1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,720 --> 00:00:12,680 Speaker 1: The Securities and Exchange Commission is suing Elon Musk for 3 00:00:12,720 --> 00:00:16,360 Speaker 1: a third time. This time, the agency says that Musk 4 00:00:16,640 --> 00:00:19,599 Speaker 1: cheated Twitter shareholders out of more than one hundred and 5 00:00:19,640 --> 00:00:23,599 Speaker 1: fifty million dollars by waiting too long to disclose his 6 00:00:23,760 --> 00:00:27,360 Speaker 1: growing stake in the company as he prepared a takeover 7 00:00:27,480 --> 00:00:31,800 Speaker 1: bid in twenty twenty two. The sec complaint accuses the 8 00:00:31,840 --> 00:00:36,000 Speaker 1: billionaire of failing to promptly report that he had amassed 9 00:00:36,040 --> 00:00:39,839 Speaker 1: more than five percent of the social media platform stock 10 00:00:40,000 --> 00:00:43,640 Speaker 1: in early twenty twenty two, a revelation that would have 11 00:00:43,680 --> 00:00:47,879 Speaker 1: sent the stocks price up quote. Because Musk failed to 12 00:00:48,040 --> 00:00:52,040 Speaker 1: timely disclose his beneficial ownership, he was able to make 13 00:00:52,080 --> 00:00:56,880 Speaker 1: these purchases from the unsuspecting public at artificially low prices. 14 00:00:57,400 --> 00:01:01,360 Speaker 1: A lawyer from Musque disputed the charges, saying the billionaire 15 00:01:01,560 --> 00:01:04,960 Speaker 1: has done nothing wrong and everyone sees this sham for 16 00:01:05,040 --> 00:01:08,600 Speaker 1: what it is. Joining me is securities law expert James Park, 17 00:01:08,680 --> 00:01:11,959 Speaker 1: a professor at UCLA Law School. Jim tell us about 18 00:01:11,959 --> 00:01:14,640 Speaker 1: the SEC's complaint, Well, there. 19 00:01:14,560 --> 00:01:18,399 Speaker 2: Was a violation by Elon Musk of Section thirteen d 20 00:01:18,840 --> 00:01:23,080 Speaker 2: of the Securities Exchange Act, which says that any person 21 00:01:23,680 --> 00:01:28,240 Speaker 2: that acquires more than five percent of company shares has 22 00:01:28,319 --> 00:01:33,399 Speaker 2: to file a report with the SEC within ten calendar 23 00:01:33,520 --> 00:01:39,280 Speaker 2: days after crossing that threshold. And simply put, Musk did 24 00:01:39,319 --> 00:01:43,399 Speaker 2: not file that report. And so it's a very clear 25 00:01:43,840 --> 00:01:48,640 Speaker 2: violation of a well established SEC rule. And I suspect 26 00:01:48,640 --> 00:01:52,560 Speaker 2: that the SEC wants to send the signal that this 27 00:01:52,760 --> 00:01:55,640 Speaker 2: is a rule that has to be followed. I think 28 00:01:55,640 --> 00:01:59,000 Speaker 2: that's one explanation as to why the case is being 29 00:01:59,000 --> 00:01:59,520 Speaker 2: brought now. 30 00:02:00,080 --> 00:02:02,240 Speaker 1: As you say, it seems like a simple case, sort 31 00:02:02,240 --> 00:02:06,080 Speaker 1: of cut and dried. SEC started investigating this in twenty 32 00:02:06,120 --> 00:02:08,800 Speaker 1: twenty two. Why did it take so long? 33 00:02:09,600 --> 00:02:13,080 Speaker 2: A very good question. It has been a few years, 34 00:02:13,120 --> 00:02:17,160 Speaker 2: and you know their number of possible explanations. One is that, 35 00:02:17,800 --> 00:02:20,000 Speaker 2: you know, they're busy doing a lot of things. As 36 00:02:20,040 --> 00:02:22,760 Speaker 2: you know, over the last few years, they've been working 37 00:02:22,800 --> 00:02:26,120 Speaker 2: on a lot of various rule proposals. They've brought some 38 00:02:26,320 --> 00:02:32,560 Speaker 2: very interesting, ambitious enforcement cases. They may simply have been busy. 39 00:02:33,200 --> 00:02:37,400 Speaker 2: Another possibility is that there may have been some debate 40 00:02:38,080 --> 00:02:43,240 Speaker 2: within the SDC about, you know, should the case be 41 00:02:43,320 --> 00:02:48,000 Speaker 2: brought given that you know, We have brought prior cases 42 00:02:48,120 --> 00:02:51,320 Speaker 2: against Elon Musk that have been settled, and they've been 43 00:02:51,400 --> 00:02:56,480 Speaker 2: very high profile. He's been somebody who has vigorously opposed 44 00:02:56,639 --> 00:03:00,399 Speaker 2: the SDC, and maybe the thought as well, we bring 45 00:03:00,440 --> 00:03:05,359 Speaker 2: another case right now. Maybe the perception is that we 46 00:03:05,400 --> 00:03:09,680 Speaker 2: are targeting Elon Musk, And another possibility is maybe there 47 00:03:09,720 --> 00:03:13,280 Speaker 2: was some debate about Okay, there's a violation. You know, 48 00:03:13,320 --> 00:03:17,120 Speaker 2: what exactly is the harm, what exactly is the impact 49 00:03:17,200 --> 00:03:22,239 Speaker 2: on investors. The purpose of the rule when it was 50 00:03:22,280 --> 00:03:25,000 Speaker 2: originally passed in nineteen sixty eight as part of a 51 00:03:25,080 --> 00:03:29,880 Speaker 2: law called the Williams Acts, was to give the management 52 00:03:29,880 --> 00:03:35,440 Speaker 2: of a corporation some notice when somebody was interested in 53 00:03:35,520 --> 00:03:39,840 Speaker 2: taking control over the corporation, so that they could react, 54 00:03:39,920 --> 00:03:43,600 Speaker 2: so they might implement various defensive measures to make it 55 00:03:43,680 --> 00:03:48,600 Speaker 2: more difficult for a hostile takeover to succeed. And as 56 00:03:48,640 --> 00:03:54,080 Speaker 2: we know, Elon Musk eventually did successfully acquire Twitter, and 57 00:03:54,120 --> 00:03:56,520 Speaker 2: it was actually forced to do so. At the end. 58 00:03:57,000 --> 00:03:59,600 Speaker 2: He tried to back out and it was forced. You know, 59 00:03:59,640 --> 00:04:03,839 Speaker 2: it be sort of a you know, interesting question as 60 00:04:03,880 --> 00:04:06,200 Speaker 2: to you know, can you argue what we were harmed? 61 00:04:06,320 --> 00:04:08,480 Speaker 2: You know, was the company harmed when at one point 62 00:04:08,560 --> 00:04:11,360 Speaker 2: they actually were trying to force Elon Musk to think 63 00:04:11,440 --> 00:04:14,280 Speaker 2: over Twitter, right, And so yeah, I think those are 64 00:04:14,280 --> 00:04:17,440 Speaker 2: all things that, you know, that could have contributed to 65 00:04:18,080 --> 00:04:20,160 Speaker 2: the length of time it took to file the case. 66 00:04:20,520 --> 00:04:22,480 Speaker 1: So you don't think that it was sort of a 67 00:04:23,200 --> 00:04:27,480 Speaker 1: last contentious kind of act by the outgoing ahead of 68 00:04:27,480 --> 00:04:30,520 Speaker 1: the SEC. Gary Gensler certainly was. 69 00:04:31,000 --> 00:04:34,920 Speaker 2: A last act. And whether this was meant a sort 70 00:04:34,960 --> 00:04:38,360 Speaker 2: of a final you know, let's poke at Elon Musk 71 00:04:38,440 --> 00:04:42,080 Speaker 2: for some political reason. I'm skeptical that that's the reason, 72 00:04:42,240 --> 00:04:44,760 Speaker 2: but I do believe, you know, I think this is 73 00:04:44,800 --> 00:04:48,599 Speaker 2: somewhat obvious that you know, maybe there's a concern that 74 00:04:49,520 --> 00:04:52,400 Speaker 2: the next administration may not pursue the case, and we 75 00:04:52,520 --> 00:04:55,720 Speaker 2: believe there's a case here, so we should file it 76 00:04:56,000 --> 00:04:58,680 Speaker 2: while we can't. I think that is certainly a possibility 77 00:04:58,680 --> 00:05:03,400 Speaker 2: that that what happened. And you know, the other possibility is, 78 00:05:03,640 --> 00:05:07,039 Speaker 2: you know, it just took some time to figure out 79 00:05:07,080 --> 00:05:10,520 Speaker 2: all of these issues and come to a decision, and 80 00:05:10,960 --> 00:05:13,360 Speaker 2: they just had more time, you know, in the fall 81 00:05:13,520 --> 00:05:16,919 Speaker 2: or late fall after the election to come to conclusion 82 00:05:17,000 --> 00:05:19,400 Speaker 2: on some of these more difficult issues. That's also a 83 00:05:19,520 --> 00:05:23,640 Speaker 2: very real possibility that the timing was simply that this 84 00:05:23,800 --> 00:05:26,960 Speaker 2: is when they finished their deliberation as to whether or 85 00:05:27,000 --> 00:05:27,960 Speaker 2: not to bring the case. 86 00:05:28,560 --> 00:05:33,159 Speaker 1: Musk's lawyer, Alex Spiro, said the agency has waged a 87 00:05:33,279 --> 00:05:37,640 Speaker 1: multi year campaign of harassment against Musk, but filed up 88 00:05:37,720 --> 00:05:42,320 Speaker 1: quote a single count TICKI tack complaint. No, what's your 89 00:05:42,320 --> 00:05:45,560 Speaker 1: reaction to that single count TICKI tack complaint. I'm not 90 00:05:45,600 --> 00:05:46,720 Speaker 1: even sure what that means. 91 00:05:47,080 --> 00:05:49,680 Speaker 2: Well, it's true that it is a single count. It's 92 00:05:49,680 --> 00:05:54,400 Speaker 2: a violation of Section thirteen D, no other provisions indicating 93 00:05:54,480 --> 00:05:58,479 Speaker 2: he committed you know, security fraud. There's nothing saying he 94 00:05:58,560 --> 00:06:03,200 Speaker 2: acted with fraudulent intent. Is simply a strict liability violation 95 00:06:03,360 --> 00:06:06,359 Speaker 2: of a very simple rule. You might liken this to 96 00:06:06,640 --> 00:06:10,120 Speaker 2: a speeding ticket, right, You violate the speed limit and 97 00:06:10,160 --> 00:06:12,760 Speaker 2: you get a ticket, and that's that's the law, right, 98 00:06:12,839 --> 00:06:16,039 Speaker 2: And you know the SEC's response is, you know the 99 00:06:16,120 --> 00:06:18,440 Speaker 2: laws the law. You know, if I'm taught going over 100 00:06:18,480 --> 00:06:22,080 Speaker 2: sixty five miles per hour, then you get a ticket. 101 00:06:22,520 --> 00:06:25,880 Speaker 2: Now what the defense may say as well, And as 102 00:06:25,880 --> 00:06:29,400 Speaker 2: you know, sometimes you know, the police do not enforce 103 00:06:29,560 --> 00:06:31,440 Speaker 2: the speed limit. And you know, you go a few 104 00:06:31,440 --> 00:06:35,000 Speaker 2: miles over and you know, police officer's busy has better 105 00:06:35,040 --> 00:06:37,640 Speaker 2: things to do. They're not going to write you a ticket, 106 00:06:38,080 --> 00:06:41,120 Speaker 2: and so there might be an argument, well, the SEC 107 00:06:41,160 --> 00:06:44,360 Speaker 2: could have used its discretion not to pursue an enforcement 108 00:06:44,400 --> 00:06:46,960 Speaker 2: and action in this case. I think so that would 109 00:06:47,000 --> 00:06:50,039 Speaker 2: be problematic when you have such a clear violation that's 110 00:06:50,080 --> 00:06:53,920 Speaker 2: been highly publicized, to say we're just going to let 111 00:06:53,920 --> 00:06:57,159 Speaker 2: this go. If you believe that thirteen D matters and 112 00:06:57,279 --> 00:07:01,440 Speaker 2: is important and should be enforced, then you know, I 113 00:07:01,440 --> 00:07:05,160 Speaker 2: think that the SEC would say that this is an 114 00:07:05,200 --> 00:07:09,279 Speaker 2: opportunity to show that this rule is something that we 115 00:07:09,560 --> 00:07:12,880 Speaker 2: treat seriously and you can't just violate it without paying 116 00:07:13,440 --> 00:07:15,640 Speaker 2: a penalty. And I think there's some merit to that 117 00:07:15,760 --> 00:07:19,400 Speaker 2: argument to thirteen D is an important provision. In fact, 118 00:07:19,480 --> 00:07:21,920 Speaker 2: there's a huge amount of debate, and there are rules 119 00:07:21,960 --> 00:07:25,320 Speaker 2: that strengthen thirteen D that were passed a year or 120 00:07:25,360 --> 00:07:28,760 Speaker 2: two ago, and there's an argument that this is a 121 00:07:28,880 --> 00:07:32,000 Speaker 2: very significant rule that serves an important purpose, and if 122 00:07:32,000 --> 00:07:35,440 Speaker 2: we let it go unenforced, that's the problem for the SEC. 123 00:07:36,200 --> 00:07:40,200 Speaker 1: Taking that into consideration that it might look bad if 124 00:07:40,240 --> 00:07:45,000 Speaker 1: the SEC drops this case when Trump takes office, but 125 00:07:45,280 --> 00:07:49,000 Speaker 1: also that Elon Musk seems to be Trump's new best buddy. 126 00:07:49,440 --> 00:07:51,880 Speaker 1: Do you think there's a hazard in them dropping the case? 127 00:07:53,240 --> 00:07:56,960 Speaker 2: Certainly? I think that, you know, the new SDC, I think, 128 00:07:57,040 --> 00:07:59,280 Speaker 2: will look at a lot of different things as to 129 00:07:59,360 --> 00:08:01,480 Speaker 2: how they pursue the case. I would be surprised if 130 00:08:01,480 --> 00:08:04,840 Speaker 2: they dropped it completely. What they could do is quickly 131 00:08:05,200 --> 00:08:07,920 Speaker 2: allow it to settle for a nominal sum, right. I 132 00:08:07,920 --> 00:08:10,240 Speaker 2: think that's a more likely outcome. 133 00:08:11,200 --> 00:08:13,400 Speaker 3: And you know, there would. 134 00:08:13,400 --> 00:08:17,760 Speaker 2: Potentially be some criticism while you're doing this, because there's 135 00:08:17,840 --> 00:08:21,480 Speaker 2: a sort of political reason why you're letting him go 136 00:08:21,600 --> 00:08:23,320 Speaker 2: with a slap on the wrist. And I think that's 137 00:08:23,320 --> 00:08:26,000 Speaker 2: something that they'll have to keep in mind. And I 138 00:08:26,000 --> 00:08:28,120 Speaker 2: think in addition to that, they will also have to 139 00:08:28,160 --> 00:08:31,720 Speaker 2: consider how important do we think Section thirteen D is 140 00:08:31,800 --> 00:08:34,080 Speaker 2: what kind of message would it spend if if we 141 00:08:34,120 --> 00:08:36,000 Speaker 2: let him go with a slap on the wrist? And 142 00:08:36,040 --> 00:08:39,200 Speaker 2: that's in addition to the question of whether or not 143 00:08:39,280 --> 00:08:44,600 Speaker 2: there's favoritism going on with respect to Elon Musk. And 144 00:08:44,640 --> 00:08:46,000 Speaker 2: you know, I would add that I think, you know, 145 00:08:46,080 --> 00:08:48,000 Speaker 2: part of the reason the SEC might have felt like 146 00:08:48,040 --> 00:08:50,959 Speaker 2: it had to ask is it didn't want to create 147 00:08:51,000 --> 00:08:55,199 Speaker 2: the impression that just because you know, we have an 148 00:08:55,240 --> 00:08:58,560 Speaker 2: individual who has been highly critical of us. You know 149 00:08:58,640 --> 00:09:00,760 Speaker 2: we're not going to be scared it off by that. 150 00:09:01,000 --> 00:09:03,520 Speaker 2: So I would send a bad message as well if 151 00:09:03,520 --> 00:09:07,240 Speaker 2: we simply are intimidated and not you know, bringing cases 152 00:09:07,280 --> 00:09:11,240 Speaker 2: for clear violations against that individual simply because we've brought 153 00:09:11,640 --> 00:09:14,640 Speaker 2: cases against him in the past, and he has used 154 00:09:14,640 --> 00:09:16,520 Speaker 2: this platform to criticize that. 155 00:09:17,080 --> 00:09:20,240 Speaker 1: He certainly has. I've been talking to Professor James Park 156 00:09:20,360 --> 00:09:25,040 Speaker 1: of UCLA Law School about the SEC suing elon Musk, 157 00:09:25,400 --> 00:09:28,400 Speaker 1: saying he cheated Twitter's shareholders out of more than one 158 00:09:28,440 --> 00:09:31,760 Speaker 1: hundred and fifty million dollars by waiting too long to 159 00:09:31,840 --> 00:09:35,520 Speaker 1: disclose his growing stake in the company as he prepared 160 00:09:35,600 --> 00:09:41,199 Speaker 1: a takeover bid. Apparently, Musk rejected a settlement offer, and 161 00:09:41,679 --> 00:09:45,160 Speaker 1: reportedly the settlement offer was more than two hundred million 162 00:09:45,240 --> 00:09:48,400 Speaker 1: dollars to settle this. How does that compare to other 163 00:09:48,520 --> 00:09:50,120 Speaker 1: finds under this section. 164 00:09:50,720 --> 00:09:54,560 Speaker 2: It's a large thump. It's a large thumb. And the 165 00:09:54,600 --> 00:10:01,439 Speaker 2: way they would I think justify that is the theory 166 00:10:02,040 --> 00:10:06,080 Speaker 2: is that if he had disclosed in a timely manner, 167 00:10:07,000 --> 00:10:12,240 Speaker 2: the stock price would have gone up because other investors 168 00:10:12,280 --> 00:10:17,960 Speaker 2: know he's interested in buying for some reason, and you 169 00:10:18,000 --> 00:10:21,880 Speaker 2: know the cost of buying those shares might have been 170 00:10:22,160 --> 00:10:27,520 Speaker 2: an additional few hundred million dollars. And so I think 171 00:10:27,600 --> 00:10:31,960 Speaker 2: that the SEC's rationale might be that, you know, you 172 00:10:32,040 --> 00:10:35,200 Speaker 2: got a bargain on these shares because anyone else would 173 00:10:35,240 --> 00:10:39,600 Speaker 2: have filed a Schedule thirteen D with the SCC, the 174 00:10:39,640 --> 00:10:41,600 Speaker 2: stock price would have gone up, and you would have 175 00:10:41,640 --> 00:10:45,400 Speaker 2: spent hundreds of millions of dollars more to buy the 176 00:10:45,440 --> 00:10:50,640 Speaker 2: Twitter stocks that you wanted to buy. And so their 177 00:10:50,760 --> 00:10:56,680 Speaker 2: argument is that the shareholders who basically sold their shares 178 00:10:57,120 --> 00:11:01,439 Speaker 2: in the market to Musk were cheated in a sense 179 00:11:01,520 --> 00:11:04,160 Speaker 2: because they were entitled to some disclosure that this is 180 00:11:04,200 --> 00:11:08,720 Speaker 2: going on, and that might have been there their justification 181 00:11:08,960 --> 00:11:12,320 Speaker 2: for what is a fairly you know, it seems like 182 00:11:12,640 --> 00:11:16,120 Speaker 2: a fairly high penalty to me that it's it's probably 183 00:11:16,160 --> 00:11:21,320 Speaker 2: based upon the harm to investors, and so, you know, 184 00:11:21,400 --> 00:11:23,960 Speaker 2: that's the argument that might have been made. Now, on 185 00:11:23,960 --> 00:11:25,440 Speaker 2: the other hand, you might say, well that that's a 186 00:11:25,480 --> 00:11:29,719 Speaker 2: lot for something that you know, is it an intentional violation, 187 00:11:30,200 --> 00:11:33,520 Speaker 2: and that's something where you know, there's some indication that 188 00:11:33,640 --> 00:11:35,920 Speaker 2: at the very least maybe he was reckless and didn't 189 00:11:36,000 --> 00:11:39,400 Speaker 2: care about the rules, and so maybe another argument for 190 00:11:39,440 --> 00:11:42,880 Speaker 2: a higher penalty is that, you know, you need to 191 00:11:42,920 --> 00:11:46,560 Speaker 2: figure out what the law is before you ask. And 192 00:11:46,640 --> 00:11:48,880 Speaker 2: so I think those are the reasons the sec might 193 00:11:49,559 --> 00:11:53,080 Speaker 2: justify a high penalty. Yeah. 194 00:11:53,080 --> 00:11:56,400 Speaker 1: So I read that Alphabet paid seven hundred and fifty 195 00:11:56,440 --> 00:12:00,720 Speaker 1: thousand to settle allegations that it failed to file time reports, 196 00:12:01,200 --> 00:12:05,679 Speaker 1: and that almost two dozen firms and individuals were cited 197 00:12:05,679 --> 00:12:10,120 Speaker 1: in September for not submitting proper reports about their holdings 198 00:12:10,120 --> 00:12:12,960 Speaker 1: and transactions. So it doesn't seem to be out of 199 00:12:13,000 --> 00:12:14,880 Speaker 1: the ordinary. 200 00:12:15,080 --> 00:12:18,800 Speaker 2: Yeah, there are penalties all the time that are imposed. 201 00:12:19,040 --> 00:12:21,800 Speaker 2: You could argue that in this case it's, you know, 202 00:12:21,840 --> 00:12:25,400 Speaker 2: the sheer amount of purchases that have that were made. 203 00:12:26,120 --> 00:12:29,920 Speaker 2: Maybe that might justify an even higher penalty than the 204 00:12:29,920 --> 00:12:35,360 Speaker 2: ones that were imposed before because of just the market impact. 205 00:12:35,760 --> 00:12:37,640 Speaker 2: I don't know what the market impact of the other 206 00:12:38,160 --> 00:12:41,640 Speaker 2: those other cases were, but you know, given the volume, 207 00:12:41,960 --> 00:12:45,720 Speaker 2: the amount of shares he's buying out in the marketplace, 208 00:12:46,320 --> 00:12:49,280 Speaker 2: there might be an argument that, well, there's more potential 209 00:12:49,440 --> 00:12:54,000 Speaker 2: investor harmer or unjust enrichment by mister Musk that could 210 00:12:54,040 --> 00:12:57,120 Speaker 2: justify an even higher penalty than past penalties the SEC 211 00:12:57,240 --> 00:12:58,680 Speaker 2: has imposed for these cases. 212 00:12:58,880 --> 00:13:02,280 Speaker 1: Let me ask you this, what's your take on Paul Atkins, 213 00:13:02,360 --> 00:13:08,119 Speaker 1: who Trump says he's going to nominate to succeed Gary Gensler. 214 00:13:09,559 --> 00:13:13,240 Speaker 2: He's been a commissioner before, so he knows the SEC. 215 00:13:14,400 --> 00:13:18,640 Speaker 2: You know, he certainly has a different approach than mister Gensler, 216 00:13:18,720 --> 00:13:22,360 Speaker 2: and I think it reflects, you know, probably a more 217 00:13:22,559 --> 00:13:26,480 Speaker 2: conservative view with respect to the role of securities law 218 00:13:26,760 --> 00:13:32,520 Speaker 2: and more of a concern for reducing regulatory burdens on 219 00:13:33,160 --> 00:13:38,880 Speaker 2: public corporations and other market participants. He knows securities law, 220 00:13:39,120 --> 00:13:41,040 Speaker 2: he has views on it, and whether or not you 221 00:13:42,040 --> 00:13:46,200 Speaker 2: disagree with those views, I think, you know, he's an 222 00:13:46,240 --> 00:13:50,000 Speaker 2: appropriate choice for the position. And you know, I think 223 00:13:50,080 --> 00:13:53,200 Speaker 2: there's a lot of difficult issues he's going to have 224 00:13:53,280 --> 00:13:56,400 Speaker 2: to grapple with, and I think, you know, crypto regulation 225 00:13:56,600 --> 00:13:57,600 Speaker 2: is one of them. 226 00:13:57,720 --> 00:13:58,719 Speaker 1: And you know, the. 227 00:13:58,679 --> 00:14:02,560 Speaker 2: Third Circuit sent back at the various rules to the 228 00:14:02,640 --> 00:14:05,160 Speaker 2: SEC instead give us a better reason why you're not 229 00:14:05,720 --> 00:14:09,040 Speaker 2: writing rules on crypto and you know that's going to 230 00:14:09,120 --> 00:14:14,040 Speaker 2: be owned by the Atkins SDC whatever essentially comes out 231 00:14:14,080 --> 00:14:18,280 Speaker 2: of that process. And you know, the danger here is 232 00:14:18,320 --> 00:14:22,440 Speaker 2: that if you're perceived as being the regular story and 233 00:14:22,520 --> 00:14:26,400 Speaker 2: something really bad happens, then you know there'll be a 234 00:14:26,440 --> 00:14:29,960 Speaker 2: tendency to kind of put the blame on you. You know, 235 00:14:30,000 --> 00:14:32,280 Speaker 2: if there are a lot of crypto losses, for example, 236 00:14:32,840 --> 00:14:35,760 Speaker 2: then everyone's going to be pointing at at the Atkins SDC, 237 00:14:36,200 --> 00:14:38,520 Speaker 2: and so those are things that he's going to have 238 00:14:38,600 --> 00:14:40,720 Speaker 2: to navigate as he enters this job. 239 00:14:40,920 --> 00:14:43,800 Speaker 1: It's always interesting to watch what happens at an agency 240 00:14:43,920 --> 00:14:47,120 Speaker 1: when there's a new administration. Thanks so much, Jim. Always 241 00:14:47,120 --> 00:14:50,800 Speaker 1: a pleasure. That's Professor James Park of UCLA Law School. 242 00:14:51,280 --> 00:14:55,480 Speaker 1: It's one of the most destructive natural disasters in Southern 243 00:14:55,520 --> 00:14:59,960 Speaker 1: California history, killing at least twenty five people and destroying 244 00:15:00,120 --> 00:15:04,440 Speaker 1: thousands of homes, and while crews continue to battle the wildfires, 245 00:15:04,840 --> 00:15:09,520 Speaker 1: the investigation into the cause of the devastating fires is intensifying. 246 00:15:10,040 --> 00:15:13,840 Speaker 1: Atf special age and in charge of the LA Field Division, 247 00:15:14,040 --> 00:15:18,840 Speaker 1: Jose Medina, says they're tackling the investigation from all angles. 248 00:15:19,600 --> 00:15:23,320 Speaker 4: Investigators are looking for remaining fuels and surviving fire patterns, 249 00:15:23,600 --> 00:15:27,800 Speaker 4: as well as fire patterns on non compulstible materials such 250 00:15:27,800 --> 00:15:32,640 Speaker 4: as rocks, cans, bottles, et cetera. We have conducted interviews 251 00:15:32,640 --> 00:15:36,080 Speaker 4: with individuals that initiated the nine one one calls and 252 00:15:36,160 --> 00:15:40,240 Speaker 4: the first responders. We are talking to individuals about not 253 00:15:40,360 --> 00:15:43,640 Speaker 4: just what they saw, but what they smelled and they heard. 254 00:15:44,080 --> 00:15:48,680 Speaker 1: In the meantime, litigation over the fires has begun. Lawsuits 255 00:15:48,680 --> 00:15:53,000 Speaker 1: on behalf of homeowners, renters, business owners, and others have 256 00:15:53,120 --> 00:15:57,040 Speaker 1: been filed against Southern California Edison over the Eton fire 257 00:15:57,440 --> 00:16:00,960 Speaker 1: and against the Los Angeles Department of Water Power over 258 00:16:01,000 --> 00:16:06,560 Speaker 1: the Palisades fire. Edison International Chief executive Officer Pedro Pizarro 259 00:16:06,920 --> 00:16:10,920 Speaker 1: told Bloomberg on Monday that the utility didn't detect any 260 00:16:11,040 --> 00:16:15,000 Speaker 1: electrical issues on a transmission line near the start of 261 00:16:15,080 --> 00:16:16,560 Speaker 1: the deadly Eaten fire. 262 00:16:17,200 --> 00:16:19,880 Speaker 5: Certainly, we've seen the video images and photos that are 263 00:16:19,920 --> 00:16:22,120 Speaker 5: in the media that a number of residents have taken 264 00:16:22,600 --> 00:16:28,400 Speaker 5: showing flames near our towers. Today, we have not seen 265 00:16:28,440 --> 00:16:33,240 Speaker 5: in our telemetry any indication of any electrical anomaly. And 266 00:16:33,280 --> 00:16:36,520 Speaker 5: typically when you have a fire costs by electrical infrastructure, 267 00:16:36,560 --> 00:16:40,040 Speaker 5: you do see a signature of voltage rupping, current increasing. 268 00:16:40,520 --> 00:16:42,840 Speaker 5: We have not seen that in our study. 269 00:16:43,120 --> 00:16:46,480 Speaker 1: Joining me is Bernie Bernheim of the Bernheim Law Firm. 270 00:16:47,160 --> 00:16:50,200 Speaker 1: I know you're going to be filing your lawsuits in 271 00:16:50,240 --> 00:16:54,360 Speaker 1: the next few days. What's alleged in the lawsuits filed 272 00:16:54,400 --> 00:16:56,400 Speaker 1: against Southern California Edison. 273 00:16:58,040 --> 00:17:03,320 Speaker 3: They alleged that that the power company for the Eton Fire, 274 00:17:03,840 --> 00:17:07,720 Speaker 3: which is Southern California Edison, their equipment started the fire, 275 00:17:08,440 --> 00:17:12,200 Speaker 3: and that the equipment was negligently maintained and operated. 276 00:17:13,040 --> 00:17:17,600 Speaker 1: So on Monday, Edison CEO Pedro Pizarro tol Bloomberg News 277 00:17:17,960 --> 00:17:22,359 Speaker 1: it didn't detect any operating anomalies on its transmission wires 278 00:17:22,359 --> 00:17:25,320 Speaker 1: in the twelve hours before the fire. What will you 279 00:17:25,520 --> 00:17:29,280 Speaker 1: use to make out a case for negligence, Well. 280 00:17:29,040 --> 00:17:33,879 Speaker 3: First of all, there's video of the fire starting under 281 00:17:34,200 --> 00:17:38,320 Speaker 3: their equipment, a giant shadower of spark. Number one, and 282 00:17:38,359 --> 00:17:43,000 Speaker 3: that video is widely available. Number two, there's essentially a 283 00:17:43,119 --> 00:17:48,119 Speaker 3: tracking service that shows when there are namlies in the 284 00:17:48,160 --> 00:17:52,160 Speaker 3: electrical grid, and the average is like two, three or four. 285 00:17:52,960 --> 00:17:56,720 Speaker 3: But it detected over one hundred in the hours before 286 00:17:56,760 --> 00:17:59,560 Speaker 3: the fire, and at that point power should have been 287 00:17:59,560 --> 00:18:03,439 Speaker 3: shut down out and it wasn't. So, you know, with 288 00:18:03,520 --> 00:18:06,800 Speaker 3: all due respect to the CEO of the company, there's 289 00:18:07,280 --> 00:18:12,520 Speaker 3: ample evidence to indicate that you know, they're responsible. Now, 290 00:18:12,840 --> 00:18:15,320 Speaker 3: you know, would like of any lawsuit, there's going to 291 00:18:15,320 --> 00:18:19,040 Speaker 3: be discovery. We are only going on what is publicly 292 00:18:19,160 --> 00:18:23,919 Speaker 3: available right now. But once you know discovery's done, documents 293 00:18:23,920 --> 00:18:27,560 Speaker 3: are obtained, depositions are taken, the actual truth of what 294 00:18:27,680 --> 00:18:31,480 Speaker 3: the curd is going to come out. And if their equipment, 295 00:18:32,320 --> 00:18:35,040 Speaker 3: I mean, the fact that the fire started right under 296 00:18:35,080 --> 00:18:39,360 Speaker 3: their equipment is pretty telling. And what does you say 297 00:18:39,440 --> 00:18:41,240 Speaker 3: caused the fire if there wasn't his equipment. 298 00:18:41,680 --> 00:18:46,359 Speaker 1: California has this unique doctrine that a utility can be 299 00:18:46,440 --> 00:18:51,520 Speaker 1: held liable for property damage when its equipment ignites a fire, 300 00:18:51,920 --> 00:18:55,400 Speaker 1: even if it didn't act negligently. Tell us about that 301 00:18:55,520 --> 00:18:58,400 Speaker 1: doctrine known as inverse condemnation. 302 00:18:59,240 --> 00:19:03,520 Speaker 3: Yes, because there was a taking of property. Is the 303 00:19:03,640 --> 00:19:07,800 Speaker 3: term that's used by a government or quase government entity. 304 00:19:08,800 --> 00:19:11,840 Speaker 3: And you know, there's been sort of a legal debate 305 00:19:12,000 --> 00:19:18,080 Speaker 3: about whether utilities qualify. I mean, most commonly you see 306 00:19:18,160 --> 00:19:22,200 Speaker 3: and there so that they do qualify. But initially an 307 00:19:22,240 --> 00:19:24,920 Speaker 3: earlier fire on the utility spot decided to say that 308 00:19:25,000 --> 00:19:29,800 Speaker 3: we're not a government entity. We're publicly traded company, you know, 309 00:19:30,200 --> 00:19:33,800 Speaker 3: by stocking us. But the courts here in California have 310 00:19:33,920 --> 00:19:39,440 Speaker 3: decided that they qualify as quase government entities against whom 311 00:19:39,640 --> 00:19:45,359 Speaker 3: inverse condemnation can be alleged. But inverse condemnation originates where 312 00:19:45,840 --> 00:19:51,040 Speaker 3: let's say the government, the county, let's say, says it's 313 00:19:51,040 --> 00:19:55,720 Speaker 3: safe to build a certain area okay, and you know, 314 00:19:55,760 --> 00:19:58,840 Speaker 3: you get your permit and everything, and then that it 315 00:19:58,920 --> 00:20:02,120 Speaker 3: turns out that it doesn't build. There's a big mud 316 00:20:02,200 --> 00:20:06,119 Speaker 3: slide and all of the you know, the houses. But 317 00:20:06,240 --> 00:20:09,240 Speaker 3: the government or the county, let's say the city said 318 00:20:09,240 --> 00:20:14,960 Speaker 3: we're okay to build on slide into the into the ocean, right, well, 319 00:20:15,200 --> 00:20:20,359 Speaker 3: they basically condemned the property. And an aversion of it 320 00:20:20,400 --> 00:20:24,159 Speaker 3: comes when the government takes property, like to build a 321 00:20:24,280 --> 00:20:28,919 Speaker 3: highway or something. That's the underlying principle where then if 322 00:20:28,920 --> 00:20:32,040 Speaker 3: they're going to take your property build a highway, they 323 00:20:32,040 --> 00:20:35,720 Speaker 3: have to give you a fair compensation for that taking. 324 00:20:37,000 --> 00:20:39,359 Speaker 3: That's where it originates from. And then it's kind of 325 00:20:39,480 --> 00:20:46,160 Speaker 3: it becomes a taking when they when when they when 326 00:20:46,160 --> 00:20:49,040 Speaker 3: they create conditions, but what you with your problem? They 327 00:20:49,080 --> 00:20:51,280 Speaker 3: create conditions, but what you with your problem? 328 00:20:51,920 --> 00:20:56,399 Speaker 1: The CEO on Bloomberg said that California has in place 329 00:20:56,560 --> 00:21:00,800 Speaker 1: this provision that allows a utility to remain financially healthy 330 00:21:01,119 --> 00:21:05,080 Speaker 1: even if it's found libel for the wildfire, including a 331 00:21:05,119 --> 00:21:08,720 Speaker 1: twenty one billion dollar fire insurance fund that caps the 332 00:21:08,760 --> 00:21:13,560 Speaker 1: company's exposure at three point nine billion. Suppose the claims 333 00:21:13,680 --> 00:21:16,920 Speaker 1: exceed twenty one billion, what happens then? 334 00:21:17,600 --> 00:21:20,480 Speaker 3: I don't know. That has never been an issue before. 335 00:21:20,440 --> 00:21:24,679 Speaker 1: Because some of the estimates for this fire are well above. 336 00:21:25,240 --> 00:21:27,400 Speaker 3: Yeah, we don't know. It's uncharted territory. 337 00:21:28,160 --> 00:21:33,560 Speaker 1: What kind of damages would you be seeking in these cases? 338 00:21:34,600 --> 00:21:40,480 Speaker 3: Well, there are damages for the damage to the property, 339 00:21:40,720 --> 00:21:46,480 Speaker 3: the real property, there's damage to the personal property. There 340 00:21:46,640 --> 00:21:52,720 Speaker 3: is additional living expenses that people infer when they have 341 00:21:52,880 --> 00:22:01,280 Speaker 3: to lead. There is also physical injury that can occur, 342 00:22:01,840 --> 00:22:03,960 Speaker 3: sometimes not just because you're burned, but you know, we've 343 00:22:04,000 --> 00:22:07,879 Speaker 3: had children and other fires who develop asthma and so forth. 344 00:22:09,280 --> 00:22:14,359 Speaker 3: We they're psychological injury. You could call it emotional distress. 345 00:22:14,680 --> 00:22:19,040 Speaker 3: There's also the annoyance and other aggravation that comes from 346 00:22:19,119 --> 00:22:27,960 Speaker 3: the rebuilding process and loss of use. There is often 347 00:22:28,320 --> 00:22:34,280 Speaker 3: business loss associated with it. Sometimes it's because literally a 348 00:22:34,359 --> 00:22:39,080 Speaker 3: business was damaged or destroyed. For example, when we did 349 00:22:39,080 --> 00:22:42,840 Speaker 3: the last Malibu fire, a big one, we had quite 350 00:22:42,840 --> 00:22:48,760 Speaker 3: a few of the rehabilitation drug rehabilitation centers that had 351 00:22:48,960 --> 00:22:53,639 Speaker 3: business laws or we've represented owners of gas stations and 352 00:22:53,840 --> 00:22:57,600 Speaker 3: car washes, all kinds of jewelry stores, all sorts of businesses. 353 00:22:58,400 --> 00:23:03,119 Speaker 3: And then and you also have we've also represented clients 354 00:23:03,119 --> 00:23:09,600 Speaker 3: who had home businesses operating sometimes very substantial home businesses 355 00:23:10,480 --> 00:23:14,400 Speaker 3: with millions of dollars of loss, especially now a lot 356 00:23:14,400 --> 00:23:18,440 Speaker 3: of people combining their home and their business. There's also 357 00:23:18,600 --> 00:23:23,400 Speaker 3: interest loss of use of money, which we generally recover 358 00:23:23,480 --> 00:23:27,800 Speaker 3: at an arab of seven percent inplement. And there's also 359 00:23:27,840 --> 00:23:30,920 Speaker 3: be attornitees and expenses of litigation. 360 00:23:31,400 --> 00:23:36,159 Speaker 1: And how long do these cases generally take to litigate. 361 00:23:37,440 --> 00:23:38,080 Speaker 3: Years. 362 00:23:38,840 --> 00:23:42,639 Speaker 1: Also, property owners in the Pacific Palisades are suing the 363 00:23:42,680 --> 00:23:46,199 Speaker 1: Los Angeles Department of Water and Power, claiming that a 364 00:23:46,240 --> 00:23:50,119 Speaker 1: reservoir that had been drained and not repaired, couple with 365 00:23:50,240 --> 00:23:55,359 Speaker 1: inadequate water pressure in fire hydrants, undercut efforts by firefighters 366 00:23:55,680 --> 00:23:59,399 Speaker 1: and ultimately allowed the fire to spread out of control. 367 00:24:00,080 --> 00:24:04,760 Speaker 1: Alleges that the utilities negligence turned homeowners to homeless in 368 00:24:04,800 --> 00:24:08,840 Speaker 1: a matter of hours. Is that lawsuit tougher to litigate 369 00:24:09,320 --> 00:24:10,680 Speaker 1: than the one against Addison? 370 00:24:11,320 --> 00:24:14,360 Speaker 3: Yes, And that's being done in connection with the Palisades 371 00:24:14,400 --> 00:24:19,040 Speaker 3: fire with slow runs up down the Pacific Coast Highway. 372 00:24:19,960 --> 00:24:23,360 Speaker 3: And the reason that the lawyers filed that, and we're 373 00:24:23,400 --> 00:24:27,080 Speaker 3: still investigating and deciding what the viability of that is, 374 00:24:28,560 --> 00:24:31,760 Speaker 3: is because there was not a power company to sue. 375 00:24:31,920 --> 00:24:35,000 Speaker 3: In other words, there's no evidence so far that a 376 00:24:35,160 --> 00:24:39,840 Speaker 3: viable you know, private dependent or pause a public defendent 377 00:24:40,400 --> 00:24:46,040 Speaker 3: or potentially a deep pocket defending caused that fire. So 378 00:24:46,160 --> 00:24:48,920 Speaker 3: what at least one law firm has decided to do 379 00:24:49,560 --> 00:24:54,800 Speaker 3: is exactly what you said, sue over the mismanagement of 380 00:24:54,840 --> 00:25:00,480 Speaker 3: a particular reservoir that wasn't available. And one of the 381 00:25:00,480 --> 00:25:02,639 Speaker 3: things I know that's being an alleged there in connection 382 00:25:02,680 --> 00:25:05,520 Speaker 3: with the Power States fire is that not only wasn't 383 00:25:05,560 --> 00:25:10,520 Speaker 3: there sufficient water, but they did not inform the fire company, 384 00:25:11,480 --> 00:25:16,200 Speaker 3: excuse me, the fire department that certain I guess you 385 00:25:16,240 --> 00:25:20,840 Speaker 3: would call the cisterns or reserves of water were empty 386 00:25:21,560 --> 00:25:25,199 Speaker 3: when they should have been filled. But there's an issue 387 00:25:25,240 --> 00:25:30,399 Speaker 3: there of immunity, sovereign immunity, because there are statutes that 388 00:25:30,440 --> 00:25:33,199 Speaker 3: they are asserted by the city, by the Department of 389 00:25:33,240 --> 00:25:37,199 Speaker 3: Water and Power, that provide immunity for these kinds of decisions. 390 00:25:37,200 --> 00:25:41,600 Speaker 3: You can't sue them now Just because you know, immunity 391 00:25:41,760 --> 00:25:46,280 Speaker 3: is available as an affirmative defense to the city does 392 00:25:46,320 --> 00:25:50,520 Speaker 3: not necessarily mean that the city will assert that. Any 393 00:25:50,560 --> 00:25:53,199 Speaker 3: One could say, well, why on earth wouldn't they assert 394 00:25:53,280 --> 00:25:57,040 Speaker 3: that community right? I mean, that goes the case out 395 00:25:57,080 --> 00:26:02,320 Speaker 3: of court. But remember there's a political social component to this. 396 00:26:03,359 --> 00:26:06,679 Speaker 3: Many of the victims of the Palistates fire do not 397 00:26:06,840 --> 00:26:10,760 Speaker 3: have insurance is being sure pulled out of California not 398 00:26:10,840 --> 00:26:15,000 Speaker 3: long ago like State Farmer many did. Or they're very underinsured. 399 00:26:15,480 --> 00:26:18,919 Speaker 3: So you have people that if they cannot sue the city, 400 00:26:19,359 --> 00:26:23,439 Speaker 3: they have very little redress. I mean, whatever little FEMA 401 00:26:23,520 --> 00:26:26,840 Speaker 3: aid or SBA loan aide you're going to get, and 402 00:26:27,200 --> 00:26:30,040 Speaker 3: you know, they could go out into the streets with 403 00:26:30,119 --> 00:26:33,000 Speaker 3: pitchforks and it might look very bad to the city 404 00:26:33,080 --> 00:26:35,560 Speaker 3: if the city said, well, you know, we can't really 405 00:26:35,560 --> 00:26:39,280 Speaker 3: refute that we were negligent, but we do have this 406 00:26:39,359 --> 00:26:42,000 Speaker 3: immunity and we're going to we're going to hide behind 407 00:26:42,040 --> 00:26:45,240 Speaker 3: this shield. And that could result in you know, the 408 00:26:45,240 --> 00:26:49,119 Speaker 3: whole city council and you know, the mayor and everybody 409 00:26:49,160 --> 00:26:53,560 Speaker 3: being thrown out. And they may decide I'm not a politician, 410 00:26:53,640 --> 00:26:58,119 Speaker 3: but they may decide that it's better for us to 411 00:26:58,359 --> 00:27:00,800 Speaker 3: pay at least something into this than just to take 412 00:27:00,800 --> 00:27:04,679 Speaker 3: the position. Nin nin or Nina. You can't sue us 413 00:27:04,760 --> 00:27:05,959 Speaker 3: even though we screwed up. 414 00:27:06,480 --> 00:27:09,040 Speaker 1: Thanks so much for being on the show. That's Bernie 415 00:27:09,040 --> 00:27:12,200 Speaker 1: Bernheim of the Bernheim Law Firm, and that's it for 416 00:27:12,240 --> 00:27:14,879 Speaker 1: this edition of The Bloomberg Law Show. Remember you can 417 00:27:14,920 --> 00:27:18,159 Speaker 1: always get the latest legal news on our Bloomberg Law Podcast. 418 00:27:18,440 --> 00:27:21,440 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 419 00:27:21,600 --> 00:27:26,639 Speaker 1: www dot Bloomberg dot com slash podcast slash Law, And 420 00:27:26,720 --> 00:27:29,760 Speaker 1: remember to tune into The Bloomberg Law Show every weeknight 421 00:27:29,880 --> 00:27:33,320 Speaker 1: at ten pm Wall Street Time. I'm June Grosso and 422 00:27:33,359 --> 00:27:34,840 Speaker 1: you're listening to Bloomberg