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

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Speaker 2: It's less than three weeks before election day, but courts

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Speaker 2: have already started shaping the contours of the presidential election,

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Speaker 2: as lawsuits challenge everything from who can vote and how

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Speaker 2: they cast their ballots, to which votes count and how

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Speaker 2: the winner is decided. A Bloomberg analysis has identified at

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Speaker 2: least one hundred and sixty five lawsuits filed in thirty

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Speaker 2: seven states in the last two years that challenge every

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Speaker 2: facet of the presidential contest, and more than half of

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Speaker 2: these cases have been filed in the seven states critical

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Speaker 2: for an electoral college victory Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania,

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Speaker 2: and Wisconsin. Joining me is Zoe Tillman, Bloomberg senior legal

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Speaker 2: reporter who's crunched the numbers for her Big Take story.

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Speaker 2: Zoe tell us a little about the process of identifying

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Speaker 2: these lawsuits and categorizing them.

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Speaker 3: So you know, I always want to start by making

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Speaker 3: clear that you know, this is by no means the

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Speaker 3: most comprehensive list of every single case related to the

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Speaker 3: election filed in the past two years. What we wanted

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Speaker 3: to do was come up with sort of a really

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Speaker 3: you know, comprehensive snapshot of what the landscape looks like.

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Speaker 3: So to do that, we used a couple of different sources,

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Speaker 3: the first just being searches of federal court state court databases,

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Speaker 3: doing keyword searches for parties that we knew we were

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Speaker 3: interested in, like the Republican National Committee, the Democratic National Committee,

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Speaker 3: different state election boards, using databases that the RNC has

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Speaker 3: put together of cases if interested in, a site called

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Speaker 3: Democracy Docket, which is founded by Mark Elias, who's known

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Speaker 3: as sort of a democratic election super lawyer. And then

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Speaker 3: you know, tapping into advocacy groups that are the typical

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Speaker 3: filers in these cases to make sure we were capturing

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Speaker 3: the work that they're doing. So it was you know,

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Speaker 3: trying to cast as wide a net as possible in

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Speaker 3: state and federal courts to find these cases. You know,

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Speaker 3: what we found for the you know, the list of

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Speaker 3: one hundred and sixty five that we settled on was

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Speaker 3: they were in thirty seven states, but sort of unsurprisingly,

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Speaker 3: more than half of them were concentrated in the states

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Speaker 3: where the polls have you know, become close, the seven

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Speaker 3: swing states that really made the difference in twenty twenty,

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Speaker 3: did you.

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Speaker 2: Look at which side is filing more suits? I know

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Speaker 2: you said that the Republican National Committee launched what it

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Speaker 2: described as a comprehensive and unprecedented legal strategy.

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Speaker 3: That's right, we did, so we you know, dove into

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Speaker 3: you know, not only who the name plaintiffs were, but

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Speaker 3: also what law firms and advocacy groups we're bringing these

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Speaker 3: cases on behalf of plaintiffs and whether they have sort

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Speaker 3: of an identifiable political or ideological affiliation. And in the

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Speaker 3: overwhelming number of cases that we looked at, there was

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Speaker 3: sort of an identifiable affiliation to tag whether it was

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Speaker 3: a major political party or an advocacy group where we

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Speaker 3: could sort of code as sort of light blue and

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Speaker 3: light red as opposed to the political parties which got

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Speaker 3: a dark red and a dark blue. And you know,

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Speaker 3: it's interesting. I think the numbers showed that Republicans and

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Speaker 3: Conservatives have been more active in court, you know, more

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Speaker 3: than half, but not overwhelmingly so, and that Democrats and

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Speaker 3: left leaning groups have also been quite active ahead of

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Speaker 3: election day, you know, more typically going in to challenge

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Speaker 3: state laws or practices that they can tend are putting

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Speaker 3: up illegal barriers to voting, whereas Republicans and conservatives have

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Speaker 3: been going into states that they feel have been too

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Speaker 3: lax on that front.

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Speaker 2: So it's three weeks out and there are still new

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Speaker 2: cases being filed.

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Speaker 3: There are you know, as issues come up on the ground,

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Speaker 3: we're seeing lawyers at the ready to bring litigation. You know, Interestingly,

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Speaker 3: we've seen the Justice Department getting involved. That's sort of

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Speaker 3: the final hour where Alabama and Virginia have announced plans

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Speaker 3: to purge names from their voter roles based on suspicions

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Speaker 3: that these are not US citizens. And so we've seen

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Speaker 3: not only civil rights groups but the Justice Department filing

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Speaker 3: suit ins recent weeks trying to stop that from happening. So,

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Speaker 3: you know, I think the later it gets, judges are

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Speaker 3: going to be wary of making any changes that aren't

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Speaker 3: directly related to a late breaking event. You know, if

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Speaker 3: you're going to court to sue over a law that's

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Speaker 3: been on the books for two years, I think the

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Speaker 3: odds of getting jugital intervention now are slim. But you know,

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Speaker 3: I think we'll see cases probably being siled up to

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Speaker 3: the last minute, and then a whole new surge of

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Speaker 3: cases related to what actually happens.

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Speaker 1: On election day.

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Speaker 2: Just let's go back to twenty twenty for a moment.

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Speaker 2: Tell us about the lawsuits that Trump and his allies filed.

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Speaker 3: And I think it's important to go back before election

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Speaker 3: day in twenty twenty to understand that too, to remember

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Speaker 3: that it was the height of the pandemic in twenty twenty,

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Speaker 3: and there was sort of this unprecedented for that time

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Speaker 3: wave of litigation as states were figuring out on the

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Speaker 3: fly how to handle voting, as restrictions on contact and distancing,

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Speaker 3: all of that was being sorted out, so that really,

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Speaker 3: I think set the stage where after election day there

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Speaker 3: was already so much that had been in court, so

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Speaker 3: much contested around how voting was happening that year that

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Speaker 3: Trump and Republicans and Conservatives had already for months been

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Speaker 3: saying the expansion of absent voting is going to lead

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Speaker 3: to fraud, even though there was no evidence of that,

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Speaker 3: and that really formed the basis for the I think

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Speaker 3: it was sixty two some sixty plus US cases that

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Speaker 3: Trump's campaign and allies of his filed trying to overturn

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Speaker 3: results in the states that he lost.

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Speaker 2: In your story, you've divided up the cases into different categories.

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Speaker 2: So let's go through the categories then, and nearly a

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Speaker 2: third of the cases focus on who should be allowed

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Speaker 2: to vote.

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Speaker 3: That's where we've seen more of a concentration of activity

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Speaker 3: from Republicans and conservatives. One of the narratives that's emerged

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Speaker 3: this cycle is this idea that states are failing to

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Speaker 3: do enough to purge people from their roles who are

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Speaker 3: ineligible either because they're not US citizens, or they've moved away,

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Speaker 3: or they've passed away.

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Speaker 1: You know.

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Speaker 3: I think it's again worth noting that for things like

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Speaker 3: non US citizen voting, the research has shown that that's rare,

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Speaker 3: very uncommon, but it's sort of a narrative that's cropping

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Speaker 3: up in these cases. And then on the flip side

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Speaker 3: of that, we've seen democrats and left leaning groups going

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Speaker 3: to court to try to defend you know, who is

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Speaker 3: on the roles now or expand eligibility. An example of

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Speaker 3: that would the efforts to re enfranchise people who have

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Speaker 3: convictions on their record. And actually just today there was

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Speaker 3: a big decision out of the Nebraska Supreme Court ruling

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Speaker 3: that a state law making it possible for people with

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Speaker 3: past felony convictions to vote, that that needs to be enforced.

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Speaker 2: And we should just mention states have different laws about

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Speaker 2: whether people with past felony convictions can vote.

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Speaker 3: That's right, And I think it's sort of a broader

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Speaker 3: theme of this, which is that US elections are this

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Speaker 3: patchwork of different state rules and laws and practices when

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Speaker 3: it comes to elections. So your ability to put your

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Speaker 3: absentee ballot in a drop box in one state might

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Speaker 3: not be the same process as in another. The laws

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Speaker 3: are different, state constitutions are different. So you know, I

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Speaker 3: think that's always another theme that we see when we

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Speaker 3: look at this broad landscape of voting location.

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Speaker 2: And you mentioned Alabama where the Republican Secretary of State

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Speaker 2: purged three thousand residents that were listed in a federal

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Speaker 2: database of foreign nationals. Where does that case stand.

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Speaker 3: Right, So there's a hearing this week where two cases,

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Speaker 3: one brought by the Justice Department and one brought by

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Speaker 3: civil rights and immigrant rights groups. Those have been consolidated

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Speaker 3: and a judge is hearing arguments and evidence right now

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Speaker 3: on whether to stop that from happening, at least temporarily

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Speaker 3: ahead of the election.

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Speaker 2: So now let's go to how Americans vote. And you

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Speaker 2: mentioned ballot drop boxes. Republicans have seemed to consistently argued

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Speaker 2: against ballot drop boxes, saying it leads to fraud. I mean,

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Speaker 2: has there been any proof that there's fraud from ballot

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Speaker 2: drop boxes?

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Speaker 3: Certainly not in any kind of widespread way. You know,

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Speaker 3: I think instances may crop up of problems in a

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Speaker 3: given place at a given time, but not in the

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Speaker 3: sense that it's like proven to be a source of fraud.

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Speaker 3: And I think we've heard from bipartisan state election officials

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Speaker 3: that this is a time tested, secure way to vote.

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Speaker 3: But you know, the pandemic resulted in just an explosion

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Speaker 3: of voting by mail and voting absentee and states have

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Speaker 3: tried to respond to that, and I think in the

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Speaker 3: past four years tried to clarify the rules now that

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Speaker 3: we're not in the same crisis situation, really trying to

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Speaker 3: hammer out what that's going to look like going forward.

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Speaker 3: But there you have still been sits over It's not

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Speaker 3: so much can there be drop boxes, but it might

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Speaker 3: be what kind of monitoring does there need to be?

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Speaker 3: Does there need to be a physical a person sitting

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Speaker 3: there watching when people put their ballots in? Can there

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Speaker 3: be cameras? Where can they be placed, they need to

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Speaker 3: be had an official government building, all sorts of minutia.

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Speaker 3: But that make a difference.

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Speaker 2: And what's happening in Wisconsin, which is of course those

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Speaker 2: seven swing states. What's happening there over the ballot drop boxes?

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Speaker 3: I Muisconsin was a really fascinating example where a few

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Speaker 3: years ago the state Supreme Court had ruled that drop

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Speaker 3: boxes were not allowed under the state's constitution and state laws.

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Speaker 3: And then there was an election, the ideological balance of

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Speaker 3: the state Supreme Court changed, where it went from sort

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Speaker 3: of a more conservative majority to more left leaning majority.

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Speaker 3: Another case came up saying you know, we think that

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Speaker 3: that earlier decision was wrong and asking the court to

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Speaker 3: take another look, and the court then reversed itself and said,

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Speaker 3: we agree. We think that the previous majority got it

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Speaker 3: wrong and drop boxes were in fact permitted in the state.

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Speaker 3: So that's now the status quo and Wisconsin heading into

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Speaker 3: this election cycle.

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Speaker 2: Can we generally say that it's Republicans that are challenging

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Speaker 2: absentee voting and ballot drop boxes rather than Democrats.

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Speaker 3: I think that's right. I think that's what our research

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Speaker 3: has shown. I don't think that any Republican would disagree

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Speaker 3: with that. I think that's become a line in the

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Speaker 3: stand where conservatives, you know, have taken the position that

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Speaker 3: once you take voting out of a physical precinct, that

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Speaker 3: it is just apparently less secure. Many election officials across

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Speaker 3: the ideological spectrum would disagree with that, as would Democrats

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Speaker 3: and civil rights groups, but it has remained sort of

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Speaker 3: a live issue four years after the pandemic.

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Speaker 2: Speak Coming up next, I'll continue this conversation with Bloomberg

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Speaker 2: legal reporter Zoe Tillman. Certifying the vote was not something

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Speaker 2: we questioned before last year's election. It's certainly different now,

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Speaker 2: as a case in Georgia illustrates. I'm June Grasso, and

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Speaker 2: you're listening to Bloomberg. Bloomberg has identified at least one

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Speaker 2: hundred and sixty five lawsuits filed in thirty seven states

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Speaker 2: in the last two years that challenge every facet of

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Speaker 2: the upcoming presidential election. More than half the cases have

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Speaker 2: been filed in the seven states critical for an electoral

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Speaker 2: college victory. Outcomes have been mixed. The Republican National Committee

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Speaker 2: lost fights over late arriving absentee ballots in Nevada and Mississippi,

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Speaker 2: and the use of dropboxes in Wisconsin, but won in

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Speaker 2: order limiting voter ID options for North Carolina college students.

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Speaker 2: The Democratic National Committee joined an unsuccessful push to get

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Speaker 2: undated mail ballots counted in Pennsylvania, but back Wisconsin's successful

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Speaker 2: defense of its rules for absentee ballots requested online. I've

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Speaker 2: been talking to Bloomberg senior legal reporter Zoe Tillman. Zoe,

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Speaker 2: before the break, we were discussing absentee ballots and Democrats

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Speaker 2: use absentee ballots more than Republicans, right.

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Speaker 3: That's right. Surveys of voters who voted in twenty twenty,

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Speaker 3: you know, it showed that they did in larger numbers

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Speaker 3: vote for Joe Biden as compared to Donald Trump, and

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Speaker 3: those are trends. I think that there's an expectation that

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Speaker 3: those would continue to hold. But again, you know, this

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Speaker 3: is the first presidential elections since the last presidential election

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Speaker 3: and will be more of a test of what is

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Speaker 3: the new normal when it comes to absent voting outside

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Speaker 3: the context of a pandemic.

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Speaker 2: Republicans are always pushing harder access to the polls by

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Speaker 2: requiring voter IDs of different kinds, and there was just

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Speaker 2: a case in North Carolina.

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Speaker 3: The RNC went to court to challenge the ability of

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Speaker 3: students and employees at the University of North Carolina Chapel Hill,

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Speaker 3: who now have digital ID cards that they can use

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Speaker 3: on their phones, basically to say that this is not

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Speaker 3: what the state law allows for that it needs to

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Speaker 3: be a physical hard copy of an ID. At lower

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Speaker 3: court disagreed with the R and C and that the

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Speaker 3: digital ideas would be fine. There was a round of

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Speaker 3: of news coverage of that and headlines saying this would

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Speaker 3: be permitted, and then a week later the Court of

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Speaker 3: Appeal stepped in and said no. And first and you know,

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Speaker 3: I think that was a good illustration of how much

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Speaker 3: power courts have, not just to decide how people vote

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Speaker 3: and sort of what the rules are, but also you know,

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Speaker 3: how much you know, last minute preparation and changes election

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Speaker 3: officials have to be prepared to contend with as these

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Speaker 3: cases get decided, you know, in the final weeks, when

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Speaker 3: election offices have been preparing for months or years for

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Speaker 3: an election to take place.

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Speaker 2: And also how confusing for voters who think they're going

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Speaker 2: to go to the polls with their student ideas and

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Speaker 2: then find that they can't.

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Speaker 3: Right, and this is always a big concern among judges

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Speaker 3: as they handle cases, especially in the final weeks and months.

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Speaker 3: And you know, the US Supreme Court has urged federal

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Speaker 3: in particular to be quite wary of intervening at the

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Speaker 3: last minute. You know, the risk of voter confusion as

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Speaker 3: well as chaos among the people running the elections. But

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Speaker 3: you know, courts have had to grapple with if something

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Speaker 3: is illegal or unconstitutional, how do you weigh not acting

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Speaker 3: against you know, the considerations of confusion and chaos.

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Speaker 2: Let's talk about which ballots count. And we've learned that

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Speaker 2: the vote count is not final on election night, so

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Speaker 2: when voters make mistakes on their absentee ballots, each state

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Speaker 2: has a different kind of approach to this.

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Speaker 3: That's right. States have the ability to decide. You know,

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Speaker 3: if you send in a ballot that doesn't quite comply

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Speaker 3: with the rules, do you get noticed, do you have

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Speaker 3: an opportunity to fix the issue? Can you instead come

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Speaker 3: to the polls on election data cast a provisional ballot?

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Speaker 3: And that's a fight that we've seen play out this cycle,

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Speaker 3: especially in pen Bldania, which has laws saying basically, if

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Speaker 3: you send in a mail ballot and you don't put

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Speaker 3: a date on the envelope, or you put a date

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Speaker 3: that is clearly wrong. You know, you write your birthday

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Speaker 3: instead of any date this year, that that ballot isn't

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Speaker 3: counted even if it arrives by election day. And there's

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Speaker 3: been a lot of litigation over that, including the federal level,

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Speaker 3: which is still pending. But you know, there was another

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Speaker 3: round of state court litigation. We saw lower courts blocking

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Speaker 3: that law from being enforced. But then the state Supreme

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Speaker 3: Court has come in in several cases and tossed those

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Speaker 3: cases out, which means that for this election, at least,

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Speaker 3: the expectation is that those undated or misstated ballots won't count.

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Speaker 3: There's a potential for some very last minute litigation to

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Speaker 3: change that, but as of now, that's the status quo.

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Speaker 3: So I think again, you know, another example of these

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Speaker 3: rules that on paper might seem very technical or in

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Speaker 3: the leaves, but it ends up affecting you know, thousands

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Speaker 3: of ballots, which can really make the difference in a

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Speaker 3: swing state like Pennsylvania.

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Speaker 2: I was surprised that more than half of all states,

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Speaker 2: except at least some absentee ballots that arrive after November fifth.

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Speaker 2: So yes, probably more fights to come on that. So

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Speaker 2: now we'll move to this area how the election is finalized.

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Speaker 2: And as you point out, certification of the vote, I

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Speaker 2: mean was never anything that was talked about before the

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Speaker 2: last presidential election.

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Speaker 3: That's right. It's long been considered sort of a ministerial

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Speaker 3: role where you know, as long as the numbers, the

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Speaker 3: number of ballots that come in match in some reasonable

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Speaker 3: way the number of people who are eligible to vote

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Speaker 3: in that precinct, that they then move on to the

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Speaker 3: next phase of things. And there are ways to challenge

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Speaker 3: ballot counts after the certification process, but that was never

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Speaker 3: really seen as sort of a flashpoint in this process.

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Speaker 3: That changed into one when after the election, Donald Trump

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Speaker 3: and his supporters looked for ways to overturn results in

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Speaker 3: states where it appeared he was set to lose and

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Speaker 3: you know, pressure campaigns on state lawmakers to intervene and

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Speaker 3: then eventually on Congress to intervene. But it really put

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Speaker 3: new attention on disphase of the certification process at the

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Speaker 3: county and state level as a potential pressure point and

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Speaker 3: a place for supporters of one candidate or another to

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Speaker 3: use their power in a way that it hadn't been

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Speaker 3: used before to intercede if it looked like the preferred

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Speaker 3: candidate is going to lose.

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Speaker 2: A judge decided one of these cases in Georgia just yesterday.

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Speaker 3: That's right. There's a Republican member of the Fulton County

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Speaker 3: Election Board, Julie Adams, who is Republican Trump supporter and

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Speaker 3: in May, had refused to certify the results of a

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Speaker 3: presidential primary on the grounds that she hadn't gotten all

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Speaker 3: of the information that she felt she needed to confirm

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Speaker 3: that the results were accurate and that the election went

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Speaker 3: off as it should have, and the board overruled her.

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Speaker 3: She was outvoted. But it raises question of you know,

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Speaker 3: what happens if a county board, you know, does vote

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Speaker 3: to not certify. So that went to court. Julie Adams

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Speaker 3: went to court and said I want a judge to

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Speaker 3: tell me that I do have the power to do this,

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Speaker 3: And what happened this week was a judge that no,

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Speaker 3: you don't, that it's a mandatory duty. And so far,

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Speaker 3: Julie Adams lawyers in indicated they're not going to appeal this,

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Speaker 3: that we expect this to continue to be sort of

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Speaker 3: a live issue until we see what other local officials,

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Speaker 3: do you know when it's time to cast those vote.

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Speaker 2: I mean, there is concern about some of these local

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Speaker 2: rules that were enacted since the last presidential election, and

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Speaker 2: there's going to be a hearing today Enjoy again on

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Speaker 2: a local rule requiring a hand count of ballots at

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Speaker 2: the county level.

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Speaker 3: There have been several changes by the Georgia State Election Board,

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Speaker 3: which has a Republican majority, taking steps that critics and

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Speaker 3: even some Republican prominent Republicans in the state have said

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Speaker 3: are not lawful and aimed at sowing chaos confusion ahead

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Speaker 3: of the election and afterwards. And the handcount rule would

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Speaker 3: require precinct level officials to do a handcount of ballots

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Speaker 3: before they moved to the next phase of counting. There's

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Speaker 3: a lot of concern that this will dramatically hold things up,

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Speaker 3: that this could expose open the post election processed security issues.

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Speaker 3: If you know, ballots are just out of the boxes

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Speaker 3: of being handled by multiple people. So we had a

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Speaker 3: ruling last night from a judge blocking that rule. There

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Speaker 3: are other cases before other judges that have hearings today.

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Speaker 3: So another one of these sort of fast moving, very

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Speaker 3: late in the game. Supplication you have to.

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Speaker 2: Be on alert twenty four hours a day, it seems

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Speaker 2: for these all these cases coming down and explain what

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Speaker 2: the twenty twenty two congressional legislation did.

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Speaker 3: So After twenty twenty which exposed some real gaps in

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Speaker 3: the process that folks could potentially exploit, Congress came in

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Speaker 3: and in bipartisan legislation and acted a series of reforms,

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Speaker 3: including sort of clear deadlines for the different phases of

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Speaker 3: a certification, made clear which state officials were responsible for

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Speaker 3: signing off on results. And you know, I think generally

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Speaker 3: election experts were pleased with this, that they felt that

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Speaker 3: it did sort of head off potentially more mischief. Another

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Speaker 3: change I should say is that it made clear that

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Speaker 3: the vice president's duty to confirm the results of Congress's

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Speaker 3: certification is again sterial, not discretionary. Trying to avoid another

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Speaker 3: situation like sir Donald Trump was pressuring, like Pence intervened

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Speaker 3: at the last minute. But you know, this is going

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Speaker 3: to be the first test and to see how it

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Speaker 3: goes and whether there are still other areas that could

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Speaker 3: be misused if it looks like it's a close race.

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Speaker 2: As you mentioned in your story, a lot of election

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Speaker 2: experts say that a problem with all this litigation is

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Speaker 2: that voters start to doubt that the process is fair.

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Speaker 3: I mean, listen, litigation is inherently adversarial. Right, someone is

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Speaker 3: coming to court because to them, at least, there is

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Speaker 3: some problem that requires a judge to step in and decide,

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Speaker 3: you know, who is right and who is wrong. And

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Speaker 3: so it becomes, at a minimum, you know, a vehicle

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Speaker 3: to raise concerns, to ask questions, to plant seeds of

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Speaker 3: doubt that the election is going to go off the

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Speaker 3: way that it should and in compliance with state and

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Speaker 3: federal laws and constitutions. And the more that you have

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Speaker 3: that landing in courts, you know, it's a potential for

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Speaker 3: people to see headlines and ask, you know, are their

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Speaker 3: problems with the election, regardless of what the final outcome

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Speaker 3: might be months or even years down the line, depending

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Speaker 3: on how long litigation takes to resolve. So, you know,

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Speaker 3: as a general rule, courts and judges are not supposed

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Speaker 3: to be the ones deciding elections in our system. We

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Speaker 3: want that's a flighted by voters. So there's a concern,

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Speaker 3: sort of an overarching concern that this could become a

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Speaker 3: new normal where courts become major players in election cycles

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Speaker 3: in a way that they just haven't been in the past, and.

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Speaker 2: It seems like everyone is anticipating that no matter who wins,

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Speaker 2: there are going to be a lot of lawsuits over

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Speaker 2: the election. Thanks so much, Zoe, great story and so

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Speaker 2: much research went into it. That's Zoe Tillman, Bloomberg Senior

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Speaker 2: Legal reporter. Coming up next on The Bloomberg Law Show.

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Speaker 2: The Supreme Court appears divided on whether a truck driver

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Speaker 2: can sue the maker of CBD oil under the Rico Statute,

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Speaker 2: which was originally intended to fight organized crime. I'm June

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Speaker 2: Grosso and you're listening to Bloomberg. The Supreme Court seemed

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Speaker 2: divided over whether a truck driver can sue the maker

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Speaker 2: of a CBD hemp oil he alleges cost him his

408
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Speaker 2: job using the Rico Statute. The Racketeer, Influenced and Corrupt

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Speaker 2: Organizations Act, a federal law that was designed to fight

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Speaker 2: organized crime. The question before the court was a narrow one.

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Speaker 2: Did his case satisfy Rico's requirement that his business or

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Speaker 2: property had been injured? Just as Clarence Thomas questioned his

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Speaker 2: lawyer esha anand so.

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Speaker 4: The injury here is we were fired. That's the injury

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Speaker 4: to our business. Now, as a measure of compensation for that,

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Speaker 4: images we claim are an amount equal to the salary

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Speaker 4: we would have made and the other economic benefits that

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Speaker 4: we would have gotten had we remained employed.

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Speaker 3: But Medical Marijuana did not fire you.

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Speaker 2: But just as Elena Kagan seemed to indicate that the

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Speaker 2: truck driver's case fell within that requirement of the Rico statute,

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Speaker 2: if you're harmed when you lose a job, then you've

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Speaker 2: been injured in your business. Haven't you joining me? Is

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Speaker 2: Brian Wolfman, a professor at Georgetown Law start by telling

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Speaker 2: us about the facts in this case.

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Speaker 1: So the facts are rather simple and disturbing. This outfit

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Speaker 1: Medical Marijuana was marketing a product They claimed it had

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Speaker 1: no psychoactive effect and did not contain any THCHC. In fact,

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Speaker 1: they claimed it had zero THCHC, which is an active

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Speaker 1: ingredient as you may know in marijuana. So mister Horn,

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Speaker 1: who was actually searching the internet to help his mother

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Speaker 1: in law who had some pain difficulties, saw advertisements on

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Speaker 1: the Internet for medical Marijuana's product. He himself was a

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Speaker 1: truck driver who, way back in twenty twelve, had suffered

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Speaker 1: a serious injury and had continuing back pain that he

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Speaker 1: was never able to tackle. And he was still a

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Speaker 1: truck driver and really wanted to do something to deal

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Speaker 1: with his pain. And he said, well, you know, look,

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Speaker 1: if this has no THHC in it, I'm going to

440
00:26:24,440 --> 00:26:26,560
Speaker 1: give it a try. Now, why was he worried about

441
00:26:26,960 --> 00:26:30,440
Speaker 1: ingesting something that had the active ingredient in marijuana? Because

442
00:26:30,480 --> 00:26:34,280
Speaker 1: he's a truck driver and he is periodically screened for

443
00:26:34,840 --> 00:26:39,400
Speaker 1: the possibility that he might be using unlawful drugs. So

444
00:26:39,640 --> 00:26:43,520
Speaker 1: he purchases the product based on the representation made by

445
00:26:43,560 --> 00:26:48,320
Speaker 1: the sellers that it contains no THC. Long behold, Apparently

446
00:26:48,359 --> 00:26:52,960
Speaker 1: it did contain THHC and he goes through shortly thereafter

447
00:26:53,040 --> 00:26:58,399
Speaker 1: a periodic screening by his employer, it detects THC in

448
00:26:58,480 --> 00:27:01,520
Speaker 1: his body and he is immediately fired. And of course

449
00:27:01,560 --> 00:27:05,320
Speaker 1: that's very distressing. He suffers great harm, I'm sure, both

450
00:27:05,359 --> 00:27:09,560
Speaker 1: emotional and obviously financial that he and his family because

451
00:27:09,640 --> 00:27:12,880
Speaker 1: this is his sole means of livelihood and he has

452
00:27:12,920 --> 00:27:16,919
Speaker 1: now lost his job. That can be traced pretty directly

453
00:27:17,080 --> 00:27:20,840
Speaker 1: to an alleged fraud committed by this company.

454
00:27:21,840 --> 00:27:25,520
Speaker 2: Most people think of the Rico Statute as it was

455
00:27:25,800 --> 00:27:30,360
Speaker 2: enacted in order to combat organized crime. So he sues,

456
00:27:31,160 --> 00:27:32,679
Speaker 2: why is he suing under RICO.

457
00:27:33,760 --> 00:27:36,480
Speaker 1: Well, he's suing under RICO because for many years now,

458
00:27:36,480 --> 00:27:40,280
Speaker 1: and this goes back for decades now. Yes, RICO was

459
00:27:40,359 --> 00:27:44,600
Speaker 1: an attempt both criminally and civilly to get at organized crime.

460
00:27:44,640 --> 00:27:48,560
Speaker 1: It's called the Racketeer, Influence and Corrupt Organization Act. But

461
00:27:48,680 --> 00:27:52,760
Speaker 1: its words, you'll cast its web far more broadly, and

462
00:27:52,800 --> 00:27:55,520
Speaker 1: I think that was within the intention of Congress, and

463
00:27:55,600 --> 00:27:59,080
Speaker 1: in any event, its words are much broader, and they

464
00:27:59,200 --> 00:28:04,080
Speaker 1: encompass civil conspiracies where there is a predicate act, a

465
00:28:04,200 --> 00:28:10,199
Speaker 1: predicate violation of law that is conducted among numerous people,

466
00:28:10,240 --> 00:28:17,600
Speaker 1: a conspiracy that imposes intentional harms on individuals, and what

467
00:28:17,680 --> 00:28:19,520
Speaker 1: it says, And I think I want to point to

468
00:28:19,640 --> 00:28:22,760
Speaker 1: the part of the statute that said issue in this case,

469
00:28:23,280 --> 00:28:27,800
Speaker 1: RICO permits any person injured in his business or property

470
00:28:27,880 --> 00:28:33,160
Speaker 1: by reason of racketeering activity to bring a civil lawsuit

471
00:28:33,960 --> 00:28:39,720
Speaker 1: for three times the damages he sustains. So let me

472
00:28:39,760 --> 00:28:44,000
Speaker 1: focus on the keywords. Now, any person injured in his

473
00:28:44,160 --> 00:28:48,600
Speaker 1: business or property by reason of unlawful activity under this law.

474
00:28:49,040 --> 00:28:53,280
Speaker 1: And so what mister Horne argues is quite simple that

475
00:28:53,680 --> 00:28:59,480
Speaker 1: the economic harms resulting from the injuries he sustained are

476
00:28:59,680 --> 00:29:04,360
Speaker 1: injured reason to his business or property by reason of

477
00:29:04,400 --> 00:29:08,280
Speaker 1: the defendants violations of RICO. And the reason we know

478
00:29:08,400 --> 00:29:13,160
Speaker 1: that is because his business was his truck driving business.

479
00:29:13,440 --> 00:29:18,360
Speaker 1: One's employment is one's business. So his argument is very simple.

480
00:29:19,600 --> 00:29:22,400
Speaker 1: The Second Circuit Court of Appeals, which is headquartered in

481
00:29:22,440 --> 00:29:25,840
Speaker 1: New York, agreed with him, and the Supreme Court took

482
00:29:25,880 --> 00:29:29,360
Speaker 1: this case on because it's thought that the courts of

483
00:29:29,400 --> 00:29:32,040
Speaker 1: appeals around the country had disagreed on this subject.

484
00:29:32,440 --> 00:29:36,760
Speaker 2: Tell us about the argument of the defendants here medical marijuana.

485
00:29:37,280 --> 00:29:42,320
Speaker 1: Their argument is that this statute doesn't cover harms that

486
00:29:42,480 --> 00:29:48,240
Speaker 1: have its origins in personal injuries, and here because the

487
00:29:48,400 --> 00:29:53,240
Speaker 1: personal injury or the first in time injury was the

488
00:29:53,600 --> 00:29:58,080
Speaker 1: ingestion of this product that contained THC. Even if the

489
00:29:58,320 --> 00:30:03,480
Speaker 1: ulimate harm is in part a harm to one's business

490
00:30:03,560 --> 00:30:06,080
Speaker 1: or property, in this case, the business of being employed

491
00:30:06,080 --> 00:30:10,480
Speaker 1: as a truck driver, it doesn't count under RICO because

492
00:30:10,520 --> 00:30:13,880
Speaker 1: it has its origins and personal injuries and personal injuries

493
00:30:14,360 --> 00:30:17,920
Speaker 1: arms are not covered by the statue. The problem with that,

494
00:30:18,520 --> 00:30:21,320
Speaker 1: and I think this is mister Horn's argument. The problem

495
00:30:21,320 --> 00:30:23,800
Speaker 1: with that is that's not what the statute says. The

496
00:30:23,840 --> 00:30:27,560
Speaker 1: statue says, any person injured in his business or property

497
00:30:28,440 --> 00:30:33,160
Speaker 1: by reason of a violation should recover three times as damages.

498
00:30:33,720 --> 00:30:37,760
Speaker 1: And the injury here in his business again I'm repeating myself,

499
00:30:38,240 --> 00:30:41,840
Speaker 1: is the injury in his employment, in fact, losing all

500
00:30:41,880 --> 00:30:45,680
Speaker 1: his wages because he was fired as soon as it

501
00:30:45,760 --> 00:30:48,360
Speaker 1: was discovered that he had THC in his system.

502
00:30:48,680 --> 00:30:53,880
Speaker 2: Several of the Conservative justices seemed to be leaning away

503
00:30:53,960 --> 00:30:59,600
Speaker 2: from the truck driver's interpretation. Chief Justice John Roberts basically

504
00:30:59,640 --> 00:31:02,720
Speaker 2: has to question, you know, this could make every slip

505
00:31:02,760 --> 00:31:07,600
Speaker 2: and fall into a RICO violation. And Justice Brett Kavanaugh

506
00:31:08,240 --> 00:31:11,840
Speaker 2: also spend some time talking about the fact that there

507
00:31:11,840 --> 00:31:14,000
Speaker 2: could be sort of an explosion of cases here.

508
00:31:14,920 --> 00:31:18,120
Speaker 1: Yes, I mean that was a concern. Let me explain,

509
00:31:18,240 --> 00:31:21,800
Speaker 1: I think what the counters to that position that were

510
00:31:21,800 --> 00:31:25,720
Speaker 1: put forth by mister Horn's council. The first is, if

511
00:31:25,800 --> 00:31:29,640
Speaker 1: that's true, that is that there are more cases that

512
00:31:29,760 --> 00:31:33,200
Speaker 1: could now be brought under civil rico. One answer is,

513
00:31:33,240 --> 00:31:36,480
Speaker 1: this is the statute that Congress wrote, and if Congress

514
00:31:36,680 --> 00:31:42,320
Speaker 1: wishes to narrow the statute and exclude certain violations that

515
00:31:42,840 --> 00:31:45,920
Speaker 1: are said to have origins and a personal injury like

516
00:31:46,200 --> 00:31:49,680
Speaker 1: the injury from ingesting a drug product, then Congress can

517
00:31:49,760 --> 00:31:53,200
Speaker 1: do so. But I think also the argument is this

518
00:31:53,280 --> 00:31:55,840
Speaker 1: is not like any slip and fall, because the slip

519
00:31:55,880 --> 00:31:58,400
Speaker 1: and fall, say you know, a slip and fall outside

520
00:31:58,440 --> 00:32:02,000
Speaker 1: of building or at the local super market, just involves

521
00:32:02,080 --> 00:32:05,560
Speaker 1: the negligence, for instance, of a worker at the supermarket

522
00:32:05,680 --> 00:32:07,840
Speaker 1: not to clean up the floor, so they slipped and

523
00:32:07,880 --> 00:32:11,040
Speaker 1: they fell. But RICO requires much more. First of all,

524
00:32:11,080 --> 00:32:16,160
Speaker 1: it requires intentionality, not just negligence. Second of all, it requires,

525
00:32:16,200 --> 00:32:18,880
Speaker 1: as I said at the beginning, a predicate violation, So

526
00:32:19,080 --> 00:32:22,440
Speaker 1: not simply that there was the slip and fall of

527
00:32:22,480 --> 00:32:25,760
Speaker 1: the negligence, but there has to be predicate wrong. And

528
00:32:25,840 --> 00:32:29,320
Speaker 1: here the predicate wrong was a mail fraud. They used

529
00:32:29,320 --> 00:32:33,040
Speaker 1: the mails, which is a separate federal violation that would

530
00:32:33,040 --> 00:32:36,280
Speaker 1: not be true in the slip and fall situation. And

531
00:32:36,360 --> 00:32:39,040
Speaker 1: there are a number others what were referred to as

532
00:32:39,160 --> 00:32:42,960
Speaker 1: guard rails. She's well understood that an injury in one's

533
00:32:43,000 --> 00:32:48,320
Speaker 1: business or property does not include emotional harms what are

534
00:32:48,360 --> 00:32:53,200
Speaker 1: known in the law as non pecuniary harms, like emotional harm,

535
00:32:53,560 --> 00:32:58,120
Speaker 1: pain and suffering, humiliation. All of those things would be

536
00:32:58,360 --> 00:33:02,560
Speaker 1: recoverable in a typical tot action, in a typical slip

537
00:33:02,560 --> 00:33:07,160
Speaker 1: and fall, and in fact, in modern American tart law,

538
00:33:07,600 --> 00:33:11,720
Speaker 1: much of the recoveries in a slip and fall or

539
00:33:11,840 --> 00:33:15,560
Speaker 1: other kinds of personal injury cases, much of the recovery

540
00:33:16,240 --> 00:33:20,280
Speaker 1: are those kinds of what are known as non pecuniary damages.

541
00:33:20,600 --> 00:33:24,200
Speaker 1: They are not recoverable under RICO. So in some sense

542
00:33:24,760 --> 00:33:27,840
Speaker 1: reco gives, but in other ways it takes away. So

543
00:33:28,000 --> 00:33:30,120
Speaker 1: I think all those things should be taken into account.

544
00:33:30,120 --> 00:33:32,400
Speaker 1: But I want to come back to the to the

545
00:33:32,400 --> 00:33:36,000
Speaker 1: first point, which if the Court rules here in favor

546
00:33:36,040 --> 00:33:38,680
Speaker 1: of mister Horn, with which it may, well, do you

547
00:33:38,680 --> 00:33:42,240
Speaker 1: know Congress is free to amend the statute to narrow

548
00:33:42,520 --> 00:33:45,720
Speaker 1: in a way that it views is appropriate, or even

549
00:33:45,760 --> 00:33:49,560
Speaker 1: that it views as consistent with its original intent. And

550
00:33:49,640 --> 00:33:52,600
Speaker 1: I think the argument being made by mister Horn is

551
00:33:52,640 --> 00:33:59,240
Speaker 1: that this no origins in personal injury. Limitation just doesn't

552
00:33:59,280 --> 00:33:59,680
Speaker 1: appear in.

553
00:33:59,680 --> 00:34:04,720
Speaker 2: The listening to the oral arguments, did you think that

554
00:34:04,760 --> 00:34:07,400
Speaker 2: the justices were divided on this issue or do you

555
00:34:07,440 --> 00:34:09,520
Speaker 2: think that they were leaning toward Horn.

556
00:34:10,760 --> 00:34:14,200
Speaker 1: I don't know the answer to that. It's always difficult

557
00:34:15,000 --> 00:34:18,640
Speaker 1: to predict for a number of reasons. One reason can

558
00:34:18,680 --> 00:34:23,080
Speaker 1: be that the judges are just truly looking to answer

559
00:34:23,200 --> 00:34:26,200
Speaker 1: questions that they're not certain about. And just because they're

560
00:34:26,239 --> 00:34:29,000
Speaker 1: asking a question from one angle or another, does it

561
00:34:29,160 --> 00:34:35,360
Speaker 1: necessarily they're leaning one way or another. Sometimes a question

562
00:34:35,640 --> 00:34:38,120
Speaker 1: that looks like it's coming from a place of concern

563
00:34:38,760 --> 00:34:43,800
Speaker 1: is looking just for a potential way to narrow the ruling,

564
00:34:44,040 --> 00:34:47,800
Speaker 1: if it doesn't necessarily mean that that justice is planning

565
00:34:47,800 --> 00:34:51,960
Speaker 1: to rule against this party or that party. So I

566
00:34:51,960 --> 00:34:54,279
Speaker 1: think it's just very hard to tell. And I think

567
00:34:54,320 --> 00:34:58,799
Speaker 1: that the Court is truly I wouldn't say undecided, but

568
00:34:59,080 --> 00:35:03,120
Speaker 1: truly looking for a way to fully understand this case.

569
00:35:03,200 --> 00:35:06,600
Speaker 1: And I did not take anything one way or other

570
00:35:07,080 --> 00:35:10,799
Speaker 1: from the questioning. And you mentioned the concerns coming from

571
00:35:11,080 --> 00:35:14,360
Speaker 1: the Chief Justice or Justice Kavanaugh, and I did not

572
00:35:14,520 --> 00:35:19,440
Speaker 1: take them as necessarily leaning against mister Horn, but expressing

573
00:35:19,520 --> 00:35:24,120
Speaker 1: some concern over the kind of litigation a ruling in

574
00:35:24,160 --> 00:35:28,280
Speaker 1: favor of mister Horn might lead to, and wondering whether

575
00:35:28,400 --> 00:35:31,840
Speaker 1: there are there are any guard wails that might mitigate

576
00:35:32,239 --> 00:35:35,920
Speaker 1: to some degree a ruling in favor of mister Horn.

577
00:35:36,040 --> 00:35:40,479
Speaker 2: An interesting case of statutory interpretation. Thanks so much. That's

578
00:35:40,480 --> 00:35:43,920
Speaker 2: Brian Wolfman, a professor at Georgetown Law. And that's it

579
00:35:43,960 --> 00:35:46,960
Speaker 2: for this edition of the Bloomberg Law Podcast. Remember you've

580
00:35:46,960 --> 00:35:49,680
Speaker 2: ben always get the latest legal news by subscribing and

581
00:35:49,760 --> 00:35:53,279
Speaker 2: listening to the show on Apple Podcasts, Spotify, and at

582
00:35:53,320 --> 00:35:57,600
Speaker 2: Bloomberg dot com, slash podcast, slash Law. I'm June Grosso

583
00:35:57,840 --> 00:36:00,640
Speaker 2: and this is Bloomberg four