1
00:00:03,160 --> 00:00:07,960
Speaker 1: This is Bloombird Law with June Brusso from Bloombird Radio.

2
00:00:09,200 --> 00:00:11,319
Speaker 1: We acknowledge that we have made mistakes in the past,

3
00:00:11,400 --> 00:00:15,400
Speaker 1: from which we've learned and improved our privacy program. We

4
00:00:15,480 --> 00:00:19,000
Speaker 1: must clearly explain how our products use personal information and

5
00:00:19,040 --> 00:00:22,440
Speaker 1: provide easy to find, user friendly controls to manage privacy.

6
00:00:22,920 --> 00:00:27,440
Speaker 1: Google's chief privacy officer, Keith Enwright, testified on Capitol Hill

7
00:00:27,560 --> 00:00:31,240
Speaker 1: four years ago over concerns about how his company tracks

8
00:00:31,320 --> 00:00:34,559
Speaker 1: consumer data. Now, Google has agreed to pay up for

9
00:00:34,640 --> 00:00:39,320
Speaker 1: its controversial location tracking practices in the largest multi state

10
00:00:39,360 --> 00:00:43,159
Speaker 1: privacy settlement in US history. Google will pay nearly three

11
00:00:43,720 --> 00:00:46,920
Speaker 1: nine two million dollars in a settlement with forty states

12
00:00:46,960 --> 00:00:51,440
Speaker 1: over allegations that the company secretly tracked users movements and

13
00:00:51,520 --> 00:00:55,680
Speaker 1: provided the data to advertisers for years, even after consumers

14
00:00:55,720 --> 00:00:59,600
Speaker 1: had turned off the location tracking feature. Location history has

15
00:00:59,640 --> 00:01:04,800
Speaker 1: become particularly sensitive topic following the Supreme Court decision overturning

16
00:01:04,840 --> 00:01:08,560
Speaker 1: the right to abortion, amid fears that prosecutors could use

17
00:01:08,600 --> 00:01:13,280
Speaker 1: such data to track women's movements to enforce state abortion bands.

18
00:01:13,760 --> 00:01:16,520
Speaker 1: Joining me is Eric Goldman, a professor at Santa Clara

19
00:01:16,600 --> 00:01:19,560
Speaker 1: University Law School and co director of the High Tech

20
00:01:19,640 --> 00:01:23,360
Speaker 1: Law Institute. How big a deal is this settlement? I mean,

21
00:01:23,480 --> 00:01:27,840
Speaker 1: it's basically ten million dollars for each of forty states.

22
00:01:28,280 --> 00:01:33,360
Speaker 1: The settlement itself is important in showing how the attorney

23
00:01:33,400 --> 00:01:39,280
Speaker 1: generals are actively looking to redress privacy invasions the grand

24
00:01:39,319 --> 00:01:41,800
Speaker 1: scheme of things. However, it's probably not as big of

25
00:01:41,800 --> 00:01:44,880
Speaker 1: a deal as people might expect. Both the dollar amount

26
00:01:45,000 --> 00:01:48,200
Speaker 1: is not a huge deal for Google, but also the

27
00:01:48,240 --> 00:01:50,760
Speaker 1: way in which it's likely the changing the lives is

28
00:01:50,840 --> 00:01:54,040
Speaker 1: going to be actually quite muted tell us what Google

29
00:01:54,320 --> 00:01:58,240
Speaker 1: was accused of in this lawsuit. Google was accused of

30
00:01:58,640 --> 00:02:03,640
Speaker 1: mishandling location information. This is about where people are at

31
00:02:03,680 --> 00:02:07,000
Speaker 1: a specific period of time, and Google was accused of

32
00:02:07,400 --> 00:02:12,360
Speaker 1: continuing to record location information even when people asked them

33
00:02:12,360 --> 00:02:15,079
Speaker 1: not to, and in general the way it worked. There

34
00:02:15,080 --> 00:02:19,280
Speaker 1: were various details, but the main aspect is that Google

35
00:02:19,320 --> 00:02:22,880
Speaker 1: had several different ways of configuring the options, and so

36
00:02:23,000 --> 00:02:26,280
Speaker 1: even if people turned off location information in one option,

37
00:02:26,560 --> 00:02:28,840
Speaker 1: there might have been other options that the awesomey to

38
00:02:28,880 --> 00:02:31,040
Speaker 1: turn off. And then Google was also alleged to be

39
00:02:31,120 --> 00:02:33,720
Speaker 1: tracking and even if people were told they would never

40
00:02:34,000 --> 00:02:38,440
Speaker 1: be tracking location information, so Google was effectively alleged to

41
00:02:38,480 --> 00:02:42,800
Speaker 1: be lying to consumers about when it was collecting location information.

42
00:02:43,040 --> 00:02:46,200
Speaker 1: Google says that it's stopped that practice. Is there any

43
00:02:46,400 --> 00:02:49,200
Speaker 1: question that they've stopped that practice. I have no reason

44
00:02:49,240 --> 00:02:52,520
Speaker 1: to believe that they continue to practice they were alleged

45
00:02:52,600 --> 00:02:55,720
Speaker 1: to be engaged in. But we really don't understand all

46
00:02:55,800 --> 00:02:58,120
Speaker 1: the different things Google is doing, so they might be

47
00:02:58,160 --> 00:03:00,680
Speaker 1: doing something else nefarious that we don't don't really know.

48
00:03:01,000 --> 00:03:04,440
Speaker 1: But the attorney generals have identified eight specific things they

49
00:03:04,440 --> 00:03:06,320
Speaker 1: wanted to Google to fix. I'm going to assume that

50
00:03:06,360 --> 00:03:09,080
Speaker 1: Google either fixed it or stopped it. As part of

51
00:03:09,120 --> 00:03:12,960
Speaker 1: the deal, Google also agreed to significantly improve its location

52
00:03:13,040 --> 00:03:18,240
Speaker 1: tracking disclosures and user control starting next year. I have

53
00:03:18,360 --> 00:03:21,959
Speaker 1: to tell you that I find all these location tracking

54
00:03:22,280 --> 00:03:27,000
Speaker 1: devices and confusing to try to turn off because if

55
00:03:27,040 --> 00:03:30,200
Speaker 1: you turn off one thing, oh, then you can't have this. Yes,

56
00:03:30,560 --> 00:03:33,960
Speaker 1: And to be fair, there are many times that actually

57
00:03:34,040 --> 00:03:39,280
Speaker 1: we benefit from services tracking our location and information. And

58
00:03:39,320 --> 00:03:43,320
Speaker 1: I'll just give you one quick example with hiking on

59
00:03:43,400 --> 00:03:46,600
Speaker 1: my mostrsification and I had trail maps that I had

60
00:03:46,600 --> 00:03:49,280
Speaker 1: downloaded where I was able to track whether I was

61
00:03:49,320 --> 00:03:52,520
Speaker 1: on the trail or not. And that's actually kept me safe.

62
00:03:52,760 --> 00:03:56,360
Speaker 1: It saved my time, saved war, and tear on my knees.

63
00:03:56,960 --> 00:03:59,920
Speaker 1: So the fact that the services use location from men

64
00:04:00,560 --> 00:04:04,480
Speaker 1: can be and that positive. The point of the AGES

65
00:04:04,880 --> 00:04:07,760
Speaker 1: enforcement is that we should be in charge of when

66
00:04:08,160 --> 00:04:11,160
Speaker 1: location information about us is used. We should have that choice.

67
00:04:11,280 --> 00:04:13,720
Speaker 1: It shouldn't be taken away from us. I know that

68
00:04:13,760 --> 00:04:19,320
Speaker 1: Arizona sued Google and secured million dollars because of the

69
00:04:19,360 --> 00:04:23,880
Speaker 1: state's consumer fraud Act. So do other states have similar

70
00:04:23,920 --> 00:04:27,839
Speaker 1: consumer acts that Google has to be careful with. Yeah,

71
00:04:27,920 --> 00:04:33,280
Speaker 1: the AGES used generally their standards consumer protection laws to

72
00:04:33,920 --> 00:04:37,719
Speaker 1: crack down on Google, basically saying that Google applied to

73
00:04:37,760 --> 00:04:42,160
Speaker 1: consumers um and that's standard issues for the attorney generals

74
00:04:42,200 --> 00:04:45,040
Speaker 1: to deal with. However, there's a new class of laws

75
00:04:45,040 --> 00:04:47,760
Speaker 1: have been coming out in the last five years essentially

76
00:04:47,800 --> 00:04:50,920
Speaker 1: since Google is alleged to be violating these laws that

77
00:04:51,160 --> 00:04:56,600
Speaker 1: provide extra protection for location information. And it's really those

78
00:04:56,680 --> 00:05:00,200
Speaker 1: laws are become the centerpiece of any future action to

79
00:05:00,240 --> 00:05:04,200
Speaker 1: control location information, and it's those laws that are likely

80
00:05:04,279 --> 00:05:08,279
Speaker 1: to really dominate how we as consumers interact with services

81
00:05:08,360 --> 00:05:11,960
Speaker 1: like Google, whether such our location information. In other words,

82
00:05:12,200 --> 00:05:16,839
Speaker 1: the AGES enforcement dealt with old law and old practices.

83
00:05:17,279 --> 00:05:20,080
Speaker 1: The new law will come into a fact that will

84
00:05:20,160 --> 00:05:24,719
Speaker 1: significantly impact location information across the board. Do most states

85
00:05:24,760 --> 00:05:29,400
Speaker 1: have those laws? No, let's call them consumer privacy laws.

86
00:05:29,720 --> 00:05:32,720
Speaker 1: California act at the first, starting into that in eighteen.

87
00:05:33,120 --> 00:05:35,920
Speaker 1: It has since replaced that law with a new law

88
00:05:36,000 --> 00:05:39,680
Speaker 1: coming into effect in January called the California Privacy Rights Act.

89
00:05:39,839 --> 00:05:43,920
Speaker 1: And less than half dozen states have enacted some variation

90
00:05:44,080 --> 00:05:48,120
Speaker 1: of the two California laws, but they're growing rapidly. Other

91
00:05:48,160 --> 00:05:52,080
Speaker 1: states will enact them shortly, and most importantly, because Google

92
00:05:52,520 --> 00:05:55,480
Speaker 1: is located in California, they're likely to comply with that

93
00:05:55,640 --> 00:05:59,440
Speaker 1: law across the board, not just in California. So when

94
00:05:59,520 --> 00:06:03,479
Speaker 1: californ Onias law comes into effect, it's likely to set

95
00:06:03,520 --> 00:06:06,520
Speaker 1: a national standard, at least through sectors services like Google.

96
00:06:06,800 --> 00:06:11,960
Speaker 1: As far as possible criminal prosecutions under abortion bands, there

97
00:06:12,000 --> 00:06:16,320
Speaker 1: are fears that some state prosecutors could use location data

98
00:06:16,600 --> 00:06:20,039
Speaker 1: to track women's movements and prosecute them. Google has said

99
00:06:20,040 --> 00:06:23,799
Speaker 1: it would automatically delete records of users visits to sensitive

100
00:06:23,839 --> 00:06:27,560
Speaker 1: locations like abortion clinics, But can we trust that they're

101
00:06:27,560 --> 00:06:30,480
Speaker 1: going to do that and also that their method will

102
00:06:30,520 --> 00:06:34,239
Speaker 1: be effective? Obviously, the Google will define what it means

103
00:06:34,240 --> 00:06:37,040
Speaker 1: by sense of locations. It might be that it won't

104
00:06:37,080 --> 00:06:40,559
Speaker 1: be comprehensive from our perspective as consumers, But the point

105
00:06:40,640 --> 00:06:42,880
Speaker 1: is that they're trying to come up with ways of

106
00:06:42,960 --> 00:06:47,200
Speaker 1: controlling location information that are more pro consumer. Because of

107
00:06:47,240 --> 00:06:50,880
Speaker 1: the fact that location information is so sensitive, placing a

108
00:06:51,000 --> 00:06:54,760
Speaker 1: person in a particular spot in time creates all kinds

109
00:06:54,760 --> 00:06:59,120
Speaker 1: of potential safety and legal risk. And so that's why

110
00:06:59,160 --> 00:07:01,480
Speaker 1: I think that the e G settlement is really dealing

111
00:07:01,520 --> 00:07:04,000
Speaker 1: with a legacy issue because of the fact that we

112
00:07:04,080 --> 00:07:06,680
Speaker 1: know so much more today than we didn't do that

113
00:07:06,760 --> 00:07:10,000
Speaker 1: in eighteen about how important is to protect location information. Eric,

114
00:07:10,080 --> 00:07:13,920
Speaker 1: has there been a lawsuit where something terrible happened to

115
00:07:14,000 --> 00:07:17,720
Speaker 1: someone because of location tracking? I don't attract the cases

116
00:07:17,800 --> 00:07:20,760
Speaker 1: that way, but a classic example of ways that things

117
00:07:20,800 --> 00:07:26,120
Speaker 1: can go wrong is with tracker devices that a x

118
00:07:26,720 --> 00:07:31,760
Speaker 1: UH significant other will place onto a victim's car. By

119
00:07:31,800 --> 00:07:34,840
Speaker 1: doing that, they can then track where that person is,

120
00:07:35,120 --> 00:07:38,640
Speaker 1: and in some cases that's led to physical attacks on

121
00:07:38,680 --> 00:07:42,280
Speaker 1: the victim because the criminal knew where to find a person.

122
00:07:42,680 --> 00:07:44,480
Speaker 1: I was reading all these articles about how to turn

123
00:07:44,560 --> 00:07:46,280
Speaker 1: things off, and I went to my iPhone. Now I

124
00:07:46,320 --> 00:07:48,600
Speaker 1: realized I can't turn it off completely because then I

125
00:07:48,640 --> 00:07:51,520
Speaker 1: can't use the iPhone funds and I can't use Google

126
00:07:51,520 --> 00:07:54,360
Speaker 1: Maps and all this stuff. That gets the point the

127
00:07:54,400 --> 00:07:56,760
Speaker 1: doesn't June. That really hits the name on the head

128
00:07:56,840 --> 00:08:02,000
Speaker 1: that location information is vye able resource that we want

129
00:08:02,160 --> 00:08:05,480
Speaker 1: some services to use in certain circumstances because it literally

130
00:08:05,520 --> 00:08:08,680
Speaker 1: makes our lives better and helps keep us safe and

131
00:08:09,000 --> 00:08:12,280
Speaker 1: gives us information that we want on the spot. So

132
00:08:12,440 --> 00:08:15,720
Speaker 1: we don't want to categorically turn off location information. That

133
00:08:15,760 --> 00:08:18,960
Speaker 1: would be a misstep. But we do want services to

134
00:08:19,000 --> 00:08:22,040
Speaker 1: listen to us. If we say don't check us now,

135
00:08:22,920 --> 00:08:24,920
Speaker 1: we need them to honor that. And that really was

136
00:08:24,960 --> 00:08:27,280
Speaker 1: the point of the agis enforcement. And you think that

137
00:08:27,480 --> 00:08:31,640
Speaker 1: at least Google and perhaps Facebook, that they've learned a lesson.

138
00:08:32,040 --> 00:08:33,760
Speaker 1: I don't know if they've learned a lesson. I think

139
00:08:33,760 --> 00:08:36,959
Speaker 1: that the new consumer privacy laws that are rolling out

140
00:08:37,160 --> 00:08:40,360
Speaker 1: will force them to change their behavior, even if they

141
00:08:40,360 --> 00:08:43,599
Speaker 1: would prefer not to. So I don't think this particular

142
00:08:43,640 --> 00:08:46,160
Speaker 1: settlement is going to teach them that lesson. I think

143
00:08:46,200 --> 00:08:49,040
Speaker 1: the other laws will cause them to take it seriously.

144
00:08:49,480 --> 00:08:52,959
Speaker 1: The bottom line is that I think services like dog

145
00:08:53,000 --> 00:08:57,240
Speaker 1: on Facebook now realize just how sensitive location information is,

146
00:08:57,559 --> 00:09:01,319
Speaker 1: and they're being forced to do better. Zarek always a pleasure,

147
00:09:01,679 --> 00:09:05,040
Speaker 1: that's Eric Goldman, a professor at Santa Clara University Law

148
00:09:05,080 --> 00:09:07,760
Speaker 1: School and co director of the High Tech Law Institute.

149
00:09:09,440 --> 00:09:13,040
Speaker 1: President Joe Biden's planned to cancel billions of dollars in

150
00:09:13,160 --> 00:09:17,199
Speaker 1: student loans is in jeopardy because of legal challenges that

151
00:09:17,240 --> 00:09:20,280
Speaker 1: could mean no one receives a dollar of debt relief.

152
00:09:20,920 --> 00:09:24,680
Speaker 1: The White House insists it will ultimately prevail, even though

153
00:09:24,720 --> 00:09:28,920
Speaker 1: two federal courts blocked the program from taking effect. The

154
00:09:29,040 --> 00:09:32,320
Speaker 1: setbacks have rattled supporters, who fear that more than forty

155
00:09:32,360 --> 00:09:37,000
Speaker 1: million Americans who expected relief will instead start getting billed

156
00:09:37,040 --> 00:09:40,439
Speaker 1: for their student debt in January, when a pandemic Ara

157
00:09:40,559 --> 00:09:44,680
Speaker 1: moratorium on payments is slated to expire. Joining me is

158
00:09:44,720 --> 00:09:50,280
Speaker 1: elliott Stein Bloomberg Intelligence Senior litigation analyst. So has the

159
00:09:50,320 --> 00:09:55,080
Speaker 1: problem in these lawsuits been having a plaintiff that has

160
00:09:55,440 --> 00:09:59,719
Speaker 1: standing to sue? Yeah, that was definitely a hurdle u

161
00:10:00,040 --> 00:10:03,359
Speaker 1: in some of the early lawsuits, and a couple of them,

162
00:10:03,880 --> 00:10:07,640
Speaker 1: a couple of the lawsuits were dismissed because of standing. Right,

163
00:10:08,200 --> 00:10:11,200
Speaker 1: you know, it's a basic tenet of litigation in the

164
00:10:11,280 --> 00:10:14,000
Speaker 1: US that in order to sue, you have to have

165
00:10:14,120 --> 00:10:17,920
Speaker 1: some sort of concrete and direct injury, otherwise our courts

166
00:10:18,200 --> 00:10:22,079
Speaker 1: will just be flooded with you know, fabulous litigation. So

167
00:10:22,480 --> 00:10:25,760
Speaker 1: we had several lawsuits filed challenging the student loan plan.

168
00:10:26,080 --> 00:10:28,240
Speaker 1: Like I said, the first couple were tossed because the

169
00:10:28,240 --> 00:10:31,559
Speaker 1: plaintiffs couldn't show that they were you know, injured by

170
00:10:31,600 --> 00:10:34,040
Speaker 1: the plan in a concrete or direct way. But more

171
00:10:34,040 --> 00:10:38,480
Speaker 1: recently we've had a couple lawsuits, including one where according

172
00:10:38,559 --> 00:10:43,120
Speaker 1: Texas essentially throughout the plan inside it was unconstitutional, and

173
00:10:43,160 --> 00:10:46,640
Speaker 1: it found that the plaintiffs in that case were properly

174
00:10:47,240 --> 00:10:51,280
Speaker 1: injured sufficiently to bring a lawsuit that case, the Texas case,

175
00:10:52,120 --> 00:10:54,520
Speaker 1: is that the only case where the judge got to

176
00:10:54,600 --> 00:10:59,720
Speaker 1: the merits of the Biden administration's loan forgiveness plan. It

177
00:10:59,840 --> 00:11:04,640
Speaker 1: is is it is, and it's interesting because it's interesting

178
00:11:04,679 --> 00:11:07,880
Speaker 1: how he got to the merits. The borrowers in that

179
00:11:07,920 --> 00:11:11,320
Speaker 1: case said that they were injured because they couldn't provide

180
00:11:11,480 --> 00:11:15,319
Speaker 1: notice and comment on the plan, and the government responded

181
00:11:15,320 --> 00:11:18,120
Speaker 1: and said, well, you know the Heroes Act that we

182
00:11:18,200 --> 00:11:20,559
Speaker 1: think authorizes the plan doesn't say that we have to

183
00:11:20,559 --> 00:11:23,120
Speaker 1: give a notice in comment period um for this kind

184
00:11:23,160 --> 00:11:25,640
Speaker 1: of plan. And the judge said, well, you know, I'm

185
00:11:25,640 --> 00:11:28,480
Speaker 1: going to jump to the merits, and on the merits,

186
00:11:28,600 --> 00:11:32,080
Speaker 1: I don't think the plan is authorized under this statute.

187
00:11:32,280 --> 00:11:35,079
Speaker 1: And as a result, you know, the language and the

188
00:11:35,120 --> 00:11:37,360
Speaker 1: statute saying that you don't need death notice and comment

189
00:11:37,600 --> 00:11:39,760
Speaker 1: doesn't even apply. And so that's how we got the standing.

190
00:11:39,760 --> 00:11:42,880
Speaker 1: It was sort of mixing both the standing issue and

191
00:11:42,960 --> 00:11:44,680
Speaker 1: the merits issue, and that's how he got to it.

192
00:11:44,880 --> 00:11:46,400
Speaker 1: I mean, he did it back, which you're supposed to

193
00:11:46,440 --> 00:11:49,880
Speaker 1: find do the plaintiffs have standing first, that's before you

194
00:11:49,920 --> 00:11:52,840
Speaker 1: even get to the merits. Yeah, it was a little

195
00:11:52,840 --> 00:11:56,160
Speaker 1: bit unusual, you know, a little bit maybe creative or clever.

196
00:11:56,640 --> 00:11:59,440
Speaker 1: I'm not sure he's actually going to get reversed on that. Um.

197
00:11:59,480 --> 00:12:00,880
Speaker 1: You know, it's going to go to the Fifth Circuit

198
00:12:00,960 --> 00:12:02,680
Speaker 1: from there. But I agree he's sort of he sort

199
00:12:02,720 --> 00:12:04,760
Speaker 1: of conflated the two, you know, the standing issue and

200
00:12:04,800 --> 00:12:06,800
Speaker 1: the merritie issue. But at the end of the day,

201
00:12:06,800 --> 00:12:07,880
Speaker 1: you know, from there it's going to go to the

202
00:12:07,880 --> 00:12:11,280
Speaker 1: fifth Circuit. And I don't see this judge getting reversed there.

203
00:12:11,360 --> 00:12:13,480
Speaker 1: The Tift Circuit is one of the most conservatives in

204
00:12:13,480 --> 00:12:15,840
Speaker 1: the country, and I don't think it's I don't think

205
00:12:16,040 --> 00:12:18,880
Speaker 1: he's gonna get reverse at the Supreme Court either. In

206
00:12:18,920 --> 00:12:23,560
Speaker 1: that case, it was two borrowers who were partially or

207
00:12:23,600 --> 00:12:27,680
Speaker 1: fully ineligible for the loan forgiveness. So they're saying we

208
00:12:27,800 --> 00:12:32,360
Speaker 1: have standing because we're not getting what other people got.

209
00:12:32,880 --> 00:12:36,800
Speaker 1: Exactly one one of the borrower's loans were commercially held

210
00:12:36,840 --> 00:12:39,680
Speaker 1: in the plan. You know, the Bitdom administration had tweeked

211
00:12:39,720 --> 00:12:43,280
Speaker 1: its plans so that it would only apply to loans

212
00:12:43,280 --> 00:12:46,040
Speaker 1: held by the Department of Education and not privately held

213
00:12:46,080 --> 00:12:49,200
Speaker 1: loans um. And so that person said, well, I can't

214
00:12:49,320 --> 00:12:52,240
Speaker 1: participate in the plan because my loans are commercially held.

215
00:12:52,600 --> 00:12:55,679
Speaker 1: And then the other borrower in that case was eligible

216
00:12:55,679 --> 00:12:58,800
Speaker 1: for the ten thousand dollar forgiveness but not eligible for

217
00:12:58,880 --> 00:13:03,640
Speaker 1: the higher amount of forgiveness UM that PELL grant recipients

218
00:13:03,640 --> 00:13:06,080
Speaker 1: are eligible for. And so they said, you know, we

219
00:13:06,160 --> 00:13:09,080
Speaker 1: can't participate in this plan. And you know, have there

220
00:13:09,120 --> 00:13:10,760
Speaker 1: been a notice in common period, we could have at

221
00:13:10,840 --> 00:13:14,080
Speaker 1: least given our thoughts, but we were protruded from doing

222
00:13:14,080 --> 00:13:16,160
Speaker 1: that as well. So that that's the injuries that they

223
00:13:16,200 --> 00:13:19,079
Speaker 1: pointed to. It sounds a little tenuous to me. Yeah,

224
00:13:19,120 --> 00:13:20,960
Speaker 1: I mean, you know, I was surprised by two. I

225
00:13:20,960 --> 00:13:23,840
Speaker 1: didn't think those kinds of injuries would be you know,

226
00:13:23,920 --> 00:13:26,920
Speaker 1: concrete and direct enough you know, to get standing. But

227
00:13:27,600 --> 00:13:29,480
Speaker 1: the studs, you know, like we talked about, he sort

228
00:13:29,520 --> 00:13:33,000
Speaker 1: of got around that by jumping to the merits finding,

229
00:13:33,200 --> 00:13:36,320
Speaker 1: you know, that that the plan was not authorized under

230
00:13:36,360 --> 00:13:39,839
Speaker 1: the statute that the administration pointed to, and so then

231
00:13:39,840 --> 00:13:43,040
Speaker 1: he sort of backed into standing in that way. But

232
00:13:43,160 --> 00:13:45,600
Speaker 1: I'm not confident he's gonna get reversed. Why do you

233
00:13:45,600 --> 00:13:48,360
Speaker 1: think the Supreme Court wouldn't reverse him? You know, I

234
00:13:48,440 --> 00:13:51,080
Speaker 1: think they're certainly on the merits they're going to agree

235
00:13:51,120 --> 00:13:55,000
Speaker 1: with him. And you know, I'm not sure that what

236
00:13:55,080 --> 00:14:00,800
Speaker 1: he did is entirely um not allowed, uh you know,

237
00:14:00,920 --> 00:14:04,199
Speaker 1: and in some sense, I um, you know, I think

238
00:14:04,200 --> 00:14:07,320
Speaker 1: they'll probably find a way to agree with that judge

239
00:14:07,640 --> 00:14:11,199
Speaker 1: in order to buy the plans from from being implemented.

240
00:14:11,679 --> 00:14:15,600
Speaker 1: Supreme Court Justice Amy Coney Barrett has refused twice though,

241
00:14:16,200 --> 00:14:21,120
Speaker 1: to block Biden's student loan relief plan without comment. So

242
00:14:21,880 --> 00:14:24,840
Speaker 1: it could just be because she's waiting for appeals to

243
00:14:25,400 --> 00:14:28,520
Speaker 1: play out. Yeah, I think that's exactly right. The two

244
00:14:28,640 --> 00:14:33,920
Speaker 1: cases were really like even bigger stretchers in terms of standing. Right.

245
00:14:34,200 --> 00:14:37,320
Speaker 1: In one of those cases, it was a borrower in

246
00:14:37,320 --> 00:14:41,040
Speaker 1: Indiana who said his state income taxes would go up

247
00:14:41,200 --> 00:14:43,680
Speaker 1: if she was automatically enrolled in the plan. But the

248
00:14:43,680 --> 00:14:47,040
Speaker 1: administration has already changed the plan to say that borrowers

249
00:14:47,040 --> 00:14:49,400
Speaker 1: would not be automatically enrolled and they could opt out

250
00:14:49,440 --> 00:14:51,600
Speaker 1: if they wanted to. And then the other case was

251
00:14:51,680 --> 00:14:54,960
Speaker 1: just a general taxpayer grievance saying that, you know, public

252
00:14:54,960 --> 00:14:57,120
Speaker 1: funds should not be used for this, and and that

253
00:14:57,200 --> 00:15:00,400
Speaker 1: kind of standing has almost always been precluded by the

254
00:15:00,440 --> 00:15:04,400
Speaker 1: Supreme Court. Those cases were much weaker in terms of standing. Well,

255
00:15:04,680 --> 00:15:06,960
Speaker 1: let's talk about the lawsuit that went up to the

256
00:15:07,040 --> 00:15:11,440
Speaker 1: Eighth Circuit. Six Republicans states brought the lawsuit. What was

257
00:15:11,480 --> 00:15:15,360
Speaker 1: their argument. There were arguing a few things, but sort

258
00:15:15,400 --> 00:15:20,000
Speaker 1: of broadly speaking, you know, the overarching theory of their

259
00:15:20,040 --> 00:15:25,440
Speaker 1: case was that services that were instrumentalities of those states

260
00:15:26,080 --> 00:15:31,120
Speaker 1: would be injured because if the loan balances were reduced,

261
00:15:31,360 --> 00:15:35,480
Speaker 1: they were earned less income in terms of servicing those loans.

262
00:15:36,280 --> 00:15:41,680
Speaker 1: What's interesting is um a lot of those services primarily

263
00:15:41,760 --> 00:15:46,120
Speaker 1: service commercially held loans privately held loans, and so in

264
00:15:46,160 --> 00:15:49,400
Speaker 1: response that I lawsuit, originally the administration tweaked its plan

265
00:15:49,600 --> 00:15:51,760
Speaker 1: and narrowed it so that it would only apply to

266
00:15:51,880 --> 00:15:55,440
Speaker 1: federally held loans and not privately held loans. But one

267
00:15:55,480 --> 00:15:58,760
Speaker 1: of their services in that case, in the state of Missouri,

268
00:15:59,160 --> 00:16:04,400
Speaker 1: also service federally held loans, and so the trial court

269
00:16:04,480 --> 00:16:07,480
Speaker 1: judge in that case said, well, actually, you know, Missouri

270
00:16:07,560 --> 00:16:11,320
Speaker 1: can't Missouri and the state services are actually separate entities.

271
00:16:11,360 --> 00:16:14,640
Speaker 1: Missouri shouldn't be able to sue on behalf of the servicers.

272
00:16:14,840 --> 00:16:17,120
Speaker 1: The servicer thinks it's injured, it should see on its own.

273
00:16:17,640 --> 00:16:20,240
Speaker 1: So the trial court dismissed that lawsuit. But the Eighth

274
00:16:20,240 --> 00:16:25,080
Speaker 1: Circuit said, well, actually, you know, the servicer could be

275
00:16:25,160 --> 00:16:27,000
Speaker 1: an arm of the state. It looks like it likely

276
00:16:27,120 --> 00:16:28,840
Speaker 1: is an army of the state. So we're gonna put

277
00:16:28,880 --> 00:16:33,640
Speaker 1: there the administration's plan on hold while this appeal praised out,

278
00:16:33,640 --> 00:16:37,120
Speaker 1: So they didn't reach the marriage. They didn't fully decide

279
00:16:37,200 --> 00:16:40,200
Speaker 1: standing yet even but you know, it looks like they're

280
00:16:40,280 --> 00:16:44,200
Speaker 1: leaning towards finding standard, and then once once they find standard,

281
00:16:44,240 --> 00:16:47,760
Speaker 1: I'm I'm quite sure they'll also um reject the plan

282
00:16:47,880 --> 00:16:50,600
Speaker 1: on the merits. The Eighth Circuit is dominated by judges

283
00:16:50,720 --> 00:16:54,640
Speaker 1: named by Republican presidents, and on the panel were three

284
00:16:54,720 --> 00:17:00,000
Speaker 1: judges appointed by Republican presidents. Yeah, Eighth Circuit an acests,

285
00:17:00,440 --> 00:17:04,280
Speaker 1: you know, dominated by judges is appointed by Republican presidents.

286
00:17:04,320 --> 00:17:07,920
Speaker 1: But you know, I always say, you know, judges appointed

287
00:17:07,920 --> 00:17:11,960
Speaker 1: by Republicans are less likely to defer to agency action.

288
00:17:12,080 --> 00:17:15,040
Speaker 1: But you know that's that's a generalization. It doesn't always hold.

289
00:17:15,040 --> 00:17:17,840
Speaker 1: The trial court judge in that case was a George W.

290
00:17:17,960 --> 00:17:20,480
Speaker 1: Bush appoint due, and he dismissed the lawsuit. And you

291
00:17:20,520 --> 00:17:23,080
Speaker 1: know it's turned out different on appeal. Is the Biden

292
00:17:23,080 --> 00:17:26,600
Speaker 1: administration appealing this Eighth Circuit decision to the Supreme Court.

293
00:17:27,119 --> 00:17:30,000
Speaker 1: So the Eighth Circuit decision, you know, that appeal is

294
00:17:30,040 --> 00:17:32,640
Speaker 1: still playing out, right, All all the Eight Circuit said

295
00:17:32,800 --> 00:17:35,439
Speaker 1: was that they're putting the plan on hold while the

296
00:17:35,440 --> 00:17:39,560
Speaker 1: appeal plays out. Now, the administration could um asked the

297
00:17:39,600 --> 00:17:44,439
Speaker 1: Supreme Court, uh, you know, to undo the stay of

298
00:17:44,520 --> 00:17:47,879
Speaker 1: the plan. I think that's highly unlikely to succeeded, because

299
00:17:48,200 --> 00:17:50,439
Speaker 1: you know, it makes sense to sort of keep the

300
00:17:50,440 --> 00:17:54,639
Speaker 1: status quo while litigation plays out. But they have already

301
00:17:54,680 --> 00:17:58,920
Speaker 1: appealed their Texas judges decisions to the Drift Circuit so

302
00:17:59,119 --> 00:18:02,840
Speaker 1: that that one will proceed. And in the meantime, what's

303
00:18:02,880 --> 00:18:07,480
Speaker 1: happening to the people who are applying or were applying

304
00:18:07,720 --> 00:18:11,560
Speaker 1: for student loans forgiveness? So applications that were already made

305
00:18:11,920 --> 00:18:16,919
Speaker 1: before these decisions are you know, just held in limbo.

306
00:18:17,200 --> 00:18:19,960
Speaker 1: And since these decisions have come out in the last

307
00:18:19,960 --> 00:18:23,520
Speaker 1: couple of weeks, the administration has basically suspended the application process,

308
00:18:23,600 --> 00:18:25,960
Speaker 1: so you can't even apply for forgiveness at this point.

309
00:18:26,160 --> 00:18:31,399
Speaker 1: This help services for privately owned loans. Yeah, so you know,

310
00:18:31,600 --> 00:18:34,639
Speaker 1: in in that UM in the Eighth Circuit case, in

311
00:18:34,680 --> 00:18:37,080
Speaker 1: the in the trial Corps when when those when that

312
00:18:37,200 --> 00:18:41,960
Speaker 1: when that lawsuit was first filed, the admitted the administration's

313
00:18:42,000 --> 00:18:46,960
Speaker 1: plan originally would have allowed forgiveness for both loans held

314
00:18:47,000 --> 00:18:51,280
Speaker 1: by the Department of Education, but also federal loans that

315
00:18:51,359 --> 00:18:59,199
Speaker 1: were held by private uh entities, commercial entities. UM. What

316
00:19:00,160 --> 00:19:03,600
Speaker 1: fear was that a lot of the services like you know,

317
00:19:03,680 --> 00:19:09,199
Speaker 1: maybe like Navy and UM or Discover uh, you know,

318
00:19:09,280 --> 00:19:15,080
Speaker 1: companies that that service commercially held loans would sue. They

319
00:19:15,160 --> 00:19:19,120
Speaker 1: never did, but but that's but some of the services

320
00:19:19,160 --> 00:19:22,600
Speaker 1: that were state instrumentalities are there are six GOP states

321
00:19:22,600 --> 00:19:25,520
Speaker 1: at SUD did service commercially held loans. So what the

322
00:19:25,560 --> 00:19:31,320
Speaker 1: administration did to try to essentially undercut those lawsuits was

323
00:19:31,400 --> 00:19:34,520
Speaker 1: that they narrowed the plan and they said only federally

324
00:19:34,600 --> 00:19:37,960
Speaker 1: held loan loans will be eligible for forgiveness and not

325
00:19:38,000 --> 00:19:40,840
Speaker 1: commercially held loans. And so that basically took away the

326
00:19:40,880 --> 00:19:47,040
Speaker 1: possibility of lawsuits by servicers um that service commercially held loans,

327
00:19:47,080 --> 00:19:52,000
Speaker 1: Like I said that the Missouri servicer also services federally

328
00:19:52,000 --> 00:19:54,680
Speaker 1: held loans, and so they they're still in the case.

329
00:19:55,119 --> 00:19:58,760
Speaker 1: But companies like you know, like Navy and Salary may

330
00:19:58,880 --> 00:20:02,600
Speaker 1: discover the they're essentially already helped by the administration narrowing

331
00:20:02,600 --> 00:20:05,160
Speaker 1: the plan only to federally held loans, which they don't

332
00:20:05,160 --> 00:20:09,399
Speaker 1: even service. So in your opinion, the merits of the

333
00:20:09,440 --> 00:20:13,520
Speaker 1: case are weak for the administration because it based it

334
00:20:13,520 --> 00:20:17,560
Speaker 1: on the Heroes Act. Yeah, I mean, the way I

335
00:20:17,560 --> 00:20:20,840
Speaker 1: would say it is that you know it um. You know,

336
00:20:20,920 --> 00:20:24,840
Speaker 1: judges who have subscribed to the philosophy of the major

337
00:20:24,920 --> 00:20:28,199
Speaker 1: questions dock in um and who want to sort of

338
00:20:28,640 --> 00:20:34,480
Speaker 1: cretail the administrative state certainly are gonna find the Administration's

339
00:20:34,520 --> 00:20:37,600
Speaker 1: justification for us in the Heroes Act is weak um.

340
00:20:37,640 --> 00:20:40,560
Speaker 1: And we've already seen that, you know, with the judge

341
00:20:40,560 --> 00:20:46,760
Speaker 1: in Texas with the Eighth Circuit to some extent um.

342
00:20:46,840 --> 00:20:49,000
Speaker 1: And you know, we we've seen it previously with the

343
00:20:49,040 --> 00:20:55,320
Speaker 1: administration trying to use covid um to get certain things done,

344
00:20:55,359 --> 00:20:59,719
Speaker 1: like the eviction moratorium. You know, they tried to uh

345
00:20:59,800 --> 00:21:03,679
Speaker 1: you the court said that CDC couldn't use um, that

346
00:21:03,720 --> 00:21:07,520
Speaker 1: they didn't have statutory authority to enact in eviction moratory.

347
00:21:07,600 --> 00:21:11,880
Speaker 1: And same with start trying to get an employee vaccine mandate.

348
00:21:12,280 --> 00:21:17,000
Speaker 1: So you know, we're sort of in this state where um,

349
00:21:17,040 --> 00:21:20,320
Speaker 1: you know, Conservatives certainly dominates the Suppreme Court and the

350
00:21:20,320 --> 00:21:22,600
Speaker 1: Fifth Circuit and the Eighth Circuit and some other circuit courts,

351
00:21:22,600 --> 00:21:25,280
Speaker 1: and that they subscribe to the Major Questions doctrine. And

352
00:21:25,359 --> 00:21:30,560
Speaker 1: unless you have a statute that really specifically authorizes um,

353
00:21:30,960 --> 00:21:35,879
Speaker 1: you know, action that has you know, national and economic importance,

354
00:21:36,440 --> 00:21:40,439
Speaker 1: you know they're they're going to reject agency action unless

355
00:21:40,440 --> 00:21:44,680
Speaker 1: you can really point the specific statutory authority. Thanks so much, Elliott.

356
00:21:44,920 --> 00:21:49,440
Speaker 1: That's Bloomberg Intelligence, Senior Litigation analyst, Elliot Stein. For more

357
00:21:49,480 --> 00:21:51,720
Speaker 1: of elliotts analysis, you can go to b I go

358
00:21:52,080 --> 00:21:54,640
Speaker 1: on the Bloomberg Terminal. And that's it for this edition

359
00:21:54,680 --> 00:21:57,360
Speaker 1: of The Bloomberg Law Show. Remember you can always get

360
00:21:57,359 --> 00:22:00,399
Speaker 1: the latest legal news on our Bloomberg Law podcast as

361
00:22:00,440 --> 00:22:03,480
Speaker 1: you can find them on Apple Podcasts, Spotify, and at

362
00:22:03,600 --> 00:22:08,639
Speaker 1: www dot Bloomberg dot com slash podcast slash Law, And

363
00:22:08,680 --> 00:22:11,440
Speaker 1: remember to tune into The Bloomberg Law Show every week

364
00:22:11,560 --> 00:22:15,160
Speaker 1: night at ten pm Wall Street Time. I'm June Grossow,

365
00:22:15,240 --> 00:22:16,840
Speaker 1: and you're listening to Bloomberg