker 1: assert any claim involving your employment. And these tend to 434 00:25:19,080 --> 00:25:22,239 Speaker 1: be confidential proceedings, and so arbitration in the past has 435 00:25:22,320 --> 00:25:24,880 Speaker 1: been used to cover up a lot of widespread wrongdoing. 436 00:25:25,320 --> 00:25:27,800 Speaker 1: For example, Um, a lot of people think that me 437 00:25:28,040 --> 00:25:30,840 Speaker 1: too would be two movement, that it could have come 438 00:25:30,880 --> 00:25:33,200 Speaker 1: out and happened much earlier, that we're not for arbitration 439 00:25:33,280 --> 00:25:37,080 Speaker 1: clauses and so um. We have to employment arbitration cases 440 00:25:37,119 --> 00:25:40,320 Speaker 1: heard this term, and the Supreme Court is defining the 441 00:25:40,400 --> 00:25:45,399 Speaker 1: contours of when is workplace arbitration appropriate. You can think 442 00:25:45,440 --> 00:25:48,960 Speaker 1: of arbitration is involving between two people, but actually I 443 00:25:49,000 --> 00:25:51,640 Speaker 1: think it's deeper than that. When you're looking at arbitration, 444 00:25:51,720 --> 00:25:55,080 Speaker 1: while you're asking what role will the government play in 445 00:25:55,119 --> 00:25:57,800 Speaker 1: our lives and helping out and assisting with dispute resolution 446 00:25:58,080 --> 00:26:01,080 Speaker 1: and so um. With these workplace case is the Court 447 00:26:01,200 --> 00:26:04,800 Speaker 1: is defining one role will the courts continue to play 448 00:26:04,840 --> 00:26:07,639 Speaker 1: in American society? Will they be open and available to 449 00:26:07,760 --> 00:26:10,960 Speaker 1: hear the claims of vulnerable workers or are they shot off? 450 00:26:11,160 --> 00:26:13,719 Speaker 1: And will your claims be heard in a private setting 451 00:26:14,160 --> 00:26:16,680 Speaker 1: which is really dictated and controlled by the employer. And 452 00:26:16,800 --> 00:26:19,239 Speaker 1: so an arbitration in one level can involved the two 453 00:26:19,320 --> 00:26:21,040 Speaker 1: parties in a dispute, but I think at a deeper 454 00:26:21,119 --> 00:26:24,280 Speaker 1: level arbitration involves just the relationship between the government and 455 00:26:24,320 --> 00:26:27,080 Speaker 1: its people. Well, the government through its courts be available 456 00:26:27,080 --> 00:26:29,520 Speaker 1: to hear our concerns. And over the last forty years, 457 00:26:29,920 --> 00:26:32,840 Speaker 1: our rights to access the courts have been disappearing through 458 00:26:32,920 --> 00:26:36,800 Speaker 1: arbitration clauses. Arbitration and clauses they appear throughout American society, 459 00:26:36,840 --> 00:26:39,520 Speaker 1: not just the employment cases, but all over consumer contracts. 460 00:26:40,320 --> 00:26:43,600 Speaker 1: There are several cases that are being held awaiting a 461 00:26:43,680 --> 00:26:46,960 Speaker 1: decision here. Yes, that's correct, and lower courts placed their 462 00:26:47,400 --> 00:26:50,880 Speaker 1: decisions on hold, and so these employment cases can run 463 00:26:50,920 --> 00:26:53,040 Speaker 1: their course so that street court can speak us to 464 00:26:53,119 --> 00:26:57,639 Speaker 1: these issues. So the Federal Arbitration Act esemps transportation workers. 465 00:26:57,840 --> 00:27:00,240 Speaker 1: They're not covered. They can't be forced to arb trade 466 00:27:00,320 --> 00:27:02,399 Speaker 1: under federal law. And so there are a lot of 467 00:27:02,560 --> 00:27:05,520 Speaker 1: lower court cases have been put on hold involving arguable 468 00:27:05,600 --> 00:27:08,720 Speaker 1: transportation workers to see how old the Supreme Court rule 469 00:27:09,119 --> 00:27:11,520 Speaker 1: in these cases, you know what will be the final 470 00:27:11,680 --> 00:27:14,920 Speaker 1: say as to the scope of workplace arbitration. And this 471 00:27:15,119 --> 00:27:17,280 Speaker 1: is a big deal with the big economy. You can 472 00:27:17,400 --> 00:27:21,080 Speaker 1: argue that some truck drivers, that some delivery drivers, that 473 00:27:21,160 --> 00:27:23,520 Speaker 1: they are considered transportation workers and so they should be 474 00:27:23,600 --> 00:27:26,720 Speaker 1: exempt from arbitration agreements under the federal law. And so 475 00:27:26,880 --> 00:27:29,200 Speaker 1: a lot of lower court cases have been placed on 476 00:27:29,320 --> 00:27:31,840 Speaker 1: hold just to see what will the Spreme Court say 477 00:27:31,880 --> 00:27:35,320 Speaker 1: about the scope of workplace arbitration. Is the Supreme Court 478 00:27:35,520 --> 00:27:40,359 Speaker 1: going to have to make some broad statements here about 479 00:27:40,600 --> 00:27:44,080 Speaker 1: arbitration or can it handle this in a limited way. 480 00:27:45,160 --> 00:27:47,720 Speaker 1: I think the Court's ruling could be narrow It could 481 00:27:47,840 --> 00:27:50,639 Speaker 1: it could narrowly address this fact pattern, but lower courts 482 00:27:50,680 --> 00:27:53,440 Speaker 1: could expand it to other settings. And so I think 483 00:27:54,000 --> 00:27:55,800 Speaker 1: either of we cut this, this will have a broad 484 00:27:55,840 --> 00:27:59,600 Speaker 1: impact on workers rights. I think that just with Viking River, 485 00:28:00,400 --> 00:28:04,600 Speaker 1: if the workers win, I can see more robust enforcement 486 00:28:04,640 --> 00:28:07,520 Speaker 1: of labor codes across the country because more states are 487 00:28:07,520 --> 00:28:11,200 Speaker 1: considering something similar to California's PAGA, And so I think 488 00:28:11,240 --> 00:28:14,480 Speaker 1: that also the transportation worker case that was argued also 489 00:28:15,080 --> 00:28:18,960 Speaker 1: recently involving in transportation workers that's uh BacT to impact 490 00:28:19,119 --> 00:28:21,159 Speaker 1: the gig economy, and so these cases can have a 491 00:28:21,960 --> 00:28:24,920 Speaker 1: a far broader scope, far broader impact. And just the 492 00:28:25,160 --> 00:28:28,119 Speaker 1: claimants appearing for the course, are there very limited ways 493 00:28:28,200 --> 00:28:32,720 Speaker 1: that workers can get around these arbitration clauses that I 494 00:28:32,760 --> 00:28:36,560 Speaker 1: think are in all worker contracts, aren't they They're in 495 00:28:36,600 --> 00:28:40,240 Speaker 1: the majority of worker contracts um and also consumer contracts, 496 00:28:40,880 --> 00:28:42,920 Speaker 1: and so it's very, very difficult to get out of 497 00:28:42,920 --> 00:28:47,080 Speaker 1: an arbitration clause. So in the consumer context, for example, 498 00:28:47,600 --> 00:28:50,640 Speaker 1: UM there are more than eight hundred million arbitration agreements 499 00:28:50,640 --> 00:28:52,560 Speaker 1: in the US, but only have like three million people 500 00:28:52,560 --> 00:28:57,080 Speaker 1: in the total population and sixty million worker worker arbitration agreements. 501 00:28:57,120 --> 00:29:00,520 Speaker 1: So they're very prominent throughout all American society, and they're 502 00:29:00,760 --> 00:29:03,640 Speaker 1: very difficult to get out of. You have to show 503 00:29:03,680 --> 00:29:06,640 Speaker 1: that there's some fraud or there's some misprints and some 504 00:29:06,880 --> 00:29:10,040 Speaker 1: arbitration clause. In most cases, if there's an arbitration clause, 505 00:29:10,080 --> 00:29:12,840 Speaker 1: you are completely blocked from going to court with all 506 00:29:12,920 --> 00:29:16,160 Speaker 1: the broad procedural protections and public proceedings. If you're not 507 00:29:16,240 --> 00:29:18,560 Speaker 1: even reading what all that the fine print is, you 508 00:29:18,680 --> 00:29:22,080 Speaker 1: just checked I agree, and then you've agreed to an 509 00:29:22,200 --> 00:29:28,040 Speaker 1: arbitration clause. Yes, and most in most cases, the consent 510 00:29:28,600 --> 00:29:31,400 Speaker 1: is not really meaningful or actual. There was a study 511 00:29:31,480 --> 00:29:34,360 Speaker 1: by the Consumer Financial Protection Bureau in two thousands fifteen 512 00:29:34,800 --> 00:29:39,360 Speaker 1: that found that more than consumers are simply unaware of 513 00:29:39,440 --> 00:29:42,040 Speaker 1: an arbitration clause in their contracts, and even if they 514 00:29:42,040 --> 00:29:44,880 Speaker 1: are aware, they don't know it's significant that it blocks 515 00:29:44,920 --> 00:29:47,600 Speaker 1: the ability to go to court, and so these little 516 00:29:47,960 --> 00:29:51,320 Speaker 1: fine print, the fine print really goes under the radar. 517 00:29:51,440 --> 00:29:53,320 Speaker 1: Most people don't realize they have an arbitration clause or 518 00:29:53,320 --> 00:29:57,960 Speaker 1: its impact. That's Professor Emery Celty of Loyala University, New 519 00:29:58,080 --> 00:30:03,040 Speaker 1: Orleans College of Law. New York Attorney General Leticia James 520 00:30:03,280 --> 00:30:07,920 Speaker 1: began an investigation in to determine if former President Donald 521 00:30:07,960 --> 00:30:11,400 Speaker 1: Trump's real estate company had been manipulating the value of 522 00:30:11,520 --> 00:30:15,240 Speaker 1: key assets for tax and insurance purposes. Since then, the 523 00:30:15,320 --> 00:30:19,200 Speaker 1: company has waged legal battles over compliance with state subpoenas. 524 00:30:19,760 --> 00:30:22,520 Speaker 1: Joining me is Bloomberg Legal reporter Eric Larson, who has 525 00:30:22,560 --> 00:30:27,440 Speaker 1: been covering the investigation. Donald Trump's real estate company turned 526 00:30:27,480 --> 00:30:31,800 Speaker 1: over nine hundred thousand documents to the New York Attorney General, 527 00:30:32,000 --> 00:30:35,760 Speaker 1: but only ten belong to Trump. What did the a G. 528 00:30:35,920 --> 00:30:38,240 Speaker 1: S Office say about that? That's right, you know, they 529 00:30:38,280 --> 00:30:41,280 Speaker 1: only mentioned that there was a hearing yesterday um in 530 00:30:41,440 --> 00:30:44,040 Speaker 1: State Court in Manhattan, and they just mentioned that figure 531 00:30:44,200 --> 00:30:46,880 Speaker 1: just as an aside, kind of as an example of 532 00:30:46,960 --> 00:30:49,440 Speaker 1: why the A G. S Office is a little skeptical 533 00:30:49,640 --> 00:30:52,640 Speaker 1: that the Trump organization is going to meet this deadline 534 00:30:52,680 --> 00:30:55,560 Speaker 1: that has been set for Able fifteen to complete um, 535 00:30:55,680 --> 00:30:59,000 Speaker 1: all this type of discovery, so they didn't really delve 536 00:30:59,040 --> 00:31:02,680 Speaker 1: into that too much. Trump organization didn't comment on the 537 00:31:03,000 --> 00:31:06,560 Speaker 1: lawyer's remark, but it did kind of highlight how really 538 00:31:06,640 --> 00:31:08,960 Speaker 1: Trump you know, he's long been rumored to not use 539 00:31:09,320 --> 00:31:12,160 Speaker 1: a computer, not send emails, that a lot of his 540 00:31:12,280 --> 00:31:15,520 Speaker 1: directives and things are just verbal. Um, So it makes it, 541 00:31:15,920 --> 00:31:18,760 Speaker 1: I guess, the sort of difficult to get stuff from 542 00:31:18,840 --> 00:31:22,200 Speaker 1: him in discovery. But in this investigation by the Attorney 543 00:31:22,240 --> 00:31:25,840 Speaker 1: General there, they said that there are over a hundred eustodians, 544 00:31:25,880 --> 00:31:28,880 Speaker 1: you know, people involved the Trump organization whose records were 545 00:31:28,920 --> 00:31:31,520 Speaker 1: searched for various search terms and things like that. So 546 00:31:31,640 --> 00:31:37,120 Speaker 1: over a hundred people, nine hundred thousand documents totally, almost 547 00:31:37,200 --> 00:31:40,880 Speaker 1: six million pages of records, and I just said, only 548 00:31:41,040 --> 00:31:45,040 Speaker 1: ten came from the custodian Donald J. Trump himself ahead 549 00:31:45,080 --> 00:31:47,960 Speaker 1: of the company. So it's kind of interesting there. And 550 00:31:48,160 --> 00:31:53,480 Speaker 1: I'm wondering if they're wondering if documents had been shredded, 551 00:31:53,560 --> 00:31:57,920 Speaker 1: because the National Archives said that Trump frequently ripped up 552 00:31:57,960 --> 00:32:00,120 Speaker 1: documents that were supposed to be kept as far the 553 00:32:00,160 --> 00:32:04,480 Speaker 1: Presidential Records Act. Who knows what they suspect. I'm not sure. 554 00:32:04,920 --> 00:32:08,600 Speaker 1: I suppose anything is possible, but there certainly aren't alleging that, 555 00:32:09,160 --> 00:32:11,880 Speaker 1: but I'm sure they are hoping that perhaps a few 556 00:32:12,000 --> 00:32:15,800 Speaker 1: more are turned over before this discovery process is over. 557 00:32:16,560 --> 00:32:20,680 Speaker 1: Eric explained the investigation where it's going and why they 558 00:32:20,960 --> 00:32:25,280 Speaker 1: may need a paper trail to hold Trump personally liable. Well, 559 00:32:25,720 --> 00:32:28,840 Speaker 1: at this point, they haven't accused anyone specifically of anything. 560 00:32:28,840 --> 00:32:31,800 Speaker 1: You know, the investigation is still ongoing. It's a civil 561 00:32:31,880 --> 00:32:35,480 Speaker 1: investigation um that is separate from the criminal criminal case 562 00:32:35,560 --> 00:32:38,960 Speaker 1: that was brought against the Trump Organization and its former CFO, 563 00:32:39,120 --> 00:32:42,240 Speaker 1: Allen Weiselberg, that is over a sort of a narrow 564 00:32:42,440 --> 00:32:45,520 Speaker 1: tax purpose related to perks that executive got. So this 565 00:32:45,640 --> 00:32:49,240 Speaker 1: is a separate civil investigation. They haven't decided whether or 566 00:32:49,280 --> 00:32:52,760 Speaker 1: not they'll even file a complaint against Trump organization or 567 00:32:53,240 --> 00:32:56,560 Speaker 1: any individuals. They haven't made that decision yet. So right 568 00:32:56,600 --> 00:32:59,720 Speaker 1: now they're trying to find out if a fraud did occur, 569 00:33:00,440 --> 00:33:03,400 Speaker 1: and if so, who was responsible for it. And we 570 00:33:03,520 --> 00:33:06,760 Speaker 1: know that in the fight that they've had over such 571 00:33:06,920 --> 00:33:11,320 Speaker 1: things that deposing Trump and his adult children, the Trump's 572 00:33:11,360 --> 00:33:14,640 Speaker 1: really fought hard against that, and so that the AG 573 00:33:14,880 --> 00:33:16,760 Speaker 1: had to push back hard as well, and in doing 574 00:33:16,840 --> 00:33:20,040 Speaker 1: so she said that the preliminary findings were that there 575 00:33:20,080 --> 00:33:26,000 Speaker 1: were plenty of examples of potential misvaluations of assets over 576 00:33:26,080 --> 00:33:29,920 Speaker 1: a ten year period. That clearly the AG believe something 577 00:33:30,000 --> 00:33:32,520 Speaker 1: that was done very wrong, but they just don't know 578 00:33:32,600 --> 00:33:35,680 Speaker 1: if it amounts to fraud, if it was intentional, and 579 00:33:35,840 --> 00:33:38,200 Speaker 1: if so, who would be responsible. So that's why they 580 00:33:38,240 --> 00:33:41,680 Speaker 1: want to get Donald Trump, Donald Trump Jr. And Ivanka 581 00:33:41,720 --> 00:33:45,640 Speaker 1: Trump to sit for questioning about all of these various 582 00:33:45,680 --> 00:33:49,040 Speaker 1: assets and things that the a G has listed pretty 583 00:33:49,080 --> 00:33:51,760 Speaker 1: detailed examples of where they think some of these valuations 584 00:33:51,840 --> 00:33:56,640 Speaker 1: went wrong. Now, a lawyer for the Trump organization said, 585 00:33:57,160 --> 00:34:00,000 Speaker 1: this isn't a case where they've been delaying, but he said, 586 00:34:00,000 --> 00:34:05,200 Speaker 1: and their investigation keeps growing. There are tentacles everywhere. Has 587 00:34:05,240 --> 00:34:08,080 Speaker 1: the investigation been growing in the two years or so? 588 00:34:09,000 --> 00:34:13,279 Speaker 1: I would say that it probably has, only because that's 589 00:34:13,360 --> 00:34:17,480 Speaker 1: kind of what happens with investigations. They request information, information 590 00:34:17,680 --> 00:34:19,640 Speaker 1: comes in, and then they look at it and they 591 00:34:19,680 --> 00:34:23,120 Speaker 1: see that there's other avenues for examination. Of course, all 592 00:34:23,200 --> 00:34:26,760 Speaker 1: they started when Trump's former long time lawyer and fixer, 593 00:34:26,800 --> 00:34:30,120 Speaker 1: Michael Cohen testified to Congress, saying that there were all 594 00:34:30,239 --> 00:34:33,719 Speaker 1: kinds of financial shenanigans going on at the Trump organization, 595 00:34:34,239 --> 00:34:37,800 Speaker 1: this kind of misvaluation of assets for bank and insurance 596 00:34:37,840 --> 00:34:40,880 Speaker 1: and loan purposes and things like that on more favorable 597 00:34:41,040 --> 00:34:43,880 Speaker 1: terms than they would have otherwise gotten. So the a 598 00:34:44,000 --> 00:34:46,520 Speaker 1: G opened the investigation on that basis, and the Trump 599 00:34:46,640 --> 00:34:50,520 Speaker 1: Organization is corrected, has turned over hundreds of thousands of documents, 600 00:34:50,600 --> 00:34:53,239 Speaker 1: So I wouldn't say it's too surprising that, you know, 601 00:34:53,440 --> 00:34:55,440 Speaker 1: other red flags might be raised as they look at 602 00:34:55,480 --> 00:34:58,080 Speaker 1: these documents and so they start asking more questions. That's 603 00:34:58,120 --> 00:35:00,400 Speaker 1: just kind of the nature of these investigation. But of 604 00:35:00,480 --> 00:35:03,479 Speaker 1: course these defense lawyers are trying to make the point 605 00:35:03,560 --> 00:35:06,239 Speaker 1: that the investigation has stend sometime, and I think they 606 00:35:06,239 --> 00:35:09,160 Speaker 1: actually agree it is coming to an end. So it's 607 00:35:09,160 --> 00:35:11,880 Speaker 1: not too surprising that the lawyers would say that. But 608 00:35:12,160 --> 00:35:15,400 Speaker 1: it's also not too surprising that the investigation expanded. And 609 00:35:15,560 --> 00:35:20,000 Speaker 1: what are the AG's concerns about Haystack? I d that 610 00:35:20,440 --> 00:35:23,879 Speaker 1: is a the third party organization that was brought into 611 00:35:23,960 --> 00:35:27,799 Speaker 1: this investigation. The a G had some real concerns about 612 00:35:27,800 --> 00:35:30,840 Speaker 1: whether or not the Trump Organization was making a proper, 613 00:35:30,880 --> 00:35:34,000 Speaker 1: good faith effort to do the searches that it needed. 614 00:35:34,000 --> 00:35:36,400 Speaker 1: Through all of its computers and cell phones and everyone's 615 00:35:36,400 --> 00:35:38,960 Speaker 1: records to get the information they were looking for. And 616 00:35:39,040 --> 00:35:41,919 Speaker 1: there has been such so many examples of this type 617 00:35:41,920 --> 00:35:44,319 Speaker 1: of problem that the a G was able to point 618 00:35:44,360 --> 00:35:47,640 Speaker 1: to that the company sort saw that it was I 619 00:35:47,760 --> 00:35:50,439 Speaker 1: believe about to be ordered essentially to hire a third 620 00:35:50,520 --> 00:35:53,480 Speaker 1: party to do a parallel record search, so it just 621 00:35:53,560 --> 00:35:56,400 Speaker 1: went ahead and agreed to have this company called Haystack 622 00:35:56,480 --> 00:36:00,600 Speaker 1: i D come in and do a separate, independent, parallel 623 00:36:00,840 --> 00:36:04,200 Speaker 1: and search for an E discovery for records. That's a 624 00:36:04,280 --> 00:36:07,560 Speaker 1: company that Trump Organization had worked with before, so it 625 00:36:07,680 --> 00:36:11,440 Speaker 1: already had a standing relationship with this company. But the 626 00:36:11,520 --> 00:36:13,440 Speaker 1: a G. S Office did sign off on it and 627 00:36:13,560 --> 00:36:15,800 Speaker 1: agreed to let Haystack do this. But then it became 628 00:36:15,800 --> 00:36:19,759 Speaker 1: a little annoyed apparently that Haystack status reports about it's 629 00:36:19,960 --> 00:36:24,440 Speaker 1: huge E search weren't detailed enough and we're not giving 630 00:36:24,480 --> 00:36:27,839 Speaker 1: the a G enough comfort that it was being done 631 00:36:27,960 --> 00:36:31,560 Speaker 1: properly and totally I guess independently. At the hearing, you know, 632 00:36:31,840 --> 00:36:35,839 Speaker 1: representative from Haystack was there, and the judge ordered both 633 00:36:36,040 --> 00:36:41,200 Speaker 1: Trump Organization and Haystack to give more frequent status reports 634 00:36:41,280 --> 00:36:44,520 Speaker 1: to the AGS office. As this process winds, down and 635 00:36:44,680 --> 00:36:47,200 Speaker 1: much more detailed reports. So that was what the a 636 00:36:47,320 --> 00:36:49,440 Speaker 1: G had requested at the hearing, and that is what 637 00:36:49,640 --> 00:36:53,000 Speaker 1: the judge ordered. So we'll see how more detailed these 638 00:36:53,040 --> 00:36:57,600 Speaker 1: reports become. What about the depositions for Trump and it's 639 00:36:57,640 --> 00:37:01,080 Speaker 1: two eldest children. Didn't the judge rules some time ago 640 00:37:01,280 --> 00:37:05,440 Speaker 1: that they had to be deposed. That's right, in February 641 00:37:05,840 --> 00:37:09,319 Speaker 1: the depositions were ordered. There has been quite a drawn 642 00:37:09,360 --> 00:37:12,560 Speaker 1: out fight over that, but the Trump have appealed and 643 00:37:12,760 --> 00:37:16,280 Speaker 1: the judge rules that they do not need to testify 644 00:37:16,640 --> 00:37:20,239 Speaker 1: while the appeal process is underway. They had been ordered 645 00:37:20,280 --> 00:37:23,440 Speaker 1: to be deposed by March fifteenth, so obviously that it's 646 00:37:23,480 --> 00:37:26,239 Speaker 1: coming on, but that appeal case is still out there. 647 00:37:26,600 --> 00:37:29,080 Speaker 1: The parties have briefed, and eventually there will be some 648 00:37:29,320 --> 00:37:32,239 Speaker 1: or arguments that would imagine fairly soon and then that 649 00:37:32,400 --> 00:37:35,720 Speaker 1: the appeals court would issue are really but it wouldn't 650 00:37:35,719 --> 00:37:38,320 Speaker 1: be surprising if this got appealed again to New York's 651 00:37:38,360 --> 00:37:41,200 Speaker 1: top court. So I'm not exactly sure when these depositions 652 00:37:41,520 --> 00:37:45,160 Speaker 1: will happen, but clearly the judges so far have just 653 00:37:45,320 --> 00:37:47,920 Speaker 1: shot down all of the Trump's arguments for why they 654 00:37:47,920 --> 00:37:52,040 Speaker 1: shouldn't be deposed. One of their arguments was that she's 655 00:37:52,120 --> 00:37:56,680 Speaker 1: using her civil subpoenas to insist the ongoing criminal investigation 656 00:37:56,840 --> 00:38:02,080 Speaker 1: by the Manhattan DA. But hasn't that investigation sort of stalled? Well, 657 00:38:02,239 --> 00:38:04,719 Speaker 1: I don't know. We have only limited insight into what 658 00:38:04,920 --> 00:38:07,359 Speaker 1: is going on inside the d there. Obviously, the two 659 00:38:07,560 --> 00:38:10,440 Speaker 1: prosecutors who have been sort of leading that effort both resigned. 660 00:38:10,480 --> 00:38:14,040 Speaker 1: Their speculation about why they did so if I think 661 00:38:14,120 --> 00:38:16,560 Speaker 1: it has to do with the difference of opinion with 662 00:38:16,680 --> 00:38:20,319 Speaker 1: the new DA Alvin Bragg about where that criminal investigation 663 00:38:20,400 --> 00:38:23,359 Speaker 1: should go, perhaps whether or not Trump himself should ever 664 00:38:23,440 --> 00:38:26,560 Speaker 1: be charged that sort of thing. But the investigation is 665 00:38:26,600 --> 00:38:29,760 Speaker 1: still ongoing. We do know that even if it is stalled, 666 00:38:29,800 --> 00:38:32,560 Speaker 1: I think the Trump's argument still stands, and that they 667 00:38:32,719 --> 00:38:35,319 Speaker 1: believe that as long as that criminal investigation is going, 668 00:38:35,560 --> 00:38:38,040 Speaker 1: that they shouldn't have to be deposed in this related 669 00:38:38,120 --> 00:38:41,800 Speaker 1: civil investigation. The idea being that they said somehow incriminate 670 00:38:41,880 --> 00:38:44,680 Speaker 1: themselves by answering questions in a civil probe. But as 671 00:38:44,800 --> 00:38:47,640 Speaker 1: the a G pointed out, and as the lower court agreed, 672 00:38:48,160 --> 00:38:50,680 Speaker 1: they don't have to incriminate themselves and to build be 673 00:38:50,760 --> 00:38:53,000 Speaker 1: in the deposition with their lawyers, and if there's a 674 00:38:53,080 --> 00:38:56,440 Speaker 1: question they're asked that they think might implicate them potentially, 675 00:38:56,560 --> 00:38:58,560 Speaker 1: they don't have to answer. They just plead the fifth 676 00:38:58,680 --> 00:39:01,200 Speaker 1: and then right against sell them nation. And in fact, 677 00:39:01,440 --> 00:39:04,400 Speaker 1: Eric Trump, Trump's other son, has already been deposed as 678 00:39:04,440 --> 00:39:07,520 Speaker 1: part of this civil investigation, and the AG made it 679 00:39:07,800 --> 00:39:09,840 Speaker 1: a point of noting in a court document that he 680 00:39:10,080 --> 00:39:13,040 Speaker 1: pleaded the FIST hundreds of times. So it's not as 681 00:39:13,080 --> 00:39:16,239 Speaker 1: if there's any guarantee that the Trump's would even give 682 00:39:16,320 --> 00:39:19,120 Speaker 1: the a G anything if these depositions happened. I think 683 00:39:19,160 --> 00:39:21,319 Speaker 1: it's just the principle of the matter, as they say 684 00:39:21,360 --> 00:39:24,200 Speaker 1: that they have every right to request these depositions, and 685 00:39:24,280 --> 00:39:27,279 Speaker 1: the law requires that they doused it down. Trump did 686 00:39:27,400 --> 00:39:31,120 Speaker 1: agree to be questioned under oath on June sixteen in 687 00:39:31,200 --> 00:39:34,520 Speaker 1: a class action lawsuit. Why did he agree there? If 688 00:39:34,560 --> 00:39:39,240 Speaker 1: you know that's right. That's an ongoing civil fraud suits 689 00:39:40,000 --> 00:39:43,360 Speaker 1: related to a long time promotion that Trump and his 690 00:39:43,440 --> 00:39:46,720 Speaker 1: family and his company did for a multi level marketing 691 00:39:46,800 --> 00:39:49,319 Speaker 1: company when he was on his reality TV show and things. 692 00:39:49,400 --> 00:39:53,200 Speaker 1: So he would have these multi level marketing company executives 693 00:39:53,239 --> 00:39:56,000 Speaker 1: on the Celebrity Apprentice and he would start in their 694 00:39:56,040 --> 00:39:59,240 Speaker 1: promotional videos and encourage people to sign up to sell 695 00:39:59,640 --> 00:40:03,080 Speaker 1: this companies products, notably a desktop video phone, which is 696 00:40:03,120 --> 00:40:05,920 Speaker 1: now completely defunct. But at any rate, people who did 697 00:40:06,000 --> 00:40:08,800 Speaker 1: sign up to sell those phones based on Trump's endorsement 698 00:40:09,080 --> 00:40:11,760 Speaker 1: playing they got ripped off. He denies that, of course, 699 00:40:12,120 --> 00:40:15,080 Speaker 1: but this case has been dragging on while he was president, 700 00:40:15,120 --> 00:40:17,120 Speaker 1: and he was able to delay it quite a bit. 701 00:40:17,280 --> 00:40:19,959 Speaker 1: But his motion to dismiss, I should say their motion, 702 00:40:20,120 --> 00:40:23,560 Speaker 1: his adults old are alvo defendants and his company. Their 703 00:40:23,640 --> 00:40:27,080 Speaker 1: motion to dismiss was denied. And basically there are other 704 00:40:27,239 --> 00:40:29,560 Speaker 1: some other side matters related to third parties that have 705 00:40:29,640 --> 00:40:31,960 Speaker 1: been delaying it as well, and those are being wrapped up. 706 00:40:32,000 --> 00:40:34,120 Speaker 1: So now they really just don't have any choice but 707 00:40:34,239 --> 00:40:36,239 Speaker 1: to sit for a deposition. The judge ordered them to 708 00:40:36,280 --> 00:40:39,719 Speaker 1: sit for depositions by June twenty nine, and now they 709 00:40:39,800 --> 00:40:43,400 Speaker 1: agreed to. Trump is going to be deposed on June sixteenth, 710 00:40:44,120 --> 00:40:47,040 Speaker 1: and Donald Trump and Eric Trump are also going to 711 00:40:47,120 --> 00:40:50,000 Speaker 1: be deposed in May, and then Ivanka Trump at some 712 00:40:50,080 --> 00:40:52,920 Speaker 1: other date that hasn't been set yet. So it's happening. 713 00:40:53,440 --> 00:40:55,440 Speaker 1: I have to ask you about one more deposition, one 714 00:40:55,480 --> 00:40:58,719 Speaker 1: more Trump deposition. Since you follow all these d e 715 00:40:58,880 --> 00:41:02,240 Speaker 1: Gene Carol Death and Nation lawsuit. Has he been ordered 716 00:41:02,280 --> 00:41:06,080 Speaker 1: to be deposed in that, you know what, he hasn't. 717 00:41:06,200 --> 00:41:08,480 Speaker 1: That case is still up in the air about what 718 00:41:08,600 --> 00:41:11,680 Speaker 1: the appealed court will decide. You'll recall that that's the 719 00:41:11,719 --> 00:41:15,760 Speaker 1: one where the Justice Departments under Trump trying to intervene 720 00:41:15,800 --> 00:41:17,239 Speaker 1: in the case in a way that would get it 721 00:41:17,480 --> 00:41:20,920 Speaker 1: automatically dismissed by saying that the city president can't be 722 00:41:21,160 --> 00:41:25,279 Speaker 1: sued for defamation for anything related to his job, and 723 00:41:25,360 --> 00:41:28,160 Speaker 1: they claim that his remarks about Egen Carroll were part 724 00:41:28,239 --> 00:41:31,880 Speaker 1: of his job. So surprisingly, the I suppose the Biden 725 00:41:31,880 --> 00:41:35,239 Speaker 1: administration also ended up taking the same stance. So there 726 00:41:35,280 --> 00:41:38,120 Speaker 1: were oral arguments in the second Circuit and they have 727 00:41:38,320 --> 00:41:41,520 Speaker 1: not issued a ruling yet. So if the case does 728 00:41:41,600 --> 00:41:45,680 Speaker 1: survive and go forward to discovery, they will not be 729 00:41:45,800 --> 00:41:48,640 Speaker 1: speaking a deposition of Trump. That is something that came 730 00:41:48,640 --> 00:41:51,800 Speaker 1: out in the oral arguments there. You know, Egan Carroll's 731 00:41:51,880 --> 00:41:54,239 Speaker 1: lawyer said that what they really need in discovery is 732 00:41:54,280 --> 00:41:56,799 Speaker 1: a DNA sample from Trump, and that's really what they're 733 00:41:56,800 --> 00:41:59,200 Speaker 1: pushing for, is they want to compare it to DNA 734 00:41:59,640 --> 00:42:02,320 Speaker 1: stamp from the dress that she was wearing. When she 735 00:42:02,480 --> 00:42:05,440 Speaker 1: was allegedly raped by Trump over two decades ago in 736 00:42:05,480 --> 00:42:08,640 Speaker 1: a department store dressing room here in Manhattan. So it's 737 00:42:08,680 --> 00:42:11,360 Speaker 1: really not about a deposition UM in that case, but 738 00:42:11,680 --> 00:42:15,960 Speaker 1: other important discovery. I didn't realize that that is surprising, 739 00:42:16,239 --> 00:42:18,279 Speaker 1: but I guess they think you'll just get on the 740 00:42:18,360 --> 00:42:22,080 Speaker 1: stand and deny it. So that's exactly what Carold lawyer 741 00:42:22,200 --> 00:42:25,240 Speaker 1: told me. So they're confident that if this goes to trial, 742 00:42:25,680 --> 00:42:27,960 Speaker 1: the jury will simply believe their side of the story 743 00:42:28,640 --> 00:42:31,840 Speaker 1: without a deposition UM. That's trying to fight over the 744 00:42:31,920 --> 00:42:34,799 Speaker 1: deposition in this case could end up dragging it out 745 00:42:35,040 --> 00:42:38,040 Speaker 1: even longer UM and the sort of a cost benefit 746 00:42:38,080 --> 00:42:41,560 Speaker 1: analysis there. So I was surprised too, but they decided 747 00:42:41,640 --> 00:42:43,799 Speaker 1: in the order to try to move the case along. 748 00:42:43,840 --> 00:42:46,080 Speaker 1: They just decided to tell the judge they wouldn't seek 749 00:42:46,120 --> 00:42:49,680 Speaker 1: to depose Trump period. Well, Eric, thank you for following 750 00:42:49,880 --> 00:42:53,879 Speaker 1: all these cases. It'll be interesting to see which one 751 00:42:54,000 --> 00:42:59,000 Speaker 1: moves fastest. That's Bloomberg Legal reporter Eric Larson, and that's 752 00:42:59,080 --> 00:43:01,680 Speaker 1: it for this edition of The Bomberg Law Show. Remember 753 00:43:01,719 --> 00:43:03,799 Speaker 1: you can always get the latest legal news on our 754 00:43:03,800 --> 00:43:07,279 Speaker 1: Bloomberg Law podcast. You can find them on Apple podcasts 755 00:43:07,360 --> 00:43:12,239 Speaker 1: Spotify and at www dot bloomberg dot com, slash podcast, 756 00:43:12,520 --> 00:43:15,399 Speaker 1: Slash Law, and remember to tune into The Bloomberg Law 757 00:43:15,480 --> 00:43:18,640 Speaker 1: Show every week night at ten pm Wall Street Time. 758 00:43:19,200 --> 00:43:21,920 Speaker 1: I'm June Grossow, and you're listening to Bloomberg