1 00:00:02,880 --> 00:00:07,600 Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. 2 00:00:09,760 --> 00:00:13,039 Speaker 1: Mister Zuckerberg, you and the companies before us. 3 00:00:13,160 --> 00:00:15,440 Speaker 2: I know you don't mean it to be so, but 4 00:00:15,480 --> 00:00:18,599 Speaker 2: you have blood on your hands. You have a product. 5 00:00:20,400 --> 00:00:23,800 Speaker 3: You have a product that's killing people. 6 00:00:24,280 --> 00:00:28,240 Speaker 2: That was Republican Senator Lindsay Graham during a Senate Judiciary 7 00:00:28,280 --> 00:00:32,800 Speaker 2: Committee hearing two years ago, a rare example of Democrats 8 00:00:32,880 --> 00:00:38,080 Speaker 2: and Republicans coming together to attack social media CEOs like 9 00:00:38,200 --> 00:00:43,720 Speaker 2: Mark Zuckerberg for not protecting kids online. Zuckerberg pushed back 10 00:00:43,760 --> 00:00:48,040 Speaker 2: on some recent studies that suggested that social media use 11 00:00:48,560 --> 00:00:51,519 Speaker 2: was detrimental to the mental health of teenagers. 12 00:00:52,200 --> 00:00:55,480 Speaker 4: Mental health is a complex issue, and the existing body 13 00:00:55,480 --> 00:00:58,520 Speaker 4: of scientific work has not shown a cause a link 14 00:00:58,560 --> 00:01:01,720 Speaker 4: between using social media and young people having worse mental 15 00:01:01,720 --> 00:01:02,480 Speaker 4: health outcomes. 16 00:01:02,720 --> 00:01:05,280 Speaker 2: Well, now, Zuckerberg will have a chance to make his 17 00:01:05,440 --> 00:01:09,400 Speaker 2: case to a jury in a landmark trial overclaims that 18 00:01:09,440 --> 00:01:14,720 Speaker 2: the top social media companies have deliberately gotten teenagers addicted 19 00:01:14,840 --> 00:01:18,840 Speaker 2: through design choices on trial or Meta, the owner of 20 00:01:18,920 --> 00:01:23,440 Speaker 2: Instagram and Facebook, and Google, the owner of YouTube Snap 21 00:01:23,560 --> 00:01:27,000 Speaker 2: settled the case last week, and TikTok settled on the 22 00:01:27,040 --> 00:01:31,080 Speaker 2: eve of trial. Joining me is Colin Walkee, a cybersecurity 23 00:01:31,120 --> 00:01:35,560 Speaker 2: and data privacy partner at hall Estell. Colin. The plaintiff 24 00:01:35,560 --> 00:01:38,160 Speaker 2: in this case is a California woman who is now 25 00:01:38,200 --> 00:01:41,920 Speaker 2: twenty years old. Tell us about our allegations in this lawsuit. 26 00:01:42,520 --> 00:01:44,720 Speaker 3: This is really the first one that's going to trial. 27 00:01:44,920 --> 00:01:48,640 Speaker 1: There are dozens of not hundreds of similar lawsuits out there. 28 00:01:48,760 --> 00:01:50,680 Speaker 3: And the basic allegation in this case, in. 29 00:01:50,640 --> 00:01:54,160 Speaker 1: All the cases, is that the algorithms that have been 30 00:01:54,400 --> 00:01:57,160 Speaker 1: put out there by the social media companies, as well 31 00:01:57,200 --> 00:01:59,320 Speaker 1: as all the bells and whistles they put on their 32 00:01:59,360 --> 00:02:04,040 Speaker 1: social media platforms, have made their products addictive. So this 33 00:02:04,160 --> 00:02:07,360 Speaker 1: is very much akin to the tobacco litigation in the 34 00:02:07,400 --> 00:02:11,119 Speaker 1: nineteen nineties. Are there harms that flow from that addiction? 35 00:02:11,840 --> 00:02:12,080 Speaker 3: One? 36 00:02:12,160 --> 00:02:13,840 Speaker 1: Is it addictive? And then two are there harms that 37 00:02:13,880 --> 00:02:15,959 Speaker 1: flow from it? The jury is ultimately going to decide 38 00:02:15,960 --> 00:02:16,600 Speaker 1: that in this case. 39 00:02:17,160 --> 00:02:21,919 Speaker 2: This is a novel theory that compares social media sites 40 00:02:22,080 --> 00:02:23,680 Speaker 2: to defective products. 41 00:02:24,720 --> 00:02:26,720 Speaker 1: Yes, and in fact some of the claims even relate 42 00:02:26,800 --> 00:02:29,880 Speaker 1: back to like a nuisance type claim. But long story 43 00:02:29,919 --> 00:02:32,960 Speaker 1: short is is that the way these algorithms operate is 44 00:02:33,000 --> 00:02:37,160 Speaker 1: they get you addicted through casino style techniques. So casinos know, 45 00:02:37,240 --> 00:02:39,280 Speaker 1: for example, that every time that you put a quarter 46 00:02:39,320 --> 00:02:41,200 Speaker 1: in you shouldn't get a reward because then you won't 47 00:02:41,200 --> 00:02:41,680 Speaker 1: come back. 48 00:02:41,880 --> 00:02:43,720 Speaker 3: So it's the timing with which. 49 00:02:43,520 --> 00:02:45,799 Speaker 1: You see and the content that you see it in 50 00:02:46,360 --> 00:02:48,640 Speaker 1: and then what are the consequences that flow from that, So, 51 00:02:48,680 --> 00:02:52,639 Speaker 1: for example, mental health harms as a result of that. 52 00:02:52,680 --> 00:02:55,440 Speaker 1: You can think about children in school and the distractions. 53 00:02:55,520 --> 00:02:57,360 Speaker 1: That's some of the allegations that have come out in 54 00:02:57,400 --> 00:03:01,720 Speaker 1: these cases is you know Instagram started using teenagers and 55 00:03:01,760 --> 00:03:03,680 Speaker 1: they were sitting there going, how do we get back 56 00:03:03,800 --> 00:03:05,640 Speaker 1: more teenagers. Well, let's figure out a way to get 57 00:03:05,639 --> 00:03:09,040 Speaker 1: our platforms in schools, right, And so the harms that 58 00:03:09,080 --> 00:03:11,520 Speaker 1: flow from this are unique to each individual, but you 59 00:03:11,520 --> 00:03:12,680 Speaker 1: can see how they compound. 60 00:03:12,880 --> 00:03:15,720 Speaker 2: So do they have to show or are they they're 61 00:03:15,760 --> 00:03:21,880 Speaker 2: alleging that the social media companies deliberately made these design choices, 62 00:03:22,800 --> 00:03:23,440 Speaker 2: correct that. 63 00:03:23,360 --> 00:03:25,840 Speaker 1: It is intentional that they have done this. And the 64 00:03:25,919 --> 00:03:28,160 Speaker 1: thing is is I think that there's plenty of testimony 65 00:03:28,160 --> 00:03:32,280 Speaker 1: out there that probably supports the goal of making individuals 66 00:03:32,320 --> 00:03:33,360 Speaker 1: remain on. 67 00:03:33,280 --> 00:03:35,280 Speaker 3: Platforms as long as possible. 68 00:03:34,960 --> 00:03:37,520 Speaker 1: Keeping their attention there so that they can increase the 69 00:03:37,600 --> 00:03:41,400 Speaker 1: number of viewers and thereby increase the number of advertisements. 70 00:03:41,960 --> 00:03:44,040 Speaker 1: So I don't think there's really anything new about that. 71 00:03:44,080 --> 00:03:47,240 Speaker 1: But the tech companies are coming in and saying, well, whoa, whoa. 72 00:03:47,320 --> 00:03:49,960 Speaker 1: We already know based off of the Spring Courts ruling 73 00:03:50,000 --> 00:03:55,200 Speaker 1: on Section two thirty that the algorithms themselves are protected speech. 74 00:03:55,880 --> 00:03:58,720 Speaker 1: And so the unique claim in this particular case is, yes, 75 00:03:58,760 --> 00:04:02,000 Speaker 1: that may be speech, but the other bells and whistles 76 00:04:02,000 --> 00:04:04,120 Speaker 1: that you're putting onto this and what you're doing within 77 00:04:04,200 --> 00:04:07,160 Speaker 1: it is not speech, and rather it's conduct that it's 78 00:04:07,200 --> 00:04:09,360 Speaker 1: getting us addicted to your platform. 79 00:04:09,840 --> 00:04:12,960 Speaker 2: Explain Section two thirty for those who are not familiar 80 00:04:13,000 --> 00:04:13,280 Speaker 2: with it. 81 00:04:14,040 --> 00:04:16,080 Speaker 1: So Section two thirty is a law that was passed 82 00:04:16,080 --> 00:04:19,520 Speaker 1: in the mid nineties at the infancy of the Internet, and. 83 00:04:19,440 --> 00:04:21,839 Speaker 3: The goal of Section two thirty was to say, hey. 84 00:04:21,720 --> 00:04:24,960 Speaker 1: Listen, all of these people are on America Online posting 85 00:04:25,000 --> 00:04:28,360 Speaker 1: all sorts of things. Maybe some of them are child pornography, 86 00:04:28,520 --> 00:04:30,880 Speaker 1: maybe some of them are pictures of elephants. 87 00:04:30,880 --> 00:04:32,960 Speaker 3: Who knows who cares, But we don't. 88 00:04:32,800 --> 00:04:36,800 Speaker 1: Want to hold aol America Online liable for what someone 89 00:04:36,800 --> 00:04:39,720 Speaker 1: else posts. And so, in today's day and age, with 90 00:04:39,760 --> 00:04:42,680 Speaker 1: regard to Facebook, TikTok, all of those sorts of companies. 91 00:04:42,839 --> 00:04:46,599 Speaker 1: Whatever you post on there, the companies can't be held 92 00:04:46,680 --> 00:04:50,520 Speaker 1: liable for. And that's the result of a now decades 93 00:04:50,560 --> 00:04:53,599 Speaker 1: old law that needs to be updated pretty badly. 94 00:04:53,880 --> 00:04:56,599 Speaker 2: As far as this case has the judge ruled about 95 00:04:56,640 --> 00:04:59,240 Speaker 2: the applicability of Section two. 96 00:04:59,200 --> 00:05:02,320 Speaker 1: Thirty, well, there were attempts to get the case dismissed 97 00:05:02,400 --> 00:05:05,280 Speaker 1: under those claims, and thus far the case is going 98 00:05:05,320 --> 00:05:08,160 Speaker 1: to trial, and so ultimately the judge denied those defenses. 99 00:05:08,360 --> 00:05:10,040 Speaker 1: I have no doubt this is the type of case 100 00:05:10,040 --> 00:05:11,520 Speaker 1: that will be brought up in front of the United 101 00:05:11,560 --> 00:05:14,440 Speaker 1: States Supreme Court ultimately to make that decision. But I 102 00:05:14,480 --> 00:05:16,960 Speaker 1: will tell you in many of the other copycat lawsuits, 103 00:05:17,000 --> 00:05:18,800 Speaker 1: it's the exact same sort of thing. They're making the 104 00:05:18,920 --> 00:05:22,120 Speaker 1: argument that Section two thirty affords in this protection and 105 00:05:22,440 --> 00:05:23,520 Speaker 1: that's why it's probably gonna go to. 106 00:05:23,480 --> 00:05:24,039 Speaker 3: The Supreme Court. 107 00:05:24,160 --> 00:05:27,960 Speaker 2: And so the tech companies are arguing they're not legally 108 00:05:28,000 --> 00:05:32,240 Speaker 2: responsible for the effect of the content made by users. 109 00:05:32,240 --> 00:05:35,160 Speaker 2: So explain what they're out is here what they're trying 110 00:05:35,200 --> 00:05:35,880 Speaker 2: to get. 111 00:05:35,680 --> 00:05:38,920 Speaker 1: To, right, So, in short, the fact that you're being 112 00:05:39,000 --> 00:05:42,080 Speaker 1: shown what you want to see is your own choice 113 00:05:42,400 --> 00:05:45,640 Speaker 1: you could choose to see and view different things based 114 00:05:45,640 --> 00:05:48,240 Speaker 1: off of the likes, and you're viewing habits and all 115 00:05:48,279 --> 00:05:50,680 Speaker 1: of that. So they're essentially saying, all we're doing is 116 00:05:50,720 --> 00:05:53,359 Speaker 1: giving you what you want. We're not doing anything to 117 00:05:53,400 --> 00:05:56,160 Speaker 1: make it more enticing than it already is. And you know, 118 00:05:56,279 --> 00:05:59,280 Speaker 1: part of the argument too is how much is your 119 00:05:59,320 --> 00:06:05,000 Speaker 1: cell phone self addictive versus the platforms themselves? Right, So 120 00:06:05,160 --> 00:06:07,800 Speaker 1: every time you get an iPhone update, for example, it 121 00:06:07,839 --> 00:06:11,120 Speaker 1: becomes a little bit brighter. Why the brighter the screen, 122 00:06:11,160 --> 00:06:13,520 Speaker 1: the more dopamine in the brain. The more dopamine the brain, 123 00:06:13,560 --> 00:06:14,839 Speaker 1: the more you want to look on in your screen. 124 00:06:14,960 --> 00:06:17,040 Speaker 1: That's why it's hard for you to figure out without 125 00:06:17,080 --> 00:06:18,800 Speaker 1: going to Google how to set your screen to black 126 00:06:18,839 --> 00:06:19,200 Speaker 1: and white. 127 00:06:19,240 --> 00:06:20,280 Speaker 3: They don't want you to know that. 128 00:06:20,560 --> 00:06:22,280 Speaker 1: So part of their argument here too is is how 129 00:06:22,320 --> 00:06:25,400 Speaker 1: do you distinguish which component of this is addictive? 130 00:06:25,720 --> 00:06:28,200 Speaker 2: I hadn't realized that I learned something new today about 131 00:06:28,240 --> 00:06:32,120 Speaker 2: the screens. Here, the twenty year old woman says that 132 00:06:32,320 --> 00:06:35,000 Speaker 2: more than a decade of social media you left her 133 00:06:35,000 --> 00:06:39,640 Speaker 2: addicted and depressed. Google's challenged the narrative, saying that she 134 00:06:39,800 --> 00:06:44,440 Speaker 2: experienced difficult family relationships, abuse, and bullying at school and 135 00:06:44,480 --> 00:06:47,480 Speaker 2: that played a role in her mental health struggles. I mean, 136 00:06:47,640 --> 00:06:51,480 Speaker 2: how difficult is causation going to be here for her 137 00:06:51,560 --> 00:06:54,880 Speaker 2: to prove that, you know, it was her addiction to 138 00:06:55,640 --> 00:06:58,919 Speaker 2: the platform rather than all the other things happening in 139 00:06:58,960 --> 00:06:59,480 Speaker 2: her life. 140 00:06:59,760 --> 00:07:01,359 Speaker 1: Well, well, it's one of the sayings that we have 141 00:07:01,440 --> 00:07:04,120 Speaker 1: in personal injury cases, which is you find your planiffs 142 00:07:04,120 --> 00:07:06,880 Speaker 1: as they are. And so in this particular case, yes, 143 00:07:07,080 --> 00:07:09,800 Speaker 1: they have some pretty good arguments that the mental health 144 00:07:09,840 --> 00:07:13,040 Speaker 1: harms are a result of her history. But the question 145 00:07:13,120 --> 00:07:18,680 Speaker 1: then becomes were they exacerbated by virtue of the negligent conduct? 146 00:07:19,000 --> 00:07:21,800 Speaker 1: And if that's the case, then the approximate cause is 147 00:07:21,920 --> 00:07:25,000 Speaker 1: in fact the social media platform and not the historical 148 00:07:25,040 --> 00:07:27,760 Speaker 1: trauma that she experienced. And so that's what I was 149 00:07:27,760 --> 00:07:30,000 Speaker 1: saying earlier about the mental health harms as part of 150 00:07:30,000 --> 00:07:33,640 Speaker 1: the allegations in this case, because it is going to 151 00:07:33,680 --> 00:07:35,920 Speaker 1: be an issue for the jury to determine what was 152 00:07:35,960 --> 00:07:38,720 Speaker 1: the ultimate cause, what are those damages, and on top 153 00:07:38,760 --> 00:07:40,200 Speaker 1: of that, are punitive damage is something that. 154 00:07:40,240 --> 00:07:40,920 Speaker 3: Could be afforded. 155 00:07:41,360 --> 00:07:44,920 Speaker 2: There is a debate within the mental health field about 156 00:07:44,960 --> 00:07:49,840 Speaker 2: the connection between social media and increasing teenage rates of depression, 157 00:07:50,080 --> 00:07:54,120 Speaker 2: anxiety suicide ideation. But there is a twenty twenty three 158 00:07:54,160 --> 00:07:58,000 Speaker 2: report by the American Psychological Association that found that social 159 00:07:58,040 --> 00:08:01,400 Speaker 2: media used is not inherently benefit official or harmful to 160 00:08:01,520 --> 00:08:04,760 Speaker 2: young people. Is that debate going to enter the courtroom 161 00:08:04,760 --> 00:08:07,239 Speaker 2: where we're going to see, you know, experts on both 162 00:08:07,280 --> 00:08:08,360 Speaker 2: sides of the issue. 163 00:08:09,160 --> 00:08:12,240 Speaker 1: Absolutely, you will, just like you saw with the tobacco litigation. 164 00:08:12,360 --> 00:08:14,800 Speaker 1: I mean, that's the reality is You're going to find 165 00:08:14,840 --> 00:08:17,320 Speaker 1: experts on both sides of this issue. But at the 166 00:08:17,400 --> 00:08:19,280 Speaker 1: end of the day, the reason why the jury trial 167 00:08:19,320 --> 00:08:22,200 Speaker 1: system is so good here in the United States is 168 00:08:22,240 --> 00:08:26,520 Speaker 1: because our jurors really are good at detecting bs, and 169 00:08:26,640 --> 00:08:29,480 Speaker 1: so they'll be able to figure out pretty quickly not 170 00:08:29,560 --> 00:08:32,280 Speaker 1: just from what the testimony is, but from their own 171 00:08:32,480 --> 00:08:36,280 Speaker 1: personal experiences. I don't think that anyone can ultimately hear 172 00:08:36,320 --> 00:08:40,480 Speaker 1: the testimony of these executives and former executives and decide 173 00:08:40,480 --> 00:08:42,360 Speaker 1: that they didn't at least try. 174 00:08:42,520 --> 00:08:43,760 Speaker 3: To make it more addictive. 175 00:08:44,080 --> 00:08:46,720 Speaker 1: Whether they accomplish that goal maybe a different story, but 176 00:08:46,760 --> 00:08:48,240 Speaker 1: it's pretty clear they at least tried. 177 00:08:48,520 --> 00:08:51,719 Speaker 2: As you mentioned, there are more than sixteen hundred plaintiffs, 178 00:08:51,960 --> 00:08:54,520 Speaker 2: including there were over three hundred and fifty families and 179 00:08:54,559 --> 00:08:57,400 Speaker 2: two hundred and fifty school districts on the federal and 180 00:08:57,440 --> 00:09:01,000 Speaker 2: state level. Why isn't this being true as a class 181 00:09:01,040 --> 00:09:02,760 Speaker 2: action lawsuit. 182 00:09:02,559 --> 00:09:04,520 Speaker 3: Well, because the harms flow differently. 183 00:09:04,679 --> 00:09:07,080 Speaker 1: So for a class action you have to have similarity 184 00:09:07,160 --> 00:09:10,319 Speaker 1: in damages and several other similar class items to make 185 00:09:10,320 --> 00:09:13,679 Speaker 1: you a class. So, for example, if your dishwasher went out, 186 00:09:13,760 --> 00:09:15,960 Speaker 1: all the other thousand people who bought that dishwasher, you're 187 00:09:16,000 --> 00:09:16,720 Speaker 1: in the similar class. 188 00:09:16,720 --> 00:09:17,800 Speaker 3: You've got similar damages. 189 00:09:18,000 --> 00:09:21,479 Speaker 1: But in this particular case, the harm of this particular 190 00:09:21,559 --> 00:09:25,559 Speaker 1: female plaintiff right is different than a mother bringing in 191 00:09:25,559 --> 00:09:28,600 Speaker 1: a lawsuit on behalf of her child. And those damages 192 00:09:28,640 --> 00:09:31,439 Speaker 1: are different because you're going to calculate a different lifespan 193 00:09:31,559 --> 00:09:33,880 Speaker 1: based on age alone. And then not only that, but 194 00:09:33,960 --> 00:09:35,960 Speaker 1: you look at the school district lawsuits, Well, what are 195 00:09:35,960 --> 00:09:38,400 Speaker 1: the damages there. It's the disruption in the classroom, it's 196 00:09:38,400 --> 00:09:41,319 Speaker 1: the additional counselors that are needed. So each of these 197 00:09:41,320 --> 00:09:45,600 Speaker 1: different damage components makes them difficult even for a litany 198 00:09:45,600 --> 00:09:47,760 Speaker 1: of school districts to come together. You couldn't see that 199 00:09:47,880 --> 00:09:51,000 Speaker 1: across the country because everybody is funded differently, So that's 200 00:09:51,000 --> 00:09:52,720 Speaker 1: why you're not seeing it as a class action. 201 00:09:52,840 --> 00:09:54,880 Speaker 3: But I'm confident that if. 202 00:09:54,679 --> 00:09:57,640 Speaker 1: This case goes to trial and there is a judgment, 203 00:09:57,720 --> 00:09:59,439 Speaker 1: you're going to see a lot more of these cases. 204 00:09:59,480 --> 00:10:02,920 Speaker 2: Sudden explain what a Bellweather trial is and is this 205 00:10:03,000 --> 00:10:04,080 Speaker 2: a Bellweather trial? 206 00:10:04,679 --> 00:10:07,280 Speaker 3: This is absolutely a bell Weather trial. So it's very similar. 207 00:10:07,320 --> 00:10:11,040 Speaker 1: Recently, for example, you saw Tesla actually went to trial 208 00:10:11,160 --> 00:10:13,960 Speaker 1: and won on one of the cases where they're automatic 209 00:10:14,320 --> 00:10:17,880 Speaker 1: driving vehicle injured somebody, and so that is going to 210 00:10:17,920 --> 00:10:20,720 Speaker 1: embolden Tesla into the future. So if you imagine a 211 00:10:20,760 --> 00:10:23,880 Speaker 1: scenario in which the social media companies do win this case, 212 00:10:24,120 --> 00:10:26,800 Speaker 1: they're going to feel embolden to continue to pursue it. 213 00:10:27,120 --> 00:10:28,960 Speaker 1: On the flip side of that coin, if the plaintiffs 214 00:10:29,000 --> 00:10:30,520 Speaker 1: win this case, then at the end of the day, 215 00:10:30,559 --> 00:10:32,240 Speaker 1: you're going to start seeing a lot more settlements. 216 00:10:32,280 --> 00:10:34,640 Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue 217 00:10:34,640 --> 00:10:39,360 Speaker 2: this conversation with Colin Walke of hall Estel. Jury's selection 218 00:10:39,600 --> 00:10:43,040 Speaker 2: is underway in the case. So what kind of jurors 219 00:10:43,080 --> 00:10:46,280 Speaker 2: are the lawyers from each side looking for and how 220 00:10:46,360 --> 00:10:50,160 Speaker 2: much depends on the testimony of a CEO like Mark Zuckerberg. 221 00:10:50,480 --> 00:10:53,160 Speaker 2: I'm June Grosso and you're listening to Bloomberg. 222 00:10:54,720 --> 00:10:57,600 Speaker 3: Would you'd like now to apologize to the victims who 223 00:10:57,640 --> 00:10:59,520 Speaker 3: have been harmed by your product? Show them the pictures. 224 00:11:00,520 --> 00:11:02,840 Speaker 4: Would you like to apologize for what you've done to 225 00:11:02,880 --> 00:11:03,560 Speaker 4: these good people? 226 00:11:03,840 --> 00:11:07,800 Speaker 2: Meta CEO Mark Zuckerberg was lectured by both Republican and 227 00:11:07,920 --> 00:11:11,200 Speaker 2: Democratic senators when he testified at a hearing on the 228 00:11:11,280 --> 00:11:15,800 Speaker 2: harm social media platforms posed to young people in January 229 00:11:15,840 --> 00:11:19,400 Speaker 2: of twenty twenty four. Now, Zuckerberg will have to testify 230 00:11:19,520 --> 00:11:23,680 Speaker 2: in a courtroom in a landmark social media addiction trial. 231 00:11:24,120 --> 00:11:27,760 Speaker 2: Part of his testimony will most likely echo some of 232 00:11:27,800 --> 00:11:31,040 Speaker 2: what he said before Congress when he elaborated on the 233 00:11:31,080 --> 00:11:33,720 Speaker 2: safeguards Meta has added over the years. 234 00:11:34,559 --> 00:11:36,600 Speaker 4: Over the last eight years, we've built more than thirty 235 00:11:36,640 --> 00:11:39,760 Speaker 4: different tools, resources, and features that parents can set time 236 00:11:39,760 --> 00:11:42,920 Speaker 4: limits for their teens using our apps, see who they're following, 237 00:11:43,600 --> 00:11:47,160 Speaker 4: or if they report someone for bullying. For teens, we've 238 00:11:47,200 --> 00:11:49,640 Speaker 4: added nudges to remind them when they've been using Instagram 239 00:11:49,640 --> 00:11:50,920 Speaker 4: for a while, or if it's getting late and they 240 00:11:50,920 --> 00:11:53,160 Speaker 4: should go to sleep, as well as ways to hide 241 00:11:53,200 --> 00:11:55,280 Speaker 4: words or people without those people finding out. 242 00:11:56,120 --> 00:12:00,000 Speaker 2: I've been talking to an expert in data privacy Colin Walkee, 243 00:12:00,120 --> 00:12:04,000 Speaker 2: a partner at Halestel. Colin the fact that Snap settled 244 00:12:04,120 --> 00:12:07,760 Speaker 2: last week and TikTok settled on the eve of trial, 245 00:12:08,320 --> 00:12:10,600 Speaker 2: what does that tell you about how the social media 246 00:12:10,760 --> 00:12:14,760 Speaker 2: companies are evaluating the risk of going to trial. 247 00:12:15,320 --> 00:12:18,120 Speaker 1: I think what most people don't realize is that lawyer's 248 00:12:18,240 --> 00:12:19,360 Speaker 1: jobs are to manage risk. 249 00:12:19,440 --> 00:12:22,280 Speaker 3: We are risk managers, that is it. And so for the. 250 00:12:22,240 --> 00:12:25,720 Speaker 1: Plaintiffs in this case, if they settled, the reason why 251 00:12:25,800 --> 00:12:27,000 Speaker 1: is because they know that this is going to be 252 00:12:27,000 --> 00:12:28,560 Speaker 1: taken all the way to Supreme Court and that's going 253 00:12:28,600 --> 00:12:31,199 Speaker 1: to take another five years, whereas they can get some. 254 00:12:31,280 --> 00:12:33,120 Speaker 3: Money today and avoid that risk, right. 255 00:12:33,160 --> 00:12:35,400 Speaker 1: So there's an incentive for the plaintiffs to settle from 256 00:12:35,400 --> 00:12:38,000 Speaker 1: that regard, and there's an incentive for the defendant to 257 00:12:38,000 --> 00:12:40,520 Speaker 1: settle because they don't want this information to get out 258 00:12:40,520 --> 00:12:42,840 Speaker 1: there in the real world about how much you know 259 00:12:42,880 --> 00:12:45,480 Speaker 1: your privacy is being pilfered for profit. They don't want 260 00:12:45,480 --> 00:12:47,800 Speaker 1: to figure that out. They don't want their dirty laundry aired. 261 00:12:48,000 --> 00:12:50,480 Speaker 1: And so this is why settlements happen, is because both 262 00:12:50,520 --> 00:12:54,240 Speaker 1: sides are incentivized to not continue on with the case 263 00:12:54,320 --> 00:12:55,840 Speaker 1: whether they're right or wrong, and. 264 00:12:55,760 --> 00:13:01,480 Speaker 2: I'm wondering how they evaluate the risks because even if 265 00:13:01,520 --> 00:13:04,000 Speaker 2: they settle this case, there is the next case and 266 00:13:04,040 --> 00:13:06,040 Speaker 2: the next case in the next case, whereas if they 267 00:13:06,120 --> 00:13:10,640 Speaker 2: try this case and win, they'll have a better road ahead. 268 00:13:11,360 --> 00:13:12,560 Speaker 3: That's absolutely correct. 269 00:13:12,920 --> 00:13:15,960 Speaker 1: And one other thing is is that Meta has plenty 270 00:13:15,960 --> 00:13:18,520 Speaker 1: of money for lobbying, So at the end of the day, 271 00:13:18,640 --> 00:13:21,120 Speaker 1: if this does result in some sort of liability to them, 272 00:13:21,160 --> 00:13:22,960 Speaker 1: I have no doubt that all of the tech companies 273 00:13:23,000 --> 00:13:25,120 Speaker 1: are going to go to Congress to seek some form 274 00:13:25,160 --> 00:13:28,520 Speaker 1: of a Section two thirty type amendment to further protect 275 00:13:28,559 --> 00:13:30,120 Speaker 1: them in the future from this type of litigation. 276 00:13:30,240 --> 00:13:35,600 Speaker 2: It's most likely that Meta CEO Mark Zuckerberg and Adam Musserri, 277 00:13:35,679 --> 00:13:39,040 Speaker 2: who heads Instagram, are going to take the stand. Zuckerberg 278 00:13:39,080 --> 00:13:43,320 Speaker 2: has testified before Congress explain how different it is to 279 00:13:43,400 --> 00:13:46,880 Speaker 2: be in a courtroom and subject across examination and being 280 00:13:47,080 --> 00:13:48,360 Speaker 2: in Congress. 281 00:13:49,080 --> 00:13:50,280 Speaker 3: Well, it's wildly different. 282 00:13:50,320 --> 00:13:53,160 Speaker 1: Because if you remember back in twenty fourteen, when Mark 283 00:13:53,240 --> 00:13:56,280 Speaker 1: Zuckerberg came and testified in front of Congress, one of 284 00:13:56,320 --> 00:13:59,400 Speaker 1: the congressmen actually thought the reference to a cookie was 285 00:13:59,440 --> 00:14:02,000 Speaker 1: an edible item and not a pixel contained on your 286 00:14:02,000 --> 00:14:05,360 Speaker 1: computer screen. Okay, So the difference is is that these 287 00:14:05,440 --> 00:14:10,080 Speaker 1: attorneys in the courtroom know the technology, they know the facts, 288 00:14:10,080 --> 00:14:12,679 Speaker 1: and they're going to be able to effectively cross examine 289 00:14:12,679 --> 00:14:15,640 Speaker 1: someone about what a cookie is and how they're tracking 290 00:14:15,679 --> 00:14:18,640 Speaker 1: your data from one website to another. And then it 291 00:14:18,679 --> 00:14:21,600 Speaker 1: begs the question, why are you tracking my information from 292 00:14:21,600 --> 00:14:24,240 Speaker 1: my insurance carrier? Oh, well so we can show you 293 00:14:24,280 --> 00:14:26,280 Speaker 1: more ads. Okay, why are you showing more ads? Well, 294 00:14:26,280 --> 00:14:28,080 Speaker 1: so we can get your addicted. So that's how the 295 00:14:28,120 --> 00:14:30,000 Speaker 1: cross examination is going to work that you would have never. 296 00:14:29,880 --> 00:14:30,560 Speaker 3: Seen in commerce. 297 00:14:30,840 --> 00:14:34,400 Speaker 2: I think that Zuckerberg has a tandency to seem sort 298 00:14:34,440 --> 00:14:37,720 Speaker 2: of wooden when he talks. Suppose he comes across that 299 00:14:37,800 --> 00:14:40,680 Speaker 2: way to a jury, I mean, how much depends on 300 00:14:40,960 --> 00:14:42,200 Speaker 2: how they view him. 301 00:14:42,520 --> 00:14:44,360 Speaker 1: Well, it goes back to the old saying that you 302 00:14:44,360 --> 00:14:47,040 Speaker 1: know a jury, if they like you, they like your cause. 303 00:14:47,440 --> 00:14:49,600 Speaker 1: And so that's a hurdle that the tech companies are 304 00:14:49,640 --> 00:14:51,880 Speaker 1: going to have to overcome at the start of this trial, 305 00:14:51,920 --> 00:14:54,440 Speaker 1: because they've had enough black eyes already that the jury's 306 00:14:54,480 --> 00:14:55,640 Speaker 1: not going to like them out out. 307 00:14:55,480 --> 00:14:57,920 Speaker 2: The gate, and the plaintiff here will have to take 308 00:14:57,960 --> 00:14:58,480 Speaker 2: the stand. 309 00:14:58,960 --> 00:15:01,240 Speaker 1: Yes, the plan for lap take the stand, and I 310 00:15:01,280 --> 00:15:03,720 Speaker 1: have no doubt that her mental health history will come 311 00:15:03,800 --> 00:15:05,640 Speaker 1: up and the trauma that she has suffered, and all 312 00:15:05,720 --> 00:15:08,160 Speaker 1: of that is fodder for cross examination. 313 00:15:08,280 --> 00:15:10,640 Speaker 3: As painful as. 314 00:15:10,560 --> 00:15:12,720 Speaker 1: It may be for someone to go through that process, 315 00:15:13,120 --> 00:15:15,320 Speaker 1: it has to occur in order for the jury to 316 00:15:15,360 --> 00:15:18,840 Speaker 1: have a full understanding and appreciation of whether or not 317 00:15:18,960 --> 00:15:21,880 Speaker 1: the trauma in this case was related to addiction from 318 00:15:21,880 --> 00:15:23,320 Speaker 1: social media or prior. 319 00:15:23,840 --> 00:15:26,480 Speaker 2: This is a civil trial, not a criminal trial. So 320 00:15:26,480 --> 00:15:29,760 Speaker 2: people may have heard old defendants don't have to testify, etc. 321 00:15:30,080 --> 00:15:32,360 Speaker 2: But explain how a civil trial is different. 322 00:15:33,440 --> 00:15:36,360 Speaker 1: Yeah, so there is no right against self incrimination in 323 00:15:36,400 --> 00:15:39,160 Speaker 1: a civil trial. In fact, if you let's assume for 324 00:15:39,240 --> 00:15:42,960 Speaker 1: half a second that Mark Zuckerberg had planned on doing 325 00:15:43,000 --> 00:15:44,320 Speaker 1: something illegal. 326 00:15:43,840 --> 00:15:45,640 Speaker 3: In order to make this an addictive product. 327 00:15:46,080 --> 00:15:49,360 Speaker 1: If he asserted his Fifth Amendment right in a civil trial, 328 00:15:49,760 --> 00:15:52,320 Speaker 1: the judge would instruct the jury that they are able 329 00:15:52,360 --> 00:15:58,960 Speaker 1: to make an adverse inference as to his response. Otherwise, 330 00:15:59,480 --> 00:16:01,720 Speaker 1: you don't have a Fifth Amendment right against self incrimination 331 00:16:01,880 --> 00:16:05,120 Speaker 1: in a civil trial. Rather, because you're not going to jail. Rather, 332 00:16:05,240 --> 00:16:08,400 Speaker 1: you face damage damages as a result. 333 00:16:08,080 --> 00:16:08,720 Speaker 3: Of your conduct. 334 00:16:09,160 --> 00:16:12,840 Speaker 2: Jerry selection is underway right now. Tell us the kind 335 00:16:12,880 --> 00:16:15,680 Speaker 2: of jurors that the plaintiff's lawyer will be looking for, 336 00:16:16,040 --> 00:16:18,600 Speaker 2: and the kind of jurors that the defendant's lawyer will 337 00:16:18,640 --> 00:16:19,360 Speaker 2: be looking for. 338 00:16:20,000 --> 00:16:20,280 Speaker 3: Yeah. 339 00:16:20,320 --> 00:16:22,600 Speaker 1: So if I'm the planeff's lawyer, I am looking for 340 00:16:22,720 --> 00:16:28,520 Speaker 1: individuals who are going to be used to using social 341 00:16:28,560 --> 00:16:32,280 Speaker 1: media and find it problematic for themselves or their family members. 342 00:16:32,360 --> 00:16:32,520 Speaker 3: Right. 343 00:16:32,560 --> 00:16:34,520 Speaker 1: So we all have the uncle or the dad who 344 00:16:34,520 --> 00:16:37,200 Speaker 1: spends all day long on Twitter and you're rolling your 345 00:16:37,200 --> 00:16:38,800 Speaker 1: eyes like. 346 00:16:38,760 --> 00:16:41,480 Speaker 3: Sitting there, going do you not have anything else to do? That? 347 00:16:41,640 --> 00:16:44,480 Speaker 1: You want somebody who is frustrated about the system on there. 348 00:16:44,520 --> 00:16:47,840 Speaker 1: From the Planetf's perspective and from the defendants perspective, you're 349 00:16:47,880 --> 00:16:51,360 Speaker 1: looking for someone who is willing to say, you know what, 350 00:16:51,400 --> 00:16:55,360 Speaker 1: we live in a capitalistic society in which individuals have 351 00:16:55,480 --> 00:17:00,000 Speaker 1: freedom of choice, and these people are choosing to download 352 00:17:00,120 --> 00:17:02,960 Speaker 1: this app and spend time on it. That is a 353 00:17:03,080 --> 00:17:06,000 Speaker 1: choice that they are making. And so you're gonna want 354 00:17:06,040 --> 00:17:09,720 Speaker 1: someone who is very libertarian in their perspectives on life. 355 00:17:10,200 --> 00:17:11,160 Speaker 2: What about parents? 356 00:17:11,640 --> 00:17:13,159 Speaker 3: Yeah, and that goes back to it. 357 00:17:13,600 --> 00:17:15,240 Speaker 1: I think that if I am on the plant side, 358 00:17:15,240 --> 00:17:17,000 Speaker 1: I want as many parents on there as possible. 359 00:17:17,400 --> 00:17:19,680 Speaker 3: Again, you're gonna have some parents who don't care. 360 00:17:19,800 --> 00:17:22,440 Speaker 1: Right, we have created a situation in which the reason 361 00:17:22,520 --> 00:17:25,320 Speaker 1: why our children are addicted is because we're sitting there 362 00:17:25,320 --> 00:17:27,480 Speaker 1: throwing these in their hands at the age of five 363 00:17:27,560 --> 00:17:31,040 Speaker 1: years of age. And so you know, some parents may 364 00:17:31,119 --> 00:17:33,480 Speaker 1: not care, but it's the parents who do care that 365 00:17:33,520 --> 00:17:35,560 Speaker 1: you want on that stand or in that jury box. 366 00:17:36,200 --> 00:17:41,040 Speaker 2: Do you know besides a testimony, are there internal documents 367 00:17:41,119 --> 00:17:42,719 Speaker 2: that are going to be introduced. 368 00:17:43,440 --> 00:17:46,680 Speaker 1: Yes, there will be internal documents that will be utilized 369 00:17:46,680 --> 00:17:49,360 Speaker 1: that were utilized in depositions. Many of them have been 370 00:17:49,359 --> 00:17:52,720 Speaker 1: redacted for public use at this time. The judge will 371 00:17:52,720 --> 00:17:55,080 Speaker 1: figure out how to handle that with the jury on 372 00:17:55,160 --> 00:17:58,239 Speaker 1: any confidential information. But yes, there will be documentation as 373 00:17:58,240 --> 00:18:00,159 Speaker 1: well that the jury can rely upon a side from 374 00:18:00,160 --> 00:18:01,200 Speaker 1: the testimony itself. 375 00:18:01,920 --> 00:18:05,920 Speaker 2: These are state cases, but there are also federal cases 376 00:18:05,960 --> 00:18:08,600 Speaker 2: that are going to trial in June. Is that also 377 00:18:08,680 --> 00:18:10,440 Speaker 2: bell Weather or yes? 378 00:18:10,640 --> 00:18:13,080 Speaker 1: Yes, And you could also think about it this way, right, 379 00:18:13,119 --> 00:18:15,239 Speaker 1: So we're talking about these bell Weather cases. What if 380 00:18:15,240 --> 00:18:17,840 Speaker 1: the plantiff wins, what if the defendant wins? And earlier 381 00:18:17,880 --> 00:18:19,959 Speaker 1: we talked about, well, well, the defendant feel in Bolden 382 00:18:20,359 --> 00:18:23,240 Speaker 1: and they probably will as a social media company, feel 383 00:18:23,280 --> 00:18:24,960 Speaker 1: in Bolden. But you have to remember, going back to 384 00:18:25,000 --> 00:18:26,680 Speaker 1: the original point of why these aren't. 385 00:18:26,440 --> 00:18:27,560 Speaker 3: Class action cases. 386 00:18:27,920 --> 00:18:30,679 Speaker 1: Each case is different and unique, and so in this 387 00:18:30,720 --> 00:18:33,199 Speaker 1: particular case, we have a plaintiff who doesn't have the 388 00:18:33,200 --> 00:18:36,399 Speaker 1: best history, so to speak, Versus if you had a 389 00:18:36,440 --> 00:18:38,480 Speaker 1: five year old child in there who's got mental health 390 00:18:38,480 --> 00:18:39,720 Speaker 1: issues from being addicted. 391 00:18:40,000 --> 00:18:41,720 Speaker 3: They're not going to have the same traumatic history. 392 00:18:41,720 --> 00:18:44,679 Speaker 1: They're only five years old, right, So each case is 393 00:18:44,680 --> 00:18:46,400 Speaker 1: going to turn on the facts uniquely. But I do 394 00:18:46,440 --> 00:18:48,800 Speaker 1: certainly think that this is going to embolden whoever wins. 395 00:18:48,840 --> 00:18:53,400 Speaker 2: And also some states are enacting laws to protect against this. 396 00:18:53,920 --> 00:18:56,439 Speaker 3: Well, each state is doing something a little bit different. 397 00:18:56,480 --> 00:18:59,000 Speaker 1: So for example, you know, Oklahoma has passed a law 398 00:18:59,040 --> 00:19:01,000 Speaker 1: that says you're not allowed to have cell phones during 399 00:19:01,000 --> 00:19:04,600 Speaker 1: the school day, and so that keeps cell phones and 400 00:19:04,720 --> 00:19:05,960 Speaker 1: social media away from. 401 00:19:05,840 --> 00:19:07,760 Speaker 3: Kids at least for nine hours of the day. 402 00:19:08,680 --> 00:19:13,359 Speaker 1: But you're also seeing other states require age verification for 403 00:19:13,520 --> 00:19:15,040 Speaker 1: children and those sorts of things. 404 00:19:16,080 --> 00:19:19,159 Speaker 3: Whether that's actually effective is a different story. 405 00:19:19,200 --> 00:19:21,119 Speaker 1: You and I have had this conversation before about a 406 00:19:21,119 --> 00:19:23,520 Speaker 1: lot of this is about personal responsibility on the parents. 407 00:19:24,280 --> 00:19:26,800 Speaker 1: So for example, Oklahoma and many other states have past 408 00:19:26,800 --> 00:19:29,600 Speaker 1: age verification laws for pornography. All a child has to 409 00:19:29,600 --> 00:19:32,120 Speaker 1: do is download a VPN and bop. Now they're in Washington, 410 00:19:32,160 --> 00:19:33,680 Speaker 1: d C. They're not in a state with an age 411 00:19:33,720 --> 00:19:36,840 Speaker 1: verification law, and so, you know, trying to keep up 412 00:19:36,880 --> 00:19:40,000 Speaker 1: with the technology is very hard from a legal perspective, 413 00:19:40,040 --> 00:19:42,240 Speaker 1: and that's why personal responsibility is so important. 414 00:19:42,600 --> 00:19:46,400 Speaker 2: You talk about addictive I can start reading one news 415 00:19:46,480 --> 00:19:49,000 Speaker 2: story and then go on to the next about the 416 00:19:49,040 --> 00:19:51,880 Speaker 2: same subject, and then the next and the next, all 417 00:19:51,920 --> 00:19:55,359 Speaker 2: on different sites. It seems pretty addictive to me, And 418 00:19:55,440 --> 00:19:58,000 Speaker 2: I'm wondering if you have jurors who are like that, 419 00:19:58,440 --> 00:20:01,399 Speaker 2: if it hurts the plaintiff's case, because there are so 420 00:20:01,480 --> 00:20:04,399 Speaker 2: many addictive things on your phone. You have games that 421 00:20:04,440 --> 00:20:05,080 Speaker 2: are addictive. 422 00:20:05,600 --> 00:20:08,119 Speaker 1: Well, but to your point, I mean what you just said, 423 00:20:08,359 --> 00:20:11,640 Speaker 1: you can read news from us several different sites, right, 424 00:20:11,920 --> 00:20:16,000 Speaker 1: So are you addicted to a social media platform or. 425 00:20:15,960 --> 00:20:18,560 Speaker 3: The internet itself? Because here you are spending eight hours 426 00:20:18,560 --> 00:20:18,840 Speaker 3: a day. 427 00:20:18,840 --> 00:20:20,679 Speaker 1: You're not on social media platform, but you're going to 428 00:20:20,680 --> 00:20:22,800 Speaker 1: Washington Post, You're going to Bloomberg News, You're going to 429 00:20:22,840 --> 00:20:24,840 Speaker 1: New York Times. You go into all of these various 430 00:20:24,840 --> 00:20:27,240 Speaker 1: websites and you're spending all day on there, and you 431 00:20:27,280 --> 00:20:29,399 Speaker 1: forget about what you're supposed to actually be responsible for. 432 00:20:29,720 --> 00:20:32,680 Speaker 2: Let's just say plaintiffs win here, how will they look 433 00:20:32,720 --> 00:20:35,120 Speaker 2: at the damages the jury? 434 00:20:35,240 --> 00:20:38,240 Speaker 1: So I'm not an expert in California law, but generally speaking, 435 00:20:38,280 --> 00:20:39,960 Speaker 1: they're going to look at the actual damages. 436 00:20:40,000 --> 00:20:41,240 Speaker 3: So to the extent that this. 437 00:20:41,240 --> 00:20:44,320 Speaker 1: Woman had gone to the see of therapist and those sorts 438 00:20:44,359 --> 00:20:46,760 Speaker 1: of things, that'll be a calculation included in there. How 439 00:20:46,840 --> 00:20:49,840 Speaker 1: much did it cost? The amount of time taking off 440 00:20:49,880 --> 00:20:52,439 Speaker 1: of work or the inability to obtain a job may 441 00:20:52,440 --> 00:20:55,480 Speaker 1: be a component of for damages and then ultimately a 442 00:20:55,520 --> 00:20:57,840 Speaker 1: request for punitive damages because if it can be shown 443 00:20:57,880 --> 00:21:01,560 Speaker 1: that this was done with intentional and reckless condom, then 444 00:21:01,880 --> 00:21:03,480 Speaker 1: there's an argument to be had that they should be 445 00:21:03,480 --> 00:21:04,480 Speaker 1: punished for that behavior. 446 00:21:04,800 --> 00:21:06,919 Speaker 2: I heard one of the plaintiff's lawyers talk about, we 447 00:21:06,960 --> 00:21:09,720 Speaker 2: want them to correct this conduct. I mean, could a 448 00:21:09,840 --> 00:21:12,840 Speaker 2: judge actually order meta two? 449 00:21:13,119 --> 00:21:13,320 Speaker 3: Yes? 450 00:21:13,880 --> 00:21:17,680 Speaker 1: Yeah, there could be injunctive relief as a component of this. 451 00:21:18,359 --> 00:21:20,760 Speaker 1: So for example, ultimately in some of these cases, if 452 00:21:20,760 --> 00:21:24,479 Speaker 1: it's declared a nuisance, then the social media companies are 453 00:21:24,520 --> 00:21:26,840 Speaker 1: going to have to abate that nuisance. And how are 454 00:21:26,840 --> 00:21:29,080 Speaker 1: they going to do that? They're going to go in 455 00:21:29,119 --> 00:21:31,919 Speaker 1: and fix their algorithms to make them less addictive, to 456 00:21:32,000 --> 00:21:34,600 Speaker 1: show you things that you don't necessarily want to see, 457 00:21:34,680 --> 00:21:36,400 Speaker 1: which might actually be a good thing for a few 458 00:21:36,440 --> 00:21:36,959 Speaker 1: of us. 459 00:21:37,400 --> 00:21:40,560 Speaker 2: Would you say it's more or less likely that the 460 00:21:40,600 --> 00:21:43,080 Speaker 2: trial is actually going to start after jury selection? 461 00:21:44,000 --> 00:21:46,600 Speaker 1: I mean so, first of all, ninety three percent of 462 00:21:46,640 --> 00:21:50,080 Speaker 1: all cases settle before trial, so only some percent of 463 00:21:50,119 --> 00:21:52,800 Speaker 1: cases actually go to trial. And in that regard, many. 464 00:21:52,600 --> 00:21:54,280 Speaker 3: Cases settle midway through trial. 465 00:21:54,600 --> 00:21:56,680 Speaker 1: You get through, you pick your jury, and you sit 466 00:21:56,720 --> 00:21:58,480 Speaker 1: there and you go, I don't really like this, let's 467 00:21:58,520 --> 00:21:58,880 Speaker 1: go talk. 468 00:21:59,800 --> 00:22:01,439 Speaker 3: There is still a chance for to settle. 469 00:22:01,520 --> 00:22:04,560 Speaker 1: Although again I was recently involved in the case where 470 00:22:04,560 --> 00:22:06,160 Speaker 1: the other side made it clear this is a test 471 00:22:06,200 --> 00:22:09,040 Speaker 1: case for them. And so if that's the position of 472 00:22:09,080 --> 00:22:11,840 Speaker 1: either the social media company or the plaintiffs, and I've 473 00:22:11,840 --> 00:22:13,959 Speaker 1: got to imagine the plaintiffs have invested enough money at 474 00:22:13,960 --> 00:22:16,560 Speaker 1: this stage they don't have a choice but to keep going. 475 00:22:17,160 --> 00:22:19,159 Speaker 1: Then you know, this is their bell Weather case and 476 00:22:19,160 --> 00:22:20,320 Speaker 1: they're going to figure out the answer. 477 00:22:20,840 --> 00:22:23,240 Speaker 2: I guess we'll find out how the lawyers are weighing 478 00:22:23,320 --> 00:22:27,240 Speaker 2: the risk. Thanks so much, Colin. That's Colin Walkee, A 479 00:22:27,320 --> 00:22:32,920 Speaker 2: partner at Hall Estill. President Donald Trump has taken an 480 00:22:32,960 --> 00:22:37,680 Speaker 2: expansive view of executive power during his second term, issuing 481 00:22:37,880 --> 00:22:42,879 Speaker 2: orders upending immigration enforcement, higher education, and the federal workforce, 482 00:22:43,800 --> 00:22:47,920 Speaker 2: and the Supreme Court has been greenlighting Trump's policies while 483 00:22:48,040 --> 00:22:53,480 Speaker 2: cases are being litigated, citing overwhelmingly with Trump when challenges 484 00:22:53,560 --> 00:22:57,000 Speaker 2: arrive via the emergency docket. Joining me is Bloomberg Law 485 00:22:57,119 --> 00:23:01,159 Speaker 2: reporter Suzanne Monnac. Suzanne, you did and analysis of the 486 00:23:01,200 --> 00:23:05,760 Speaker 2: Supreme Court's emergency docket and found that the court overwhelmingly 487 00:23:05,880 --> 00:23:09,600 Speaker 2: sided with President Trump. So tell us about the numbers. 488 00:23:10,359 --> 00:23:13,480 Speaker 5: Absolutely, it's a trend, of course that we saw anecdotally. 489 00:23:13,960 --> 00:23:16,040 Speaker 5: But then when we took a look at all the 490 00:23:16,080 --> 00:23:19,000 Speaker 5: emergency docket orders in these Trump related cases over the 491 00:23:19,040 --> 00:23:22,119 Speaker 5: past year, the first year of his second administration, we 492 00:23:22,240 --> 00:23:24,440 Speaker 5: really saw that born out. It was just around the 493 00:23:24,480 --> 00:23:27,240 Speaker 5: seventy seven percent of the time that when we saw 494 00:23:27,720 --> 00:23:31,720 Speaker 5: challenges the Trump Administration's policies or actions reach the emergency 495 00:23:31,720 --> 00:23:34,680 Speaker 5: docket and have an order, it was around seventy seven 496 00:23:34,720 --> 00:23:37,040 Speaker 5: percent of the time that the justices ruled in favor 497 00:23:37,160 --> 00:23:40,280 Speaker 5: of the administration, usually in the form of, say, allowing 498 00:23:40,280 --> 00:23:42,920 Speaker 5: a policy that had been contested to move forward while 499 00:23:42,920 --> 00:23:44,040 Speaker 5: litigation continued. 500 00:23:44,600 --> 00:23:47,600 Speaker 2: As you mentioned, it's on the emergency docket. But one 501 00:23:47,600 --> 00:23:50,320 Speaker 2: of the professors you spoke to brought out the point 502 00:23:50,359 --> 00:23:54,160 Speaker 2: that even though the decisions are temporary, in many cases 503 00:23:54,560 --> 00:23:56,680 Speaker 2: they end up being final. 504 00:23:57,600 --> 00:24:00,440 Speaker 5: That's right. Of course, the emergency docket or inner docket 505 00:24:00,480 --> 00:24:03,440 Speaker 5: as some people call it, our decisions that come during 506 00:24:03,640 --> 00:24:06,919 Speaker 5: cases at earlier stages, so the justices haven't gotten full briefing, 507 00:24:06,960 --> 00:24:09,240 Speaker 5: there hasn't been a full argument, but at the same 508 00:24:09,280 --> 00:24:12,600 Speaker 5: time they can have more permanent ramifications. Immigration is a 509 00:24:12,600 --> 00:24:15,640 Speaker 5: really good example of that. If an immigration policy, say 510 00:24:15,680 --> 00:24:19,720 Speaker 5: granting humanitarian protections for a population, is put on hold 511 00:24:19,760 --> 00:24:22,440 Speaker 5: while litigation continues, you could see people being deported in 512 00:24:22,480 --> 00:24:25,200 Speaker 5: the interim. And even if the justices were to ultimately 513 00:24:25,240 --> 00:24:29,040 Speaker 5: say no this policy, these protections have to stay, it 514 00:24:29,080 --> 00:24:31,800 Speaker 5: would certainly be too late for anyone who left the 515 00:24:31,800 --> 00:24:34,680 Speaker 5: country while the case was pending. And so while yes, 516 00:24:34,760 --> 00:24:37,119 Speaker 5: this is of course early stages, but they really can 517 00:24:37,280 --> 00:24:39,080 Speaker 5: have significant on the ground impacts. 518 00:24:40,000 --> 00:24:42,919 Speaker 2: A lot of people have expressed concerns that the docket 519 00:24:42,960 --> 00:24:47,080 Speaker 2: has grown so much, the emergency docket in recent years, 520 00:24:47,600 --> 00:24:52,560 Speaker 2: because with the emergency docket, there are no full briefings. 521 00:24:52,600 --> 00:24:56,720 Speaker 2: Oftentimes there's not even a decision written, so you don't 522 00:24:56,760 --> 00:24:59,720 Speaker 2: know how the justices came to the result they did. 523 00:25:00,320 --> 00:25:03,399 Speaker 5: That's right. We really often see these very short orders 524 00:25:03,400 --> 00:25:06,480 Speaker 5: that have little to know explanation as to the decisions, 525 00:25:06,800 --> 00:25:08,919 Speaker 5: and sometimes not even as spelled out vote count to 526 00:25:08,920 --> 00:25:12,000 Speaker 5: see how each justice came down. Occasionally we are seeing 527 00:25:12,040 --> 00:25:14,800 Speaker 5: some dissenting opinions by the liberal wing of the court, 528 00:25:15,119 --> 00:25:17,639 Speaker 5: which may provide some insight into, you know, how the 529 00:25:17,640 --> 00:25:20,160 Speaker 5: decision was made, or at least how it wasn't made. 530 00:25:20,840 --> 00:25:23,040 Speaker 5: But that's correct on how the docket has grown because 531 00:25:23,040 --> 00:25:26,840 Speaker 5: we've been seeing concerns raised by Supreme Court justices themselves 532 00:25:26,920 --> 00:25:30,800 Speaker 5: really on both sides of the you know, ideological span 533 00:25:30,960 --> 00:25:33,480 Speaker 5: here on the court that you know, they're concerned about 534 00:25:33,480 --> 00:25:36,600 Speaker 5: how many but these petitions are coming in. They do feel, 535 00:25:36,640 --> 00:25:39,159 Speaker 5: i think pressure to decide them without the benefit of 536 00:25:39,200 --> 00:25:41,639 Speaker 5: as much briefing as they would like, and as we 537 00:25:41,640 --> 00:25:43,720 Speaker 5: said earlier, they can these decisions really do have a 538 00:25:43,760 --> 00:25:45,360 Speaker 5: lot of impact on people's lives. 539 00:25:45,720 --> 00:25:48,560 Speaker 2: You mentioned liberals in descent, and in a lot of 540 00:25:48,600 --> 00:25:54,119 Speaker 2: these emergency decisions, you'll find the liberals in dissent. Is 541 00:25:54,160 --> 00:25:57,240 Speaker 2: it because the issues that the Trump administration takes to 542 00:25:57,320 --> 00:26:02,959 Speaker 2: the Supreme Court involve idgy and partisanship. What's the reason 543 00:26:03,160 --> 00:26:04,760 Speaker 2: that the liberals are in descent? 544 00:26:05,960 --> 00:26:08,840 Speaker 5: Certainly it varies by case, but we have seen, you 545 00:26:09,040 --> 00:26:12,760 Speaker 5: somewhat some common threads through their descents have been sort 546 00:26:12,760 --> 00:26:15,680 Speaker 5: of exactly what the data showed, which are concerns that 547 00:26:15,800 --> 00:26:19,080 Speaker 5: the High Court is just greenlighting the Trump administration too 548 00:26:19,160 --> 00:26:23,040 Speaker 5: many times with some of these actions and policies that 549 00:26:23,080 --> 00:26:26,240 Speaker 5: they're implementing that are drawing so much legal scrutiny. And 550 00:26:26,400 --> 00:26:28,280 Speaker 5: so I think that that's kind of a common theme 551 00:26:28,680 --> 00:26:31,240 Speaker 5: that we're seeing from the liberal justices. But of course 552 00:26:31,240 --> 00:26:33,520 Speaker 5: they're in the minority here. It's a six' three court 553 00:26:33,600 --> 00:26:36,840 Speaker 5: conservative to, liberal and so we, are you, know somewhat 554 00:26:36,880 --> 00:26:39,680 Speaker 5: makes some sense that we would be seeing The trump 555 00:26:39,720 --> 00:26:41,360 Speaker 5: administration winning perhaps more. 556 00:26:41,400 --> 00:26:44,720 Speaker 2: Often you also found that during this first year of 557 00:26:44,720 --> 00:26:47,520 Speaker 2: the second, term The court was more likely to grant 558 00:26:47,560 --> 00:26:51,840 Speaker 2: requests for relief from lower court rulings in challenges to 559 00:26:51,920 --> 00:26:56,040 Speaker 2: the administration's policies than it was in cases unrelated to the. 560 00:26:56,080 --> 00:26:57,760 Speaker 2: Administration that's. 561 00:26:57,840 --> 00:27:00,440 Speaker 5: Correct we took a look at sort of the by 562 00:27:00,480 --> 00:27:02,400 Speaker 5: circuit data just to kind of get a look at 563 00:27:02,760 --> 00:27:05,720 Speaker 5: from which appeals courts are these cases on the emergency 564 00:27:05,760 --> 00:27:08,359 Speaker 5: docket coming, from and are there any trends where The 565 00:27:08,359 --> 00:27:11,040 Speaker 5: Supreme court is aligned more with some appeals courts and 566 00:27:11,200 --> 00:27:13,720 Speaker 5: less aligned with. Others and what we, found which was pretty, 567 00:27:13,760 --> 00:27:16,399 Speaker 5: interesting was that it really had less to do with 568 00:27:16,440 --> 00:27:18,280 Speaker 5: where the case was coming from and a lot more 569 00:27:18,320 --> 00:27:20,439 Speaker 5: to do than a lot more to do with what 570 00:27:20,520 --> 00:27:23,080 Speaker 5: the case was. About and so when we had cases 571 00:27:23,080 --> 00:27:27,600 Speaker 5: that were totally unrelated To trump administration, actions criminal, cases business, 572 00:27:27,600 --> 00:27:31,040 Speaker 5: disputes things like that that reached the emergency, docket we 573 00:27:31,080 --> 00:27:33,880 Speaker 5: saw The High court generally aligned with the circuit and 574 00:27:34,080 --> 00:27:37,359 Speaker 5: very rarely you, know deciding to you, know halt lower 575 00:27:37,400 --> 00:27:40,159 Speaker 5: court rulings while litigation. Continued they were leaving those in, 576 00:27:40,200 --> 00:27:43,360 Speaker 5: place but when it came To trump administration, challenges they 577 00:27:43,359 --> 00:27:46,919 Speaker 5: were a lot more likely to press pause on the 578 00:27:46,960 --> 00:27:50,960 Speaker 5: lower court ruling against The trump, administration essentially allowing whatever 579 00:27:50,960 --> 00:27:52,680 Speaker 5: the contested policy was to move. 580 00:27:52,720 --> 00:27:58,920 Speaker 2: Forward so which of the circuit courts was most let's 581 00:27:58,920 --> 00:28:01,480 Speaker 2: call it reversed for simplicity's, sake. 582 00:28:02,000 --> 00:28:04,159 Speaker 5: Right so some of that was somewhat. Expected and of, 583 00:28:04,160 --> 00:28:06,800 Speaker 5: course when we say. Reversed we don't mean reversed reverse 584 00:28:06,840 --> 00:28:09,119 Speaker 5: since is not on the. Merits but when we see 585 00:28:09,600 --> 00:28:12,160 Speaker 5: The Supreme, court you, know lift or pause a lower court. 586 00:28:12,240 --> 00:28:15,440 Speaker 5: Ruling we saw that of the emergency docket orders most 587 00:28:15,440 --> 00:28:17,760 Speaker 5: often at The First Circuit court Of, appeals which is 588 00:28:17,760 --> 00:28:21,000 Speaker 5: based In. Boston that's not entirely surprising because that's a 589 00:28:21,040 --> 00:28:24,840 Speaker 5: court that up until very recently had All democratic appointed 590 00:28:24,920 --> 00:28:27,840 Speaker 5: judges on its. Bench it houses a number of federal 591 00:28:27,880 --> 00:28:31,280 Speaker 5: trial courts with Majority democratic appointee, benches and it's been 592 00:28:31,320 --> 00:28:34,160 Speaker 5: a major hub For trump administration. Challenges AND i think 593 00:28:34,160 --> 00:28:36,920 Speaker 5: that's what's really kind of key here to look, at is, well, 594 00:28:37,040 --> 00:28:39,280 Speaker 5: yes we are seeing kind of this high rate of 595 00:28:39,320 --> 00:28:44,080 Speaker 5: The Supreme, court you, know deciding otherwise deciding differently than 596 00:28:44,120 --> 00:28:46,200 Speaker 5: The First circuit, Had so in a way it does 597 00:28:46,240 --> 00:28:47,960 Speaker 5: show how out of step they. Are but it's also 598 00:28:48,080 --> 00:28:50,720 Speaker 5: a lot to do with the volume of cases that 599 00:28:50,760 --> 00:28:53,480 Speaker 5: The First circuit is. Handling so you, know we're seeing 600 00:28:53,480 --> 00:28:55,840 Speaker 5: this kind of narrative from The trump administration that you, 601 00:28:55,880 --> 00:28:57,880 Speaker 5: know these courts are out of, control but you, know 602 00:28:57,880 --> 00:29:00,080 Speaker 5: there's quite a bit of selection bias here when it 603 00:29:00,080 --> 00:29:02,520 Speaker 5: comes to where these cases are being. Filed and then 604 00:29:02,560 --> 00:29:04,960 Speaker 5: of course also which cases go up to The Supreme. 605 00:29:05,000 --> 00:29:07,440 Speaker 5: Court to begin, with The trump administration gets to choose 606 00:29:07,800 --> 00:29:10,200 Speaker 5: which appeals court orders they think they have a better chance, 607 00:29:10,280 --> 00:29:12,120 Speaker 5: at you, know contesting at the high court. 608 00:29:12,200 --> 00:29:16,960 Speaker 2: Level and what other circuits come? In second and third let's, say. 609 00:29:17,840 --> 00:29:21,320 Speaker 5: Yes second was the and this is of course for 610 00:29:21,480 --> 00:29:23,960 Speaker 5: all of the all the. Cases we looked, at Both 611 00:29:23,960 --> 00:29:27,720 Speaker 5: trump and Non trump. Cases so overall we saw the 612 00:29:27,760 --> 00:29:30,440 Speaker 5: first circuit had the highest rate of having The Supreme 613 00:29:30,480 --> 00:29:33,960 Speaker 5: court you, know grant stays in legal, parlance where we 614 00:29:34,000 --> 00:29:37,760 Speaker 5: saw The Supreme court press pause on underlying. Rulings next 615 00:29:37,840 --> 00:29:41,000 Speaker 5: up was The Ninth, circuit and then behind that was 616 00:29:41,080 --> 00:29:42,800 Speaker 5: The washington d. C circuit here in The. 617 00:29:42,840 --> 00:29:48,320 Speaker 2: Capitol how does this compare to the emergency docket during 618 00:29:48,440 --> 00:29:49,280 Speaker 2: let's say The biden. 619 00:29:49,320 --> 00:29:53,360 Speaker 5: Administration, well it's more difficult to make a perfect apples 620 00:29:53,360 --> 00:29:55,920 Speaker 5: to apples comparison from a year that, happened you, know 621 00:29:55,960 --> 00:29:58,760 Speaker 5: multiple years. Ago we do know that there were far 622 00:29:58,880 --> 00:30:02,880 Speaker 5: fewer emergency petitions even filed during The biden, administration and 623 00:30:02,920 --> 00:30:06,240 Speaker 5: we saw cases where The Supreme court ruled for the 624 00:30:06,280 --> 00:30:08,040 Speaker 5: administration and AGAINST. 625 00:30:08,120 --> 00:30:10,080 Speaker 2: I want to turn now to The Chief judge of 626 00:30:10,120 --> 00:30:13,600 Speaker 2: The Minnesota Federal Trial court BECAUSE i know you did 627 00:30:13,600 --> 00:30:18,520 Speaker 2: a profile of. Him Judge Patrick, schiltz A GEORGE. W bush, 628 00:30:18,600 --> 00:30:23,480 Speaker 2: appointee criticized The trump administration for its approach to its 629 00:30:23,520 --> 00:30:27,960 Speaker 2: sweeping immigration, operation and he wrote that the court has 630 00:30:27,960 --> 00:30:31,800 Speaker 2: been extremely patient with the, government but the court's patience 631 00:30:32,040 --> 00:30:32,560 Speaker 2: is at an. 632 00:30:32,800 --> 00:30:36,800 Speaker 5: End quite a lot of litigation has been filed In 633 00:30:36,840 --> 00:30:42,200 Speaker 5: minnesota related TO ice and this immigration operation happening in that, 634 00:30:42,240 --> 00:30:45,040 Speaker 5: state and we're seeing the Chief judge of the court 635 00:30:45,200 --> 00:30:47,720 Speaker 5: start to sort of push back and really express quite 636 00:30:47,720 --> 00:30:51,600 Speaker 5: a bit of frustration With trump administration officials about how 637 00:30:51,640 --> 00:30:54,160 Speaker 5: this is all being handled in. Court so we saw 638 00:30:54,200 --> 00:30:57,280 Speaker 5: a pretty sharply worded order that was unsealed over this 639 00:30:57,320 --> 00:31:01,280 Speaker 5: past weekend regarding arrest warrants that they administration had wanted 640 00:31:01,280 --> 00:31:05,600 Speaker 5: to pursue against protesters at a, church and they took 641 00:31:05,680 --> 00:31:07,840 Speaker 5: issue with the fact that the magistrate judge had not 642 00:31:08,160 --> 00:31:10,200 Speaker 5: wanted to grant all of the warrants that they wanted 643 00:31:10,240 --> 00:31:12,200 Speaker 5: and had tried to seek review of. That and The 644 00:31:12,280 --> 00:31:14,680 Speaker 5: Chief judge said that this was essentially like an unprecedented 645 00:31:14,680 --> 00:31:16,760 Speaker 5: request from the, administration and he went so far as 646 00:31:16,760 --> 00:31:20,040 Speaker 5: to call it. Frivolous we also saw another very sternly 647 00:31:20,040 --> 00:31:23,080 Speaker 5: worded order from The Chief judge On, monday in which 648 00:31:23,080 --> 00:31:26,360 Speaker 5: he essentially ordered the acting leader OF Us immigration And 649 00:31:26,400 --> 00:31:29,320 Speaker 5: Customs enforcement to come to court and testify as to 650 00:31:29,400 --> 00:31:32,080 Speaker 5: why he shouldn't be held in contempt for defying court. 651 00:31:32,240 --> 00:31:34,960 Speaker 5: Orders we're seeing a lot of these habeas petitions Brought, 652 00:31:35,040 --> 00:31:38,000 Speaker 5: minnesota not just in The Chief Judge Patrick schultz's, courtroom 653 00:31:38,000 --> 00:31:40,560 Speaker 5: but in other courtrooms as, well of immigrants who are 654 00:31:40,600 --> 00:31:43,400 Speaker 5: detained by, ice of, course and then not given a 655 00:31:43,440 --> 00:31:47,000 Speaker 5: bond hearing within the legally required number of. Days and 656 00:31:47,040 --> 00:31:49,160 Speaker 5: so we were seeing the judge here in this instance 657 00:31:49,720 --> 00:31:52,600 Speaker 5: expressing quite a bit of frustration about that and threatening 658 00:31:52,640 --> 00:31:55,920 Speaker 5: to hold an administration official and, contempt which is a 659 00:31:56,000 --> 00:31:58,040 Speaker 5: very serious action that we don't see too. Often of, 660 00:31:58,040 --> 00:32:01,360 Speaker 5: course we did see somewhat of a similar contempt threat 661 00:32:01,400 --> 00:32:03,760 Speaker 5: in an immigration case by A washington d. C chief 662 00:32:03,840 --> 00:32:06,920 Speaker 5: judge last. Year and so you, know this is you, 663 00:32:06,920 --> 00:32:08,320 Speaker 5: know making out to be a bit of a trend 664 00:32:08,560 --> 00:32:12,840 Speaker 5: of federal judges expressing some consternation at how The Justice 665 00:32:12,880 --> 00:32:14,760 Speaker 5: department's attorneys are conducting themselves in. 666 00:32:14,800 --> 00:32:18,720 Speaker 2: Court and this judge is a conservative who's known as 667 00:32:18,800 --> 00:32:21,680 Speaker 2: being even keeled and a down the middle. 668 00:32:21,760 --> 00:32:25,600 Speaker 5: Jurist, yes he is absolutely from a conservative. Background you 669 00:32:25,640 --> 00:32:29,200 Speaker 5: really can't argue. Otherwise he he clerked twice for the 670 00:32:29,280 --> 00:32:33,560 Speaker 5: Late justice Antonin. Scalia he's seen as an. Originalist he you, 671 00:32:33,600 --> 00:32:36,200 Speaker 5: know has background at you, know Major catholic law schools 672 00:32:36,280 --> 00:32:39,760 Speaker 5: Like Notre dame as a. Professor so, absolutely you, know 673 00:32:39,800 --> 00:32:42,480 Speaker 5: he was a mentor to Current Justice Amy Coney. Barrett 674 00:32:42,720 --> 00:32:44,800 Speaker 5: and so this is somebody who's not coming from some 675 00:32:44,920 --> 00:32:47,920 Speaker 5: super liberal. Background this is a judge who's you, know 676 00:32:47,960 --> 00:32:50,760 Speaker 5: expressing frustration that his orders aren't being. Followed and we 677 00:32:50,760 --> 00:32:52,760 Speaker 5: were also told when speaking with those who knew him 678 00:32:52,760 --> 00:32:55,400 Speaker 5: in The minnesota legal, community that he's not really one 679 00:32:55,560 --> 00:32:58,440 Speaker 5: to be you, know sharp in his orders at, least you, 680 00:32:58,480 --> 00:33:00,560 Speaker 5: know not quick to jump to. That he's a measured. 681 00:33:00,560 --> 00:33:03,480 Speaker 5: Person he's, tempered and so to kind of see, him you, 682 00:33:03,520 --> 00:33:07,240 Speaker 5: know issue a rebuke like, this you, know maybe says you, 683 00:33:07,280 --> 00:33:10,360 Speaker 5: know says a lot about how at least he's Perceiving 684 00:33:11,040 --> 00:33:13,800 Speaker 5: ICE's approach to this enforcement action in the. 685 00:33:13,800 --> 00:33:17,120 Speaker 2: State thanks so much for joining me, Today. Suzanne That's 686 00:33:17,160 --> 00:33:20,800 Speaker 2: Bloomberg law Reporter Suzanne monyac and that's it for this 687 00:33:20,960 --> 00:33:23,680 Speaker 2: edition Of The Bloomberg Law. Show remember you can always 688 00:33:23,680 --> 00:33:26,600 Speaker 2: get the latest legal news on Our Bloomberg Law. Podcast 689 00:33:26,880 --> 00:33:29,920 Speaker 2: you can find them On Apple, Podcasts, spotify and at 690 00:33:30,080 --> 00:33:35,120 Speaker 2: www dot bloomberg dot com slash Podcast Slash, Law and 691 00:33:35,200 --> 00:33:38,240 Speaker 2: remember to tune Into The Bloomberg Law show every weeknight 692 00:33:38,360 --> 00:33:41,800 Speaker 2: at ten Pm Wall Street. Time I'm June grosso and 693 00:33:41,840 --> 00:33:43,320 Speaker 2: you're listening To bloomberg