Speaker 1: This is Bloomberg Law with June Grasso, a federal judge
Speaker 1: is questioning a proposed five fifty million dollars settlement of
Speaker 1: a class action privacy lawsuit against Facebook, asking whether that's
Speaker 1: really a lot of money under the circumstances. Facebook proposed
Speaker 1: the deal in January to resolve the lawsuit, in which
Speaker 1: users claim the company illegally gathered biometric data through a
Speaker 1: photo tagging tool. The company needs the judge's approval to
Speaker 1: escape a jury trial that could expose it to billions
Speaker 1: of dollars in damages. My guest is Mark Rifkin, a
Speaker 1: partner Wolf Hallden. Steam start by explaining the lawsuit and
Speaker 1: what was at stake for Facebook. So, this is a
Speaker 1: class action that has been brought by consumers under the
Speaker 1: Illinois Biometric Information Privacy Act. And the plaintiffs complain that
Speaker 1: Facebook used servers in California that captured biometric information from
Speaker 1: consumers in Illinois without their knowledge or consent. And that's
Speaker 1: a violation of this Illinois statute that imposes pretty substantial
Speaker 1: penalties on companies like Facebook. But do that under this settlement,
Speaker 1: the class members would get a hundred and fifty to
Speaker 1: three hundred dollars or between of a possible recovery. Does
Speaker 1: that sound low to you? Well, I hate to sound
Speaker 1: like a lawyer when I answer that question, but it's
Speaker 1: hard to answer because there are some issues that at
Speaker 1: least the plaintiffs have raised in their brief and support
Speaker 1: of the settlement that raise some questions about how successful
Speaker 1: they might be. And part of that has to do
Speaker 1: with the extent to which Illinois law can be applied
Speaker 1: to a company that operates primarily outside of Illinois. For example,
Speaker 1: this case is pending in the Northern District of California
Speaker 1: because that's where Facebook is and its servers are not
Speaker 1: located in Illinois. So the machines that are capturing the
Speaker 1: biometrics are not located in the state. That makes at
Speaker 1: conduct unlawful. That's one big question. The other question is
Speaker 1: when you have a company as big as Facebook and
Speaker 1: as many consumers are affected as are affected here, the
Speaker 1: statutory penalty under the Illinois Statute becomes so large that
Speaker 1: the court needs to exercise some discretion to keep the
Speaker 1: case proportionate. And so, even though the statute allows for
Speaker 1: a recovery of a thousand dollars for violation or as
Speaker 1: much as five thousand dollars for for knowing and intentional violations.
Speaker 1: It's not clear that that would be the recoverable amount.
Speaker 1: So it's hard to say whether this is an adequate
Speaker 1: settlement or not an adequate settlement because there's just too
Speaker 1: many facts that that you need to know in order
Speaker 1: to be able to make that determination. So the federal
Speaker 1: Judge James Donato said at a hearing last week, that's
Speaker 1: not an issue here. Five million dollars is a lot,
Speaker 1: but the question is is it really a lot? Yeah?
Speaker 1: I think what Judge Denato meant to say was it's
Speaker 1: a lot of money, but is it enough money? And
Speaker 1: and that depends upon how convinced you are that number one,
Speaker 1: Illinois would be able to apply its laws to Facebook
Speaker 1: when Facebook is acting outside of Illinois. And then number two,
Speaker 1: when you aggregate all the damages of all the consumers
Speaker 1: in Illinois who are affected, is the number that would
Speaker 1: be imposed on on Facebook by way of statutory damages?
Speaker 1: Is that just too big a number to be disproportionate?
Speaker 1: And I think that those are questions that really need
Speaker 1: to be explored. The one thing that I think everybody
Speaker 1: is looking at as a sort of a game changer.
Speaker 1: Here is the five billion dollar settlement that Facebook entered
Speaker 1: into the two thousand nineteen with the FTC. And I
Speaker 1: think that has gotten Judge Donato's attention, and he wants
Speaker 1: to compare this settlement with the FTC settlement. The judges
Speaker 1: asking the attorneys to address those concerns of his. But
Speaker 1: weren't the issues different in the FTC case. Well, there
Speaker 1: are different issues, but they're not unrelated issues. Look for years,
Speaker 1: for for almost a decade already, Facebook has been under
Speaker 1: intense scrutiny because of the way it treats consumer data.
Speaker 1: And in two thousand twelve, Facebook entered into a settlement
Speaker 1: order with the FTC that supposedly restricted its right to
Speaker 1: control user data. Facebook has always said that if you
Speaker 1: put something on Facebook, Facebook owns the data, and there's
Speaker 1: been lots of pushback against that. Then in two thousand nineteen,
Speaker 1: the FTC announces this enormous settlement, five billion dollars dwarfs
Speaker 1: any kind of privacy settlement that's ever been ever been
Speaker 1: inteviewed to. And they say, you ignored the restrictions that
Speaker 1: we put on you into thousand twelve, and you've done so,
Speaker 1: not just for users data, but also for the data
Speaker 1: of the frames of users. And and part of this
Speaker 1: is because Facebook creates such a web of connections between users.
Speaker 1: It's it's just a monstrously big problem. And Judge Donato,
Speaker 1: I think rightly said, look, does that conduct take us
Speaker 1: out of the realm of a negligent violation of the
Speaker 1: Illinois Biometric Privacy Statute? Or does it put Facebook in
Speaker 1: the realm of being knowing an intentional and willful violator,
Speaker 1: in which case the potential statutory damages under the Illinois
Speaker 1: statute are not a thousand dollars per violations, but five
Speaker 1: thousand dollars per violation. And that obviously changes the risk
Speaker 1: to Facebook and the size of the case, and all
Speaker 1: of those things I think need to be looked at
Speaker 1: together to understand the way the court will view the
Speaker 1: settlement that is being proposed to it. Do judges just
Speaker 1: often rubber stay settlements like this? Is this unusual for
Speaker 1: a judge or is it typical? Well, it's it's unusual,
Speaker 1: but it's not unprecedented. Sometimes when a settlement is presented
Speaker 1: to the court, the court will look at it and
Speaker 1: realize very quickly that it falls within the range of
Speaker 1: reasonableness and will preliminarily approve a settlement so that the
Speaker 1: class members who are affected by a settlement can be
Speaker 1: told about the proposed settlement and their views are solicited.
Speaker 1: Occasionally a case like this, it looks to a judge like,
Speaker 1: maybe we need some more explanation before I'm even prepared
Speaker 1: to send notice of the proposed settlement to the class members.
Speaker 1: And I think one of the things that changed the
Speaker 1: way Judge Donato has looked at this case is the
Speaker 1: FTC settlement that happened in two thousand nineteen, because it
Speaker 1: stands out as a as a bell weather event, and
Speaker 1: it may have changed the way he looked at the case.
Speaker 1: It may have changed the way he looked at the
Speaker 1: merits of the case, and he said, no, I need
Speaker 1: some information, I need some explanation. Yes, fifty million dollars
Speaker 1: is a big number, but how does it stack up
Speaker 1: against what Facebook's real exposure is in this case? And
Speaker 1: so it happens from time to time that a judge
Speaker 1: will ask those questions. Sometimes the parties proceed with a
Speaker 1: settlement the way it's proposed, and on occasion the parties
Speaker 1: will modify a settlement to reflect what they think the
Speaker 1: court's concerns are. It happens from time to time, not often,
Speaker 1: but it does happen from time to time. So how
Speaker 1: does it play into this that Facebook failed to get
Speaker 1: a federal appeals court to reverse and also failed to
Speaker 1: get us to the Supreme Court to take the case. Well,
Speaker 1: obviously that that takes some of the risk from the
Speaker 1: plaintiffs and puts it onto Facebook. And and that's part
Speaker 1: of the calculus that the parties have to make when
Speaker 1: they when they look at whether to try a case,
Speaker 1: whether to settle a case, whatever it may be, and
Speaker 1: and when when Facebook tried to appeal, when Facebook tried
Speaker 1: to get the Supreme Court to take the appeal and
Speaker 1: lost those those efforts, then now they have to recalculate
Speaker 1: what they think their exposure is. And and obviously that
Speaker 1: changes what they think the the value of the cases
Speaker 1: um for them. And I and I think also again
Speaker 1: I hate to keep coming back to this, but you know,
Speaker 1: Facebook just settled a claim with the FTC for five
Speaker 1: billion dollars. They don't really need any more scrutiny. And
Speaker 1: I think that gives them even more impetus to try
Speaker 1: to settle the case. And Judge Donato is mindful of that,
Speaker 1: and I think he looks at it it says we
Speaker 1: need to take a harder look at this settlement. Is
Speaker 1: it is it fair to the to the individuals who
Speaker 1: have this right under Illinois law that we are asking
Speaker 1: them to take such a discount on what their statutory
Speaker 1: claim might be. And Facebook does have a history of
Speaker 1: settling privacy claims on the cheap, so to speak. They
Speaker 1: make good deals. Well, you know, I think that when
Speaker 1: you're when you're dealing with a company as large as
Speaker 1: Facebook and as many users as Facebook has, the numbers
Speaker 1: get very big, very fast, and so the exposure gets
Speaker 1: very big, very fast. And and Facebook is, if nothing else,
Speaker 1: they are incredibly efficient at analyzing data and calculating risk
Speaker 1: and reward. They've they've settled cases that you know, maybe
Speaker 1: look like their reasonable bargains, but I keep you know
Speaker 1: that that five billion dollar FTC settlement, even for Facebook,
Speaker 1: that's an eye popping number. And and now they have
Speaker 1: this large liability under the Illinois Biometric Privacy Act, and
Speaker 1: and they're going to have to deal with it in
Speaker 1: a way that is going to satisfy not just the court,
Speaker 1: but ultimately the class members who are going to be
Speaker 1: asked whether they support the settlement, and and they're going
Speaker 1: to have to put together a presentation that is going
Speaker 1: to have to make sense to the constituents who are involved.
Speaker 1: So whether they're going to be able to sell this
Speaker 1: case on the cheap or not, I think that their
Speaker 1: ability to do that is probably a little bit less
Speaker 1: today than it was last week, because Judge Donato says,
Speaker 1: not quite yet. Let's take a harder and look at this.
Speaker 1: We'll see what happens. Judge Donato also said a trial
Speaker 1: is not out of the question yet nothing has been approved.
Speaker 1: Would he really force them to trial when a settlement
Speaker 1: is agreed to by the parties, Well, in a case
Speaker 1: like this, where you have tens of thousands, or hundreds
Speaker 1: of thousands, or millions of users in the state of Illinois,
Speaker 1: the answer is the court has a um it has
Speaker 1: a duty to protect the absent class members, and it's
Speaker 1: going to take that duty seriously. And and right now,
Speaker 1: Judge Donato says, I'm not convinced yet that this settlement
Speaker 1: is within the range that I could approve, And and
Speaker 1: so I think it's going to be incumbent on the
Speaker 1: parties to do one or two things. They're either going
Speaker 1: to have to show Judge Donato why this five million
Speaker 1: dollar settlement is worthy of preliminary approval, and they may
Speaker 1: need to do a little bit more work to explain
Speaker 1: why they think the risk justifies the settlement, or they're
Speaker 1: going to have to modify the settlement. I would expect
Speaker 1: that Judge Donato would rather see a settlement than a trial,
Speaker 1: but it has to be a fair settlement. And and
Speaker 1: right now he is at least skeptical based on the
Speaker 1: presentation that has been made to him. And so the
Speaker 1: options that the parties have is either to improve the
Speaker 1: settlement if if that's in the cards, or to make
Speaker 1: a later showing why this settlement and this discount, if
Speaker 1: you will, from the statutory damages that could be recovered
Speaker 1: is warranted. Mark. If the judge refuses, let's just say
Speaker 1: the judge refuses to approve the settlement, can the parties
Speaker 1: appeal that If they would have no right to appeal it,
Speaker 1: they could they could seek permission to appeal it. I
Speaker 1: think it would be unlikely that an appeal would be
Speaker 1: taken by the by the Ninth Circuit, I think here
Speaker 1: it's the decision whether to approve or reject a proposed
Speaker 1: preliminary settlement that falls squarely within the District Court's discretion.
Speaker 1: And and I think Judge donato Is is just simply
Speaker 1: doing what is appropriate for him under these circumstances. He's
Speaker 1: asking questions that need to be answered, and the answer
Speaker 1: has two different paths. It could take. One path is
Speaker 1: we have reasons that we haven't explained for wing to
Speaker 1: why this is a good settlement, and then they choose
Speaker 1: that path. Or the other path is Judge, we've heard you,
Speaker 1: We've gone back, we've taken a harder look at what
Speaker 1: the risks are, and we've decided to raise the settlement
Speaker 1: consideration to X dollars. And either one of those paths
Speaker 1: could lead to a preliminary approval, but I think that
Speaker 1: the path to an appellent review is incredibly steep. Thanks Mark.
Speaker 1: That's Mark riskin a partner We'll call and seen. For months,
Speaker 1: federal courts across the country have been shuttered due to
Speaker 1: the pandemic, but the doors of federal court houses are
Speaker 1: slowly starting to swing open with the convening of socially
Speaker 1: distanced grand juries. These are the jurist task with deciding
Speaker 1: whether to issue criminal indictments, joining me as Madison Alder
Speaker 1: Bloomberg Law reporter. So, Maddie, is it just the grand
Speaker 1: juries that are going to be brought back in and
Speaker 1: if so, how many? So it's for now, it's just
Speaker 1: grand juries, and in a few of these places. But
Speaker 1: you know, we've seen dates projected for jury trials in
Speaker 1: courts um all across the nation. I mean, we saw
Speaker 1: that the Northern District of California was projecting jury trials
Speaker 1: to take place in the fall, Western District of Washington
Speaker 1: is protecting that they might take place at the end
Speaker 1: of the year to early next year. And those are
Speaker 1: two extreme examples, but in a lot of areas, grand
Speaker 1: juries or the precursor to jury trials eventually taking place.
Speaker 1: So grand juries are are now can happen in ten
Speaker 1: of the ninety four federal district courts, at least ten
Speaker 1: of the ninety four federal district courts. Uh, And you know,
Speaker 1: I'm sure it'll only go up from there before we
Speaker 1: get into specifics about them coming back explain the role
Speaker 1: of the grand jury in our legal system. So the
Speaker 1: grand jury is typically made up of sixteen to twenty
Speaker 1: three people normal jury is six to twelve repetite jury
Speaker 1: should say, uh. In a grand jury, their role is
Speaker 1: to review the evidence in the case, review the fact
Speaker 1: of the case, uh, and come to a determination on
Speaker 1: an indictment. UM. It is very easy to get an
Speaker 1: indictment through a grand jury. UH. You know, there's there's
Speaker 1: a joke in the legal space that you could indicte
Speaker 1: a ham sandwich. Um. And so it's it's one of
Speaker 1: those things that uh, it often gets I think a
Speaker 1: connotation that it's just another step in the process. UM.
Speaker 1: But you know, I did have sources tell me that
Speaker 1: it is. It is an important part of community involvement
Speaker 1: in these cases, and it is important in cases where
Speaker 1: evidence might be lacking. And speaking of community involvement, how
Speaker 1: do they intend to get a fair cross section of
Speaker 1: the community in these times? So that was one of
Speaker 1: the concerns that defenders brought up to me, criminal defense
Speaker 1: attorneys excuse me, brought up to me when I was
Speaker 1: talking to them. You know, if if you are a
Speaker 1: healthcare worker, or you're in a high risk uh you're
Speaker 1: you're at high risk for the coronavirus um or you
Speaker 1: know a number of different factors, you might be easily
Speaker 1: excused from a grand jury. Uh. And that means that
Speaker 1: you're you're limiting a certain section of the community from
Speaker 1: being involved. So that is a concern for defense attorneys.
Speaker 1: But the courts I talked to you that are doing this, Uh,
Speaker 1: you know, I talked to the Middle District of Georgia.
Speaker 1: I talked to the District of Montana. Both of them
Speaker 1: have reached out to jurors. They've engaged with them, uh,
Speaker 1: and and try to figure out you know, at least
Speaker 1: from Montana's sake, they were trying to get jurors back
Speaker 1: who were entangled before everything happened in March, So they
Speaker 1: were trying to get them back to the court and
Speaker 1: they were you know, contacting them, making sure that that
Speaker 1: the proceedings that they decided on could benefit those those
Speaker 1: jurors when they came back in. So courts are really
Speaker 1: you know, making the effort. But it is definitely a
Speaker 1: concern for defense journeys to So, now, how will the
Speaker 1: grand jurors be seated? How will they listen to the recedings. So,
Speaker 1: like everything with a pandemic, it's different from court to court.
Speaker 1: But some of the creative ways that we're seeing courts
Speaker 1: to do this are splitting up stars into different rooms,
Speaker 1: different courthouses. Even that's what Montana did when they did
Speaker 1: their grand jury at the beginning of May. They split
Speaker 1: up members of this jury into three different courthouses, three
Speaker 1: different cities, and they connected them via video. Now, not
Speaker 1: every courthouse is doing things that are that extreme. Uh.
Speaker 1: Their district Middle District of Georgia, uh is planning to
Speaker 1: just spread people out among different rooms of the same
Speaker 1: courthouse and similarly do that video connection. Um. But you know,
Speaker 1: I've seen other courts mentioned that they're going to be
Speaker 1: using larger rooms, separating people out through a larger ceremonial courtroom. Uh.
Speaker 1: So there are a number of different ways courts are
Speaker 1: approaching this. The over watching element of importance to a
Speaker 1: grand jury is grand jury secrecy. So we hear this
Speaker 1: time and time again. How do they maintain secrecy if
Speaker 1: it's on video or they concerned that there might be
Speaker 1: hacking or someone else might be in a room? That
Speaker 1: is definitely I mean, there are concerns with grand jury's secrecy,
Speaker 1: with some of these procedures that they're they're adopting during
Speaker 1: this time. One of the ones that I've heard from
Speaker 1: defense attorneys, is potentially having a larger room you just have,
Speaker 1: you know, more likelihood that these proceedings might be more
Speaker 1: out front in the courtroom than they'd like. Doom has
Speaker 1: has had issues with its secrecy, so that that could
Speaker 1: definitely be a concern. But I know that at least
Speaker 1: for the Middle District of Georgia, the U S Attorney
Speaker 1: there told me that they're going to be stationing marshals
Speaker 1: outside each one of these individual courtrooms to make sure
Speaker 1: that grandjury secrecy is protected. So, Maddie, are these grand
Speaker 1: jury is going to be able to ask questions and
Speaker 1: deliberate in the way they normally do. So each one
Speaker 1: of these grand juries will have be able to do
Speaker 1: each one of their requirements through through the video proceedings,
Speaker 1: I know in a few of these cases. So that's
Speaker 1: asking questions, that's deliberating, that's coming to a determination in
Speaker 1: the in the case. So um, you know, for the
Speaker 1: courts that are starting these juries back up, they say
Speaker 1: that you can do every single part of grand jury
Speaker 1: remotely that you could when you're you're doing it all
Speaker 1: in person. It may be a substitute for the grand
Speaker 1: jury process, but there might be constraints on some of
Speaker 1: the jurors because they're on video, or some of the
Speaker 1: witnesses because they're on video, and it sounds like there's
Speaker 1: a lot of details that might make it a stilted
Speaker 1: kind of process. That's a concern for defense attorneys for sure.
Speaker 1: I spoke with with one defense attorney who told me
Speaker 1: that just the sheer fact of something being on video
Speaker 1: and a juror potentially not being able to see the
Speaker 1: face of a witness or you know, someone's reaction to
Speaker 1: a question or um, just that disconnect I mean, she says,
Speaker 1: that disconnects you from the gravity of the situation. And
Speaker 1: that's a that's a big concern for defense attorneys, even
Speaker 1: when it comes to potential use of video and jury trials.
Speaker 1: Um that's being talked about, and that's another thing that
Speaker 1: they're concerned about, is having this disconnect of the people
Speaker 1: who are supposed to be, you know, judging the facts
Speaker 1: of the case and coming to their own conclusion, distances
Speaker 1: them from the material that they're listening to. Are any
Speaker 1: of the judges concerned that after a grand jury returns
Speaker 1: an indictment that a defense attorney will challenge because of
Speaker 1: the way the grand jury process was structured. So the
Speaker 1: courts I talked to are not really concerned. But as
Speaker 1: they say that, there's a big amount of flexibility that
Speaker 1: is afforded to grand juries and how they proceed. Uh,
Speaker 1: so they're confident that these procedures are legally found or
Speaker 1: reasonably comp that these procedures are legally sound. Um, you know,
Speaker 1: but that doesn't mean some creative lawyer can come along
Speaker 1: and and and challenge and challenge one of these indictments. UM.
Speaker 1: I haven't heard anything to that effect, but you know, UM,
Speaker 1: I'm sure it's not out of the question. Did any
Speaker 1: of the judges tell you the reason they were starting
Speaker 1: the grand juries up again was a fear that statute
Speaker 1: of limitations would run out. That is a major consideration
Speaker 1: to statutes of limitation, and with the Speedy Trial Act.
Speaker 1: You know, I heard from one federal judge who told
Speaker 1: me that this is not something that they know that
Speaker 1: they they're not sure how long that this could they
Speaker 1: can keep issuing these orders that suspend statutes of limitation
Speaker 1: and to spend the Speedy Trial Act. Um, A lot
Speaker 1: of courts, right after the pandemic happened, started suspensions of
Speaker 1: the Speedy Trial Act, and you know, there's a question
Speaker 1: out there as to whether or not those proceedings are
Speaker 1: legally sound. UH. I talked to a lot professor who
Speaker 1: told me that there is a good chance that those
Speaker 1: could be challenged, those kind of orders that are suspending
Speaker 1: of those really important deadlines. Were all the federal courts
Speaker 1: basically closed for the last few months during the pandemic?
Speaker 1: In other words, were there any grand juries that were
Speaker 1: operating at all? The short answers? It's very hard to tell. Um.
Speaker 1: You know, when we're looking at federal courts, we're looking
Speaker 1: at UH court orders that come out, but grand juries
Speaker 1: are secretive, and if it's not reflected in a general order, UM,
Speaker 1: we might not see it. So from what we know,
Speaker 1: there has been at least one jury trial that that
Speaker 1: happened during the pandemic, and then there was the grand
Speaker 1: jury in Montana that happened at the beginning of May. UM.
Speaker 1: But you know, other than that, it is very hard
Speaker 1: to tell what's happening in in all ninety four federal
Speaker 1: district courts because they are so independent from one another,
Speaker 1: and it is very different when it comes to how
Speaker 1: they update their procedures and what's going on on their calendar,
Speaker 1: on their website. You know, I'm also wondering are they
Speaker 1: fitted to do this video conferencing basically video conferencing, I mean,
Speaker 1: have they had to install equipment? And are some courts
Speaker 1: ahead of other courts on that. Some courts in the
Speaker 1: beginning mentioned adopting new video procedures, and you know, I
Speaker 1: know a lot of courts have mentioned that they're using
Speaker 1: things like Zoom. But I I'm sure that this is
Speaker 1: prompting a lot of courts to take another look at
Speaker 1: their their video equipment and try to to revamp it
Speaker 1: to make sure that they can still do these kind
Speaker 1: of proceedings. This is part of a four phased approach.
Speaker 1: Tell us about that approach. So the Administrative Office of
Speaker 1: the Court, they're released a guidance from the Judicial Conference
Speaker 1: that basically said, you know, here's how you can start
Speaker 1: reopening uh, and that was you know, it's got four
Speaker 1: different phases. In the first two phases, grand juries are
Speaker 1: included in both of those, so courts have the option
Speaker 1: to start grand juries. Um. And and it really is
Speaker 1: each of these phases is uh, it's determinative on what
Speaker 1: the health situation is in the community that that court
Speaker 1: is located in so there's a lot of public health
Speaker 1: factors that come into play when when courts are looking
Speaker 1: at if they're going to enter phase one or two.
Speaker 1: Uh So, I mean it's kind of the way that
Speaker 1: we saw the pandemic effect. The courts really did correlate
Speaker 1: with those, uh those health factors. You know, we saw
Speaker 1: the Western District of Washington was the first court to
Speaker 1: respond to this when they had a large outbreak in
Speaker 1: near Seattle. And then we saw California, New York, West
Speaker 1: Virginia courts where some of last to respond, and that's
Speaker 1: where one of the last states to have their first
Speaker 1: case of coronavirus. But now as as we're reopening, we're seeing,
Speaker 1: you know, areas like Montana, which had among the least
Speaker 1: coronavirus cases in the US, they're starting to to pick
Speaker 1: up back up with some of these in person procedures.
Speaker 1: So I think as we go forward, local health factors
Speaker 1: are going to be a huge, huge indicator of whether
Speaker 1: or not the court in your area, in the photo
Speaker 1: court in your area is starting back up with normal procedures.
Speaker 1: So New York was the hardest hit state, and New
Speaker 1: York has the largest docket among federal courts in the country,
Speaker 1: and I've heard from lawyers that things are really backing
Speaker 1: up and they were behind before. Are they one of
Speaker 1: the courts that are going to start with grand juries.
Speaker 1: They are not courts that we have heard of with
Speaker 1: regards to starting up grand juries. But you know that
Speaker 1: that's probably because of a health situation in their area.
Speaker 1: You know, a lot of the courts that we've seen
Speaker 1: starting gradualis of are in more rural areas where coronavirus
Speaker 1: just has not cred its tentacles. But you know, the
Speaker 1: courts that are still in impacted areas, it doesn't mean
Speaker 1: they're not doing any work. They're still going forward with
Speaker 1: what they can um. There are certain types of remote
Speaker 1: proceedings that were allowed by the Judicial Conference after the
Speaker 1: Cares Act was passed, So there are courts that are
Speaker 1: using those kinds of mechanisms to keep things going. But
Speaker 1: you're you're right, there is a backlogs if it is
Speaker 1: going to come. And you know, I've heard the same
Speaker 1: lawyers are worried about the judges are worried about this. Uh,
Speaker 1: it's it's only a matter of time before that that
Speaker 1: becomes a bit your issue. I imagine that in places
Speaker 1: like New York, they're going to have a lot of people,
Speaker 1: a lot more people than in rural areas who just
Speaker 1: don't want to come in and sit because when you're
Speaker 1: grand jury, it's not just a question of coming in,
Speaker 1: you know, for one trial. Right. Yeah. I think that
Speaker 1: some of the larger cities are going to have a
Speaker 1: tougher time getting these these kinds of getting both grand
Speaker 1: juries and juries restarted, because it's going to be harder
Speaker 1: to convene a group of people who are ready and
Speaker 1: willing to serve in a time of crisis like this.
Speaker 1: You know, and as we've heard with the health guidelines,
Speaker 1: it's not really it's not really your health you're putting
Speaker 1: on the line. It could be your family member's health.
Speaker 1: So maybe you have someone who's you know, at risk
Speaker 1: family member that you're living with. It really does restrict
Speaker 1: the jury pool quite a bit when you're starting to
Speaker 1: get into some of those larger areas. Did any defense
Speaker 1: lawyers just tell you flat out that if they have
Speaker 1: a grand jury who indicts a client of mind and
Speaker 1: these circumstances, I'm going to challenge that indictment. No, I
Speaker 1: I haven't heard that from criminal defense lawyers. But you know,
Speaker 1: I will say that they're they're probably we waiting and watching. Um,
Speaker 1: these are definitely concerning to criminal defense attorneys. Uh. So
Speaker 1: you know, it's not to say it can't happen, but
Speaker 1: you know, I think it is maybe a little too
Speaker 1: early to tell. Finally, are the judges that you spoke to,
Speaker 1: are they basically figuring this out on their own or
Speaker 1: are they having a lot of input from other judges,
Speaker 1: other court systems, from the the administrative branch at the
Speaker 1: federal judiciary or they basically on their own? Uh. Well,
Speaker 1: it's not just the courts that that are deciding when
Speaker 1: especially when it comes to grand juries Schedual prosecutors are
Speaker 1: part of this conversation. So the Middle District of Georgia,
Speaker 1: for example, when I talked to their the US prosecutor,
Speaker 1: there was um, you know, instrumental in shaping this system.
Speaker 1: And you know, due to the decentralized nature of the U.
Speaker 1: S courts, Uh, the U S courts can kind of
Speaker 1: do what they want to do when it comes to
Speaker 1: developing their own response and how they might go about this,
Speaker 1: of course within limitations, but they do have a lot
Speaker 1: of freedom to be able to decide to do these
Speaker 1: kinds of proceedings in the way that they want. So,
Speaker 1: you know, I know that that there are courts that
Speaker 1: are seeking juror's opinions. They're they're trying to figure out
Speaker 1: what would make them feel the most comfortable. But yeah,
Speaker 1: it's it's kind of a collaborative effort. It seems like
Speaker 1: between the court, the photo prosecutor's office, the court staff,
Speaker 1: and then of course with the jurors and put in minds.
Speaker 1: Thanks Maddie, that's Medicine Alder, Bloomberg Law Reporter, and that's
Speaker 1: up for the edition of Bloomberg Law. I'm June Brasso.
Speaker 1: Thanks for listening, and don't forget to tune into the
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Speaker 1: Bloomberg Radio.