1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. 2 00:00:08,640 --> 00:00:11,760 Speaker 2: No matter how much the Trump administration may dislike it, 3 00:00:12,240 --> 00:00:15,880 Speaker 2: they cannot break it, they cannot ignore it. It is 4 00:00:15,920 --> 00:00:18,720 Speaker 2: the right of every child born in this country. 5 00:00:19,079 --> 00:00:23,320 Speaker 3: The legal battle over President Trump's executive order on birthright 6 00:00:23,400 --> 00:00:26,760 Speaker 3: citizenship went all the way up to the Supreme Court 7 00:00:27,240 --> 00:00:30,480 Speaker 3: and is now back at the district courts where it started. 8 00:00:30,800 --> 00:00:34,280 Speaker 3: And on Thursday, a federal judge in New Hampshire placed 9 00:00:34,280 --> 00:00:38,199 Speaker 3: a new nationwide block on the order and certified a 10 00:00:38,240 --> 00:00:42,960 Speaker 3: class action lawsuit against the administration on behalf of all 11 00:00:43,159 --> 00:00:48,080 Speaker 3: children whose automatic citizenship could be jeopardized by the president's order. 12 00:00:48,400 --> 00:00:51,960 Speaker 3: Cody Wafsei of the ACLU is the lead attorney on 13 00:00:52,000 --> 00:00:53,600 Speaker 3: this class action lawsuit. 14 00:00:54,280 --> 00:00:58,120 Speaker 2: The idea that the president can rewrite who is a 15 00:00:58,160 --> 00:01:01,840 Speaker 2: citizen and decide who gets to count as an American 16 00:01:02,080 --> 00:01:07,240 Speaker 2: is extremely dangerous and deeply deeply contrary to our national values. 17 00:01:07,720 --> 00:01:10,520 Speaker 3: This case may be on a fast track back to 18 00:01:10,560 --> 00:01:14,360 Speaker 3: the Supreme Court. Joining me is Leon Fresco, a partner 19 00:01:14,400 --> 00:01:16,920 Speaker 3: at Honda Knight and the former head of the Office 20 00:01:16,959 --> 00:01:21,520 Speaker 3: of Immigration Litigation in the Obama administration. Leam at the 21 00:01:21,640 --> 00:01:25,120 Speaker 3: end of June. The Supreme Court in the birthright Citizenship 22 00:01:25,200 --> 00:01:31,000 Speaker 3: case limited the ability of federal judges to issue nationwide injunctions, 23 00:01:31,319 --> 00:01:34,080 Speaker 3: but it left open the path to reach the same 24 00:01:34,240 --> 00:01:38,720 Speaker 3: result with a class action lawsuit. Explain how this lawsuit 25 00:01:38,800 --> 00:01:39,640 Speaker 3: did just that. 26 00:01:40,480 --> 00:01:44,760 Speaker 4: So this was the first of many cases where basically 27 00:01:44,800 --> 00:01:47,960 Speaker 4: litigates raced to the Court House and tried to get 28 00:01:48,120 --> 00:01:53,000 Speaker 4: a class certified that would encompass the entire nation. And 29 00:01:53,200 --> 00:01:56,640 Speaker 4: the judge here actually did certify a class. The judge 30 00:01:56,640 --> 00:02:00,240 Speaker 4: certified a class of all current and future persons who 31 00:02:00,280 --> 00:02:04,200 Speaker 4: are born honor after February twenty at twenty twenty five, 32 00:02:04,600 --> 00:02:07,639 Speaker 4: where the person's mother was unlawfully present in the United 33 00:02:07,640 --> 00:02:10,600 Speaker 4: States and the person's father was not a United States 34 00:02:10,680 --> 00:02:14,000 Speaker 4: citizen or lawful permanent residence, and then vice versa, the 35 00:02:14,080 --> 00:02:17,760 Speaker 4: same thing on the other side. So the government objected 36 00:02:17,800 --> 00:02:21,520 Speaker 4: to this and said, well, the Supreme Court stated that 37 00:02:21,560 --> 00:02:24,440 Speaker 4: they didn't want class certification to be used as an 38 00:02:24,560 --> 00:02:29,200 Speaker 4: end run around the nationwide injunction issue, to which this 39 00:02:29,400 --> 00:02:33,560 Speaker 4: court said, there's nationwide class actions all the time for 40 00:02:33,639 --> 00:02:38,000 Speaker 4: all kinds of issues, and the judge wasn't actually ordering 41 00:02:38,040 --> 00:02:41,000 Speaker 4: a quote unquote nationwide class action. The judge was just 42 00:02:41,040 --> 00:02:44,600 Speaker 4: saying that he was ordering a class action of people 43 00:02:44,639 --> 00:02:47,880 Speaker 4: who were born honor after February twenty, twenty twenty five 44 00:02:48,480 --> 00:02:52,200 Speaker 4: that were subject to this Birthright Citizenship Executive Order. So 45 00:02:52,360 --> 00:02:55,040 Speaker 4: if those people are in one state or another, it's 46 00:02:55,080 --> 00:02:57,640 Speaker 4: not his problem. He's just looking at it from the 47 00:02:57,720 --> 00:03:02,440 Speaker 4: perspective of is this a common class with typical claims? 48 00:03:02,480 --> 00:03:06,120 Speaker 4: And so the judge certified that class. Interestingly, the judge 49 00:03:06,160 --> 00:03:09,120 Speaker 4: did not include the parent, even though the litigants wanted 50 00:03:09,160 --> 00:03:12,720 Speaker 4: to include the parent in the class, because the judge said, look, 51 00:03:12,760 --> 00:03:15,240 Speaker 4: the problem with the parents is each parent is going 52 00:03:15,280 --> 00:03:18,919 Speaker 4: to suffer a different kind of harm from their kids 53 00:03:19,000 --> 00:03:22,200 Speaker 4: not receiving citizenship, and so that's not going to be 54 00:03:22,320 --> 00:03:24,480 Speaker 4: common to a class. So the judge was actually very 55 00:03:24,480 --> 00:03:27,440 Speaker 4: precise and thorough there, and the judge said, the only 56 00:03:27,520 --> 00:03:30,360 Speaker 4: thing that's common that you can form a class is 57 00:03:30,680 --> 00:03:34,600 Speaker 4: you get the passport or not. Essentially, so we're kind 58 00:03:34,600 --> 00:03:37,320 Speaker 4: of back to where we were before the Supreme Court's decision, 59 00:03:37,760 --> 00:03:40,160 Speaker 4: as the judge has stayed the order for seven days, 60 00:03:40,200 --> 00:03:43,760 Speaker 4: allowing for an appeal, is allowing the first Circuit to 61 00:03:43,800 --> 00:03:46,040 Speaker 4: be able to weigh in. I'm sure the first circuit 62 00:03:46,120 --> 00:03:50,360 Speaker 4: will approve of what this district court judge did, and 63 00:03:50,400 --> 00:03:52,400 Speaker 4: then the question will be, what, if anything, does the 64 00:03:52,440 --> 00:03:53,800 Speaker 4: Supreme Court do about this? 65 00:03:54,520 --> 00:03:58,800 Speaker 3: In issuing the injunction, Judge Joseph Leplant, who by the way, 66 00:03:58,880 --> 00:04:02,640 Speaker 3: is a George W. Point said it wasn't even a 67 00:04:02,680 --> 00:04:06,720 Speaker 3: close call. Do you think his preliminary injunction and class 68 00:04:06,760 --> 00:04:10,360 Speaker 3: certification will pass muster at the Supreme Court? 69 00:04:11,240 --> 00:04:14,160 Speaker 4: It's going to be a very interesting test from the 70 00:04:14,200 --> 00:04:18,279 Speaker 4: standpoint of does the Supreme Court really want to crack 71 00:04:18,360 --> 00:04:22,800 Speaker 4: down on anything nationwide? And will simply say, look, you 72 00:04:22,920 --> 00:04:26,880 Speaker 4: have to just have class actions that are not nationwide either. 73 00:04:27,400 --> 00:04:30,080 Speaker 4: But that's going to be very strange because, for instance, 74 00:04:30,160 --> 00:04:34,479 Speaker 4: let's say there's some products that's not working and causing 75 00:04:34,560 --> 00:04:37,880 Speaker 4: the same damage to every single person. Is there really 76 00:04:37,920 --> 00:04:41,760 Speaker 4: supposed to be eleven different class actions in different circuits 77 00:04:42,000 --> 00:04:45,800 Speaker 4: where they say, you know, everybody who's mechanism exploded in 78 00:04:45,839 --> 00:04:49,200 Speaker 4: the first circuit and everybody whose mechanism exploded in the 79 00:04:49,240 --> 00:04:51,400 Speaker 4: second circuit. That doesn't seem like it would make a 80 00:04:51,440 --> 00:04:55,240 Speaker 4: lot of sense. So why a class action with regard 81 00:04:55,320 --> 00:05:00,200 Speaker 4: to people affected by birthrights citizenship should be constrained a 82 00:05:00,240 --> 00:05:03,599 Speaker 4: particular circuit or a particular state doesn't seem to be 83 00:05:03,760 --> 00:05:07,080 Speaker 4: very compatible here. There's that and the fact that the 84 00:05:07,200 --> 00:05:10,880 Speaker 4: judge really took pains to not just willy nearly certify 85 00:05:10,880 --> 00:05:14,200 Speaker 4: a class, but go through the fact that the parents 86 00:05:14,400 --> 00:05:17,279 Speaker 4: didn't have these common and typical claims, but the kids 87 00:05:17,279 --> 00:05:20,280 Speaker 4: did have this one typical claim, which is they want 88 00:05:20,320 --> 00:05:23,200 Speaker 4: citizen chip and they aren't able to get it. Seems 89 00:05:23,240 --> 00:05:26,200 Speaker 4: to me very strong, and I don't know how the 90 00:05:26,240 --> 00:05:29,479 Speaker 4: Supreme Court would say that you can't certify a class 91 00:05:29,480 --> 00:05:32,440 Speaker 4: that would then operate nationally in a case like this, 92 00:05:32,839 --> 00:05:34,320 Speaker 4: But we'll have to wait and see. 93 00:05:34,680 --> 00:05:37,479 Speaker 3: This looks like it's on a fast track to return 94 00:05:37,520 --> 00:05:40,719 Speaker 3: to the Supreme Court, and during the oral arguments in 95 00:05:40,760 --> 00:05:45,200 Speaker 3: the case, several of the justices indicated that they wanted 96 00:05:45,240 --> 00:05:50,560 Speaker 3: to rule quickly on the actual legality of the executive order. 97 00:05:50,960 --> 00:05:53,520 Speaker 3: Justice Neil Gorsuch said, how do we get to the 98 00:05:53,560 --> 00:05:57,120 Speaker 3: merits fast? Obviously they did not do that, But on 99 00:05:57,160 --> 00:06:00,080 Speaker 3: its return to the Supreme Court, do you think the 100 00:06:00,240 --> 00:06:05,120 Speaker 3: justices will actually decide the merits of Trump's executive order 101 00:06:05,160 --> 00:06:06,520 Speaker 3: on birthright citizenship. 102 00:06:07,040 --> 00:06:10,920 Speaker 4: They could say that we will preserve the injunction and 103 00:06:11,200 --> 00:06:14,320 Speaker 4: we will take up very fast the merits of this 104 00:06:14,480 --> 00:06:17,720 Speaker 4: first thing in October when we come back, so they 105 00:06:17,720 --> 00:06:20,919 Speaker 4: could do that. They could also just issue one of 106 00:06:20,960 --> 00:06:24,640 Speaker 4: those stays that's basically a one page order that stays 107 00:06:24,839 --> 00:06:28,680 Speaker 4: the District Court's order. And if they do that, then 108 00:06:28,720 --> 00:06:33,120 Speaker 4: what that would mean is that the Birthright Citizenship Executive 109 00:06:33,200 --> 00:06:36,600 Speaker 4: Order will actually go into effect while the case is 110 00:06:37,040 --> 00:06:39,800 Speaker 4: working its way as a matter of the full merit, 111 00:06:40,040 --> 00:06:42,880 Speaker 4: through a final judgment in the District Court, through the 112 00:06:42,880 --> 00:06:46,200 Speaker 4: first Circuit, and back up to the Supreme Court. Because 113 00:06:46,200 --> 00:06:49,279 Speaker 4: there have already been two of these stay orders with 114 00:06:49,400 --> 00:06:54,520 Speaker 4: respect to eliminating temporary protected status and parole and being 115 00:06:54,560 --> 00:06:57,520 Speaker 4: able to deport people to any country you want to 116 00:06:57,560 --> 00:07:00,839 Speaker 4: be able to deport them to other than their home country, 117 00:07:01,279 --> 00:07:04,880 Speaker 4: that were decided with these very brief stays and not 118 00:07:05,080 --> 00:07:10,200 Speaker 4: really the merit discussions of the ramifications of making those decisions. 119 00:07:10,720 --> 00:07:15,520 Speaker 4: And I saw that former Ernie General Alberto Gonzalez said 120 00:07:15,520 --> 00:07:19,239 Speaker 4: that he didn't think that there were the votes right 121 00:07:19,280 --> 00:07:26,000 Speaker 4: now to say that the Birthright Citizenship Executive Order is unconstitutional, 122 00:07:26,000 --> 00:07:29,160 Speaker 4: and that's why the court pumped the issue. So if 123 00:07:29,200 --> 00:07:33,120 Speaker 4: he's right, then they might issue this state which would 124 00:07:33,160 --> 00:07:36,160 Speaker 4: be quite n upheaval to figure out then what happens 125 00:07:36,200 --> 00:07:39,520 Speaker 4: to these individuals during the time period that this case 126 00:07:39,680 --> 00:07:42,200 Speaker 4: is working its way up to the Supreme Court. 127 00:07:42,400 --> 00:07:45,440 Speaker 3: That kind of stay would be against Supreme Court precedent, 128 00:07:45,920 --> 00:07:49,440 Speaker 3: But they have overturned president before, so we'll see. LeAnn, 129 00:07:49,440 --> 00:07:51,240 Speaker 3: I want to turn out of this federal trial in 130 00:07:51,320 --> 00:07:57,320 Speaker 3: Boston where several university associations are challenging the Trump administrations 131 00:07:57,480 --> 00:08:02,120 Speaker 3: cracked down on non citizen students and faculty who participated 132 00:08:02,160 --> 00:08:06,920 Speaker 3: in pro Palestinian demonstrations. They argue it's suppressing free speech 133 00:08:07,000 --> 00:08:11,600 Speaker 3: on campuses. The plaintiffs have singled out several activists by name, 134 00:08:11,800 --> 00:08:17,120 Speaker 3: including Columbia University graduate student mamou Khalil, who was the 135 00:08:17,120 --> 00:08:20,440 Speaker 3: first target of this crackdown and spent one hundred and 136 00:08:20,520 --> 00:08:24,520 Speaker 3: four days in federal immigration detention before being released. 137 00:08:25,200 --> 00:08:30,480 Speaker 5: They tried to portray me as a violent person. They 138 00:08:30,520 --> 00:08:36,760 Speaker 5: tried to portray me as a terrorist, as some lunatic, 139 00:08:37,040 --> 00:08:41,040 Speaker 5: but not presenting any evidence, not presenting any shred of 140 00:08:42,160 --> 00:08:43,720 Speaker 5: credibility to their claims. 141 00:08:44,400 --> 00:08:46,960 Speaker 3: This is the first case of its kind to actually 142 00:08:47,000 --> 00:08:49,880 Speaker 3: go to trial where the judge isn't just looking at 143 00:08:49,880 --> 00:08:53,760 Speaker 3: what happened to specific individuals, but rather as looking at 144 00:08:53,920 --> 00:08:57,280 Speaker 3: the policy now. The Trump administration denies that it has 145 00:08:57,320 --> 00:09:00,559 Speaker 3: any such policy and says that it's enforcing the immigration 146 00:09:00,720 --> 00:09:05,400 Speaker 3: laws to protect national security. The trial judge William Young 147 00:09:05,440 --> 00:09:08,040 Speaker 3: has said the trial is likely to center on the 148 00:09:08,120 --> 00:09:12,000 Speaker 3: question of whether non citizens legally in the country have 149 00:09:12,120 --> 00:09:15,800 Speaker 3: the same free speech rights as citizens. Is there case 150 00:09:15,920 --> 00:09:16,320 Speaker 3: law on that? 151 00:09:16,880 --> 00:09:19,080 Speaker 6: Well, there actually is case law on that, and that 152 00:09:19,120 --> 00:09:23,040 Speaker 6: case law is pretty bad. There's a case called Haresiatis 153 00:09:23,120 --> 00:09:26,680 Speaker 6: versus Shaughnessy from the nineteen fifties, and it dealt with 154 00:09:26,880 --> 00:09:30,160 Speaker 6: actual lawful permanent residents of the United States, so not 155 00:09:30,640 --> 00:09:34,480 Speaker 6: non immigrant visa holders like student visa or visitor visa holders. 156 00:09:34,520 --> 00:09:38,280 Speaker 6: These were actual lawful permanent residents. And the issue was 157 00:09:38,320 --> 00:09:42,040 Speaker 6: there was a statute that said not just current Communists, 158 00:09:42,400 --> 00:09:46,439 Speaker 6: but even former members of the Communist Party could be deported. 159 00:09:47,000 --> 00:09:48,680 Speaker 6: And this was in the height of the Cold War, 160 00:09:49,000 --> 00:09:51,960 Speaker 6: and these folks argued, wait a second, I'm not even 161 00:09:52,000 --> 00:09:55,640 Speaker 6: in the Communist Party anymore. I've renounced my affiliation with 162 00:09:55,720 --> 00:09:59,640 Speaker 6: the Communist Party. And even if I was a Communist, 163 00:09:59,640 --> 00:10:02,959 Speaker 6: what differ would it make if I wasn't actually violently 164 00:10:03,040 --> 00:10:06,319 Speaker 6: seeking to overthrow the government? Why would I be deported 165 00:10:06,440 --> 00:10:10,200 Speaker 6: for my First Amendment values? And that court in nineteen 166 00:10:10,240 --> 00:10:14,920 Speaker 6: fifty two said no, in these statutes involving non citizens, 167 00:10:15,280 --> 00:10:19,520 Speaker 6: the First Amendment does not overcome the security concerns and 168 00:10:19,600 --> 00:10:22,640 Speaker 6: the legitimate security concerns of the government, even if the 169 00:10:22,679 --> 00:10:26,439 Speaker 6: person is a lawful permanent residence. So if the Supreme 170 00:10:26,559 --> 00:10:31,679 Speaker 6: Court actually upholds that doctrine here again in twenty twenty five, 171 00:10:31,800 --> 00:10:34,280 Speaker 6: then it will remain the same, which is that when 172 00:10:34,320 --> 00:10:37,079 Speaker 6: you're not a citizen of the United States, your First 173 00:10:37,080 --> 00:10:40,800 Speaker 6: Amendment right are not superior to the rights of the 174 00:10:40,800 --> 00:10:43,600 Speaker 6: government to be able to deport you for conduct that 175 00:10:43,720 --> 00:10:46,600 Speaker 6: they feel is deportable conduct. We shall see. 176 00:10:46,960 --> 00:10:49,720 Speaker 3: Is a judge also going to consider whether the Secretary 177 00:10:49,760 --> 00:10:53,400 Speaker 3: of State is revoking these visas in good faith because 178 00:10:53,400 --> 00:10:56,600 Speaker 3: of concerns about foreign policy and national security? 179 00:10:57,200 --> 00:11:00,000 Speaker 6: Yes, first, what First Amendment rights do the non sene 180 00:11:00,200 --> 00:11:03,920 Speaker 6: than have? But then number two, the judge may say, well, fine, 181 00:11:04,000 --> 00:11:07,520 Speaker 6: that's all fined in dandy. But if the adjudications here 182 00:11:07,600 --> 00:11:11,520 Speaker 6: are pretextual, and I can find that they're completely pretextual, 183 00:11:11,600 --> 00:11:14,960 Speaker 6: meaning there actually is no threat to foreign policy of 184 00:11:14,960 --> 00:11:19,320 Speaker 6: any kind, I can still halt these deportations. 185 00:11:19,360 --> 00:11:23,480 Speaker 3: The trive will continue next week. And in yet another lawsuit, 186 00:11:23,679 --> 00:11:27,200 Speaker 3: Mamu Khalil has filed a twenty million dollar claim against 187 00:11:27,280 --> 00:11:32,680 Speaker 3: the Trump administration for false imprisonment. So many immigration cases. 188 00:11:33,200 --> 00:11:36,559 Speaker 3: Thanks so much, Leon. That's Leon Fresco of Holland and 189 00:11:36,640 --> 00:11:39,720 Speaker 3: Knight coming up next on the Bloomberg Law Show. The 190 00:11:39,800 --> 00:11:43,400 Speaker 3: stats are out on the Supreme Court's recent term. I'm 191 00:11:43,480 --> 00:11:48,079 Speaker 3: June Grosso and you're listening to Bloomberg. Justice Katanji Brown 192 00:11:48,160 --> 00:11:51,480 Speaker 3: Jackson has been a vocal critic of the Trump administration 193 00:11:51,880 --> 00:11:56,160 Speaker 3: this term. She's written strong dissents bemoaning Trump's attempts to 194 00:11:56,200 --> 00:12:00,400 Speaker 3: expand presidential authority, raising concerns about a life lack of 195 00:12:00,440 --> 00:12:03,720 Speaker 3: willingness to adhere to the rule of law, and accusing 196 00:12:03,760 --> 00:12:07,360 Speaker 3: her conservative colleagues of running the risk of a rooting 197 00:12:07,520 --> 00:12:12,760 Speaker 3: public trust in the impartiality of judicial decisions. That viewpoint 198 00:12:12,880 --> 00:12:16,439 Speaker 3: was apparent as she answered questions at an Indianapolis bar 199 00:12:16,559 --> 00:12:18,199 Speaker 3: association on Thursday. 200 00:12:18,960 --> 00:12:20,000 Speaker 4: What keeps you up at night? 201 00:12:22,040 --> 00:12:28,120 Speaker 7: I would say the state of our democracy. 202 00:12:32,720 --> 00:12:33,640 Speaker 1: I would say. 203 00:12:33,360 --> 00:12:38,240 Speaker 7: That I am really very interested in getting people to 204 00:12:38,320 --> 00:12:43,200 Speaker 7: focus and to invest and to pay attention to what 205 00:12:43,360 --> 00:12:46,400 Speaker 7: is happening in our country and in our government. 206 00:12:46,640 --> 00:12:49,520 Speaker 3: So it comes as no surprise that Jackson was the 207 00:12:49,760 --> 00:12:53,480 Speaker 3: justice most often in dissent. This term joining me is 208 00:12:53,559 --> 00:12:57,320 Speaker 3: constitutional law scholar Harold Krent, a professor at the Chicago 209 00:12:57,440 --> 00:13:00,959 Speaker 3: Kent College of Law, how Scotus blows. Stats of the 210 00:13:01,080 --> 00:13:04,200 Speaker 3: term have come out, and forty two percent of the 211 00:13:04,200 --> 00:13:08,440 Speaker 3: Supreme Court's decisions were unanimous. And that's something that Chief 212 00:13:08,600 --> 00:13:12,480 Speaker 3: Justice John Roberts in particular likes to point to in 213 00:13:12,600 --> 00:13:15,640 Speaker 3: order to show how much the justices are in agreement. 214 00:13:16,120 --> 00:13:19,280 Speaker 3: But does that agreement really matter when in all the 215 00:13:19,360 --> 00:13:26,000 Speaker 3: controversial cases involving hot button issues like LGBTQ rights, religious rights, 216 00:13:26,280 --> 00:13:29,120 Speaker 3: those all fall down ideological lines. 217 00:13:29,240 --> 00:13:31,920 Speaker 8: Six to three well be given and me, I think 218 00:13:31,920 --> 00:13:34,520 Speaker 8: as a reminder to us that it's still a court. 219 00:13:35,280 --> 00:13:37,960 Speaker 8: Yet members of the court can't agree with each other 220 00:13:38,200 --> 00:13:41,120 Speaker 8: in questions in terms of you know, air review, in 221 00:13:41,200 --> 00:13:43,200 Speaker 8: terms of the courts with appeals making mistake, which is 222 00:13:43,200 --> 00:13:46,360 Speaker 8: in terms of reconciling a split in the circuits. And 223 00:13:46,400 --> 00:13:48,840 Speaker 8: I think it's a good reminder that the Court is 224 00:13:48,840 --> 00:13:51,559 Speaker 8: a court, but that shouldn't obscure the fact that, as 225 00:13:51,600 --> 00:13:56,000 Speaker 8: you said, in the socially divisive cases, there's almost inevitably 226 00:13:56,320 --> 00:13:59,480 Speaker 8: a six' to three, split with some changes around the. 227 00:13:59,520 --> 00:14:02,840 Speaker 3: Margins roberts was in the majority ninety five percent of the, 228 00:14:02,880 --> 00:14:05,719 Speaker 3: time the most of any of the, justices followed By 229 00:14:05,800 --> 00:14:09,160 Speaker 3: brett kavanaught eighty six percent And Amy Cony barrett at 230 00:14:09,200 --> 00:14:09,760 Speaker 3: eighty one. 231 00:14:09,800 --> 00:14:11,240 Speaker 1: Percent do any. 232 00:14:11,040 --> 00:14:13,400 Speaker 3: Of those numbers surprise, you just to tell you that 233 00:14:13,440 --> 00:14:14,599 Speaker 3: the middle of the court. 234 00:14:14,440 --> 00:14:18,760 Speaker 8: Is, Ruling, no it doesn't surprise me at. All, obviously 235 00:14:18,920 --> 00:14:22,200 Speaker 8: those three justices do wield a lot of the power 236 00:14:22,360 --> 00:14:24,360 Speaker 8: on this current, court and they will do so for 237 00:14:24,440 --> 00:14:28,040 Speaker 8: the foreseeable. Future obviously there's some changes around the. MARGIN 238 00:14:28,120 --> 00:14:31,080 Speaker 8: i mean Sometimes justice corsicch sides with the, minority same 239 00:14:31,120 --> 00:14:33,560 Speaker 8: thing With Justice, barrett AND i think we've even Seen 240 00:14:33,920 --> 00:14:38,040 Speaker 8: Justice kagan occasionally trying to side with the more conservative 241 00:14:38,040 --> 00:14:40,760 Speaker 8: wing of the court in order TO i, think in her, 242 00:14:40,880 --> 00:14:43,960 Speaker 8: view probably try to establish more than middle. 243 00:14:43,960 --> 00:14:46,400 Speaker 3: Ground, yeah what's gotten a lot of tension in the 244 00:14:46,440 --> 00:14:49,720 Speaker 3: legal press was That Justice kagan came in. Fourth she 245 00:14:49,880 --> 00:14:53,400 Speaker 3: was in the majority of seventy percent of the term's 246 00:14:53,560 --> 00:14:57,800 Speaker 3: non unanimous. Outcomes there was a thirteen percent drop in 247 00:14:57,880 --> 00:15:02,800 Speaker 3: agreement Between kagan And Justice Sonya, sotomayor and the agreements 248 00:15:02,800 --> 00:15:06,600 Speaker 3: Between keig and in conservative justices up twenty two points 249 00:15:06,600 --> 00:15:09,480 Speaker 3: With Justice alito and up twenty nine points With Justice. 250 00:15:09,520 --> 00:15:12,880 Speaker 3: Thomas some people, say, oh, well she's getting more, conservative 251 00:15:12,920 --> 00:15:14,480 Speaker 3: but is that really the case? 252 00:15:14,920 --> 00:15:18,760 Speaker 8: NOW i think she tries to find common ground when she, 253 00:15:18,880 --> 00:15:22,200 Speaker 8: can and maybe that can be criticized as bet she's 254 00:15:22,320 --> 00:15:25,320 Speaker 8: sort of tempering her own views to that of trying 255 00:15:25,360 --> 00:15:29,160 Speaker 8: to help the institution gain a middle. Ground BUT i 256 00:15:29,160 --> 00:15:32,600 Speaker 8: think it is perhaps a positive institution, development as she 257 00:15:33,080 --> 00:15:35,560 Speaker 8: is least in my, view and some of her decisions 258 00:15:35,960 --> 00:15:40,440 Speaker 8: trying to establish that there is common ground amongst the 259 00:15:40,600 --> 00:15:44,440 Speaker 8: so called conservatives so called liberal, justices and not in all, 260 00:15:44,520 --> 00:15:47,080 Speaker 8: cases but in some ways she. Can't AND i don't 261 00:15:47,080 --> 00:15:49,480 Speaker 8: know if that'll have any kind of long lasting impact 262 00:15:49,560 --> 00:15:52,040 Speaker 8: or if it will change the trajectory of the, court 263 00:15:52,320 --> 00:15:53,160 Speaker 8: BUT i think that's her. 264 00:15:53,200 --> 00:15:56,720 Speaker 3: Goal Justice Katanji Brown jackson had the honor of being 265 00:15:56,760 --> 00:16:00,520 Speaker 3: in the majority the least of all the justices at 266 00:16:00,600 --> 00:16:04,080 Speaker 3: seventy two, percent and she's written some biting. 267 00:16:04,200 --> 00:16:08,200 Speaker 8: Descents she is carving out her role as being the 268 00:16:08,480 --> 00:16:12,200 Speaker 8: most progressive justice and the one least willing to compromise 269 00:16:12,560 --> 00:16:14,800 Speaker 8: with the rest of the. Court voices like that are 270 00:16:14,800 --> 00:16:18,200 Speaker 8: important to, hear but they're not necessarily positive ways to 271 00:16:18,280 --> 00:16:19,600 Speaker 8: galvanize a majority of the. 272 00:16:19,640 --> 00:16:22,360 Speaker 3: Court my favorite part of the stat pack is seeing 273 00:16:22,360 --> 00:16:25,440 Speaker 3: which circuits get reversed the, most and this year The 274 00:16:25,480 --> 00:16:28,960 Speaker 3: Fourth circuit went from being the best to the, worst 275 00:16:29,200 --> 00:16:31,240 Speaker 3: or at least one of the. Worst from two thousand 276 00:16:31,240 --> 00:16:34,440 Speaker 3: and seven through twenty twenty, three it had the lowest 277 00:16:34,520 --> 00:16:37,960 Speaker 3: rate of being reversed sixty two point one, percent but 278 00:16:38,040 --> 00:16:41,200 Speaker 3: this term it jumped to a one hundred percent reversal. 279 00:16:41,280 --> 00:16:45,680 Speaker 3: Rate eight out of eight cases. Overturned any idea, WHY. 280 00:16:45,680 --> 00:16:48,880 Speaker 8: I think a little bit is just. Uplip these variances 281 00:16:48,960 --> 00:16:51,280 Speaker 8: occur from time to. Time BUT i also think that 282 00:16:51,440 --> 00:16:55,000 Speaker 8: given the location Of Fourth, circuit they are centered where 283 00:16:55,120 --> 00:16:58,520 Speaker 8: so many federal government employees are, centered where there's a 284 00:16:58,560 --> 00:17:02,520 Speaker 8: lot of grants in turn terms OF hhs, Offices Social Security, 285 00:17:02,560 --> 00:17:06,199 Speaker 8: administration and so, forth that there's a lot of current 286 00:17:06,320 --> 00:17:11,120 Speaker 8: litigation against the tough, administration which is just center geographically 287 00:17:11,400 --> 00:17:13,840 Speaker 8: in that. District so it's not surprising that there's a 288 00:17:14,359 --> 00:17:17,040 Speaker 8: higher percentage of cases from The Fourth circuit that are 289 00:17:17,080 --> 00:17:19,560 Speaker 8: reaching The Supreme, court and of course it's a little 290 00:17:19,560 --> 00:17:22,119 Speaker 8: bit of a, blip but it's understandable that there's going 291 00:17:22,160 --> 00:17:24,239 Speaker 8: to be more cases that The Supreme court is going 292 00:17:24,280 --> 00:17:28,480 Speaker 8: to resolve against The Fourth. Circuit Fourth circuit is relatively ideologically, 293 00:17:28,520 --> 00:17:31,680 Speaker 8: balanced so it's not considered to be either a very 294 00:17:31,840 --> 00:17:35,359 Speaker 8: liberal or a very conservative. Court but nonetheless there's a 295 00:17:35,359 --> 00:17:38,760 Speaker 8: lot of these cases that have arisen, there and so 296 00:17:39,119 --> 00:17:41,760 Speaker 8: we're seeing intention between The Fourth circuit and The Supreme. 297 00:17:41,800 --> 00:17:45,119 Speaker 3: Court the reversals of The Fourth circuit included some of 298 00:17:45,160 --> 00:17:49,520 Speaker 3: the blockbuster cases of the, term like the birthright citizenship, 299 00:17:49,600 --> 00:17:52,119 Speaker 3: case where The court made it harder for judges to 300 00:17:52,200 --> 00:17:56,800 Speaker 3: issue nationwide, injunctions the case where The court allowed religious 301 00:17:56,840 --> 00:18:01,440 Speaker 3: parents to opt their children out of lessons WHERE lgbtq 302 00:18:01,600 --> 00:18:04,440 Speaker 3: friendly books are, read and the case paving the way 303 00:18:04,480 --> 00:18:08,640 Speaker 3: For South carolina to exclude a planned parenthood affiliate from 304 00:18:08,680 --> 00:18:09,440 Speaker 3: its medicaid. 305 00:18:09,480 --> 00:18:11,000 Speaker 1: Program all of. 306 00:18:10,920 --> 00:18:13,879 Speaker 3: Those cases were six to three with the liberals. Dissenting 307 00:18:14,560 --> 00:18:17,640 Speaker 3: So i'm wondering if The Fourth circuit is more in 308 00:18:17,720 --> 00:18:21,159 Speaker 3: line with the liberals on The court than the conservatives 309 00:18:21,200 --> 00:18:23,760 Speaker 3: on the. Court is there a certain partisanship? 310 00:18:23,840 --> 00:18:27,080 Speaker 8: THERE i would frame it that The Fourth circuit is 311 00:18:27,119 --> 00:18:32,360 Speaker 8: aligned with traditional conservative judicial. Principles that This court has 312 00:18:32,480 --> 00:18:36,120 Speaker 8: veered from those traditional conservative judicial, principles which is why 313 00:18:36,160 --> 00:18:39,360 Speaker 8: we're seeing the. GAP i think that That Fourth circuit 314 00:18:39,480 --> 00:18:43,240 Speaker 8: is cautious and it's trying to adhere to the sort 315 00:18:43,240 --> 00:18:47,760 Speaker 8: of judicial principles or judicial customs perspectives the way they've 316 00:18:47,840 --> 00:18:52,560 Speaker 8: understood them for a, generation and that's running against the 317 00:18:52,640 --> 00:18:57,119 Speaker 8: Current Supreme court's, position which seems to be far more 318 00:18:57,480 --> 00:19:01,680 Speaker 8: solicitous of both judicial power as well as presidential. 319 00:19:01,720 --> 00:19:04,200 Speaker 3: Power it used to be that The Ninth circuit had 320 00:19:04,200 --> 00:19:08,080 Speaker 3: the most cases reviewed by The Supreme, court but now 321 00:19:08,080 --> 00:19:11,960 Speaker 3: it's The Fifth, circuit the most conservative. Circuit it had 322 00:19:12,000 --> 00:19:15,840 Speaker 3: thirteen cases taken up by The court this, term compared 323 00:19:15,880 --> 00:19:18,840 Speaker 3: to four from The Ninth, circuit and The Fifth circuit 324 00:19:18,880 --> 00:19:22,520 Speaker 3: was reversed in ten of the thirteen, Cases so has 325 00:19:22,560 --> 00:19:25,040 Speaker 3: it taken the place of The Ninth circuit as most. 326 00:19:25,119 --> 00:19:28,600 Speaker 8: Reversed, well The Fifth circuit is known as the most 327 00:19:28,840 --> 00:19:32,720 Speaker 8: conservative but an activist conservative. Court The Ninth circuit has 328 00:19:32,800 --> 00:19:36,800 Speaker 8: been historically known as the most activist of progressive or liberal, 329 00:19:37,040 --> 00:19:41,280 Speaker 8: courts so it's not surprising that decisions from those two 330 00:19:41,440 --> 00:19:45,520 Speaker 8: circuits disproportionately go to The Supreme. Court and indeed we've 331 00:19:45,560 --> 00:19:47,840 Speaker 8: seen an interesting switch now in The Fifth, circuit because 332 00:19:47,840 --> 00:19:50,320 Speaker 8: The Fifth circuit led the charge against The biden administration 333 00:19:50,560 --> 00:19:54,280 Speaker 8: in some very surprising, cases including two delegation cases in 334 00:19:54,320 --> 00:19:57,200 Speaker 8: which The Supreme court struck them down this. Term and 335 00:19:57,640 --> 00:20:01,640 Speaker 8: the question is will they be as anti administration when 336 00:20:01,680 --> 00:20:05,080 Speaker 8: it comes time to review that which The trump administration is. 337 00:20:05,119 --> 00:20:08,000 Speaker 8: Doing and early records are, mixed so that's something to look. 338 00:20:08,040 --> 00:20:09,960 Speaker 8: TO i think that some of the ardor of The 339 00:20:09,960 --> 00:20:12,520 Speaker 8: Fifth circuit in terms of being anti administration will be. 340 00:20:12,600 --> 00:20:15,760 Speaker 8: Damp and now with the switch politically at the top. 341 00:20:15,520 --> 00:20:18,399 Speaker 3: Of the, helm has The Fifth circuit been trying to 342 00:20:18,480 --> 00:20:22,360 Speaker 3: push the, envelope so to, speak and be more aggressive 343 00:20:22,480 --> 00:20:26,120 Speaker 3: in terms of conservative policies or. 344 00:20:26,240 --> 00:20:29,640 Speaker 8: Jurisprudence, WELL I fisirka has been at the cusp in 345 00:20:29,720 --> 00:20:35,480 Speaker 8: terms of pushing against administrative, power power of the agencies to. 346 00:20:36,080 --> 00:20:39,960 Speaker 8: RULE i, mean for, instance in the telecommunications, case they 347 00:20:40,040 --> 00:20:44,520 Speaker 8: had sought to curb the power of The Federal Communications 348 00:20:44,520 --> 00:20:49,320 Speaker 8: commission to impose attacks on, telecoms and that of course was. 349 00:20:49,400 --> 00:20:52,919 Speaker 8: UPHELD i, Mean biden administration pursued that, plan but so 350 00:20:53,000 --> 00:20:55,840 Speaker 8: did The trump. Administration and so the question is will 351 00:20:55,960 --> 00:21:01,080 Speaker 8: the Fith circuit continue its sort of skepticism about administrative 352 00:21:01,119 --> 00:21:05,040 Speaker 8: power given That President trump is now a top of 353 00:21:05,080 --> 00:21:09,480 Speaker 8: the executive. Branch so time will tell whether they'll. Continue but, 354 00:21:09,680 --> 00:21:13,400 Speaker 8: clearly in case after, case particularly during The biden, administration 355 00:21:13,920 --> 00:21:18,320 Speaker 8: they challenged the legitimacy of the administrative, agencies you, know 356 00:21:18,320 --> 00:21:21,320 Speaker 8: in terms of the vaccine, policies in terms of the 357 00:21:21,320 --> 00:21:22,320 Speaker 8: student loans and. 358 00:21:22,400 --> 00:21:26,440 Speaker 3: More when the justices take, cases they usually take them to, 359 00:21:26,560 --> 00:21:28,800 Speaker 3: reverse don't. THEY i, mean forty four out of the 360 00:21:28,840 --> 00:21:31,080 Speaker 3: fifty nine cases they took this term were. 361 00:21:31,359 --> 00:21:35,239 Speaker 8: Reversed that's generally the, case but obviously more generally they 362 00:21:35,280 --> 00:21:37,560 Speaker 8: take cases when there's a split and the court needs 363 00:21:37,560 --> 00:21:40,280 Speaker 8: to resolve is split in the. Circuits so sometimes it's 364 00:21:40,400 --> 00:21:43,280 Speaker 8: just the matter which of the two cases they, take 365 00:21:43,480 --> 00:21:45,800 Speaker 8: because one case goes one way and one case goes the. 366 00:21:45,840 --> 00:21:48,240 Speaker 8: Other so sometimes those figures are a tad. 367 00:21:48,320 --> 00:21:51,160 Speaker 3: MISLEADING a lot of the action this term has been 368 00:21:51,280 --> 00:21:55,120 Speaker 3: on the shadow or emergency, docket where The trump administration 369 00:21:55,320 --> 00:21:59,680 Speaker 3: has repeatedly been asking The Supreme court to lift lower 370 00:21:59,760 --> 00:22:03,120 Speaker 3: court orders while the case is Proceed just this, week 371 00:22:03,160 --> 00:22:06,119 Speaker 3: The court Gave trump the okay to move ahead with 372 00:22:06,640 --> 00:22:11,439 Speaker 3: mass layoffs of federal. Workers is this just part of 373 00:22:11,480 --> 00:22:15,440 Speaker 3: the trend of The court on the emergency docket lifting 374 00:22:15,520 --> 00:22:19,520 Speaker 3: lower court orders that blocked The trump. Agenda, Well i'm 375 00:22:19,560 --> 00:22:19,960 Speaker 3: of two. 376 00:22:19,920 --> 00:22:22,320 Speaker 8: Minds about the most recent. DECISION i, mean what The 377 00:22:22,400 --> 00:22:26,320 Speaker 8: court did is removed as an injunction on the administration 378 00:22:26,480 --> 00:22:29,160 Speaker 8: from trying to carry out the, rift but it did 379 00:22:29,200 --> 00:22:33,639 Speaker 8: not say that the riff was appropriate or consistent With congressional. 380 00:22:33,680 --> 00:22:36,679 Speaker 8: Direction AND i think that was made clear as well 381 00:22:36,760 --> 00:22:39,320 Speaker 8: because of the fact That Justice kagan went along with 382 00:22:39,400 --> 00:22:42,959 Speaker 8: the majority allowing the administration's action to. Proceed and the 383 00:22:43,160 --> 00:22:47,200 Speaker 8: executive order says that the riff or the Reduction force 384 00:22:47,480 --> 00:22:50,840 Speaker 8: must proceed according to applicable. Law and the applicable, law of, 385 00:22:50,880 --> 00:22:55,399 Speaker 8: course Is congress's very detailed instructions for how agencies should. 386 00:22:55,440 --> 00:22:58,080 Speaker 8: Proceed AND i think the reason Why Justice kaikan did 387 00:22:58,240 --> 00:23:01,200 Speaker 8: join the majority was because we have yet to see 388 00:23:01,359 --> 00:23:05,960 Speaker 8: whether the administration will conform to the congressional blueprint for 389 00:23:06,119 --> 00:23:09,840 Speaker 8: hiding out the Reduction force or. Not and so, yes 390 00:23:10,040 --> 00:23:12,280 Speaker 8: The court is giving the benefit of the doubt the 391 00:23:12,320 --> 00:23:15,760 Speaker 8: administration and the spending would think that administration doesn't deserve 392 00:23:15,840 --> 00:23:18,439 Speaker 8: the benefit of the. Doubt BUT i think what the 393 00:23:18,520 --> 00:23:21,359 Speaker 8: court's action is, saying, well let's wait until there's a 394 00:23:21,440 --> 00:23:25,920 Speaker 8: merit's decision as to whether the applicable congressional rules were 395 00:23:25,960 --> 00:23:30,720 Speaker 8: followed before we actually tell the administration they can't move 396 00:23:30,760 --> 00:23:34,000 Speaker 8: forward in that. Way the administration they can't move forward 397 00:23:34,000 --> 00:23:34,239 Speaker 8: in that. 398 00:23:34,280 --> 00:23:37,399 Speaker 3: Way, well all, along The court has been letting The 399 00:23:37,400 --> 00:23:42,159 Speaker 3: trump administration go ahead for. Now but the problem is 400 00:23:42,200 --> 00:23:44,720 Speaker 3: that getting to the merits of these cases take so, 401 00:23:44,960 --> 00:23:47,720 Speaker 3: long and by that time the damage is. 402 00:23:47,760 --> 00:23:48,880 Speaker 1: Done people have been. 403 00:23:48,920 --> 00:23:51,840 Speaker 8: Fired, yeah the court has been very, cavalier if you, 404 00:23:51,880 --> 00:23:55,000 Speaker 8: will in terms of balancing the. HARMS i think the 405 00:23:55,040 --> 00:23:57,919 Speaker 8: reduction enforced case is a good illustration of, that, because, 406 00:23:58,080 --> 00:24:01,399 Speaker 8: yes the government wants to save money and restructure the federal, 407 00:24:01,440 --> 00:24:04,520 Speaker 8: government and there is a loss if they can't do 408 00:24:04,640 --> 00:24:06,960 Speaker 8: that to what they consider to be the public. Good 409 00:24:07,160 --> 00:24:11,040 Speaker 8: but on the other, hand the dislocation and financial deprivations 410 00:24:11,080 --> 00:24:15,640 Speaker 8: that these employees may face should be, counted perhaps even more, 411 00:24:15,680 --> 00:24:17,320 Speaker 8: greatly and The court's not doing. 412 00:24:17,359 --> 00:24:20,240 Speaker 3: That thanks for joining. Me how That's Professor Harold krent 413 00:24:20,400 --> 00:24:23,520 Speaker 3: of The Chicago Kent college Of law coming up. Next 414 00:24:23,720 --> 00:24:27,240 Speaker 3: While lululemon is Suing. Costco I'm June grosso and you're 415 00:24:27,280 --> 00:24:28,280 Speaker 3: listening To bloomberg. 416 00:24:28,920 --> 00:24:30,560 Speaker 1: Colors if you go. 417 00:24:30,520 --> 00:24:36,160 Speaker 3: To Hashtag lululemon, dupes you'll find social media influencers promoting 418 00:24:36,240 --> 00:24:40,399 Speaker 3: knockoffs or dupes of their, apparel like, hoodies, jackets and 419 00:24:40,480 --> 00:24:44,600 Speaker 3: pans At costco that look authentic but sell for a 420 00:24:44,680 --> 00:24:49,000 Speaker 3: fraction of the. Price, Well lululemon is making a federal 421 00:24:49,080 --> 00:24:52,760 Speaker 3: case out of, it Taking costco to court for copying their. 422 00:24:52,800 --> 00:24:56,760 Speaker 3: Designs my guest Is Susan, scaffiti a professor At Fordham 423 00:24:56,800 --> 00:25:00,479 Speaker 3: Law school and director of The Fashion Law. Institute susan 424 00:25:00,560 --> 00:25:04,400 Speaker 3: a very basic question to start off, with are dupes 425 00:25:04,520 --> 00:25:05,720 Speaker 3: what we used to call? 426 00:25:05,840 --> 00:25:07,200 Speaker 1: Knockoffs we have. 427 00:25:07,240 --> 00:25:10,320 Speaker 9: Definitely seen an evolution in, nomenclature, Right so it used 428 00:25:10,359 --> 00:25:13,800 Speaker 9: to be counterfeits and, knockoffs and then replicas and then 429 00:25:14,000 --> 00:25:17,600 Speaker 9: reps and now. Dupes AND i, think, honestly part of 430 00:25:17,760 --> 00:25:21,560 Speaker 9: the story of the public accepting them more is they 431 00:25:21,600 --> 00:25:23,760 Speaker 9: sound cute and. Adorable now you know you could have 432 00:25:23,840 --> 00:25:25,240 Speaker 9: a pet, dupe you cannot have a pet. 433 00:25:25,280 --> 00:25:29,720 Speaker 3: Counterfeit, well, also social media right is blasting out where 434 00:25:29,760 --> 00:25:33,800 Speaker 3: to find these precisely dupes are being sold all. Over 435 00:25:34,480 --> 00:25:35,560 Speaker 3: is selling a dupe? 436 00:25:35,600 --> 00:25:40,040 Speaker 9: Illegal, well it, depends. Right dupe like knockoff, before it 437 00:25:40,080 --> 00:25:44,160 Speaker 9: is a broad ambigus term when they are very, exact 438 00:25:44,320 --> 00:25:48,080 Speaker 9: and in those cases in which THE ip is, protected 439 00:25:48,320 --> 00:25:50,840 Speaker 9: yes that is. Illegal but if we're getting a little 440 00:25:50,880 --> 00:25:53,640 Speaker 9: further away from the, original or if the original itself 441 00:25:53,720 --> 00:25:56,119 Speaker 9: is not protected UNDER us, law then no it is. 442 00:25:56,200 --> 00:25:58,920 Speaker 9: Not so we do indeed have a lot of gray area, 443 00:25:59,000 --> 00:26:01,440 Speaker 9: here and it's not a chic little chucoal or, dove 444 00:26:01,600 --> 00:26:03,720 Speaker 9: something a lot more sinister from the brand's. 445 00:26:03,720 --> 00:26:08,040 Speaker 3: Perspectus Lulu, lemon of, Course pioneered Yoga ware tell us 446 00:26:08,040 --> 00:26:09,480 Speaker 3: what it's Accusing costco. 447 00:26:09,600 --> 00:26:13,239 Speaker 9: Of So Lula lemon is claiming that the things that 448 00:26:13,280 --> 00:26:16,280 Speaker 9: have been copied and are being sold At costco do 449 00:26:16,440 --> 00:26:19,560 Speaker 9: in fact cross the line into. Illegal and what's so 450 00:26:19,680 --> 00:26:22,960 Speaker 9: interesting about this, Case, june is that they have gone 451 00:26:23,280 --> 00:26:28,000 Speaker 9: through the entire list of POTENTIAL ip claims and are 452 00:26:28,040 --> 00:26:33,679 Speaker 9: basically throwing everything except copyright At. Costco they're looking at, 453 00:26:34,000 --> 00:26:37,240 Speaker 9: patents as specifically design, patent because they do have a 454 00:26:37,280 --> 00:26:40,800 Speaker 9: design patent on their scuba design for. Hoodies they are 455 00:26:40,840 --> 00:26:45,560 Speaker 9: looking at trade dress protection that subset of trademark that focuses, 456 00:26:45,640 --> 00:26:49,240 Speaker 9: on among other, things product. Design, Right so when a 457 00:26:49,280 --> 00:26:53,679 Speaker 9: product design itself is so, iconic like the red souls 458 00:26:53,680 --> 00:26:57,000 Speaker 9: On lobaton's or the ermez, berkeens the design is so 459 00:26:57,320 --> 00:27:01,480 Speaker 9: iconic that it served as its own sorce indicator that 460 00:27:01,560 --> 00:27:04,600 Speaker 9: can be. Protected so they're claiming that kind of protection 461 00:27:04,760 --> 00:27:08,680 Speaker 9: in the case of Their define. Jackets then they're claiming 462 00:27:09,240 --> 00:27:14,359 Speaker 9: unregistered protection for men's. Trousers they're claiming wordmarks in the 463 00:27:14,359 --> 00:27:17,760 Speaker 9: case of, scuba and a wordmark for the colored tidewater 464 00:27:17,880 --> 00:27:21,000 Speaker 9: teal that they say is proprietary to, them and then 465 00:27:21,000 --> 00:27:23,760 Speaker 9: they're throwing in some state law unfair competition. Claims so 466 00:27:23,880 --> 00:27:27,560 Speaker 9: they are really going across the, board looking At costco 467 00:27:27,800 --> 00:27:31,440 Speaker 9: in house brands Like, kirkland but also other brands being 468 00:27:31,560 --> 00:27:35,000 Speaker 9: sold At costco like Dan skin And jockey in this. 469 00:27:35,080 --> 00:27:38,639 Speaker 9: Case so they are really taking a very broad brush 470 00:27:38,680 --> 00:27:42,200 Speaker 9: approach to the items That costco is selling that Lu 471 00:27:42,320 --> 00:27:44,280 Speaker 9: lemon believes are protected intellectual. 472 00:27:44,320 --> 00:27:49,119 Speaker 3: Property costco is known for That kirkland, brand and people 473 00:27:49,160 --> 00:27:53,080 Speaker 3: often say that their products are high quality but sold 474 00:27:53,200 --> 00:27:57,159 Speaker 3: for much less than name brand. Products what kind of 475 00:27:57,200 --> 00:28:00,160 Speaker 3: a price differential are we talking about with Lou. 476 00:28:00,520 --> 00:28:03,320 Speaker 9: Apparel, well in the case of the men's, trousers they were, 477 00:28:03,320 --> 00:28:05,840 Speaker 9: saying you're eight dollars versus one hundred and eighteen, dollars 478 00:28:05,920 --> 00:28:08,800 Speaker 9: so quite a bit, less which has actually been consistent 479 00:28:08,840 --> 00:28:11,080 Speaker 9: with the prices of knockoffs over the. Years we always 480 00:28:11,119 --> 00:28:13,680 Speaker 9: say somewhere between five and twenty percent when we're looking 481 00:28:13,720 --> 00:28:15,000 Speaker 9: at knockoffs across the. 482 00:28:15,000 --> 00:28:18,159 Speaker 3: Board that is quite a big price, Difference, Susan what 483 00:28:18,240 --> 00:28:21,760 Speaker 3: Would Lulu lemon have to prove if this case went to? 484 00:28:21,880 --> 00:28:23,880 Speaker 3: Trial in these, cases. 485 00:28:23,480 --> 00:28:26,160 Speaker 9: The first step is going to have to be convincing 486 00:28:26,200 --> 00:28:29,480 Speaker 9: of the jury that the claims That Lula lemon is 487 00:28:29,480 --> 00:28:32,920 Speaker 9: making are actually valid with regard to What Lulu lemon. 488 00:28:33,000 --> 00:28:36,159 Speaker 9: Owns now they've done their, homework they have warmed, up 489 00:28:36,200 --> 00:28:39,560 Speaker 9: stretched and prepared for this particular case by registering some 490 00:28:39,600 --> 00:28:42,240 Speaker 9: of those, marks trademarks and design. Patents so in the 491 00:28:42,280 --> 00:28:45,880 Speaker 9: case of a, registration there's already an, assumption but it's 492 00:28:45,920 --> 00:28:48,719 Speaker 9: an assumption that can be. Overturned So lululemon is going 493 00:28:48,760 --> 00:28:51,440 Speaker 9: to have to be able to prove that these particular 494 00:28:51,520 --> 00:28:54,640 Speaker 9: marks are indeed source, indicators or in the case of design, 495 00:28:54,680 --> 00:28:58,520 Speaker 9: patents that they are indeed new these. Designs with regard 496 00:28:58,560 --> 00:29:00,360 Speaker 9: to the things that are not, registered they have a 497 00:29:00,400 --> 00:29:03,480 Speaker 9: somewhat higher far to pass in order to convince the 498 00:29:03,560 --> 00:29:06,600 Speaker 9: jury that they deserve. Protection but if they can do, 499 00:29:06,680 --> 00:29:08,840 Speaker 9: that then they actually have to be able to show 500 00:29:09,000 --> 00:29:12,160 Speaker 9: that The costco items are close enough the Lu lemon 501 00:29:12,240 --> 00:29:15,440 Speaker 9: items that they actually. Infringe in other, words it's a 502 00:29:15,480 --> 00:29:19,440 Speaker 9: two step. Process is THE ip valid and if, so 503 00:29:20,040 --> 00:29:23,160 Speaker 9: are The costco items? Infringing and they do need to 504 00:29:23,200 --> 00:29:25,200 Speaker 9: persuade a jury this is a jury. 505 00:29:25,200 --> 00:29:27,680 Speaker 3: Claim what about the fact that you, know there's that 506 00:29:27,760 --> 00:29:33,840 Speaker 3: Hashtag lululemon dupes and apparently some dupes are being sold On, Amazon, 507 00:29:34,040 --> 00:29:38,520 Speaker 3: Walmart target and. Elsewhere so why Is Lula. 508 00:29:38,360 --> 00:29:40,200 Speaker 1: Lemon focusing on Suing? 509 00:29:40,320 --> 00:29:43,720 Speaker 3: Costco and you, know Will costco be able to, say but, 510 00:29:43,800 --> 00:29:45,440 Speaker 3: look they're selling these. 511 00:29:45,440 --> 00:29:48,600 Speaker 9: Elsewhere, Well costco will be able to do. That but of, 512 00:29:48,640 --> 00:29:51,560 Speaker 9: course when you're engaged in grand, protection you need to make. 513 00:29:51,680 --> 00:29:55,080 Speaker 9: Choices no, company not even the very largest wealthiest, ones 514 00:29:55,240 --> 00:29:58,520 Speaker 9: have unlimited legal, budgets much to the sadness of their. 515 00:29:58,600 --> 00:30:01,520 Speaker 9: Lawyers do they make. Choice AND i think Choosing costco 516 00:30:01,640 --> 00:30:05,000 Speaker 9: was smart in some. Ways it's one stop. Shopping they're 517 00:30:05,040 --> 00:30:07,920 Speaker 9: suing that Only costco over its house, brand but they're 518 00:30:07,960 --> 00:30:10,840 Speaker 9: suing over some of the other brands That costco, carries 519 00:30:10,920 --> 00:30:14,920 Speaker 9: and they are suing an entity that is highly recognizable 520 00:30:15,040 --> 00:30:18,000 Speaker 9: and trusted by The american. Public so it's going to 521 00:30:18,000 --> 00:30:21,280 Speaker 9: get attention when they go After, costco much the way 522 00:30:21,320 --> 00:30:24,680 Speaker 9: it got attention When rimes, said, yes we know there 523 00:30:24,680 --> 00:30:27,160 Speaker 9: are lots of Counterfeit burgen's out, there but we're going 524 00:30:27,240 --> 00:30:29,600 Speaker 9: after the work in The Walmart. Burgen so if that 525 00:30:29,720 --> 00:30:34,320 Speaker 9: kind of press release aspect to a complaint is relevant, 526 00:30:34,360 --> 00:30:37,320 Speaker 9: here they want the attention on this. Case they may 527 00:30:37,360 --> 00:30:39,960 Speaker 9: not win the hearts and minds of. Consumers they may 528 00:30:39,960 --> 00:30:44,600 Speaker 9: not change this social tide toward the acceptance of dupes 529 00:30:44,720 --> 00:30:48,480 Speaker 9: as something to be celebrated rather than, hidden but they 530 00:30:48,560 --> 00:30:52,280 Speaker 9: will be able to convince some people that these dupes 531 00:30:52,320 --> 00:30:54,400 Speaker 9: are not a good, thing and they will also be 532 00:30:54,440 --> 00:30:57,640 Speaker 9: able to send a warning to vendors across the board 533 00:30:57,800 --> 00:31:00,280 Speaker 9: That lululemon is not to be messed. With of, Course 534 00:31:00,320 --> 00:31:03,560 Speaker 9: Lulu lemon has a history of bringing other lawsuits in the, 535 00:31:03,600 --> 00:31:06,480 Speaker 9: past so this has been a long term strategy for 536 00:31:06,600 --> 00:31:09,920 Speaker 9: them to try to become a harder, target if you, Will. 537 00:31:09,840 --> 00:31:11,480 Speaker 1: And what happened with the copy of The Birken. 538 00:31:11,600 --> 00:31:14,320 Speaker 9: Bag, well they're no longer available for sale At. Walmart 539 00:31:14,360 --> 00:31:16,480 Speaker 9: so let's assume that one has, settled which IS i 540 00:31:16,520 --> 00:31:18,760 Speaker 9: think the likelihood here is that we will get a. 541 00:31:18,800 --> 00:31:22,040 Speaker 9: Settlement it would be from a legal, respective wonderful to 542 00:31:22,040 --> 00:31:24,880 Speaker 9: see what a jury thinks and then what mappellate court 543 00:31:24,960 --> 00:31:28,600 Speaker 9: thinks about how close is too close in these, Cases 544 00:31:28,640 --> 00:31:31,400 Speaker 9: but more than likely we will get a. Settlement if 545 00:31:31,400 --> 00:31:33,560 Speaker 9: this In, europe of, course this would be a very short. 546 00:31:33,600 --> 00:31:37,400 Speaker 9: Complaint we would simply have that other category of design, 547 00:31:37,480 --> 00:31:40,720 Speaker 9: protection so we wouldn't be looking separately at trademarks and 548 00:31:40,800 --> 00:31:45,440 Speaker 9: patents and asking whether the law applies in these. Cases 549 00:31:45,680 --> 00:31:48,280 Speaker 9: we would go straight to design protection and be done with. 550 00:31:48,400 --> 00:31:50,520 Speaker 1: It just suppose it does get to. 551 00:31:50,640 --> 00:31:54,160 Speaker 3: Trial is it an uphill battle For lululemon to convince a. 552 00:31:54,240 --> 00:31:57,480 Speaker 9: JURY i think it's going to vary amongst the different styles. 553 00:31:57,520 --> 00:32:01,480 Speaker 9: CLAIMED i think for the registered trade dress and registered design, 554 00:32:01,560 --> 00:32:04,760 Speaker 9: patterns that's going to be an easier. Cell for the 555 00:32:05,000 --> 00:32:09,360 Speaker 9: claims of unregistered, protection like for the MEN'S abc trousers 556 00:32:09,360 --> 00:32:11,680 Speaker 9: and The tidewater teals, color it's going to be a 557 00:32:11,720 --> 00:32:15,200 Speaker 9: little more difficult but not, Impossible and Does. 558 00:32:15,120 --> 00:32:19,400 Speaker 3: Lula lemon have to prove that consumers are confused by the. 559 00:32:19,440 --> 00:32:23,280 Speaker 9: Dupes with regard to the trademark related, Claims so the 560 00:32:23,320 --> 00:32:27,160 Speaker 9: trade dressed, claim they do have to prove likelihood of consumer, 561 00:32:27,240 --> 00:32:31,720 Speaker 9: confusion which is why something like Hashtag lululemon dupe is 562 00:32:31,760 --> 00:32:35,000 Speaker 9: maybe not helpful To Lulu. Lemon it certainly fuels the 563 00:32:35,160 --> 00:32:39,360 Speaker 9: fire to go after these, dupes but it's also saying 564 00:32:39,440 --> 00:32:43,000 Speaker 9: that consumers may not be, confused at least at point of. 565 00:32:43,080 --> 00:32:46,800 Speaker 9: Sale now there's always post seal. Confusion there's the concern 566 00:32:46,880 --> 00:32:50,760 Speaker 9: that consumers will see others wearing the dupes and think 567 00:32:50,800 --> 00:32:54,160 Speaker 9: that They're. Lululemon so there's that form of consumer confusion 568 00:32:54,200 --> 00:32:56,640 Speaker 9: that might be easier to prove in the era of 569 00:32:56,720 --> 00:33:01,600 Speaker 9: Hashtag lululemon, dupes but it's problematic consumers are not actually. 570 00:33:01,640 --> 00:33:04,480 Speaker 9: Confused you. Know it's interesting in that Regard june is 571 00:33:04,480 --> 00:33:09,800 Speaker 9: That lululemon it actually has a trademark application pending for 572 00:33:10,000 --> 00:33:13,240 Speaker 9: the Phrase lululemon. Dupe in the context of retail, stores 573 00:33:13,360 --> 00:33:16,200 Speaker 9: they haven't said exactly how they'll use, it and they 574 00:33:16,240 --> 00:33:18,120 Speaker 9: don't have to do that, yet and the trademark has 575 00:33:18,240 --> 00:33:21,600 Speaker 9: not yet. Issued they filed the application back In, december 576 00:33:21,760 --> 00:33:25,600 Speaker 9: but they're obviously thinking about playing in this field in 577 00:33:25,680 --> 00:33:26,800 Speaker 9: another way as. 578 00:33:26,880 --> 00:33:29,680 Speaker 3: Well you, say most of these cases are, settled but 579 00:33:29,800 --> 00:33:33,000 Speaker 3: is a lot of money spent just reaching the point of? 580 00:33:33,080 --> 00:33:34,840 Speaker 1: Settlement what are legal fees? 581 00:33:35,000 --> 00:33:39,560 Speaker 9: Like? Oh of, course just developing this complaint with a 582 00:33:39,680 --> 00:33:43,360 Speaker 9: dozen different claims has taken a lot of, time and 583 00:33:43,480 --> 00:33:46,959 Speaker 9: surely there has been some conversation between the companies in 584 00:33:47,040 --> 00:33:50,160 Speaker 9: advance of. This so it has already been an expensive. 585 00:33:50,200 --> 00:33:53,000 Speaker 9: Process it may be worthwhile because again it is a 586 00:33:53,120 --> 00:33:57,440 Speaker 9: legal process and a public relations. Process you, know if 587 00:33:57,440 --> 00:33:59,880 Speaker 9: it's one thing that a company that makes yoga pants 588 00:34:00,040 --> 00:34:02,800 Speaker 9: familiar with its, inversions AND i think they would really 589 00:34:02,880 --> 00:34:05,960 Speaker 9: like to be able to invert the public's perception of. 590 00:34:06,040 --> 00:34:09,879 Speaker 9: Dupes that's really the goal here from a public, perspective 591 00:34:10,320 --> 00:34:12,719 Speaker 9: much the way that just as you, know a few years, 592 00:34:12,760 --> 00:34:16,640 Speaker 9: Ago lululemon set up a dupe swap in a mall 593 00:34:16,680 --> 00:34:19,360 Speaker 9: In Los angeles and, said, look bring us your, dupe any, 594 00:34:19,440 --> 00:34:23,680 Speaker 9: Brand we will give you genuine Aligned lululemon. Trousers they 595 00:34:23,680 --> 00:34:26,680 Speaker 9: are so great that you'll be able to tell the difference, 596 00:34:26,719 --> 00:34:29,879 Speaker 9: immediately and you will Become lululemon. Fans so they are 597 00:34:29,960 --> 00:34:33,319 Speaker 9: playing both a legal game and an extra legal game 598 00:34:33,480 --> 00:34:36,280 Speaker 9: as part of their brand protection. Strategy and it's something 599 00:34:36,280 --> 00:34:40,040 Speaker 9: that they've done for. Years so if they can start 600 00:34:40,120 --> 00:34:45,239 Speaker 9: to again invert the perception of, dupes maybe restore them 601 00:34:45,280 --> 00:34:50,359 Speaker 9: to their former sub rosa, underground slitely shameful, status or 602 00:34:50,400 --> 00:34:53,520 Speaker 9: at the very least convince people that Lu lemon products 603 00:34:53,560 --> 00:34:56,839 Speaker 9: are of higher quality so that they can recapture some 604 00:34:57,080 --> 00:34:59,880 Speaker 9: of the folks who would have instead gone to cost or. 605 00:35:00,040 --> 00:35:03,240 Speaker 9: Elsewhere that's going to be a win without ever getting 606 00:35:03,280 --> 00:35:03,800 Speaker 9: as far as a. 607 00:35:03,880 --> 00:35:06,680 Speaker 3: JURY i remember when if you had a, knockoff you 608 00:35:06,800 --> 00:35:09,080 Speaker 3: hid the fact that it was a. Knockoff you tried 609 00:35:09,120 --> 00:35:10,040 Speaker 3: to pass it off. 610 00:35:09,920 --> 00:35:10,439 Speaker 1: As the real. 611 00:35:10,520 --> 00:35:12,399 Speaker 3: Thing nowadays they don't care. 612 00:35:13,120 --> 00:35:16,960 Speaker 9: Exactly there has been a huge shift in perception over fifteen. 613 00:35:17,040 --> 00:35:19,279 Speaker 9: Years it used to be that brands didn't want to 614 00:35:19,320 --> 00:35:22,840 Speaker 9: talk about counterfeits or. Knockoffs then they finally acknowledged the. 615 00:35:22,920 --> 00:35:27,160 Speaker 9: Problem but CONSUMERS i have also gone from hiding the 616 00:35:27,200 --> 00:35:30,040 Speaker 9: fact that their items were knockoffs or trying to pass 617 00:35:30,120 --> 00:35:32,759 Speaker 9: them off as the real, thing to bragging about them 618 00:35:32,760 --> 00:35:36,920 Speaker 9: on social. Media and that is actually of almost greater. 619 00:35:37,080 --> 00:35:41,799 Speaker 9: Concern the law hasn't changed a, lot but consumer perceptions has. 620 00:35:42,000 --> 00:35:46,520 Speaker 9: Changed so the law still is not great in THE 621 00:35:46,680 --> 00:35:49,600 Speaker 9: us with regard to protecting, fashion but there are these 622 00:35:49,640 --> 00:35:52,960 Speaker 9: bits and pieces of law that can protect fashion a little. 623 00:35:52,960 --> 00:35:58,520 Speaker 9: Bit but the, perception the social norms have changed, dramatically you, Know. 624 00:35:58,640 --> 00:36:00,880 Speaker 9: Jane in my, CLASSES i tell my students that when 625 00:36:00,920 --> 00:36:02,760 Speaker 9: we're dealing with, law we're dealing with it at several. 626 00:36:02,840 --> 00:36:05,480 Speaker 9: Levels we think about black letter law when we go 627 00:36:05,560 --> 00:36:07,840 Speaker 9: to law, school things that come out of legislatures and. 628 00:36:07,880 --> 00:36:11,200 Speaker 9: Courts but then there's also, rules things like in the fashion, 629 00:36:11,239 --> 00:36:14,680 Speaker 9: context office dress codes or school dress. Codes but at 630 00:36:14,680 --> 00:36:18,680 Speaker 9: the most, basic, simple diffuse, level there are social. Norms 631 00:36:18,840 --> 00:36:22,680 Speaker 9: sometimes those social norms are subsequently written into law what's 632 00:36:22,719 --> 00:36:26,400 Speaker 9: decent or, indecent for, Example but social norms are really 633 00:36:26,560 --> 00:36:29,759 Speaker 9: powerful in terms of controlling how we, dressed how we 634 00:36:29,840 --> 00:36:32,600 Speaker 9: perceive what we, dress how we perceive what other people. 635 00:36:32,680 --> 00:36:35,800 Speaker 9: Dress and we've seen a shift in social norms. Here 636 00:36:35,920 --> 00:36:38,200 Speaker 9: we haven't seen a shift into. Law we've seen a 637 00:36:38,239 --> 00:36:40,680 Speaker 9: shift in the norms so that it went from being 638 00:36:41,040 --> 00:36:44,319 Speaker 9: knockoffs are bad and shameful and cheap and to be 639 00:36:44,440 --> 00:36:47,640 Speaker 9: hidden to knock offs there to be, celebrated and that's 640 00:36:47,760 --> 00:36:50,000 Speaker 9: part of What Lulu lemon is addressing in this. 641 00:36:50,120 --> 00:36:56,359 Speaker 3: Case In, December benefit lost a lawsuit TO elf over 642 00:36:56,400 --> 00:36:59,839 Speaker 3: their last and role, mascara which is six dollars can 643 00:37:00,360 --> 00:37:02,720 Speaker 3: To benefits twenty nine dollars. 644 00:37:02,800 --> 00:37:05,080 Speaker 1: Misscara does that have any relevance to this. 645 00:37:05,200 --> 00:37:09,560 Speaker 9: Case it's another trade dress. Lawsuit because the actual WORD 646 00:37:09,680 --> 00:37:13,000 Speaker 9: elf was right on, there there was an undermining of 647 00:37:13,040 --> 00:37:16,480 Speaker 9: the question of likelihood of consumer. Confusion so here well 648 00:37:16,680 --> 00:37:19,480 Speaker 9: to back, up when we're dealing with, counterfeits when we're 649 00:37:19,520 --> 00:37:23,920 Speaker 9: dealing with substantially identical copies of trademarks that we can. 650 00:37:24,000 --> 00:37:27,640 Speaker 9: Identify so if we were dealing with copies of the Wordmark, 651 00:37:27,719 --> 00:37:31,040 Speaker 9: lululemon or if we were dealing with copies of its 652 00:37:31,120 --> 00:37:33,920 Speaker 9: little symbol that looks a little bit like an, omega, 653 00:37:34,040 --> 00:37:37,399 Speaker 9: right that would be. Easy there's no question of whether 654 00:37:37,480 --> 00:37:40,520 Speaker 9: or not consumers are. Confused we just assume that if 655 00:37:40,560 --> 00:37:44,359 Speaker 9: we're dealing with those substantially identical. Copies when we move 656 00:37:44,480 --> 00:37:47,200 Speaker 9: into the realm of trade, dress and we are talking 657 00:37:47,239 --> 00:37:51,800 Speaker 9: about infringement rather than, counterfeitings so we're dealing with things 658 00:37:51,800 --> 00:37:56,840 Speaker 9: that are not necessarily quite as identical but merely confuse the. 659 00:37:56,880 --> 00:38:01,600 Speaker 9: Consumer then, yes that likelihood of consumer confusion does have 660 00:38:01,680 --> 00:38:04,359 Speaker 9: to be proven By lululemon in this, case in other, 661 00:38:04,400 --> 00:38:07,160 Speaker 9: words by the. Plaintiff and that's a little bit, tougher 662 00:38:07,200 --> 00:38:09,600 Speaker 9: it's a little bit of extra work that has to be. 663 00:38:09,680 --> 00:38:13,480 Speaker 9: Done it's why this case is. Interesting it's why Lul 664 00:38:13,680 --> 00:38:17,279 Speaker 9: lemon is going for full on four waste threats in this. 665 00:38:17,440 --> 00:38:21,680 Speaker 9: Regard they're not going for easy. Things they're not going 666 00:38:21,719 --> 00:38:25,600 Speaker 9: for counterfeits that would not probably be sold at costco 667 00:38:26,120 --> 00:38:29,120 Speaker 9: the copies of the, signs the symbols that we all 668 00:38:29,160 --> 00:38:34,280 Speaker 9: recognize easily as. Trademarks they're going for product configuration trade. Dress, 669 00:38:34,400 --> 00:38:36,920 Speaker 9: Right so there are two kinds of trade. Dress there's product, 670 00:38:37,040 --> 00:38:39,480 Speaker 9: packaging so the shape of a coke bottle or the 671 00:38:39,480 --> 00:38:42,400 Speaker 9: shape of some shampoo. Bottles and then there's the product. 672 00:38:42,480 --> 00:38:46,040 Speaker 9: Design and that's where fashion has to live because we 673 00:38:46,120 --> 00:38:49,640 Speaker 9: get so little protections on the three dimensional aspects of 674 00:38:49,640 --> 00:38:52,480 Speaker 9: a garment. Generally so if we are going to claim 675 00:38:52,760 --> 00:38:57,080 Speaker 9: trademark beyond the, label beyond the, logo we're looking at 676 00:38:57,120 --> 00:39:00,880 Speaker 9: product configuration trade. Dress we are going to have to show, 677 00:39:01,040 --> 00:39:05,280 Speaker 9: that first of, all consumers recognize that trade dress as 678 00:39:05,360 --> 00:39:08,719 Speaker 9: a source. Indicator it's not just a great looking warm up, 679 00:39:08,800 --> 00:39:12,600 Speaker 9: jacket it's one that looks Like, lululemon one that we 680 00:39:12,680 --> 00:39:16,560 Speaker 9: recognize As, lululemon just on the basis of curved. Themes, 681 00:39:16,800 --> 00:39:18,600 Speaker 9: Right so we have to be able to prove that 682 00:39:18,640 --> 00:39:23,400 Speaker 9: consumers see What lulemon says consumers, see and then we 683 00:39:23,440 --> 00:39:25,719 Speaker 9: have to show that those consumers are confused when they 684 00:39:25,800 --> 00:39:29,080 Speaker 9: see a. Knockoff and it's not, easy it's not, impossible 685 00:39:29,400 --> 00:39:32,719 Speaker 9: but it is definitely going to be a, battle, or. 686 00:39:32,680 --> 00:39:36,120 Speaker 3: As you, say perhaps a. Settlement always great to have you, On, 687 00:39:36,239 --> 00:39:40,759 Speaker 3: Susan thanks so. Much That's Professor Susan scaffiti Of Fordham Law. 688 00:39:40,840 --> 00:39:43,680 Speaker 1: School and that's it for this edition Of The Bloomberg Law. 689 00:39:43,719 --> 00:39:46,480 Speaker 3: Show remember you can always get the latest legal news 690 00:39:46,600 --> 00:39:49,640 Speaker 3: on Our Bloomberg Law. Podcast you can find them On Apple, 691 00:39:49,719 --> 00:39:54,640 Speaker 3: Podcasts spotify and at www Dot bloomberg dot, com slash 692 00:39:54,760 --> 00:39:58,160 Speaker 3: Podcast Slash, law and remember to tune Into The Bloomberg 693 00:39:58,239 --> 00:40:02,399 Speaker 3: Law show every, weeknight ten Pm Wall Street. Time I'm 694 00:40:02,480 --> 00:40:04,880 Speaker 3: June grosso and you're listening To bloomberg