WEBVTT - Abortion Rights Votes & Trump Judiciary Tactics 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:11.840 --> 0:00:16.480 Constitutional amendments to protect or expand abortion rights passed in 0:00:16.720 --> 0:00:19.079 seven of the ten states where they appeared on the 0:00:19.120 --> 0:00:23.840 ballot yesterday, including in some states that voted fort Donald Trump. 0:00:24.320 --> 0:00:30.240 Abortion rights amendments passed in Arizona, Colorado, Maryland, Missouri, Montana, Nevada, 0:00:30.280 --> 0:00:34.680 and New York, but failed in Florida, Nebraska, and South Dakota. 0:00:35.080 --> 0:00:38.560 It's a winning record for abortion rights ballot measures since 0:00:38.600 --> 0:00:42.199 the Supreme Court ended the constitutional right to abortion in 0:00:42.280 --> 0:00:46.960 twenty twenty two fourteen to three, but Tuesday did end 0:00:47.200 --> 0:00:51.000 the winning streak, joining me his healthcare attorney Harry Nelson, 0:00:51.280 --> 0:00:55.520 a partner at Leech Tishman Nelson Hardiman Harry. Abortion rights 0:00:55.600 --> 0:01:00.000 ballot measures passed in four states that voted for Trump. 0:01:00.280 --> 0:01:04.160 How do you reconcile that, considering his having bragged about 0:01:04.680 --> 0:01:06.840 getting Roe v. Wade reversed. 0:01:07.720 --> 0:01:12.200 It's clear that abortion rights and you know, reproductive health 0:01:12.200 --> 0:01:16.520 access have a majority of support in pretty much every 0:01:16.520 --> 0:01:20.880 corner of America, except that the issue is not the 0:01:21.000 --> 0:01:23.920 driver in this election that it was in the twenty 0:01:23.959 --> 0:01:28.800 twenty two midterms, for example, and that clearly voters who 0:01:28.840 --> 0:01:33.680 supported Trump were you know, willing to see his abortion 0:01:34.160 --> 0:01:40.320 policy and politics as distinct from the broader anti abortion movement. 0:01:40.440 --> 0:01:44.200 So it does seem like abortion was not the powerful 0:01:44.240 --> 0:01:47.199 issue that it was in the previous election cycles since 0:01:47.280 --> 0:01:49.760 the repeal of Roe v. Wade, even though it still 0:01:50.480 --> 0:01:53.520 clearly garnered significant support in most of the places where 0:01:53.520 --> 0:01:54.000 it was before. 0:01:54.000 --> 0:01:58.200 The voters Missouri, Trump won fifty eight point five percent 0:01:58.240 --> 0:02:01.120 of the vote, but the state voted in favor of 0:02:01.160 --> 0:02:06.240 a constitutional amendment protecting abortion rights, and Missouri's abortion law 0:02:06.400 --> 0:02:08.800 is very strict right now. 0:02:09.280 --> 0:02:13.440 Yeah, Missouri had a near total ban on abortion, and 0:02:13.520 --> 0:02:16.720 so this is a significant decision. You know. I think 0:02:16.800 --> 0:02:18.360 one of the things we can certainly take away is 0:02:18.560 --> 0:02:20.560 it seems that this election, there was a huge gender 0:02:20.600 --> 0:02:23.320 gap in this election, but that many men who sort 0:02:23.360 --> 0:02:26.560 of you know, propelled Trump to victory in the presidential 0:02:26.639 --> 0:02:30.840 race also supported abortion rights and voted, and this was 0:02:30.919 --> 0:02:34.760 not a victory for anti abortion activists there. So I 0:02:34.800 --> 0:02:38.520 don't find that result surprising. It's clear that, you know, 0:02:38.560 --> 0:02:42.079 President Trump opened up some space between himself and the 0:02:42.120 --> 0:02:46.240 anti abortion movement, and it's also apparent that the driving 0:02:46.280 --> 0:02:50.240 factors that propelled his victory had less to do with 0:02:50.480 --> 0:02:53.320 reproductive rights than other issues when you see this kind 0:02:53.320 --> 0:02:54.000 of a slaur result. 0:02:54.680 --> 0:02:58.600 Now, Arizona, which had the longest ballot in state history. 0:02:58.639 --> 0:03:01.880 It took up like two pages, and apparently, you know, 0:03:01.919 --> 0:03:05.120 momentum was gained there because the state Supreme Court ruling 0:03:05.160 --> 0:03:08.840 in April found that the state could enforce this strict 0:03:08.919 --> 0:03:12.239 abortion ban from eighteen sixty four. 0:03:12.440 --> 0:03:15.960 Yeah, that's the court decision earlier in Arizona. Obviously shocked 0:03:16.440 --> 0:03:19.680 voters there. And so yeah, Proposition one point thirty nine, 0:03:20.120 --> 0:03:23.840 it protects the right to abortion in the state constitution itself, 0:03:24.040 --> 0:03:27.480 which is really significant up to the point of fetal viability, 0:03:27.919 --> 0:03:30.440 which replaces and gives a longer period than the fifteen 0:03:30.440 --> 0:03:33.320 week ban that had been there. So that's a significant 0:03:33.360 --> 0:03:36.440 move on the part of Arizona. And again, you know, 0:03:36.520 --> 0:03:40.680 not that surprising. In general, the victories that the anti 0:03:40.720 --> 0:03:43.000 abortion movement has had have come from court for the 0:03:43.040 --> 0:03:47.160 most part, but certainly Arizona is an example of voters, 0:03:47.240 --> 0:03:49.120 you know, reflecting the same trend that we've seen in 0:03:49.120 --> 0:03:53.160 the previous election cycles since ROW was repealed, and coming 0:03:53.160 --> 0:03:56.000 out to ensure protection for access to abortion. 0:03:56.480 --> 0:04:03.600 So Colorado's measure, besides enshrining access to abortion, also undoes 0:04:03.920 --> 0:04:08.400 an earlier amendment that barred using state and local government 0:04:08.480 --> 0:04:10.880 funding for abortion. So what does that mean? 0:04:11.360 --> 0:04:14.400 Yeah, so that's e sic hint in that it really 0:04:14.840 --> 0:04:18.280 opens up not just access itself, but funding, you know, 0:04:18.320 --> 0:04:22.720 reimbursement for providers to keep professionals who are working this area, 0:04:22.800 --> 0:04:26.240 facilities open, and ensuring access to the state portion of 0:04:26.320 --> 0:04:29.040 Medicaid funds. So one of the issues that we may 0:04:29.120 --> 0:04:31.360 see come up now that it looks like we're going 0:04:31.400 --> 0:04:35.480 to have a Republican control over both parts of Congress 0:04:35.560 --> 0:04:39.919 and the presidency is potentially more restrictions on federal funding. 0:04:40.240 --> 0:04:43.719 So Colorado seems to be the first state to ensure 0:04:43.760 --> 0:04:45.919 that there's going to be state funding and we're talking 0:04:45.960 --> 0:04:50.000 here mostly Medicaid funding and other facilities working on special 0:04:50.040 --> 0:04:52.800 grant programs in this area. So I think that's a 0:04:52.800 --> 0:04:54.839 harbinger of a trend that we're likely to see in 0:04:54.920 --> 0:04:59.000 other states, particularly as we see a likelihood of more 0:04:59.080 --> 0:05:00.480 federal restrictions. 0:05:01.040 --> 0:05:06.279 So in Maryland and Montana, abortion is already legal until 0:05:06.640 --> 0:05:10.400 viability and in Nevada up to twenty four weeks. So 0:05:10.720 --> 0:05:15.680 what difference does the ballot measure there make in those states. 0:05:16.240 --> 0:05:20.880 In Maryland, it was a constitutional amendment, which is significant 0:05:20.880 --> 0:05:25.120 because it establishes a much more permanent right than a 0:05:25.160 --> 0:05:30.160 mere ballot measure. You know, obviously, when something is placed 0:05:30.200 --> 0:05:34.360 into the constitution itself, it establishes it as a fundamental 0:05:34.440 --> 0:05:38.039 a more fundamental right, and it forces court to sort 0:05:38.040 --> 0:05:41.560 of put a privacy on that right. And so recognizing 0:05:41.720 --> 0:05:43.600 a right to abortion as part of a broader right 0:05:43.640 --> 0:05:47.880 to privacy really sets a direction and state policy that's 0:05:47.920 --> 0:05:51.600 going to reverberate much further in the future, and not 0:05:51.640 --> 0:05:55.280 only in court review, but with regard to future ballot measures. 0:05:55.360 --> 0:05:58.799 It sort of just sets a higher order of magnitude 0:05:58.800 --> 0:06:02.920 of priority on the question. And so it's obviously it's 0:06:02.920 --> 0:06:05.320 a better place to be right. We see some states 0:06:05.320 --> 0:06:08.680 that have moved to pass ballot initiatives because those are 0:06:08.720 --> 0:06:11.760 the quickest way to get things done, just to present 0:06:11.920 --> 0:06:14.120 a measure to the voters where state law allows. But 0:06:14.240 --> 0:06:18.600 actually amending the state constitution really is a fundamental way 0:06:18.600 --> 0:06:21.960 to give more security to the principle of a constitutional 0:06:22.040 --> 0:06:23.159 right to reproductive freedom. 0:06:23.520 --> 0:06:26.400 So New York's measure was a little different. It didn't 0:06:26.440 --> 0:06:30.400 even mention the word abortion New York, it was. 0:06:30.360 --> 0:06:35.039 A supposal that prohibited discrimination based on pregnancy outcome, So 0:06:35.120 --> 0:06:37.919 it was not a direct abortion rights New York already 0:06:37.960 --> 0:06:41.240 has an abortion rights law. But it's interesting New York 0:06:41.320 --> 0:06:43.560 kind of went a step further in a different direction, right, 0:06:43.600 --> 0:06:47.080 Colorado went further on funding on public funding, but New 0:06:47.120 --> 0:06:51.240 York went further on identifying a possible risk of discrimination 0:06:51.800 --> 0:06:56.480 that an employer could, for example, make an adverse decision 0:06:56.680 --> 0:07:00.320 based on pregnancy outcome. So it's sort of to fight 0:07:00.400 --> 0:07:04.400 and broadened the scope of protected rights beyond the right 0:07:04.480 --> 0:07:06.559 to the abortion itself, which was already in place. 0:07:06.880 --> 0:07:10.360 Just because they passed these amendments, that doesn't mean that 0:07:10.400 --> 0:07:14.920 the abortion bands in these states are suddenly off the books. 0:07:15.360 --> 0:07:17.480 It requires some court action, doesn't it. 0:07:18.080 --> 0:07:21.360 Like we've seen, you know, with abortion going back for 0:07:21.520 --> 0:07:24.200 the last fifty years, a lot of times these laws 0:07:24.320 --> 0:07:26.480 stay on the books, and we're actually going to need 0:07:26.560 --> 0:07:31.520 test cases to come up and have courts formally rule, 0:07:31.720 --> 0:07:33.480 you know, on the status of some of these old laws. 0:07:33.520 --> 0:07:36.520 So there are a couple of places where these laws 0:07:36.560 --> 0:07:38.400 are going to change things, but we're still going to 0:07:38.400 --> 0:07:41.960 have to see cases filed a little bit of anxiety 0:07:42.000 --> 0:07:45.360 and stress for the you know, providers and the patients 0:07:45.360 --> 0:07:48.400 who are in those cases. But for better or worse, 0:07:48.440 --> 0:07:50.280 that's just the process that we're going to see go 0:07:50.360 --> 0:07:50.840 forward here. 0:07:51.400 --> 0:07:53.880 I mean, can we assume that judges are going to 0:07:54.280 --> 0:07:59.880 follow the amendments and not put their own sort of 0:08:00.280 --> 0:08:01.120 stamp on it. 0:08:02.080 --> 0:08:02.160 No. 0:08:02.440 --> 0:08:06.280 I think the guarantee of abortion rights is something that 0:08:06.320 --> 0:08:08.880 should give security here. I do think that while we 0:08:08.920 --> 0:08:13.240 do see some opportunism from judges who feel strongly on 0:08:13.240 --> 0:08:16.280 the anti abortion side, they can't do very much given 0:08:16.560 --> 0:08:19.840 the appeal structure, and obviously appellic courts put the issue 0:08:19.840 --> 0:08:23.640 before multiple judges and hopefully ensure that the law actually 0:08:23.680 --> 0:08:26.160 gets followed. So I don't think anyone should worry that 0:08:26.200 --> 0:08:28.440 these laws are not going to actually be you know, 0:08:28.480 --> 0:08:30.720 implemented and enforced. It's just we're going to have to 0:08:30.800 --> 0:08:33.640 go through a process to actually make that happen. 0:08:34.320 --> 0:08:38.400 And abortion amendments did not pass in Florida, Nebraska, and 0:08:38.520 --> 0:08:43.920 South Dakota, Florida, which unusual is that most voters supported 0:08:44.400 --> 0:08:47.920 the Florida measure fifty seven percent, but it fell short 0:08:48.000 --> 0:08:51.760 of the sixty percent. So what's happening is a minority 0:08:51.800 --> 0:08:55.439 of voters are able to keep the abortion ban in place. 0:08:56.520 --> 0:09:00.360 Yeah, that's a very surprising result. You know, obviously came 0:09:00.520 --> 0:09:03.640 very close. It's good news, right that fifty seven percent 0:09:03.720 --> 0:09:07.720 of the voters support abortion rights, but obviously this sixty 0:09:07.720 --> 0:09:10.800 percent threshold that Florida law requires to amend the constitution 0:09:11.440 --> 0:09:14.360 was a barrier. And so we're stuck with the current 0:09:14.400 --> 0:09:17.480 Florida abortion ban, which is a six week abortion ban, 0:09:17.720 --> 0:09:20.880 very early, and that's a problem. So Florida has more 0:09:20.920 --> 0:09:24.080 work to do and we're going to see the fight continue. 0:09:24.240 --> 0:09:26.120 The fact that it was fifty seven percent, that it 0:09:26.200 --> 0:09:28.960 came so close makes me suspect that we're going to 0:09:28.960 --> 0:09:32.120 see this issue return on the ballot in midterms in 0:09:32.280 --> 0:09:36.240 election cycle that is likely to draw out a different 0:09:36.320 --> 0:09:39.440 voting pool in midterms. That's pretty close. That's a very 0:09:39.520 --> 0:09:42.880 narrow margin of defeat. So while it is a victory 0:09:42.960 --> 0:09:47.840 that the anti abortion activist can claim, it's a pretty 0:09:47.920 --> 0:09:50.559 narrow victory and I don't think it's one that will 0:09:50.880 --> 0:09:52.839 will hold up. The problem is, for at least the 0:09:52.880 --> 0:09:55.280 next two years, we're stuck with the six weeks ban 0:09:55.400 --> 0:09:57.160 in Florida, and also. 0:09:56.920 --> 0:10:00.520 The governor there, Ron DeSantis pulled out all the stops 0:10:01.240 --> 0:10:05.120 against the amendment, having election police go to voters front 0:10:05.160 --> 0:10:09.040 doors to question them about signing a petition to add 0:10:09.080 --> 0:10:10.559 the abortion referendum. 0:10:10.920 --> 0:10:12.239 He had a website. 0:10:12.679 --> 0:10:15.280 I mean, he really went out of his way to 0:10:15.360 --> 0:10:17.040 try to get that defeated. 0:10:17.559 --> 0:10:21.120 Yeah, it's a little bit surprising that the Santis went 0:10:21.160 --> 0:10:24.480 to such extreme measures. But you know, who knows what 0:10:24.520 --> 0:10:28.480 his plan is. You know, he came away from the 0:10:28.520 --> 0:10:33.480 presidential election kind of seated and sailed, and obviously someone 0:10:33.559 --> 0:10:35.960 is advising him that this is a winning place for 0:10:36.040 --> 0:10:38.319 him to be tough. I think the broad result in 0:10:38.320 --> 0:10:40.280 the fact that it's still got fifty seven percent of 0:10:40.600 --> 0:10:44.960 voter support, should hopefully raise questions with whoever pushed him 0:10:45.000 --> 0:10:48.040 on that strategy and give him pause. But very surprising 0:10:48.080 --> 0:10:50.480 that he made such a stand on this issue. 0:10:50.679 --> 0:10:52.960 So now, in Nebraska, it was the first time in 0:10:53.000 --> 0:10:58.200 the state's history that conflicting petitions appeared on the same ballot, 0:10:58.559 --> 0:11:01.480 and I'm wondering if that had anything to do with 0:11:01.800 --> 0:11:03.800 the defeat of the abortion measure. 0:11:04.360 --> 0:11:08.439 Yeah, I think there's an issue of confusing the voters 0:11:08.520 --> 0:11:11.880 with competing ballot measures here, right, the one that was 0:11:11.880 --> 0:11:14.439 approved was the one that enshrines the current twelve week 0:11:14.520 --> 0:11:17.599 ban with an exception for rape for incests into the 0:11:17.640 --> 0:11:21.440 life of the mother, but the broader measure that would 0:11:21.480 --> 0:11:24.600 have added the right to abortion access to the state 0:11:24.600 --> 0:11:27.880 constitution failed. I do think there was an element of, 0:11:28.440 --> 0:11:32.120 you know, voters going for a more modest choice when 0:11:32.120 --> 0:11:35.720 presented with two alternatives. And I also think that here too, 0:11:36.280 --> 0:11:41.040 this election drove out a different voter base than we're 0:11:41.120 --> 0:11:43.280 likely to see in the midterm elections. And I think 0:11:43.320 --> 0:11:47.120 that this is not the last word in Nebraska. So 0:11:47.200 --> 0:11:50.600 that while this is a setback certainly for the you know, 0:11:50.640 --> 0:11:54.960 reproductive health access advocates, it was an unfortunate kind of 0:11:55.000 --> 0:11:59.520 competition and one that has flowed things down in Nebraska. 0:11:59.640 --> 0:11:59.760 Now. 0:12:00.000 --> 0:12:03.960 South Dakota is a state with a strict ban on abortion, 0:12:04.559 --> 0:12:08.240 and the Abortion Rights Amendment failed, and it was a 0:12:08.240 --> 0:12:09.120 decisive fail. 0:12:09.960 --> 0:12:13.560 Yeah, that's probably the biggest victory for anti abortion activists 0:12:13.720 --> 0:12:17.280 South Dakota as one of the most restrictive. What was 0:12:17.320 --> 0:12:20.520 rejected was a constitutional amendment there that would have put 0:12:20.520 --> 0:12:23.000 in a trimester based system, which was what Rote was 0:12:23.200 --> 0:12:27.280 based on, essentially, with no ability to limit abortion whatsoever. 0:12:27.320 --> 0:12:29.800 In the first trimester, you know, very much tied to 0:12:29.880 --> 0:12:33.400 wrote in the reasonable regulation in the second trimester and 0:12:33.520 --> 0:12:37.200 only you know, heavy regulation or prohibition in the third trimester. 0:12:37.760 --> 0:12:40.160 And so the problem is that the defeat of that 0:12:40.240 --> 0:12:44.400 amendment really leaves South Dakota as essentially a state with 0:12:44.400 --> 0:12:47.040 a total ban. And I do think it's definitely the 0:12:47.040 --> 0:12:51.080 biggest victory of this election cycle for the anti abortion movement. 0:12:51.400 --> 0:12:55.640 I suspect that whatever you know happens next in South Dakota, 0:12:55.800 --> 0:12:58.760 that there will be more activity to protect and restore 0:12:59.200 --> 0:13:02.320 rights to avoid, but that it will probably be a 0:13:02.360 --> 0:13:05.240 more modest initiative. And the result here, by the way, 0:13:05.360 --> 0:13:08.319 was strong, right, sixty one percent. Again, so it looks 0:13:08.400 --> 0:13:11.520 like the likelihood for South Dakota is that any future 0:13:11.600 --> 0:13:14.800 challenge will have to be a more modest approach and 0:13:14.840 --> 0:13:18.079 not one that tries to completely reinstate Roe v. 0:13:18.200 --> 0:13:18.440 Wade. 0:13:19.160 --> 0:13:19.959 What kind of. 0:13:19.920 --> 0:13:25.080 An impact can Trump as president have on abortion rights 0:13:25.120 --> 0:13:25.800 in the country. 0:13:26.360 --> 0:13:28.600 Well, so we've heard a lot about whether there's going 0:13:28.640 --> 0:13:32.719 to be some kind of national position created to coordinate 0:13:32.840 --> 0:13:37.800 abortion restriction. Obviously, you know, we have enormous amounts of 0:13:37.920 --> 0:13:42.280 federal healthcare dollars at stake through not only you know, 0:13:42.400 --> 0:13:45.880 Medicare Medicaid, but through all the various federal funding programs. 0:13:45.920 --> 0:13:49.520 So I think there is room if Trump is inclined 0:13:49.600 --> 0:13:53.160 to be you know, supportive of anti abortion activists. Those 0:13:53.160 --> 0:13:56.280 are certainly two major ways. The thing I'm watching most 0:13:56.280 --> 0:14:00.559 closely is that we avoided a problem with the FDA 0:14:00.760 --> 0:14:05.119 pill that was challenged mifipristone, the abortion pill that activists 0:14:05.120 --> 0:14:08.199 in Texas got a federal judge to ban, and we 0:14:08.520 --> 0:14:10.840 saw a whole drama there that the Supreme Court put 0:14:10.880 --> 0:14:13.319 to rest. But now the biggest question to me is 0:14:13.360 --> 0:14:18.000 whether you know, Trump's or Trump's people are going to 0:14:18.040 --> 0:14:22.119 try to make the FDA a site of more problems 0:14:22.200 --> 0:14:25.880 for telemedicine abortion. We already know telemedicine abortion is with 0:14:26.000 --> 0:14:30.040 mifipristone is now something like sixty percent or more of 0:14:30.080 --> 0:14:33.120 all abortion, you know, which has really transformed it to 0:14:33.240 --> 0:14:35.960 a much more private matter, you know, where women don't 0:14:35.960 --> 0:14:37.800 have to come to clinics to have a procedure. They 0:14:37.800 --> 0:14:39.800 can choose the time and place where they take the 0:14:39.840 --> 0:14:42.880 medication and have much more privacy in the process itself. 0:14:43.360 --> 0:14:46.720 So to me, the sort of scariest possibility is the 0:14:46.720 --> 0:14:50.120 politicization of the FDA. It's going to be very interesting 0:14:50.160 --> 0:14:53.160 to see what happens with health policy under Trump. A 0:14:53.200 --> 0:14:56.360 couple of years ago when he was elected in twenty sixteen, 0:14:56.560 --> 0:14:59.040 I co authored a book making a lot of predictions, 0:14:59.120 --> 0:15:01.200 and I learned my last and it's always dangerous to 0:15:01.240 --> 0:15:03.239 get ahead of what's going to happen here. But I'm 0:15:03.280 --> 0:15:06.480 definitely watching with data breathless see how much the FDA 0:15:06.560 --> 0:15:11.360 gets politicized or hopefully whether you know, will allow the 0:15:11.400 --> 0:15:15.080 experts who are policing the safety of our drugs and 0:15:15.280 --> 0:15:19.600 other medical devices supplies do their workout interruptions so that 0:15:19.920 --> 0:15:21.440 remains you soon, Thanks. 0:15:21.240 --> 0:15:21.880 So much, Harry. 0:15:22.080 --> 0:15:26.080 That's Harry Nelson of Leech Tishman Hardiman Nelson Coming up next. 0:15:26.240 --> 0:15:29.080 Will the Third Time be the Charm? For Johnson and Johnson? 0:15:29.480 --> 0:15:33.440 You're listening to Bloomberg? Will the Third Time be the Charm? 0:15:33.800 --> 0:15:37.400 The fate of Johnson and Johnson's latest push to use 0:15:37.480 --> 0:15:41.320 bankruptcy courts to end thousands of cancer lawsuits tied to 0:15:41.360 --> 0:15:45.160 its iconic baby powder now hinges on a high stakes 0:15:45.200 --> 0:15:49.520 trial in January. A federal judge in Houston will decide 0:15:49.560 --> 0:15:52.800 early next year whether Jay and Jay's bid to quickly 0:15:52.920 --> 0:15:56.360 settle the claims with an eight point two billion dollar 0:15:56.440 --> 0:15:59.880 payout can move ahead. A lead attorney for some whole 0:16:00.120 --> 0:16:03.280 out claims of vote by claimants in support of the 0:16:03.320 --> 0:16:06.800 deal was rigged, a charge that Jay and Jay denies. 0:16:07.240 --> 0:16:10.400 Joining me is an expert in mass torts, Elizabeth Birch, 0:16:10.680 --> 0:16:13.880 a professor at the University of Georgia School of Law. 0:16:14.280 --> 0:16:18.880 What are the stakes in this fifteen year long litigation? 0:16:19.720 --> 0:16:22.520 Well, I mean, there are certainly stakes for Johnson and 0:16:22.600 --> 0:16:25.120 Johnson in particular, but I think you know, they're really 0:16:25.160 --> 0:16:28.840 even bigger stakes for how we handle these mass harms 0:16:29.360 --> 0:16:32.240 and whether we handle them through bankruptcy or whether we 0:16:32.320 --> 0:16:36.040 handle them through Article three courts. You know, So, even 0:16:36.040 --> 0:16:38.840 as Johnson and Johnson is trying now for the third 0:16:38.920 --> 0:16:42.840 time to in my opinion, sort of ram this bankruptcy 0:16:42.880 --> 0:16:47.360 through the Article one system, we have questions about whether 0:16:47.720 --> 0:16:50.880 bankruptcy can become kind of a court of first resort 0:16:51.080 --> 0:16:54.800 rather than a last resort for handling massive tort claims 0:16:54.840 --> 0:16:55.080 like this. 0:16:55.920 --> 0:16:58.680 Will you explain how Johnson and Johnson is trying to 0:16:58.720 --> 0:17:03.360 resolve the claim using a legal strategy known as the 0:17:03.400 --> 0:17:07.560 Texas two step, where corporate shell was created to absorb 0:17:07.680 --> 0:17:11.080 the cancer claims and then file for bankruptcy, and that 0:17:11.280 --> 0:17:13.040 was rejected in New Jersey. 0:17:13.880 --> 0:17:18.000 Sure, so it actually started off by filing in North Carolina, 0:17:18.280 --> 0:17:21.439 which had fairly friendly case law to them. In the 0:17:21.480 --> 0:17:25.200 Fourth Circuit, that case was transferred up to New Jersey, 0:17:25.640 --> 0:17:28.159 which is in the Third Circuit, and then back in 0:17:28.280 --> 0:17:31.200 I believe it was twenty twenty three. The Third Circuit 0:17:31.400 --> 0:17:35.720 found that the filing by Johnson and Johnson unit, which 0:17:35.840 --> 0:17:39.560 is called LTL, was in bad faith essentially because the 0:17:39.680 --> 0:17:43.640 TALC unit wasn't sufficially distressed. Instead, you know, it had 0:17:43.760 --> 0:17:47.720 a funding source, which was Johnson and Johnson. So it 0:17:47.760 --> 0:17:50.240 didn't pass the test of being filed in good faith 0:17:50.320 --> 0:17:52.800 and it was dismissed. And then not long after that 0:17:52.880 --> 0:17:55.760 they filed a second time, and then now again a 0:17:55.840 --> 0:17:58.320 third time. But this one is down in Texas. 0:17:58.480 --> 0:18:00.439 I mean, what makes Texas different? 0:18:00.960 --> 0:18:04.320 Well, Texas is a little bit different. So there have 0:18:04.480 --> 0:18:08.720 been unfavorable rulings in this regard in both the Third 0:18:08.800 --> 0:18:11.879 Circuit and in the Seventh Circuit. There has been a 0:18:11.960 --> 0:18:15.480 favorable ruling in the Fourth Circuit, which is where Johnson 0:18:15.480 --> 0:18:19.040 and Johnson originally tried to go by filing in North Carolina, 0:18:19.119 --> 0:18:21.720 but yet to be determined what the Fifth Circuit will 0:18:21.760 --> 0:18:24.560 do to this, although there is some reason to think 0:18:24.600 --> 0:18:27.200 that maybe Fifth Circuit law would be a bit more 0:18:27.240 --> 0:18:30.320 favorable to Johnson and Johnson than the Third or the 0:18:30.320 --> 0:18:31.320 Seventh Circuit would. 0:18:31.760 --> 0:18:37.040 It's before a bankruptcy judge in Texas. The plaintiffs or 0:18:37.080 --> 0:18:38.679 some of the plaintiffs tried to send it back to 0:18:38.760 --> 0:18:41.359 New Jersey, but the judge rule that it could stay 0:18:41.359 --> 0:18:42.000 in Texas. 0:18:42.680 --> 0:18:45.560 That's correct. So that was the most recent ruling that 0:18:45.680 --> 0:18:49.040 I know about. Was the judge in Texas, Judge Lopez, 0:18:49.080 --> 0:18:52.399 which is who is a bankruptcy judge, said that the 0:18:52.480 --> 0:18:54.600 case did not need to move back to New Jersey 0:18:54.800 --> 0:18:56.680 and that he would be able to handle the case 0:18:56.760 --> 0:18:57.639 quickly and fairly. 0:18:58.359 --> 0:19:02.760 So this time Jay and Day went sort of prepared. 0:19:02.920 --> 0:19:07.680 It got a pre approved vote of the plaintiffs. 0:19:07.920 --> 0:19:11.000 Supposedly, so you know, this is what we're hearing and 0:19:11.040 --> 0:19:14.200 what we're reporting. So in order for a bankruptcy plan 0:19:14.320 --> 0:19:16.520 to go through, there are two ways to do it. 0:19:16.560 --> 0:19:19.560 There's something called a pre pack, which is where you 0:19:19.600 --> 0:19:23.200 gather the votes beforehand and when you file the bankruptcy plan, 0:19:23.320 --> 0:19:25.040 you sort of have all your ducks in a row 0:19:25.200 --> 0:19:28.159 such that the plan confirmation goes through very quickly. And 0:19:28.200 --> 0:19:31.359 then there is just sort of the ordinary Chapter eleven 0:19:31.480 --> 0:19:35.320 reorganization where you're trying to get the requisite votes as 0:19:35.320 --> 0:19:38.359 you go here, they're saying that they have the requisite vote. 0:19:38.480 --> 0:19:41.400 There is a pretty big split among the plaintiff's law 0:19:41.440 --> 0:19:43.560 firms as to whether they are in favor of this 0:19:43.640 --> 0:19:46.800 plan or against this plan. And there have been, you know, 0:19:46.840 --> 0:19:49.400 a lot of campaigns on both sides trying to get 0:19:49.440 --> 0:19:52.440 TOUP claimants to vote one way or the other, depending 0:19:52.480 --> 0:19:54.200 on which firms are spigned with. 0:19:54.880 --> 0:19:57.919 And now one of the plaintiff's lawyers, who is a 0:19:58.000 --> 0:20:02.560 lead attorney for the holdouts, Andy birch he accused another 0:20:02.600 --> 0:20:05.560 plaintiff's attorney and the consulting firm hired by Jay and 0:20:05.640 --> 0:20:09.359 Jay to run the pre bankruptcy vote of illegally switching 0:20:09.520 --> 0:20:14.639 eleven four hundred and thirty four votes from reject to accept. 0:20:14.760 --> 0:20:18.280 You know, I know that Andy Birchfield and Mike Papantonio 0:20:18.520 --> 0:20:23.400 have been very vocal in opposing the town bankruptcy plans, 0:20:23.480 --> 0:20:26.000 whether it was the first, the second, or the third, 0:20:26.440 --> 0:20:29.280 and certainly with regard to the third So you know, 0:20:29.320 --> 0:20:32.040 in some respects, it's a it's a very interesting way 0:20:32.080 --> 0:20:34.880 to see what's happening with this risk and the planeff Bar. 0:20:35.320 --> 0:20:37.960 There may have been evidentiary hearings on that motion. I 0:20:38.000 --> 0:20:40.320 have not seen those, so I'm not sure about what 0:20:40.400 --> 0:20:43.680 the allegations are or whether they are true. The judge 0:20:43.680 --> 0:20:46.600 will ultimately have to decide that, you know. But even 0:20:46.720 --> 0:20:50.199 without the plaintiffs bar themselves getting involved, you have the 0:20:50.280 --> 0:20:53.040 US Trustee who is against the plan, and so it 0:20:53.080 --> 0:20:55.720 will be interesting to see what happens. I suspect that 0:20:55.760 --> 0:20:58.960 we'll see an appeal either way, you know, regardless of 0:20:59.000 --> 0:21:01.760 how many plaintifs ultimately vote in favor of the plan. 0:21:02.160 --> 0:21:05.920 I mean, for plaintiffs attorneys, the longer they litigate and 0:21:06.000 --> 0:21:09.920 the more cases they litigate, the more compensation they get 0:21:09.960 --> 0:21:10.920 in attorney's fees. 0:21:11.440 --> 0:21:15.720 Well, it really depends, you know. Oftentimes you'll see retainer 0:21:15.760 --> 0:21:18.639 agreements that are staggered in terms of the amount of 0:21:18.720 --> 0:21:21.280 work that the attorney has to put in. So you know, 0:21:21.320 --> 0:21:23.840 if you settle before you ever file a complaint, you 0:21:23.920 --> 0:21:26.679 get a smaller percentage of a contingency fee than you 0:21:26.720 --> 0:21:29.880 would if you had to file a complaint or ultimately 0:21:29.920 --> 0:21:33.840 file an appeal. I haven't seen the retainer agreements in TALC, 0:21:34.000 --> 0:21:36.120 so it's hard to say, and I suspect they vary 0:21:36.160 --> 0:21:38.919 from firm to firm. But one of the concerns I 0:21:38.960 --> 0:21:43.080 think that I have about resolving mass towork cases through 0:21:43.080 --> 0:21:46.720 the bankruptcy process is that you don't always have the 0:21:46.800 --> 0:21:51.560 differentation between different types of planes. So, in other words, 0:21:51.640 --> 0:21:55.720 bankruptcy courts really aren't equipped to try these cases and 0:21:55.800 --> 0:21:58.000 to say this plaintiff should get this much and that 0:21:58.000 --> 0:22:01.359 plantiff should get that much. And oftentimes what you have 0:22:01.560 --> 0:22:04.120 is just sort of a you know, everybody gets a haircut, 0:22:04.200 --> 0:22:07.119 and oftentimes it's not a very good haircut, And so 0:22:07.600 --> 0:22:11.920 claims that might be weaker from a causation perspective could 0:22:11.960 --> 0:22:14.679 be getting the same or more than claims that are 0:22:14.760 --> 0:22:18.360 much stronger from a causation perspective. So that's the sort 0:22:18.400 --> 0:22:20.320 of big concern coming out of bankruptcy. 0:22:20.760 --> 0:22:24.320 Now, if you don't have a global settlement, I mean, 0:22:24.359 --> 0:22:28.080 how long would it take to get these cases litigated 0:22:28.320 --> 0:22:31.560 and how long would the plaintiffs have to wait to 0:22:31.600 --> 0:22:32.679 get any money? 0:22:33.080 --> 0:22:35.640 Well, I mean that's the flip side argument. Is that 0:22:35.840 --> 0:22:38.399 you know, at some point a dollar today is worth 0:22:38.640 --> 0:22:41.280 a lot more than a dollar, you know, five ten 0:22:41.359 --> 0:22:44.320