WEBVTT - Bipartisanship at Supreme Court Arguments 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:10.800 --> 0:00:13.880 A buyer trying to walk away from a deal found 0:00:13.920 --> 0:00:16.919 that it would have to take the cake, and more specifically, 0:00:17.040 --> 0:00:20.799 the company that makes the cake decorations. Kolberg and Company 0:00:20.800 --> 0:00:23.400 had attempted to back out of buying Deco Pack, a 0:00:23.440 --> 0:00:27.960 cake decorating technology company, because of issues related to COVID nineteen, 0:00:28.720 --> 0:00:32.040 but after a trial in Delaware Chancery Court, the judge 0:00:32.159 --> 0:00:35.640 ordered Colburg to complete the deal and purchase the company. 0:00:36.440 --> 0:00:39.320 Joining me is Andrew Rossman, a partner at Quinn Emmanuel 0:00:39.479 --> 0:00:42.559 who represented the winning seller in the case. So tell 0:00:42.640 --> 0:00:46.479 us about the deal, so my clients no fits. The 0:00:46.560 --> 0:00:51.680 private equity firm agreed to sell Deco Pack, a leading 0:00:52.240 --> 0:00:56.840 manufacturer of cake decorating solutions in the country in Minnesota, 0:00:57.720 --> 0:01:02.400 to another private equate firm called Coburger Company, and they 0:01:02.520 --> 0:01:06.479 started agreement first week of March, and you know, as 0:01:06.560 --> 0:01:11.120 the pandemic worsened, Coburg tried to get out of the 0:01:11.160 --> 0:01:14.640 deal and we student Delaware to enforce it. Was there 0:01:14.760 --> 0:01:19.240 one legal question or primary doctrine involved in the case. 0:01:19.800 --> 0:01:24.039 Coburg raised several defenses, one of which is well known, 0:01:24.160 --> 0:01:28.119 which is a material adverse effect, and that was one 0:01:28.120 --> 0:01:31.120 of the things we argued about. Colberg asserted that the 0:01:31.160 --> 0:01:35.000 effects of the pandemic caused such a material change to 0:01:35.080 --> 0:01:37.240 the company that they should be able to get out 0:01:37.240 --> 0:01:39.520 of their obligation to buy it. That was one issue. 0:01:40.000 --> 0:01:45.800 And you know, another issue was the Coburg allowed the 0:01:45.880 --> 0:01:51.000 financing for the deal to expire um actually precipitated in 0:01:51.120 --> 0:01:54.920 our view, uh cause of dispute with the lenders to 0:01:55.000 --> 0:01:58.840 make the financing go away UM. And they claimed then 0:01:59.080 --> 0:02:01.360 that without finding I think they can't close the deal. 0:02:01.960 --> 0:02:04.320 And so, you know, one of the things that you know, 0:02:04.360 --> 0:02:08.880 maybe the opinion is the most significant for you know, 0:02:08.880 --> 0:02:12.840 a legal precedent is the prevention doctrine, which is the 0:02:13.000 --> 0:02:17.160 idea that you can't cause the condition to fail and 0:02:17.200 --> 0:02:20.240 then point to the failure of that condition as the 0:02:20.280 --> 0:02:22.920 reason to get out of your agreement. So did the 0:02:23.000 --> 0:02:27.359 judge find that the buyer didn't just see the deal collapsing, 0:02:27.360 --> 0:02:31.359 but they tried to make the deal collapse exactly. Instead 0:02:31.360 --> 0:02:36.360 of trying to find solutions and use their best efforts 0:02:36.480 --> 0:02:40.359 to get the deal closed, they did the opposite, which 0:02:40.440 --> 0:02:45.320 is they found problems and created problems with the lenders 0:02:45.400 --> 0:02:48.280 and then use those as excuses to get out of 0:02:48.280 --> 0:02:52.280 the So what is your understanding now after this decision, 0:02:52.320 --> 0:02:57.040 of what the prevention doctrine stands for? So what the 0:02:57.080 --> 0:03:02.119 prevention doctrine stands for is the idea that you can't 0:03:02.880 --> 0:03:06.560 create a problem. You can't manufacture a problem in your 0:03:06.600 --> 0:03:12.240 deal and then point to that problem as your exit 0:03:12.600 --> 0:03:17.000 from the deal. So in this case, they can't cause 0:03:17.120 --> 0:03:21.280 the financing to go away by creating a dispute with 0:03:21.320 --> 0:03:25.720 their lenders and then cross their arms and say we 0:03:25.840 --> 0:03:28.839 no longer have financings, therefore we don't have to close. 0:03:29.400 --> 0:03:32.840 It's an issue that's come up before. Where in the 0:03:32.880 --> 0:03:37.800 famous case involving a merger of Huntsman and Hexion, where 0:03:38.240 --> 0:03:39.880 you know, one of the parties tried to get out 0:03:39.920 --> 0:03:42.560 of that deal by claiming that there would be an 0:03:42.560 --> 0:03:47.720 insolvency and therefore chased the lenders away. So was the 0:03:47.760 --> 0:03:51.160 dispute mostly on the facts of the case, where you 0:03:51.320 --> 0:03:54.240 arguing the facts of the case more or the law 0:03:54.280 --> 0:03:57.360 of the case. I think the facts of the case 0:03:57.520 --> 0:04:03.880 were predominant here. The judge took an exhaustive review of 0:04:03.920 --> 0:04:08.680 the trial record, and you know was persuaded that my 0:04:08.800 --> 0:04:12.720 client at every step was doing the right thing, uh, 0:04:12.720 --> 0:04:16.320 and that Colberg at every step was trying to get 0:04:16.360 --> 0:04:19.839 out of its obligations. Now Colberg has to go through 0:04:19.880 --> 0:04:24.039 with the deal as originally agreed to. The judge ordered 0:04:24.080 --> 0:04:27.720 Colberg to close the deal on its original exactly. So 0:04:27.800 --> 0:04:32.039 now here you were on the seller's side. But we 0:04:32.200 --> 0:04:35.279 talked before when you were on the buyer side in 0:04:35.360 --> 0:04:38.640 another deal where the judge allowed your client to walk 0:04:38.680 --> 0:04:41.360 away from the deal. So tell us first refresh our 0:04:41.400 --> 0:04:45.320 memory about that deal. Sure, I've been involved in several 0:04:46.120 --> 0:04:50.600 of these litigations, but two of them actually went to 0:04:50.720 --> 0:04:55.200 trial in the pandemic. One was a deal involving the 0:04:55.320 --> 0:04:59.720 sale of fifteen luxury hotel by a Korean company called 0:04:59.760 --> 0:05:05.120 the A to Chinese and Sure called Ambang. In that case, 0:05:05.560 --> 0:05:11.280 we represented the buyer right and persuaded the court that 0:05:11.440 --> 0:05:14.520 it was not obligated to close the deal in the 0:05:14.520 --> 0:05:17.240 trial decision that came out towards the end of the year. 0:05:18.279 --> 0:05:21.159 So what made the difference besides you being on the 0:05:21.160 --> 0:05:24.080 winning side in these cases, what made the difference in 0:05:24.160 --> 0:05:28.200 the opposite conclusions? Well, thanks thanks for that, June. But 0:05:28.440 --> 0:05:32.920 the facts of every case and by themselves right. I 0:05:32.960 --> 0:05:37.919 think in both cases, two clients really were doing the 0:05:38.000 --> 0:05:40.799 right thing all along. I think they acted in good faith, 0:05:40.839 --> 0:05:44.440 they met their obligations, and it was not the case 0:05:44.680 --> 0:05:48.359 for the other shot. So if you're the seller, we 0:05:48.520 --> 0:05:51.240 learned in the Maray case and that in the on 0:05:51.400 --> 0:05:55.480 Band case that you can't hide problems, got to disclose problems, 0:05:55.560 --> 0:05:58.760 and you've got to try to work through those. And 0:05:59.040 --> 0:06:02.039 you know, the same thing we learned in the Deco 0:06:02.120 --> 0:06:06.200 pat case, which is you can't manufacture problems. So you know, 0:06:06.240 --> 0:06:08.839 I think the lesson to take away from both of 0:06:08.880 --> 0:06:13.080 those is that parties are expected to be forthright and 0:06:13.120 --> 0:06:16.880 expected to act in good faith, respect their obligations, and 0:06:16.920 --> 0:06:19.000 that you know, to me it was easy because both 0:06:19.040 --> 0:06:21.440 clients were doing the right thing. And the judge in 0:06:21.480 --> 0:06:25.400 the latest case said it was a victory for deal certainty. 0:06:25.520 --> 0:06:28.200 Do you think that's true even in light of the 0:06:28.279 --> 0:06:31.159 decision in the Marae case which allowed your client to 0:06:31.200 --> 0:06:34.400 walk away from the deal. I think the judge was 0:06:34.839 --> 0:06:38.120 very careful to apply the law, and I think the 0:06:38.200 --> 0:06:42.359 law was applied consistently, but the facts were quite different, 0:06:42.920 --> 0:06:46.120 and you know, I take it as as you said, 0:06:46.160 --> 0:06:49.000 as a victory for deal certainty, I take it just 0:06:49.040 --> 0:06:51.960 as much as a victory for good faith, which is 0:06:52.040 --> 0:06:56.880 that you know, parties are expected to meet their obligations 0:06:56.880 --> 0:07:02.640 earnestly and to have exchanges with their counterparties that are candid. 0:07:03.440 --> 0:07:05.839 So that's how I how I look at it, and 0:07:05.880 --> 0:07:09.480 I think the two decisions stand together well and um, 0:07:09.600 --> 0:07:14.240 you know, help provide good guidance, um for parties who 0:07:14.240 --> 0:07:18.160 are engaged in these transactions. Due to the pandemic, I 0:07:18.000 --> 0:07:21.200 imagine we're going to be seeing a lot of other 0:07:21.280 --> 0:07:24.520 cases on a large scale like this or on a 0:07:24.560 --> 0:07:28.120 smaller scale where people are trying to back out of 0:07:28.120 --> 0:07:33.760 a deal. What will make the difference? Well, every as 0:07:33.800 --> 0:07:35.960 I've seen in all these and I think we've done 0:07:36.840 --> 0:07:39.160 you know, I've personally done six or eight of these 0:07:39.200 --> 0:07:41.720 cases at least. Um. Not all of them go to trial, 0:07:41.840 --> 0:07:46.680 but every case requires not just an examination of the facts, 0:07:46.720 --> 0:07:49.800 but a close, uh you know, close scrutiny of the 0:07:49.880 --> 0:07:54.480 contract itself. There are real differences in the contracts that 0:07:54.520 --> 0:07:58.600 make a difference. So you know, in the case of uh, 0:07:58.640 --> 0:08:01.880 you know, Murray, we're talking about hotels um and the 0:08:01.920 --> 0:08:05.440 way that they were operated is quite dramatically different than 0:08:05.560 --> 0:08:08.840 we were talking about the cake decorating business UM. And 0:08:08.920 --> 0:08:13.920 how you know that manufacturing distribution business was operated is 0:08:14.120 --> 0:08:17.360 you know, obviously quite different in the pandemic. And then 0:08:17.400 --> 0:08:21.240 you've got to scrutinize their contract. So every case is 0:08:21.880 --> 0:08:24.240 bespoke in that regard. And I say, the other thing 0:08:24.240 --> 0:08:29.360 we learned too is that UM, often it's not what 0:08:29.440 --> 0:08:32.600 you think, UH that is going to be the issue 0:08:32.600 --> 0:08:37.680 that's in dispute. So you know, parties, look, immediately, everyone 0:08:37.800 --> 0:08:41.960 thinks about m A UM as the you know, the 0:08:42.000 --> 0:08:45.480 main contract feature that determines whether or not you can 0:08:45.520 --> 0:08:49.480 exit a deal. UM. But both of these cases, what 0:08:49.679 --> 0:08:52.200 we spend time talking about m a E. They there 0:08:52.200 --> 0:08:55.800 were other issues that were just as prominent and more prominent. 0:08:56.200 --> 0:08:58.920 And that's what I've seen throughout, which is that parties 0:08:58.960 --> 0:09:03.640 often focused on other deal requirements, other conditions UM. And 0:09:03.679 --> 0:09:06.840 it's it's those things that they're pulling apart to test 0:09:06.880 --> 0:09:10.600 whether whether a deal is closed or not. Do you 0:09:10.679 --> 0:09:16.200 think that contracts for deals going forward will contain, will 0:09:16.240 --> 0:09:21.920 be will be UM formulated differently because of what lawyers 0:09:22.000 --> 0:09:24.320 learned during the pandemic, are they're going to be different 0:09:24.320 --> 0:09:29.280 clauses in there without questions. Um. So you know, we 0:09:29.480 --> 0:09:33.760 every time there is a financial crisis or there is 0:09:33.800 --> 0:09:37.680 a natural disaster. You know, you can you can look 0:09:37.720 --> 0:09:41.800 at what m A provisions are as, you know, sort 0:09:41.800 --> 0:09:45.320 of a history of the calamities of you know, the 0:09:45.400 --> 0:09:48.840 last century or so, because they keep adding new ones. 0:09:49.559 --> 0:09:54.720 So you know, now contracts, uh, you know, we'll make 0:09:54.760 --> 0:09:59.280 direct reference to COVID nineteen, um. You know or asked 0:09:59.320 --> 0:10:03.480 you know previous Lee obviously you know before two thousand nineteen, 0:10:03.760 --> 0:10:06.080 you know, know when to do that. Um And and 0:10:06.120 --> 0:10:10.080 they'll be thinking more about, you know, all of these 0:10:10.120 --> 0:10:13.840 provisions as they get battle tests. So the judge in 0:10:13.880 --> 0:10:16.640 this case wrote that perhaps there's a greater need to 0:10:16.640 --> 0:10:20.320 celebrate the milestones of life amidst the tragedy of a pandemic, 0:10:20.720 --> 0:10:25.199 or perhaps humans simply have an insatiable desire for decorated cakes. 0:10:25.520 --> 0:10:29.679 How did the pandemic how did it hang over this trial? 0:10:29.800 --> 0:10:33.200 I mean, besides in the details that you're litigating, how 0:10:33.240 --> 0:10:37.480 else did the pandemic have an effect? Well, it had 0:10:37.760 --> 0:10:41.240 an effective number of ways. Obviously in real time we're 0:10:41.240 --> 0:10:46.760 seeing the impact on the company and our thesis throughout. 0:10:47.280 --> 0:10:50.920 The company's thesis throughout, which was very much sustained, is 0:10:50.960 --> 0:10:54.760 that after a short term you know dip, people are 0:10:54.760 --> 0:10:57.680 going to get back to buying cakes. They may not 0:10:57.880 --> 0:11:01.560 get together in the same numbers they previously did, but 0:11:01.960 --> 0:11:04.839 you know, on on you know, Jimmy's fifth birthday, Jimmy 0:11:04.880 --> 0:11:07.080 is going to get a case. And you know that 0:11:07.400 --> 0:11:10.640 very much proved to be true. As we all experienced 0:11:11.160 --> 0:11:14.880 in the pandemic, we just found different ways to celebrate um. 0:11:15.000 --> 0:11:17.960 And it also affected the way we tried the case. Uh. 0:11:18.160 --> 0:11:22.280 You know we uh initially we asked the judge to 0:11:22.280 --> 0:11:24.880 set us down for trial in two weeks so that 0:11:24.920 --> 0:11:29.000 we could be heard before the financing expired. And I think, 0:11:29.120 --> 0:11:31.000 you know, in a in a very I didn't like 0:11:31.080 --> 0:11:35.560 it at the time, but in a very sensible, humane decision, 0:11:35.559 --> 0:11:37.440 and the judge you know, felt like that was not 0:11:38.559 --> 0:11:42.600 a practical thing to do in the pandemic. UM. And 0:11:42.640 --> 0:11:46.160 then you know, we went ahead and had an expedited trial, 0:11:46.280 --> 0:11:50.800 but on a more understandable schedule, uh. And we did 0:11:50.800 --> 0:11:54.040 everything remotely. You know, no one was in the room together. 0:11:54.160 --> 0:11:57.160 We did the trial remotely on zoom. We did all 0:11:57.160 --> 0:11:59.959 the depositions, on Zoom. It was quite a different experience 0:12:00.000 --> 0:12:03.120 it than we've had before for the lawyers, you know, 0:12:03.160 --> 0:12:07.040 as well as the participants in so trial. Lawyers like 0:12:07.200 --> 0:12:10.400 to be in court. But are you gonna miss when 0:12:10.520 --> 0:12:12.800 the pandemic is hopefully behind us? Are you going to 0:12:12.920 --> 0:12:18.600 miss the convenience of zoom? Well, there there's something special 0:12:18.679 --> 0:12:22.520 about you know, being able to uh, you know, just 0:12:22.679 --> 0:12:26.080 walk down uh stairs in his house, you know, into 0:12:26.080 --> 0:12:28.959 the courtroom, so to speak. And you know, it saves 0:12:28.960 --> 0:12:31.040 a lot of wear and care on the travel. But 0:12:31.800 --> 0:12:35.200 I missed being in courtrooms. I missed being with my 0:12:35.280 --> 0:12:38.880 trial teams, at my clients. I missed, you know, having 0:12:38.960 --> 0:12:42.800 judges you know, frown at me in person or you know, 0:12:42.840 --> 0:12:49.400 hopefully smile. I missed the human elements of of litigation 0:12:49.520 --> 0:12:51.800 very much. Thanks so much for being in the Bloomberg 0:12:51.840 --> 0:12:55.839 Laws show. Andy. That's Andrew Rossman, a partner at Quinn Emmanuel. 0:12:57.520 --> 0:13:00.360 As the Supreme Court waited into the War on drugs 0:13:00.360 --> 0:13:04.359 this week, there was an unusually lopsided set of litigants, 0:13:04.400 --> 0:13:07.320 so lopsided that the Court had to appoint an outside 0:13:07.400 --> 0:13:10.760 lawyer to argue to uphold the lawn issue. After the 0:13:10.760 --> 0:13:15.319 Biden administration switch sides and back the defendant. The question 0:13:15.440 --> 0:13:18.520 was whether the lowest level drug offenders are eligible for 0:13:18.679 --> 0:13:23.040 retroactive relief under the First Step Act and can seek resentencing. 0:13:23.679 --> 0:13:27.480 Lawmakers from both parties, both conservative and liberal groups, and 0:13:27.520 --> 0:13:31.240 the Biden administration say Congress intended for the law to 0:13:31.360 --> 0:13:35.680 encompass low level offenders, but many of the justices sounded 0:13:35.760 --> 0:13:40.360 skeptical that the statutory language would allow that interpretation. Kiara 0:13:40.480 --> 0:13:43.920 Justice as Stephen Bryer and Brett Kavanaugh, I mean, I 0:13:43.960 --> 0:13:47.880 think they were much too high. I understand that, but 0:13:48.000 --> 0:13:53.640 I can't get away from this statute. Why didn't Congress 0:13:54.760 --> 0:13:59.680 just say everyone who's been sentenced for crack offenses under 0:13:59.679 --> 0:14:04.199 eighty one is eligible for resentencing? Something simple like that. 0:14:04.840 --> 0:14:07.440 Joining me is Mark Ostler, a professor at the University 0:14:07.440 --> 0:14:12.400 of St. Thomas School of Law who specializes in sentencing policy. So, Mark, 0:14:12.480 --> 0:14:15.480 tell us a little bit about the First Step Act. Sure, 0:14:15.640 --> 0:14:18.840 the First Step Act that was passed in it had 0:14:18.880 --> 0:14:22.040 a number of provisions. UM. It was it was created 0:14:23.000 --> 0:14:27.480 new metrics of data within the Bureau of Prisons UM 0:14:27.680 --> 0:14:31.480 and hand some reentry provisions. But one of the primary 0:14:31.560 --> 0:14:36.880 things that did was make retroactive prior law, the Fair 0:14:36.920 --> 0:14:41.560 Sentencing Act in and what that did was changed the 0:14:41.680 --> 0:14:46.080 hundred to one ratio between powder and crack cocaine. In 0:14:46.080 --> 0:14:50.640 other words, in both the sentencing guidelines and the statutes 0:14:50.760 --> 0:14:54.600 that created manatory minimums, you were sentenced the same for 0:14:55.520 --> 0:14:58.080 five grams of crack because you were for five hundred 0:14:58.160 --> 0:15:02.720 grams of powder cocaine. This had really disparate impacts in 0:15:02.840 --> 0:15:06.440 terms of race. And I was a thorough prosecutor in 0:15:06.440 --> 0:15:08.920 the and Detroit. There were a lot of crack cases 0:15:08.920 --> 0:15:11.600 coming through that office, and of course it was all 0:15:11.680 --> 0:15:16.240 or almost all black defendants in those cases. And in 0:15:16.360 --> 0:15:21.560 time that became noticed and in they changed the law, 0:15:21.640 --> 0:15:25.800 but they didn't make it retroactive. And that was a 0:15:25.800 --> 0:15:29.000 continuing problem because you had people who were sentenced under 0:15:29.040 --> 0:15:32.920 the old law who didn't have the advantage of the 0:15:33.440 --> 0:15:36.240 change and attitude and the adjustment that had been made, 0:15:36.640 --> 0:15:39.520 and that festered for a long time. Um you know, 0:15:39.600 --> 0:15:43.239 the Obama administration wasn't able to fix it. And eventually 0:15:43.280 --> 0:15:48.280 there was a bipartisan movement in uh Congress that pushed 0:15:48.280 --> 0:15:52.400 for that change, among others, and it came through in 0:15:52.440 --> 0:15:55.560 the first step Act of that was signed by Donald 0:15:55.560 --> 0:16:00.400 Trump um notably the name indicated. It was supposed to 0:16:00.440 --> 0:16:04.000 be one of a series of bills, but it was 0:16:04.040 --> 0:16:06.360 the only one to get through. What is the issue 0:16:06.480 --> 0:16:10.160 in this case before the Supreme Court. Yeah, it's a 0:16:10.200 --> 0:16:15.720 little bit complicated. But the original law, the mandatory minimum 0:16:15.800 --> 0:16:19.560 that regards crack and the number of other drugs, it's 0:16:19.560 --> 0:16:24.120 sets three different tiers. And you know, the top tier 0:16:24.360 --> 0:16:28.840 previously was over fifty grams of cracks for the top 0:16:28.880 --> 0:16:32.600 tier and over five grams of crack for the middle tier, 0:16:32.640 --> 0:16:34.920 and then the bottom tier was under five grams of cracks. 0:16:34.920 --> 0:16:38.760 And then those thresholds all went up under the Fair 0:16:38.840 --> 0:16:42.600 Sentence in Act. And that's what the First Step Act 0:16:42.760 --> 0:16:47.200 made retroactive. And so in other words, people could go 0:16:47.280 --> 0:16:50.200 back and say, I want to be resentenced under the 0:16:50.320 --> 0:16:53.600 current law. And that meant that, let's say, if you 0:16:53.720 --> 0:16:57.320 had been sentenced under the top tier for you know, 0:16:57.400 --> 0:17:00.880 sixty grams of crack, now you're not mean that threshold, 0:17:00.880 --> 0:17:03.800 and so they could be resent Now. The problem was 0:17:04.880 --> 0:17:09.520 that the First Step Act said explicitly that it applied 0:17:09.720 --> 0:17:14.480 to sentences in mentor minums that have been modified by 0:17:14.800 --> 0:17:18.880 the Fair Sentencing Act and The argument from the government 0:17:19.000 --> 0:17:22.600 under the Trump administration was that that meant that the 0:17:22.600 --> 0:17:26.760 top two tiers, which had been changed explicitly because the 0:17:26.880 --> 0:17:30.520 upper the threshold had been raised, that people who have 0:17:30.600 --> 0:17:34.080 been sentenced under those got relieved, but people for whom 0:17:34.359 --> 0:17:37.919 they weren't charged with a threshold of over five grams 0:17:37.920 --> 0:17:42.200 of cracks, that they didn't have the benefit of this change. 0:17:42.600 --> 0:17:45.240 That's an argument that doesn't make much sense in terms 0:17:45.280 --> 0:17:47.560 of policy. Why you would give relief to people that 0:17:47.680 --> 0:17:50.520 were more culpable but not people who are less culpable. 0:17:51.119 --> 0:17:53.200 But that's what is the heart of this is the 0:17:53.280 --> 0:17:58.679 Eleventh Circuit upheld the decision below that Mr Terry, the petitioner, 0:17:59.280 --> 0:18:02.400 did not have the ability to have his sentence reviewed 0:18:02.480 --> 0:18:05.080 under the First Step Act because he wasn't in those 0:18:05.119 --> 0:18:09.919 top two tiers, but rather was charged with no amount listed. 0:18:10.320 --> 0:18:13.040 On the date when the government's main brief in the 0:18:13.119 --> 0:18:17.080 case was due, the Biden administration informed the court that 0:18:17.160 --> 0:18:21.160 it was changing positions from the Trump administration and now 0:18:21.240 --> 0:18:24.160 siding with the defendant in the case. So the court 0:18:24.160 --> 0:18:27.919 appointed an outside lawyer to argue the case against the 0:18:28.000 --> 0:18:31.920 defendant and the reduced sentence. Why did the Biden administration 0:18:32.119 --> 0:18:36.840 change positions at the last minute. I think that they had, Yeah, 0:18:36.880 --> 0:18:40.439 I think that they had pressure from reformers certainly that 0:18:40.520 --> 0:18:43.280 they should do so. That there are a number of people, 0:18:43.320 --> 0:18:45.880 including myself, who had taken up these first step back 0:18:45.960 --> 0:18:49.359 cases pro bono and it had noticed the problems with 0:18:49.440 --> 0:18:53.320 them and frankly was inconsistent with the very bi person 0:18:53.400 --> 0:18:56.560 spirit that was behind the First Step Back in the 0:18:56.600 --> 0:19:01.080 first place. And you know, even before they had everybody 0:19:01.119 --> 0:19:04.359 on board at the o J with the incoming nominees, 0:19:04.720 --> 0:19:08.520 they did switch sides and the Supreme Court appointed someone 0:19:08.600 --> 0:19:10.840 to represent the other side, now that the d o 0:19:10.920 --> 0:19:14.520 J had abandoned that position. So now at the Supreme 0:19:14.560 --> 0:19:19.480 Court arguments, was there a lot of discussion of the 0:19:19.600 --> 0:19:23.560 intent of the act or was it based more on 0:19:23.960 --> 0:19:29.639 the language the statutory language? Well, both things, and you know, 0:19:29.920 --> 0:19:33.000 the political set up for the for all of this 0:19:33.800 --> 0:19:36.520 was underneath the arguments, of course. You know, one thing 0:19:36.680 --> 0:19:41.199 that fascinates me about this, especially in our current political climate, 0:19:41.520 --> 0:19:44.600 is that there was amaicust grief that was submitted in 0:19:44.720 --> 0:19:49.040 support of the first Step back, applying to Mr Terry, 0:19:49.200 --> 0:19:54.399 that was submitted by four Senators Durban Booker Grassley in 0:19:54.560 --> 0:19:57.760 Senator Mike Lee, Now, that's a pretty incredible lineup if 0:19:57.760 --> 0:19:59.600 you think about it. I mean, from one end of 0:19:59.640 --> 0:20:03.320 the theological spectrum to the other. And it really reflects 0:20:03.359 --> 0:20:06.640 the Biparsan consensus that was behind the first step back 0:20:06.680 --> 0:20:08.919 in the first place. And you know, of course in 0:20:09.119 --> 0:20:12.399 that argument that justices were interested both in what the 0:20:12.400 --> 0:20:16.159 intent was, but also you know what injustices does this 0:20:16.320 --> 0:20:20.040 create and underneath it all is you look at what 0:20:20.280 --> 0:20:23.440 Mr Terry was sentenced to fifteen and a half years 0:20:23.480 --> 0:20:28.520 in prison for four grams of cracks. It's shocking and 0:20:28.920 --> 0:20:30.720 is something you know, I'll tell you. I'm talking to 0:20:30.760 --> 0:20:34.040 you right now from downtown Minneapolis. I'm looking down over 0:20:34.119 --> 0:20:37.639 Nicolette Mall. I'm about a mile away from where Derek Chauvin, 0:20:38.560 --> 0:20:42.200 the police officer who killed George Floyd, is going to 0:20:42.240 --> 0:20:46.040 be sentenced shortly. And most people are saying that what 0:20:46.119 --> 0:20:50.440 he'll get for that cold blooded killing that America saw 0:20:51.200 --> 0:20:55.440 is going to be about fifteen years, and that that's 0:20:55.480 --> 0:20:57.880 the same as Mr Terry got for having the four 0:20:57.920 --> 0:21:02.480 grams of cracks. Some of the justices seemed sympathetic to 0:21:03.400 --> 0:21:08.880 Terry's plight to his sentence being excessive. But for example, 0:21:08.960 --> 0:21:12.400 Justice Brier said, I can't get away from the statute. 0:21:12.600 --> 0:21:17.360 And even Justice Sonia Soto Mayor, who is considered one 0:21:17.359 --> 0:21:21.760 of the justices who is more sympathetic to criminal defendants, 0:21:21.920 --> 0:21:24.680 even she seemed to indicate that you just can't get 0:21:24.680 --> 0:21:28.919 around the words of the statute. Yeah, and I'm hoping 0:21:28.960 --> 0:21:31.600 that you know, the argument will prevail in me that 0:21:31.800 --> 0:21:35.760 you know, what's in the statute is is modified and 0:21:36.240 --> 0:21:38.960 what you know, the parties and this is something that 0:21:39.000 --> 0:21:41.640 the Senator said was their intent was that that means 0:21:41.680 --> 0:21:46.280 something different than amended, because obviously Tier two and Tier three, 0:21:46.320 --> 0:21:49.960 the upper two tiers were specifically amended. But that also 0:21:50.200 --> 0:21:54.440 modifies that bottom tier by raising the level from five 0:21:54.480 --> 0:21:58.639 grams to rams. I think it was and that is 0:21:58.880 --> 0:22:03.119 that's the pably the best argument going to the statutory language. 0:22:03.280 --> 0:22:06.040 I mean, one thing about about Justice Brier is that 0:22:06.320 --> 0:22:10.200 his history and sentencing is complicated. That it's it's one 0:22:10.440 --> 0:22:13.919 where he's been. He was on the Sentencing Commission that 0:22:14.040 --> 0:22:18.280 drafted the original sentencing guidelines that were mandatory that in 0:22:18.320 --> 0:22:21.840 the Booker decision. He argued that that there should they 0:22:21.840 --> 0:22:25.280 should not be converted to being advisory. So he's somebody 0:22:25.320 --> 0:22:28.119 who has a complicated history with these issues, and the 0:22:28.160 --> 0:22:30.840 fact that you know he was sticking to the language 0:22:30.840 --> 0:22:33.800 of the statute is really in keeping with some of 0:22:33.840 --> 0:22:38.640 his prior churisprudence in this area. During the oral arguments, 0:22:38.880 --> 0:22:44.760 did any of the justices seem inclined to adopt that argument? 0:22:45.400 --> 0:22:48.480 It seemed that most of the justices thought the statutory 0:22:48.600 --> 0:22:53.040 language was a problem for Terry and wouldn't support a 0:22:53.200 --> 0:22:59.040 retroactive interpretation. Yeah, and you know that of course reflects 0:22:59.080 --> 0:23:01.280 the circuit split that they were presented with. That four 0:23:01.400 --> 0:23:04.520 of the circuits had been on the side of the 0:23:04.560 --> 0:23:07.480 eleven circuit was that this new law did not apply 0:23:07.520 --> 0:23:10.040 to Mr Terry, and there were I believe two circuits 0:23:10.119 --> 0:23:12.240 had held that he would have, so, you know, the 0:23:12.320 --> 0:23:14.800 lay of the land was in favor of that that 0:23:14.920 --> 0:23:18.600 reading the statute. Were there any questions from the textualists 0:23:18.640 --> 0:23:22.520 on the court which which indicated which way they might go? 0:23:24.560 --> 0:23:27.879 You know, I don't recall specifically if there were, but 0:23:28.440 --> 0:23:31.360 you know, even if you are a textualist that that 0:23:31.440 --> 0:23:35.439 question of is modified different than amend is something to 0:23:35.480 --> 0:23:42.359 take seriously. So will you explain the modify versus amend argument. Yeah, well, 0:23:42.440 --> 0:23:46.520 there's no question that if the statute had said amended, 0:23:46.600 --> 0:23:49.720 those portions that were amended, they would only apply to 0:23:49.760 --> 0:23:55.640 the top two tiers, because it's it changed explicitly the 0:23:55.680 --> 0:23:58.160 thresholds that had to be meant for them to apply 0:23:58.280 --> 0:24:04.760 to enhancer cracks. And however, it did also modify even 0:24:04.760 --> 0:24:07.639 though it didn't expressly amend the bottom tire, it did 0:24:07.840 --> 0:24:13.280 modify or change that bottom tire because it was it 0:24:13.359 --> 0:24:19.720 was expanded basically from five to eight cramps. So that's 0:24:20.359 --> 0:24:22.640 you know, that's that's going to be the distinction that 0:24:22.680 --> 0:24:25.800 they'll be talking about in conference. I'm curious. I don't 0:24:25.800 --> 0:24:27.879 know if you know the answer to this. Terry is 0:24:27.920 --> 0:24:32.320 about to to be finished serving his sentence. So is 0:24:32.320 --> 0:24:34.640 it just that this case took that long to get 0:24:34.640 --> 0:24:38.160 through the system. Well, there's a couple of things. He's 0:24:38.200 --> 0:24:41.800 on home confinement right now and he'll be done in September, 0:24:41.880 --> 0:24:45.119 I believe, uh, and it you know, it could be 0:24:45.160 --> 0:24:46.760 just this is the case that got up to the 0:24:46.800 --> 0:24:50.640 Supreme Court to resolve the issue. Um, you know, it's 0:24:50.680 --> 0:24:54.920 it's not moved h and you know the fact that 0:24:54.920 --> 0:24:57.480 he's on home confinement is a function of of the 0:24:57.560 --> 0:25:03.600 COVID pandemic, where under the Trump administration and a bit administration, 0:25:04.160 --> 0:25:06.040 many people who were towards the end of their sentence 0:25:06.080 --> 0:25:09.480 are being switched over to home confinements. But well, you know, 0:25:09.560 --> 0:25:13.120 one thing is people will say, you know, that's we're 0:25:13.119 --> 0:25:17.640 talking about about three or four months, that that matters. 0:25:17.880 --> 0:25:20.040 You know, if you think back in your own life 0:25:20.080 --> 0:25:23.440 of the past three or four months, if they were 0:25:23.480 --> 0:25:25.679 just gone, you know, if you had been in prison 0:25:25.720 --> 0:25:28.280 for that period of time, that would matter. And too 0:25:28.280 --> 0:25:33.960 often we discount the value of time when it's a 0:25:34.080 --> 0:25:37.520 smaller bottom time on top of the larger sentence. I 0:25:37.560 --> 0:25:40.640 have to say, this seems like such a technical argument. 0:25:41.680 --> 0:25:46.440 You know, you've got the sentencing guideline book that's inches thick, 0:25:47.200 --> 0:25:49.320 that is like a tax code at this point, and 0:25:49.320 --> 0:25:51.600 that's part of the problems. Part of the problem is 0:25:52.240 --> 0:25:56.440