1 00:00:03,080 --> 00:00:08,280 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:11,160 --> 00:00:13,760 Speaker 1: Parents have had a lot to worry about during COVID, 3 00:00:14,120 --> 00:00:17,280 Speaker 1: whether to get their children vaccinated, send them to school 4 00:00:17,520 --> 00:00:21,319 Speaker 1: masked or unmasked. Those worries for parents can turn into 5 00:00:21,360 --> 00:00:25,439 Speaker 1: a laundry list of conflicts for separated or divorced parents 6 00:00:25,480 --> 00:00:28,560 Speaker 1: to fight about. Joining me is Lois Lieberman, a partner 7 00:00:28,560 --> 00:00:31,640 Speaker 1: in the matrimonial and family law practice at Blank Rome. 8 00:00:32,320 --> 00:00:36,680 Speaker 1: I want to start with vaccinations because it is such 9 00:00:36,720 --> 00:00:40,400 Speaker 1: a big issue, such a political issue. How often does 10 00:00:40,440 --> 00:00:46,360 Speaker 1: it come up in custody fights? Well before COVID occurred, 11 00:00:47,360 --> 00:00:51,680 Speaker 1: the time that we would see vaccinations come up is 12 00:00:51,760 --> 00:00:56,920 Speaker 1: when a parent became nervous thinking their child might be 13 00:00:57,480 --> 00:01:02,160 Speaker 1: more prone to autism by virtue of vaccinations. Those were 14 00:01:02,320 --> 00:01:06,760 Speaker 1: few and far between, but those occurred every once in 15 00:01:06,800 --> 00:01:10,000 Speaker 1: a while, and and we would get into a situation 16 00:01:10,040 --> 00:01:14,000 Speaker 1: if the school required a child to be vaccinated and 17 00:01:14,040 --> 00:01:17,720 Speaker 1: the child was going to go to that school. Ultimately, 18 00:01:17,840 --> 00:01:21,920 Speaker 1: the court would usually unless a pediatrician was going to 19 00:01:21,959 --> 00:01:25,760 Speaker 1: come in to give some medical evidence as to why 20 00:01:25,959 --> 00:01:28,720 Speaker 1: that child may be more prone, or there was some 21 00:01:28,880 --> 00:01:34,039 Speaker 1: evidence regarding same, the court if in love would give 22 00:01:34,240 --> 00:01:38,680 Speaker 1: the one parent medical decision making authority over that quote decision. 23 00:01:39,280 --> 00:01:45,840 Speaker 1: We had some other custodial site regarding religious exemptions, but 24 00:01:46,040 --> 00:01:49,000 Speaker 1: those changed a bit when it became I think there 25 00:01:49,080 --> 00:01:51,200 Speaker 1: was a change in the public health law, which again 26 00:01:52,240 --> 00:01:55,720 Speaker 1: the schools were requiring and we're not agreeing to this 27 00:01:55,840 --> 00:01:59,760 Speaker 1: religious exemption. But COVID has opened up a whole new 28 00:02:00,080 --> 00:02:05,280 Speaker 1: kind of hotbed of discussions with respect to vaccinating young children. 29 00:02:05,880 --> 00:02:09,680 Speaker 1: So let's start with the basic the mother. Let's say 30 00:02:09,720 --> 00:02:12,880 Speaker 1: the mother, the mother wants the child to be vaccinated, 31 00:02:12,919 --> 00:02:16,760 Speaker 1: the father doesn't want the child to be vaccinated. Does 32 00:02:16,760 --> 00:02:19,399 Speaker 1: the court usually get involved in that, and what kind 33 00:02:19,400 --> 00:02:23,240 Speaker 1: of factors does the judge way? If the court gets involved, 34 00:02:23,320 --> 00:02:25,560 Speaker 1: they're looking at the best interests of the child. That's 35 00:02:25,600 --> 00:02:29,320 Speaker 1: what's supposed to be the basis upon the court's decision. 36 00:02:29,720 --> 00:02:32,600 Speaker 1: And if mom wants to get the child vaccinated and 37 00:02:32,720 --> 00:02:35,720 Speaker 1: dad doesn't, the court is going to want to delve 38 00:02:35,720 --> 00:02:40,480 Speaker 1: into what's the reasoning behind dad not wanting the child 39 00:02:40,960 --> 00:02:46,400 Speaker 1: to be vaccinated. So if we talk about COVID most recently, 40 00:02:46,520 --> 00:02:50,080 Speaker 1: there was a decision in December that Judge Dollinger and 41 00:02:50,200 --> 00:02:53,680 Speaker 1: Monroe County rendered. And this was a father who was 42 00:02:53,720 --> 00:02:57,799 Speaker 1: a scientist, somebody who was a professor at Rochester Institute 43 00:02:57,840 --> 00:03:02,920 Speaker 1: of Technology, who was vaccinated did himself. His older daughters 44 00:03:02,919 --> 00:03:06,320 Speaker 1: were vaccinated, and all he wanted to do was to 45 00:03:06,400 --> 00:03:08,880 Speaker 1: wait a bit since he was concerned about his eleven 46 00:03:08,960 --> 00:03:12,160 Speaker 1: year old daughter being vaccinated, wanted to see a bit 47 00:03:12,200 --> 00:03:16,600 Speaker 1: more data. In that particular decision, the court made a 48 00:03:16,639 --> 00:03:21,840 Speaker 1: determination that that the CDC was recommending that the child 49 00:03:21,880 --> 00:03:25,800 Speaker 1: should be vaccinated, and therefore there was no point of waiting, 50 00:03:26,000 --> 00:03:27,560 Speaker 1: and that it was in the best interests of the 51 00:03:27,639 --> 00:03:32,400 Speaker 1: child to become vaccinated, and therefore gave the mom the 52 00:03:32,480 --> 00:03:36,880 Speaker 1: decision making authority to make that important decision for the 53 00:03:36,960 --> 00:03:41,840 Speaker 1: child's health, safety and welfare. Do these decisions vary based 54 00:03:41,840 --> 00:03:44,560 Speaker 1: on whether you're in a blue state where you know, 55 00:03:44,720 --> 00:03:48,760 Speaker 1: vaccination rates are high and there's less political pressure to 56 00:03:48,840 --> 00:03:53,880 Speaker 1: be unvaccinated, or in a red state where vaccination rates 57 00:03:53,880 --> 00:03:57,920 Speaker 1: are low. You know, that's a very interesting question, June. 58 00:03:58,160 --> 00:04:02,200 Speaker 1: I've seen decisions in Chicago, I've seen decisions in l 59 00:04:02,280 --> 00:04:04,920 Speaker 1: a retrospect to this, so I can't tell you that 60 00:04:05,040 --> 00:04:09,160 Speaker 1: in like West Virginia or in you know, Texas, whether 61 00:04:09,240 --> 00:04:13,800 Speaker 1: or not this conflict, whether the judges are getting involved more, 62 00:04:14,240 --> 00:04:17,520 Speaker 1: you know, as a political measure, because clearly you can 63 00:04:17,600 --> 00:04:21,480 Speaker 1: see that there is a feeling that this is obviously 64 00:04:21,520 --> 00:04:24,479 Speaker 1: decision is kind of politicized. What to a certain extent, 65 00:04:24,520 --> 00:04:28,320 Speaker 1: you're kind of recognizing from the language in the decisions 66 00:04:28,600 --> 00:04:31,240 Speaker 1: that the courts are going kind of beyond while I'm 67 00:04:31,279 --> 00:04:34,640 Speaker 1: just following with the CDC says that's many jurists are 68 00:04:34,640 --> 00:04:37,400 Speaker 1: getting kind of on their soapbox a bit to talk 69 00:04:37,440 --> 00:04:40,320 Speaker 1: about the greater good or the need for us to 70 00:04:40,400 --> 00:04:44,960 Speaker 1: all be able to commit to getting vaccinated, to blow 71 00:04:45,000 --> 00:04:47,680 Speaker 1: back this pandemic, so to speak. But it's a really 72 00:04:47,760 --> 00:04:49,920 Speaker 1: good question. So I can't tell you whether or not 73 00:04:50,279 --> 00:04:52,880 Speaker 1: in the Red States are we seeing a difference of 74 00:04:52,960 --> 00:04:55,760 Speaker 1: opinion which the respect to this conflict. Let's talk about 75 00:04:55,760 --> 00:05:01,520 Speaker 1: the situation where the vaccinated parent one to stop visitation 76 00:05:01,839 --> 00:05:06,719 Speaker 1: with the unvaccinated parent. How does that work? So what 77 00:05:06,760 --> 00:05:12,480 Speaker 1: we're seeing is that the court is limiting and sometimes 78 00:05:12,520 --> 00:05:19,000 Speaker 1: suspending the unvaccinated parents parental access under the guise of 79 00:05:19,080 --> 00:05:24,400 Speaker 1: saying they are protecting the child's health, safety, and welfare. 80 00:05:24,880 --> 00:05:28,479 Speaker 1: In the Chicago case, the jurist went so far as 81 00:05:28,480 --> 00:05:31,279 Speaker 1: to say that parent had to be vaccinated. Yet in 82 00:05:31,400 --> 00:05:35,279 Speaker 1: New York we've seen decisions where, while the judges language 83 00:05:35,320 --> 00:05:38,000 Speaker 1: may have been a little bit more political, they basically said, 84 00:05:38,040 --> 00:05:40,520 Speaker 1: you can see the kid if you take a test. 85 00:05:40,720 --> 00:05:43,480 Speaker 1: Even if you don't want to get vaccinated, you need 86 00:05:43,520 --> 00:05:47,040 Speaker 1: to take a negative COVID test to show that you 87 00:05:47,160 --> 00:05:52,280 Speaker 1: are not going to potentially harm this child, especially when 88 00:05:52,320 --> 00:05:56,440 Speaker 1: you're dealing with cases where the children are younger. Then 89 00:05:56,680 --> 00:06:01,080 Speaker 1: they recommended vaccination status. In the case in again New 90 00:06:01,120 --> 00:06:04,920 Speaker 1: York County Judge Cooper, the child was three, obviously couldn't 91 00:06:04,960 --> 00:06:08,120 Speaker 1: be vaccinated, and gave the mother the right to limit 92 00:06:08,160 --> 00:06:11,800 Speaker 1: the father's access, providing that unless he got vaccinated or 93 00:06:12,000 --> 00:06:15,320 Speaker 1: submitted to a negative test. It is a difficult situation 94 00:06:15,360 --> 00:06:18,920 Speaker 1: for parents because this is a new vaccine. I mean, 95 00:06:19,000 --> 00:06:22,960 Speaker 1: the measles mom's rebella you already know, but this is new. 96 00:06:23,120 --> 00:06:24,960 Speaker 1: So I can imagine that a lot of parents do 97 00:06:25,080 --> 00:06:29,440 Speaker 1: have trepidation about getting their child vaccinated. And I think 98 00:06:29,520 --> 00:06:32,080 Speaker 1: that's where we almost have gotten caught up in the 99 00:06:32,160 --> 00:06:35,400 Speaker 1: wave of politicism, because normally with a kind of a 100 00:06:35,400 --> 00:06:39,159 Speaker 1: new vaccine, a parent who wanted to wait or to 101 00:06:39,200 --> 00:06:41,680 Speaker 1: get a little bit more data and to kind of 102 00:06:41,680 --> 00:06:46,640 Speaker 1: sift through the noise of what people were saying, would 103 00:06:46,640 --> 00:06:49,599 Speaker 1: potentially take a little bit more of a beat before 104 00:06:49,640 --> 00:06:54,080 Speaker 1: making the decision to get their child vaccinated. But interestingly enough, 105 00:06:54,200 --> 00:06:57,560 Speaker 1: by virtue of the fact that the BDC has made 106 00:06:57,600 --> 00:07:01,160 Speaker 1: this recommendation, because the school, because there have been such 107 00:07:01,200 --> 00:07:04,800 Speaker 1: a surge of children who became sick, especially in the 108 00:07:04,839 --> 00:07:10,040 Speaker 1: omacrom variants in recent intens in September, there seems to 109 00:07:10,080 --> 00:07:13,760 Speaker 1: be more of a, you know, an urgency that the 110 00:07:13,800 --> 00:07:16,720 Speaker 1: court is feeling that it's the parent who said get 111 00:07:16,760 --> 00:07:19,720 Speaker 1: the child back, and if the other parents says nowhere 112 00:07:19,760 --> 00:07:21,640 Speaker 1: wants to wait, I'm going to let the parents who 113 00:07:21,680 --> 00:07:23,800 Speaker 1: wants to get through child vacimate. I'm going to let 114 00:07:23,800 --> 00:07:26,440 Speaker 1: them make the decision. I take it. When we had 115 00:07:26,480 --> 00:07:29,120 Speaker 1: COVID lockdown, there were there were a lot more problems. 116 00:07:29,160 --> 00:07:33,080 Speaker 1: What other kinds of problems about custody came up or 117 00:07:33,080 --> 00:07:36,800 Speaker 1: about schooling, Wow, we had quite a bit. So let's go. 118 00:07:36,880 --> 00:07:40,280 Speaker 1: Let's start. So first, you had just finish of schooling, right, 119 00:07:40,840 --> 00:07:44,680 Speaker 1: especially in New York County where I practice, and there's 120 00:07:44,680 --> 00:07:47,080 Speaker 1: a lot of children who are in private school. There 121 00:07:47,200 --> 00:07:49,800 Speaker 1: was the choice certain schools gave the choices whether or 122 00:07:49,840 --> 00:07:52,760 Speaker 1: not your child wanted to go remote or go in person. 123 00:07:53,120 --> 00:07:56,040 Speaker 1: So we had issues between parents as to whether or 124 00:07:56,040 --> 00:07:58,320 Speaker 1: not they wanted their kids to be in school or 125 00:07:58,520 --> 00:08:01,640 Speaker 1: taking the classes remote, maybe because of the nervousness, maybe 126 00:08:01,640 --> 00:08:03,920 Speaker 1: because of the concern that the child may have some 127 00:08:03,960 --> 00:08:07,480 Speaker 1: sort of underlying health issue. The next issue had to 128 00:08:07,520 --> 00:08:10,560 Speaker 1: do with just where the child if they went promote, 129 00:08:10,640 --> 00:08:13,520 Speaker 1: right where the kids took their remote classes, right where 130 00:08:13,520 --> 00:08:17,640 Speaker 1: they all in their houses, you know, their vacation homes, 131 00:08:17,800 --> 00:08:21,000 Speaker 1: or they were somewhere different, and whether or not that 132 00:08:21,160 --> 00:08:25,120 Speaker 1: impacted the other parents parental access because if they were 133 00:08:25,120 --> 00:08:28,880 Speaker 1: doing you know, and every other day or every you know, Monday, Tuesday, Wednesday, 134 00:08:28,920 --> 00:08:31,480 Speaker 1: Thursday schedule and one parent is in the city and 135 00:08:31,480 --> 00:08:34,040 Speaker 1: the other parents is in you know, the Hampton's, that 136 00:08:34,120 --> 00:08:37,679 Speaker 1: wasn't gonna work kind of situation. Gosh. We had issues 137 00:08:37,760 --> 00:08:40,600 Speaker 1: with respect of just allowing kids to travel. I know 138 00:08:40,679 --> 00:08:43,120 Speaker 1: of one case where whether or not they could fly 139 00:08:43,160 --> 00:08:46,760 Speaker 1: out private or apply commercially, and what kind of precautions 140 00:08:46,880 --> 00:08:50,320 Speaker 1: need to need it to be taken. We had issues 141 00:08:50,400 --> 00:08:52,920 Speaker 1: of whether or not parents didn't want to give children 142 00:08:52,920 --> 00:08:54,920 Speaker 1: over to the other parents because they didn't think that 143 00:08:55,000 --> 00:08:59,640 Speaker 1: they were following protocols. I mean, sadly, COVID truly was 144 00:08:59,720 --> 00:09:02,400 Speaker 1: like a hot set of issues that arose from that 145 00:09:02,920 --> 00:09:06,920 Speaker 1: when you have parents who don't you agree. It provided 146 00:09:07,240 --> 00:09:10,679 Speaker 1: a whole host of issues for parents to fight about 147 00:09:10,679 --> 00:09:13,160 Speaker 1: and then per have judges to get involved in. How 148 00:09:13,200 --> 00:09:16,280 Speaker 1: often do judges get involved in these kinds of decisions 149 00:09:16,360 --> 00:09:18,640 Speaker 1: which it seems like they should be able to be 150 00:09:18,640 --> 00:09:22,280 Speaker 1: solved between the parents. So a really good question, and 151 00:09:22,360 --> 00:09:25,960 Speaker 1: I mean again, I can't tell you statistically, but unfortunately, 152 00:09:26,360 --> 00:09:31,320 Speaker 1: when you have custodial issues where the court has to 153 00:09:31,320 --> 00:09:34,559 Speaker 1: make a determination as to really which parents is better 154 00:09:34,600 --> 00:09:38,320 Speaker 1: suited to make a decision, normally you don't have the 155 00:09:38,440 --> 00:09:41,880 Speaker 1: kind of significant issues that arise. It's usually, well, who's 156 00:09:41,880 --> 00:09:43,640 Speaker 1: going to make the best decision about where the kid 157 00:09:43,640 --> 00:09:45,960 Speaker 1: goes to school and who's going to make a determination 158 00:09:46,000 --> 00:09:49,800 Speaker 1: as to what kind of extracurricular activities. Very often, prior 159 00:09:49,920 --> 00:09:53,640 Speaker 1: to COVID, the most significant medical issue we really dealt 160 00:09:53,679 --> 00:09:56,320 Speaker 1: with when it came to having jurors having to intervene 161 00:09:56,320 --> 00:09:59,920 Speaker 1: with if prescriptions about a d h D or whether 162 00:10:00,000 --> 00:10:04,240 Speaker 1: a child actually had those problems and how to address 163 00:10:04,320 --> 00:10:07,440 Speaker 1: them right very often. It was not uncommon if you 164 00:10:07,480 --> 00:10:09,800 Speaker 1: had one parent who said, you know, my kid doesn't 165 00:10:09,800 --> 00:10:13,120 Speaker 1: need to be medicated, and another parent saying, well, you know, 166 00:10:13,160 --> 00:10:15,920 Speaker 1: the school was recommending, the psychiatrist is recommending, why not, 167 00:10:16,160 --> 00:10:18,520 Speaker 1: and then courts had to get involved. But it would 168 00:10:18,559 --> 00:10:22,600 Speaker 1: seem that it almost during this period of the last 169 00:10:22,600 --> 00:10:26,400 Speaker 1: two years, it's almost as if people's anxieties have gotten 170 00:10:26,440 --> 00:10:30,239 Speaker 1: even greater, and there seems to be even more situations 171 00:10:30,280 --> 00:10:32,560 Speaker 1: where parties cannot agree and I just have to get 172 00:10:32,559 --> 00:10:35,840 Speaker 1: involved in some way, which has been problematic because the 173 00:10:35,880 --> 00:10:39,480 Speaker 1: court system has kind of been broken and really been 174 00:10:39,720 --> 00:10:44,240 Speaker 1: so overloaded by virtue of the problems that COVID has caused. 175 00:10:44,320 --> 00:10:46,480 Speaker 1: So a lot of parents have been in kind of 176 00:10:46,480 --> 00:10:49,000 Speaker 1: no win situations where either you know, they haven't been 177 00:10:49,040 --> 00:10:52,080 Speaker 1: able to get the attention for for some period of 178 00:10:52,120 --> 00:10:55,040 Speaker 1: time courts, unless it was an emergency, you couldn't come in, 179 00:10:55,080 --> 00:10:57,920 Speaker 1: and the question was what was an emergency? So um, 180 00:10:57,960 --> 00:11:00,920 Speaker 1: and we're kind of still dealing with the ramifications the 181 00:11:00,920 --> 00:11:04,119 Speaker 1: backload of all this. But you know, now the custodial 182 00:11:04,160 --> 00:11:06,720 Speaker 1: issues are the first ones that are not really getting attention, 183 00:11:07,320 --> 00:11:09,959 Speaker 1: so it depends, you know, So the question now is 184 00:11:10,000 --> 00:11:12,440 Speaker 1: in the vaccination world. I think you're seeing a lot 185 00:11:12,480 --> 00:11:15,800 Speaker 1: of litigation in all sorts of states. But really, if 186 00:11:15,840 --> 00:11:18,400 Speaker 1: one was making a guess, most of the jurists are 187 00:11:18,400 --> 00:11:22,240 Speaker 1: going to pick and say, if the CDC, if the 188 00:11:22,480 --> 00:11:26,080 Speaker 1: FDA has approved that vaccine. I'm going to tell the 189 00:11:26,160 --> 00:11:28,400 Speaker 1: parent who wants to get the child vaccinated that they 190 00:11:28,400 --> 00:11:31,840 Speaker 1: are entitled to do so unless I get some medical 191 00:11:31,880 --> 00:11:34,760 Speaker 1: professionals who's going to provide me a reason why that 192 00:11:34,840 --> 00:11:39,240 Speaker 1: child shouldn't vaccinate. Let's switch to today's Valentine's Day. Does 193 00:11:39,280 --> 00:11:42,000 Speaker 1: this mean there are a lot of engagements and are 194 00:11:42,040 --> 00:11:45,199 Speaker 1: more people getting pre nups than in the past. Well, 195 00:11:45,320 --> 00:11:49,840 Speaker 1: for sure. What we've seen June during this lockdown is 196 00:11:49,880 --> 00:11:53,920 Speaker 1: that if there were fissures in a relationship, it definitely 197 00:11:54,000 --> 00:11:58,800 Speaker 1: caused you know, major upheople. But those who were stuck 198 00:11:58,800 --> 00:12:01,480 Speaker 1: together who really liked end up being together. We've seen 199 00:12:01,559 --> 00:12:05,760 Speaker 1: a great influx of engagement and prenup. So we're definitely 200 00:12:05,760 --> 00:12:08,960 Speaker 1: a prenup season usually around Valentine's Day. This is another 201 00:12:09,960 --> 00:12:13,440 Speaker 1: search so to speak, of times when we see engagements 202 00:12:13,440 --> 00:12:16,040 Speaker 1: and therefore we see a lot of prenups. I don't 203 00:12:16,040 --> 00:12:18,439 Speaker 1: know if there's more prenups now than there has been. 204 00:12:18,520 --> 00:12:22,200 Speaker 1: But we do a great deal of um of of 205 00:12:22,280 --> 00:12:27,400 Speaker 1: prenups and those who have you know, assets, or if 206 00:12:27,400 --> 00:12:31,040 Speaker 1: they've been in a relationship previously that broke up in divorce. 207 00:12:31,200 --> 00:12:33,800 Speaker 1: It's clear that people are doing a lot of them. 208 00:12:33,880 --> 00:12:36,960 Speaker 1: We have a great influx of of prenups right now 209 00:12:37,000 --> 00:12:40,080 Speaker 1: in the last few weeks, and I'm sure as after 210 00:12:40,160 --> 00:12:42,240 Speaker 1: today we're going to have even more. I mean, how 211 00:12:42,360 --> 00:12:44,040 Speaker 1: much does it cost to get a prenup if you 212 00:12:44,080 --> 00:12:46,880 Speaker 1: have I'm not talking about you know, the mega millions, 213 00:12:47,400 --> 00:12:51,920 Speaker 1: but the average person. Again another great question, Not trying 214 00:12:51,920 --> 00:12:54,880 Speaker 1: to be evasive, but lawyers are animals of time, right. 215 00:12:54,960 --> 00:12:59,319 Speaker 1: We all build you know, per six minute increments, So 216 00:12:59,679 --> 00:13:02,320 Speaker 1: if somebody takes a lot of time, they're calling us 217 00:13:02,360 --> 00:13:07,080 Speaker 1: a great deal that we're basically doing therapy before the wedding. 218 00:13:07,280 --> 00:13:10,120 Speaker 1: Freedups that should be simple are costing, you know, on 219 00:13:10,240 --> 00:13:13,319 Speaker 1: godly thumps because we're spending a lot of time. Those 220 00:13:13,360 --> 00:13:16,839 Speaker 1: who just want to make things simple, like what I 221 00:13:16,960 --> 00:13:21,160 Speaker 1: come into the marriagement, what I inherit or gifted by 222 00:13:21,200 --> 00:13:25,360 Speaker 1: my family, or that comes from trust distributions, those are 223 00:13:25,360 --> 00:13:27,319 Speaker 1: going to be separate and everything else you know is 224 00:13:27,360 --> 00:13:29,360 Speaker 1: going to be marital or you know, we'll deal with 225 00:13:29,440 --> 00:13:32,320 Speaker 1: it based upon the law. Shouldn't cost a lot of money. 226 00:13:32,480 --> 00:13:35,840 Speaker 1: It's just that, as you know, especially in my world, 227 00:13:36,040 --> 00:13:38,920 Speaker 1: there's a lot of emotions that are layered in these 228 00:13:38,960 --> 00:13:42,319 Speaker 1: decisions and in these negotiations, So it's not just those 229 00:13:42,360 --> 00:13:44,760 Speaker 1: simple most of the time, and sometimes it takes a 230 00:13:44,800 --> 00:13:47,240 Speaker 1: little bit more time to kind of flush out the 231 00:13:47,440 --> 00:13:50,319 Speaker 1: issues and therefore costs a little bit more than one 232 00:13:50,320 --> 00:13:54,480 Speaker 1: would have hoped. Thanks Lois, that's Lois Lieberman of Blank Rome. 233 00:13:56,320 --> 00:14:00,000 Speaker 1: The US Senate delivered a major legislative victory for them 234 00:14:00,200 --> 00:14:03,760 Speaker 1: two Movement, passing a bill in a by partisan voice 235 00:14:03,880 --> 00:14:07,680 Speaker 1: vote that will end forced arbitration at companies for victims 236 00:14:07,679 --> 00:14:12,120 Speaker 1: of sexual assault or harassment. Senator Kirsten Gillibrand of New 237 00:14:12,200 --> 00:14:14,679 Speaker 1: York was one of the early sponsors of the bill. 238 00:14:15,160 --> 00:14:18,320 Speaker 1: No longer will survivors of sexual assault or harassment in 239 00:14:18,320 --> 00:14:21,240 Speaker 1: the workplace come forward and be told that they are 240 00:14:21,320 --> 00:14:24,640 Speaker 1: legally forbidden to see their employer because somewhere buried in 241 00:14:24,680 --> 00:14:28,680 Speaker 1: their employment contracts was this forced arbitration clause. The measure 242 00:14:28,680 --> 00:14:32,040 Speaker 1: of freeze victims of workplace sexual harassment or assault to 243 00:14:32,120 --> 00:14:35,840 Speaker 1: pursue lawsuits in court. Joining me is Anthony On cd CO, 244 00:14:35,960 --> 00:14:38,800 Speaker 1: chair of the Labor and Employment Law Department at Prostcauer, 245 00:14:39,440 --> 00:14:42,720 Speaker 1: describe for us the kinds of arbitration clauses that are 246 00:14:42,880 --> 00:14:48,640 Speaker 1: often in employee's contracts. They're sometimes referred to as pre 247 00:14:48,840 --> 00:14:54,320 Speaker 1: dispute arbitration provisions, and what that means is that they 248 00:14:54,360 --> 00:14:59,960 Speaker 1: are documents that are usually given to employees and sometimes 249 00:15:00,000 --> 00:15:05,520 Speaker 1: even applicants before they've begun employment. And essentially what they 250 00:15:05,600 --> 00:15:10,600 Speaker 1: say is that any sort of dispute arises, or any 251 00:15:10,680 --> 00:15:14,000 Speaker 1: claims arise. That is, if an employee has a claim 252 00:15:14,040 --> 00:15:18,080 Speaker 1: against an employer, or employer has a claim against the employee, 253 00:15:18,720 --> 00:15:22,520 Speaker 1: they both agree in advance that they will not go 254 00:15:22,640 --> 00:15:27,800 Speaker 1: to court and that instead they will have their issue 255 00:15:27,920 --> 00:15:33,120 Speaker 1: or claim resolved by an independent arbitrator, usually from one 256 00:15:33,120 --> 00:15:37,760 Speaker 1: of the well known alternate dispute resolution entities, and there 257 00:15:37,760 --> 00:15:40,160 Speaker 1: are three or four of them that are extremely well known. 258 00:15:40,800 --> 00:15:44,960 Speaker 1: So now what does this new Act do? So this 259 00:15:45,360 --> 00:15:48,920 Speaker 1: new Act that came out rather suddenly, I don't think 260 00:15:48,960 --> 00:15:51,640 Speaker 1: there was a lot of warning. It passed the House 261 00:15:51,720 --> 00:15:57,280 Speaker 1: and then almost instantaneously passed the Senate, and President Biden 262 00:15:57,360 --> 00:16:01,960 Speaker 1: has already indicated that he will sign it. This act 263 00:16:02,240 --> 00:16:06,920 Speaker 1: would essentially prohibit any such agreements that is pre dispute 264 00:16:07,000 --> 00:16:13,440 Speaker 1: arbitration agreements that involves either sexual harassment or sexual assault 265 00:16:13,720 --> 00:16:16,640 Speaker 1: in any of the states. So it's a federal law 266 00:16:16,760 --> 00:16:21,480 Speaker 1: that will essentially lift all of those types of claims, 267 00:16:21,680 --> 00:16:26,600 Speaker 1: that is, sexual harassment and sexual assault claims from arbitration 268 00:16:27,040 --> 00:16:31,200 Speaker 1: and um put them into court at the option of 269 00:16:31,240 --> 00:16:34,280 Speaker 1: the employee. By the way, that's not automatically done. It's 270 00:16:34,280 --> 00:16:38,000 Speaker 1: something the employee will have the option to do. It 271 00:16:38,120 --> 00:16:43,160 Speaker 1: was a bipartisan bill. It passed with a voice vote 272 00:16:43,280 --> 00:16:46,960 Speaker 1: in the Senate. The sponsors of the bill say that 273 00:16:47,520 --> 00:16:52,720 Speaker 1: it's important because workers are vulnerable and the disparity of power, 274 00:16:53,120 --> 00:16:57,960 Speaker 1: and if you have arbitration, it's secretive. It's not in 275 00:16:57,960 --> 00:17:00,880 Speaker 1: an open court room you can appea of the decision. 276 00:17:01,480 --> 00:17:04,119 Speaker 1: So they say this is a really good thing for workers. 277 00:17:04,840 --> 00:17:07,280 Speaker 1: That's true. I have a little bit more of a 278 00:17:07,320 --> 00:17:11,040 Speaker 1: cynical view of that point of view, not necessarily from 279 00:17:11,080 --> 00:17:14,320 Speaker 1: the people in Congress who voted for it, but from 280 00:17:14,400 --> 00:17:19,240 Speaker 1: the plaintiff side lawyers who advocate laws like this, what 281 00:17:19,359 --> 00:17:22,480 Speaker 1: they rarely say, but which they all are really quite 282 00:17:22,520 --> 00:17:26,680 Speaker 1: aware of is that juries tend to be more sympathetic 283 00:17:27,080 --> 00:17:31,600 Speaker 1: to employees full stop, regardless of what the claim is, 284 00:17:32,480 --> 00:17:39,320 Speaker 1: and juries tend to give higher awards two employees than 285 00:17:39,400 --> 00:17:46,240 Speaker 1: do arbitrators. And because of that, many, most, maybe all, 286 00:17:46,320 --> 00:17:50,680 Speaker 1: plaintiff lawyers would prefer their cases to be heard by 287 00:17:50,800 --> 00:17:53,840 Speaker 1: juries because they believe they're more likely to get a 288 00:17:54,000 --> 00:18:01,560 Speaker 1: higher award. What about the allegations that arbitration clauses are 289 00:18:01,680 --> 00:18:06,800 Speaker 1: in fine print in legal clauses, which employees aren't even 290 00:18:06,880 --> 00:18:09,119 Speaker 1: aware of, so when they're signing, they don't know what 291 00:18:09,240 --> 00:18:13,520 Speaker 1: they're signing. I think there's something to that. They're they're 292 00:18:13,520 --> 00:18:16,520 Speaker 1: sometimes referred to in the law that hesion contracts, meaning 293 00:18:16,640 --> 00:18:22,199 Speaker 1: that they are rarely negotiated, they're rarely specifically called out 294 00:18:22,280 --> 00:18:26,639 Speaker 1: by the employer. There's usually very little, if any discussion 295 00:18:26,640 --> 00:18:30,480 Speaker 1: about them. But I would also point out that the 296 00:18:30,520 --> 00:18:33,560 Speaker 1: next time you go to the dentist, the next time 297 00:18:33,600 --> 00:18:36,320 Speaker 1: you go to your doctor, the next time you go 298 00:18:36,560 --> 00:18:41,240 Speaker 1: and park in many facilities in parking structures around the country, 299 00:18:41,520 --> 00:18:44,840 Speaker 1: you will find that if you have a dispute with 300 00:18:44,920 --> 00:18:48,280 Speaker 1: any or all of those entities, you also have waived 301 00:18:48,320 --> 00:18:52,359 Speaker 1: your right to go to trial with a jury, and 302 00:18:52,440 --> 00:18:55,399 Speaker 1: you will end up in arbitration. I would especially point 303 00:18:55,440 --> 00:18:59,000 Speaker 1: that out with respect to medical providers. I probably signed 304 00:18:59,040 --> 00:19:04,880 Speaker 1: dozens of these um arbitration provisions, as has everybody listening 305 00:19:04,880 --> 00:19:08,960 Speaker 1: to this program. And there also has been no discussion 306 00:19:09,000 --> 00:19:11,679 Speaker 1: about that. There's been no there's been no attempt to 307 00:19:12,720 --> 00:19:16,400 Speaker 1: repeal those, and all the same reasons apply. Doctors don't 308 00:19:16,440 --> 00:19:19,600 Speaker 1: want to be brought in front of juries, and they 309 00:19:19,640 --> 00:19:22,360 Speaker 1: would rather in hospitals the same They would rather not 310 00:19:22,520 --> 00:19:27,800 Speaker 1: have to defend claims like those that arise malpractice claims, 311 00:19:27,800 --> 00:19:30,720 Speaker 1: for example, in front of juries. They'd rather be in 312 00:19:30,720 --> 00:19:34,199 Speaker 1: front of arbitrators. So let me ask you this, as 313 00:19:34,280 --> 00:19:36,760 Speaker 1: far as this bill, do you think that it will 314 00:19:36,840 --> 00:19:43,600 Speaker 1: lead to more litigation, more settlements, higher settlements. What do 315 00:19:43,600 --> 00:19:45,560 Speaker 1: you think the effect of it will be? If you 316 00:19:45,640 --> 00:19:49,280 Speaker 1: define litigation as court litigations, then the answer would be yes. 317 00:19:49,520 --> 00:19:53,720 Speaker 1: I think that what this essentially means is that employees 318 00:19:53,840 --> 00:19:58,359 Speaker 1: with sexual harassment and sexual assault claims, and I believe 319 00:19:58,440 --> 00:20:03,760 Speaker 1: fortunately sexual all claims are still relatively rare, they do occur, 320 00:20:03,880 --> 00:20:06,840 Speaker 1: but it's sexual rasment claims are really quite frequently filed 321 00:20:07,680 --> 00:20:12,240 Speaker 1: UM those will no longer be before an arbitrator, and 322 00:20:12,440 --> 00:20:15,080 Speaker 1: that means that they will be filed. It doesn't mean 323 00:20:15,080 --> 00:20:16,760 Speaker 1: that each and every one of them will go to trial. 324 00:20:16,840 --> 00:20:21,760 Speaker 1: Many of them will, as your question suggests, end up 325 00:20:22,160 --> 00:20:27,800 Speaker 1: getting settled. But importantly, because the case is pending in 326 00:20:27,920 --> 00:20:30,679 Speaker 1: court or is threatened to be filed in court and 327 00:20:30,760 --> 00:20:34,199 Speaker 1: cannot be sent to arbitration, the settlement values will go 328 00:20:34,320 --> 00:20:38,160 Speaker 1: up significantly. I can tell you that many, many forms 329 00:20:38,200 --> 00:20:41,840 Speaker 1: of litigation go through a process not as mediation, which 330 00:20:41,920 --> 00:20:45,280 Speaker 1: is a again a voluntary process that the parties go through. 331 00:20:45,440 --> 00:20:49,360 Speaker 1: We usually with a retired judge or retired practitioner and 332 00:20:49,560 --> 00:20:52,920 Speaker 1: they try to settle the case. If the mediator knows 333 00:20:52,960 --> 00:20:56,760 Speaker 1: that there's an arbitration provision that is likely to be enforced, 334 00:20:57,080 --> 00:21:00,360 Speaker 1: that the case is usually settled for less money than 335 00:21:00,560 --> 00:21:04,359 Speaker 1: if there is no mediation provision, because once again the 336 00:21:04,440 --> 00:21:09,200 Speaker 1: threat of a jury is such that any potential award 337 00:21:09,920 --> 00:21:12,120 Speaker 1: is going to be probably a lot higher. It's also 338 00:21:12,200 --> 00:21:15,119 Speaker 1: a lot more expensive to defend the case on the 339 00:21:15,160 --> 00:21:18,000 Speaker 1: part of the employer if it's pending in court, as 340 00:21:18,000 --> 00:21:21,440 Speaker 1: opposed to in arbitration, where things tend to be more 341 00:21:21,520 --> 00:21:26,639 Speaker 1: streamlined and there's less process. Typically, so from all you've said, 342 00:21:27,080 --> 00:21:31,680 Speaker 1: it sounds like advocates for workers would say, yea, this 343 00:21:31,800 --> 00:21:35,119 Speaker 1: is going to be to their benefit. Oh yes, this 344 00:21:35,200 --> 00:21:38,400 Speaker 1: is bald holla for them. It's actually partial fall halla. 345 00:21:38,480 --> 00:21:41,240 Speaker 1: I'll tell you what they really want. And I suspect 346 00:21:41,240 --> 00:21:44,000 Speaker 1: now that this has happened, it may not be far 347 00:21:44,280 --> 00:21:50,160 Speaker 1: from materializing. They want to have arbitration go away with 348 00:21:50,200 --> 00:21:54,040 Speaker 1: respect not just the sexual harassment and sexual assault claims. 349 00:21:54,160 --> 00:21:57,320 Speaker 1: They wanted to go away entirely with respect to all 350 00:21:57,400 --> 00:22:02,359 Speaker 1: employment related claims. And I hesitate to make the famous 351 00:22:02,359 --> 00:22:05,439 Speaker 1: slippery slope argument, but I think it truly does apply 352 00:22:05,800 --> 00:22:09,720 Speaker 1: in this situation, because what this legislation does is that 353 00:22:10,040 --> 00:22:14,760 Speaker 1: it suggests that there's something wrong with arbitration. That's how 354 00:22:14,880 --> 00:22:18,600 Speaker 1: arbitration is inferior, at least with respect to the employee's 355 00:22:18,720 --> 00:22:23,200 Speaker 1: rights to what the employee could expect in a court proceeding. So, now, 356 00:22:23,240 --> 00:22:26,920 Speaker 1: what Congress has done has said, if you are sexually harassed, 357 00:22:27,200 --> 00:22:29,840 Speaker 1: you no longer have to go to arbitration. You can 358 00:22:29,880 --> 00:22:32,320 Speaker 1: go to court and you can have your day in court. 359 00:22:32,400 --> 00:22:35,320 Speaker 1: As Senator Graham said, and many of the supporters said, 360 00:22:35,600 --> 00:22:40,600 Speaker 1: what does Congress say that those employees who were harassed 361 00:22:41,160 --> 00:22:44,920 Speaker 1: on the basis of their race. What does Congress say 362 00:22:44,960 --> 00:22:48,159 Speaker 1: to those employees who were harassed on the basis of 363 00:22:48,200 --> 00:22:53,000 Speaker 1: their age, or their disability, or their sexual orientation. Does 364 00:22:53,040 --> 00:22:56,399 Speaker 1: Congress say they don't deserve their day in court? Also, 365 00:22:57,480 --> 00:23:02,159 Speaker 1: because there's really no principal way to distinguish between the 366 00:23:02,200 --> 00:23:07,520 Speaker 1: harassment that comes under the rubric of sexual harassment and 367 00:23:07,600 --> 00:23:11,320 Speaker 1: harassment of any other form, all of which are equally 368 00:23:11,840 --> 00:23:15,400 Speaker 1: abhorrent and all of which are equally illegal. So if 369 00:23:15,840 --> 00:23:21,200 Speaker 1: Congress has decided to alleviate employees were sexually harassed from 370 00:23:21,240 --> 00:23:26,000 Speaker 1: the obligation to go to arbitration, it's one short stop 371 00:23:26,040 --> 00:23:29,720 Speaker 1: away from saying, well, actually, no one now who is 372 00:23:29,800 --> 00:23:33,720 Speaker 1: claiming any form of illegal harassment under Title seven, for example, 373 00:23:34,320 --> 00:23:38,680 Speaker 1: or the state equivalent, must go to arbitration and everyone 374 00:23:38,760 --> 00:23:41,320 Speaker 1: can go to court. That, by the way, has been 375 00:23:41,359 --> 00:23:43,919 Speaker 1: the path that most of the private companies that have 376 00:23:44,080 --> 00:23:48,480 Speaker 1: gone down this road have taken. They started out after 377 00:23:48,520 --> 00:23:53,200 Speaker 1: the Harvey Weinstein headlines with sexual harassment and soon realized 378 00:23:53,240 --> 00:23:57,720 Speaker 1: there was no principal way of distinguishing between sexual harassment 379 00:23:57,840 --> 00:24:02,159 Speaker 1: and other forms of illegal harassment, and then open the 380 00:24:02,200 --> 00:24:06,320 Speaker 1: floodgates and said we will no longer enforce arbitration agreements 381 00:24:06,320 --> 00:24:09,960 Speaker 1: with respect to any form of illegal harassment. Well, from 382 00:24:09,960 --> 00:24:15,000 Speaker 1: what I understand, language was changed so that, for example, 383 00:24:15,080 --> 00:24:18,320 Speaker 1: discrimination would be eliminated, so that the focus would only 384 00:24:18,359 --> 00:24:21,480 Speaker 1: be on a sexual assault and harassment. So that was 385 00:24:22,240 --> 00:24:26,200 Speaker 1: perhaps the reason why it got a voice vote in 386 00:24:26,200 --> 00:24:30,320 Speaker 1: the Senate. Yes, you're you're correct about that, But harassment 387 00:24:30,400 --> 00:24:34,480 Speaker 1: is different from from discrimination. So there are two further 388 00:24:34,520 --> 00:24:37,000 Speaker 1: stuffs I guess down this line. One is the one 389 00:24:37,040 --> 00:24:40,840 Speaker 1: I just mentioned, which is other forms of illegal harassment. 390 00:24:41,160 --> 00:24:43,800 Speaker 1: Those are not included in this bill, and those still 391 00:24:43,840 --> 00:24:49,040 Speaker 1: are subject to arbitration. Beyond that are forms of discrimination. 392 00:24:49,160 --> 00:24:53,880 Speaker 1: But you can have discrimination based upon sex, you can 393 00:24:53,920 --> 00:24:58,440 Speaker 1: have discrimination based upon race, you can have discrimination based 394 00:24:58,440 --> 00:25:03,639 Speaker 1: on age, disability, sexual orientation. All of those are illegal also, 395 00:25:04,280 --> 00:25:07,680 Speaker 1: and all of those remains subject to arbitration. It's a 396 00:25:07,800 --> 00:25:11,240 Speaker 1: very difficult argument to make, certainly with respect to different 397 00:25:11,240 --> 00:25:15,280 Speaker 1: forms of harassment, but even between harassment and discrimination, to 398 00:25:15,359 --> 00:25:19,200 Speaker 1: say why some should be permitted to go to court 399 00:25:19,280 --> 00:25:25,800 Speaker 1: and others must go too arbitration. It's also unclear what 400 00:25:25,840 --> 00:25:28,000 Speaker 1: courts are going to do with the following scenario. What 401 00:25:28,119 --> 00:25:32,640 Speaker 1: happens when an employee claims, for example, that she has 402 00:25:32,680 --> 00:25:36,720 Speaker 1: been sexually harassed and also harassed on the basis of 403 00:25:36,720 --> 00:25:40,639 Speaker 1: her race. Which claims go to court, Which claims go 404 00:25:40,720 --> 00:25:43,960 Speaker 1: to arbitration? Or are they split to some of the 405 00:25:44,000 --> 00:25:46,720 Speaker 1: claims go to court and some go to arbitration. It 406 00:25:46,760 --> 00:25:50,120 Speaker 1: sounds like that's probably what would happen. The employer could 407 00:25:50,160 --> 00:25:55,800 Speaker 1: compel arbitration with respect to the race harassment claims, but 408 00:25:55,920 --> 00:25:58,679 Speaker 1: not with respect of the sexual harassment claims, even if 409 00:25:58,680 --> 00:26:01,800 Speaker 1: it's the same employee, even if it's the same harass er, 410 00:26:02,280 --> 00:26:05,200 Speaker 1: even if it's the same employer. So, if you agree 411 00:26:05,240 --> 00:26:07,440 Speaker 1: with me, it seems like the Me Too movement is 412 00:26:07,480 --> 00:26:11,919 Speaker 1: the reason why this bill went through at this particular time. 413 00:26:12,520 --> 00:26:15,800 Speaker 1: I absolutely agree. I think that is true. And the 414 00:26:16,080 --> 00:26:18,960 Speaker 1: concern I have about this is and I'm certainly sympathetic 415 00:26:19,000 --> 00:26:22,360 Speaker 1: to the Me Too movement and the many horrendous stories 416 00:26:22,400 --> 00:26:24,560 Speaker 1: that we've heard in lawsuits that have been filed. What 417 00:26:24,600 --> 00:26:27,399 Speaker 1: we're saying here, however, is that if there is a 418 00:26:27,480 --> 00:26:31,800 Speaker 1: differentiation between different forms of harassment based upon the Me 419 00:26:31,920 --> 00:26:35,439 Speaker 1: Too movement, I guess that's a way of distinguishing, but 420 00:26:35,560 --> 00:26:38,720 Speaker 1: from a legal standpoint, from a principal standpoint, it really 421 00:26:38,760 --> 00:26:41,800 Speaker 1: doesn't make a lot of sense. Uh, And and Congress 422 00:26:41,840 --> 00:26:44,960 Speaker 1: has now gone down the road of suggesting there's, as 423 00:26:44,960 --> 00:26:48,880 Speaker 1: I said before, something wrong with arbitration, and if there's 424 00:26:48,920 --> 00:26:54,080 Speaker 1: something wrong with arbitration with respect to me to harassment claims, 425 00:26:54,320 --> 00:26:57,879 Speaker 1: then there should perhaps be analysis done as to whether 426 00:26:57,880 --> 00:27:01,439 Speaker 1: there's something wrong with our portration in other forms of 427 00:27:01,520 --> 00:27:06,400 Speaker 1: employment harassment and discrimination. This precisely is the plaints point 428 00:27:06,400 --> 00:27:09,440 Speaker 1: of view. They are saying there is something wrong with 429 00:27:09,760 --> 00:27:12,960 Speaker 1: arbitration and it should be junk entirely. That's that is 430 00:27:12,960 --> 00:27:15,119 Speaker 1: what the plaintiffs bar would tell you now that the 431 00:27:15,200 --> 00:27:17,960 Speaker 1: reason that I think the employers, on the other hand, 432 00:27:18,040 --> 00:27:21,919 Speaker 1: are mostly concerned about initiatives like this, have to do 433 00:27:22,080 --> 00:27:26,840 Speaker 1: with jurisdiction like the one most near and dear to me, California. 434 00:27:27,119 --> 00:27:32,480 Speaker 1: We have had within the last ninety days two gargantuan 435 00:27:32,960 --> 00:27:38,600 Speaker 1: single plaintive verdicts in the state of California that makes 436 00:27:39,400 --> 00:27:45,880 Speaker 1: many people's head spent. One came in December, and it 437 00:27:45,960 --> 00:27:49,800 Speaker 1: was a verdict in favor of an employee who claimed 438 00:27:49,800 --> 00:27:53,320 Speaker 1: that he was a whistleblower. This was against Farmers Insurance 439 00:27:54,400 --> 00:27:58,679 Speaker 1: and a jury in Los Angeles County awarded that employee 440 00:27:58,960 --> 00:28:03,879 Speaker 1: one hundred and fifty five million dollars one hundred and 441 00:28:03,960 --> 00:28:08,040 Speaker 1: fifty five million dollars to a single employee before that. 442 00:28:08,160 --> 00:28:13,240 Speaker 1: In October, in a federal court in San Francisco, one 443 00:28:13,280 --> 00:28:18,439 Speaker 1: employee who claimed racial harassment was awarded one hundred and 444 00:28:18,520 --> 00:28:23,080 Speaker 1: thirty seven million dollars against Tesla. If any, all or 445 00:28:23,200 --> 00:28:27,800 Speaker 1: some employees who are terminated or harassed can get amounts 446 00:28:27,800 --> 00:28:30,639 Speaker 1: of money from juries that get close to a fifth 447 00:28:30,720 --> 00:28:34,960 Speaker 1: of a billion dollars per employee, the system will collapse. 448 00:28:35,520 --> 00:28:39,000 Speaker 1: And it's verdicts like that, and and many other verdicts 449 00:28:39,520 --> 00:28:42,560 Speaker 1: that are in the ten and fifty million dollar range 450 00:28:43,120 --> 00:28:46,400 Speaker 1: that happened on a regular basis that are causing employers 451 00:28:46,440 --> 00:28:50,400 Speaker 1: to look for some solution. The solution that has come 452 00:28:51,080 --> 00:28:56,320 Speaker 1: most frequently and and that is adopted is arbitration. Those 453 00:28:56,400 --> 00:28:59,680 Speaker 1: days may soon be numbered for arbitration in any of 454 00:28:59,680 --> 00:29:02,680 Speaker 1: these times? Is there any role for the Supreme Court 455 00:29:02,720 --> 00:29:04,880 Speaker 1: at all? The only thing the US Supreme Court could 456 00:29:04,920 --> 00:29:10,720 Speaker 1: do is determined whether a statute like this is violative 457 00:29:11,160 --> 00:29:15,520 Speaker 1: of the US Constitution. And I don't think that the 458 00:29:15,520 --> 00:29:17,800 Speaker 1: Supreme Court would would find that to be the case. 459 00:29:18,360 --> 00:29:21,440 Speaker 1: What the Supreme Court has been very active in interpreting 460 00:29:21,640 --> 00:29:24,600 Speaker 1: anti arbitration statutes, but almost all of them have been 461 00:29:24,720 --> 00:29:27,080 Speaker 1: at the state level, because states all over the country 462 00:29:27,080 --> 00:29:30,320 Speaker 1: again including California and New York and several other states, 463 00:29:30,360 --> 00:29:32,600 Speaker 1: have been trying to do this for a very long time, 464 00:29:32,720 --> 00:29:35,760 Speaker 1: not just with respect to sexual harassment and sexual assault, 465 00:29:35,960 --> 00:29:39,000 Speaker 1: but with respect to all forms of employment related clients. 466 00:29:39,040 --> 00:29:42,360 Speaker 1: Each and every time, for the most part, that has happened, 467 00:29:42,680 --> 00:29:45,440 Speaker 1: those claims gets the Supreme Court, and the Supreme Court 468 00:29:45,480 --> 00:29:49,120 Speaker 1: says AHA state law must fall because it conflicts with 469 00:29:49,360 --> 00:29:52,120 Speaker 1: a federal statue which is over a hundred years old, 470 00:29:52,200 --> 00:29:55,840 Speaker 1: called the Federal Arbitration Act. What this new law does 471 00:29:56,080 --> 00:30:00,200 Speaker 1: is it changes federal law, and so those challenges that 472 00:30:00,240 --> 00:30:03,240 Speaker 1: have been successful in the Supreme Court will no longer 473 00:30:03,840 --> 00:30:07,120 Speaker 1: be successful in because now federal law has changed in 474 00:30:07,160 --> 00:30:10,800 Speaker 1: a way that state legislatures around the country have been 475 00:30:10,800 --> 00:30:13,480 Speaker 1: trying to change it for at least the last decade. 476 00:30:13,840 --> 00:30:19,400 Speaker 1: Thanks Tony, that's Anthony on CD of Prostcauer. Former Miami 477 00:30:19,520 --> 00:30:23,600 Speaker 1: Dolphins head coach Brian Flores has accused the National Football 478 00:30:23,680 --> 00:30:28,480 Speaker 1: League of pervasive racial bias, claiming discrimination denied him the 479 00:30:28,560 --> 00:30:32,280 Speaker 1: top job at the new York Giants. Flores filed proposed 480 00:30:32,280 --> 00:30:35,959 Speaker 1: class action against the league, naming the Giants, Dolphins, and 481 00:30:36,000 --> 00:30:40,560 Speaker 1: Denver Broncos as co defendants. Joining me is Sadartha Row, 482 00:30:40,800 --> 00:30:45,200 Speaker 1: a partner Romano Law. This is not your typical I 483 00:30:45,320 --> 00:30:48,880 Speaker 1: was fired due to racial discrimination lawsuit tell us how 484 00:30:48,880 --> 00:30:52,000 Speaker 1: it goes way beyond that. So there are a couple 485 00:30:52,040 --> 00:30:56,320 Speaker 1: of things that I found kind of interesting about this lawsuit. 486 00:30:56,960 --> 00:30:59,640 Speaker 1: The fact that it's filed as a class action obviously 487 00:31:00,320 --> 00:31:03,680 Speaker 1: creates pressure on the NFL in the league to address 488 00:31:03,720 --> 00:31:07,120 Speaker 1: this issue in a broader way than an individualized claim 489 00:31:07,200 --> 00:31:10,840 Speaker 1: like maybe the covernext settlements. Class actions obviously put settlement 490 00:31:10,840 --> 00:31:15,120 Speaker 1: pressure on defendants, but maintaining a class action also means 491 00:31:15,200 --> 00:31:18,760 Speaker 1: threading that needle of rule the Federals of Civil Procedure 492 00:31:18,880 --> 00:31:21,680 Speaker 1: and meeting all the requirements of the class action. And 493 00:31:21,760 --> 00:31:24,200 Speaker 1: so when you're talking about a class action claim as 494 00:31:24,240 --> 00:31:27,360 Speaker 1: opposed to, you know, just an individualized claim, really the 495 00:31:27,400 --> 00:31:30,160 Speaker 1: anatomy of the case is a little bit different. Um 496 00:31:30,400 --> 00:31:32,880 Speaker 1: the plaintiff here, Mr. Flayers, is going to have to 497 00:31:32,920 --> 00:31:37,920 Speaker 1: overcome a class certification hurdle before the claim really sort 498 00:31:37,960 --> 00:31:40,680 Speaker 1: of uh is off to the races. So what that 499 00:31:40,720 --> 00:31:43,400 Speaker 1: means is that the court's going to be evaluating whether 500 00:31:43,760 --> 00:31:48,000 Speaker 1: this pleading uh and the the evidence that sometimes sometimes 501 00:31:48,000 --> 00:31:51,080 Speaker 1: there's even some evidence that douced at the class certification stage, 502 00:31:51,520 --> 00:31:54,360 Speaker 1: whether that will be enough to meet the requirements of 503 00:31:54,400 --> 00:31:57,000 Speaker 1: Rule three. And just keeping in mind, the purpose of 504 00:31:57,000 --> 00:32:00,440 Speaker 1: the class action is to remedy through pervasive problems that 505 00:32:00,480 --> 00:32:03,440 Speaker 1: may be more efficiently dealt with at the class level 506 00:32:03,480 --> 00:32:07,520 Speaker 1: as opposed to an individual claims basis. And it's why 507 00:32:07,520 --> 00:32:09,560 Speaker 1: do you see a lot of products liability class toward 508 00:32:09,600 --> 00:32:14,040 Speaker 1: class and of course discrimination um class actions. So, just 509 00:32:14,240 --> 00:32:16,480 Speaker 1: right off the bat, I think the class action clearly 510 00:32:16,600 --> 00:32:20,880 Speaker 1: is a message to send a message. And if I 511 00:32:20,960 --> 00:32:23,720 Speaker 1: may just echo that point with another point which I 512 00:32:23,720 --> 00:32:27,440 Speaker 1: think is very much related. This complaint as I read 513 00:32:27,480 --> 00:32:31,239 Speaker 1: it is clearly intended for a larger audience than just 514 00:32:31,320 --> 00:32:34,000 Speaker 1: the court or even frankly the opposing counsels who may 515 00:32:34,040 --> 00:32:38,960 Speaker 1: be considering their responses anywhere from litigation to settlement. So 516 00:32:39,080 --> 00:32:42,360 Speaker 1: several features about the complaint are striking. I mean, number one, 517 00:32:42,400 --> 00:32:44,560 Speaker 1: it's filed in the first day of Black History Month. 518 00:32:44,840 --> 00:32:47,640 Speaker 1: It begins with quotes from Martin Luther King. The very 519 00:32:47,640 --> 00:32:51,320 Speaker 1: first paragraph has a recitation of civil rights figures going 520 00:32:51,360 --> 00:32:54,239 Speaker 1: back to the nineteenth century, the eight hundreds, and the 521 00:32:54,360 --> 00:32:58,200 Speaker 1: rhetoric of the complaint is clearly pitched at this republic 522 00:32:58,320 --> 00:33:02,440 Speaker 1: discussion of race. What is he alleging in his lawsuit? 523 00:33:02,520 --> 00:33:06,520 Speaker 1: What are the allegations he's making. Fundamentally, he's alleging a 524 00:33:06,600 --> 00:33:10,200 Speaker 1: pervasive discrimination on the basis of race as to employment 525 00:33:10,200 --> 00:33:13,120 Speaker 1: opportunities in the NFL. If we look at the numbers, 526 00:33:13,160 --> 00:33:16,600 Speaker 1: he's pointing out that the players are black, but currently 527 00:33:16,600 --> 00:33:19,000 Speaker 1: of the thirty two league teams, only one head coach 528 00:33:19,280 --> 00:33:22,120 Speaker 1: is African American or black, and that there is a 529 00:33:22,240 --> 00:33:26,600 Speaker 1: pervasive kind of discriminatory environment that prevents black candidates from 530 00:33:26,640 --> 00:33:29,520 Speaker 1: being hired for head coaching positions, general manager positions, and 531 00:33:29,600 --> 00:33:32,600 Speaker 1: the like. Ultimately, what the complaints purpose, as I read, 532 00:33:32,720 --> 00:33:35,840 Speaker 1: is is to support that allegation by really digging into 533 00:33:35,840 --> 00:33:38,600 Speaker 1: the culture of the NFL and trying to present a 534 00:33:38,760 --> 00:33:42,720 Speaker 1: narrative that supports this conclusion that there really is a 535 00:33:42,800 --> 00:33:45,320 Speaker 1: discrimination on the basi of race that is creating an 536 00:33:45,360 --> 00:33:49,520 Speaker 1: artificial feeling for for potential black candidates for coaching position. 537 00:33:49,920 --> 00:33:52,120 Speaker 1: Let's say it goes to trial, and how far does 538 00:33:52,160 --> 00:33:55,600 Speaker 1: he get to that just by the numbers alone. It's 539 00:33:55,640 --> 00:33:58,360 Speaker 1: really interesting there. There's actually two aspects of the complaint. 540 00:33:58,400 --> 00:34:01,640 Speaker 1: There's the aspects personal to to Mr Flora's right. So 541 00:34:01,760 --> 00:34:04,640 Speaker 1: he says that he would called in for a coaching 542 00:34:04,680 --> 00:34:10,080 Speaker 1: interview with the Giants, but by accidental disclosure, he found 543 00:34:10,080 --> 00:34:12,640 Speaker 1: out three days before the interview that a white candidate 544 00:34:12,640 --> 00:34:16,320 Speaker 1: had already been selected, that it was a sham interview. Um. 545 00:34:16,360 --> 00:34:20,880 Speaker 1: This is even more significant because the NFL has committed 546 00:34:20,880 --> 00:34:23,040 Speaker 1: since two thousand three to something called the Rooney Rule, 547 00:34:23,160 --> 00:34:26,480 Speaker 1: which requires the interviewing of an ethnic minority candidate for 548 00:34:26,520 --> 00:34:30,640 Speaker 1: any head coaching position, and as amended, actually requires considering 549 00:34:30,680 --> 00:34:33,839 Speaker 1: too candidates. And I think the idea is that if 550 00:34:33,880 --> 00:34:37,680 Speaker 1: they sort of make the process more inclusive, the results 551 00:34:37,680 --> 00:34:41,279 Speaker 1: would be more inclusivity in the coaching positions. But that 552 00:34:41,320 --> 00:34:44,719 Speaker 1: hasn't happened. So that's where the complaint is personal to 553 00:34:45,239 --> 00:34:49,759 Speaker 1: Flora's But where he's hitting more broadly is on the statistics. 554 00:34:49,840 --> 00:34:52,560 Speaker 1: You know, the point that sevent the players are black 555 00:34:52,640 --> 00:34:56,160 Speaker 1: is not lost, and there's very striking imagery and the 556 00:34:56,160 --> 00:34:59,719 Speaker 1: complaint about the NFL being essentially a plantation where it's 557 00:34:59,719 --> 00:35:03,240 Speaker 1: the or to fight African American labor, but not adequate 558 00:35:03,280 --> 00:35:06,719 Speaker 1: representation in the coaching and ownership areas. So I think 559 00:35:06,760 --> 00:35:10,239 Speaker 1: that that presentation is certainly very dramatic, and from a 560 00:35:10,320 --> 00:35:13,600 Speaker 1: legal point, it's also somewhat required. So typically in an 561 00:35:13,600 --> 00:35:18,240 Speaker 1: employment discrimination case, a plaintiff is required to go first 562 00:35:18,280 --> 00:35:20,680 Speaker 1: to the e e o C or in New York 563 00:35:20,680 --> 00:35:24,080 Speaker 1: to the Division of Human Rights to file an agency claim. 564 00:35:24,120 --> 00:35:26,800 Speaker 1: It's part of what's called the exhaustion of remedies doctrine 565 00:35:26,960 --> 00:35:31,360 Speaker 1: and settle courts simply don't entertain filings until the plaintiff 566 00:35:31,360 --> 00:35:34,600 Speaker 1: has shown compliance with that exhaustion of remedies that has 567 00:35:34,960 --> 00:35:38,000 Speaker 1: gone to the agency. You know, under fairly recent Supreme 568 00:35:38,040 --> 00:35:41,600 Speaker 1: Court precedent, the defendant can defend claim simply by saying 569 00:35:41,840 --> 00:35:44,000 Speaker 1: plaintiff field to go to the e o C. So 570 00:35:44,280 --> 00:35:46,480 Speaker 1: what immediately jumped out of me reading the complaint is 571 00:35:46,520 --> 00:35:49,400 Speaker 1: that Flora's says that he will go to the e 572 00:35:49,520 --> 00:35:51,160 Speaker 1: o C and the d h R, but has not 573 00:35:51,360 --> 00:35:54,120 Speaker 1: yet done. So why I think that has happened is 574 00:35:54,280 --> 00:35:58,480 Speaker 1: he's bringing his claim under Section and not under Title seven. 575 00:35:59,080 --> 00:36:03,560 Speaker 1: And Section one is a purely uh it's a statue 576 00:36:03,640 --> 00:36:06,560 Speaker 1: of purely dealing with racial discrimination. Going back to eighteen 577 00:36:06,600 --> 00:36:09,480 Speaker 1: sixty six and the civil rights laws in the nineteenth 578 00:36:09,520 --> 00:36:13,320 Speaker 1: century UM as opposed to the broader scope of Title seven, 579 00:36:13,400 --> 00:36:17,760 Speaker 1: which encomes a race, gender, you know, ethnic, national origin 580 00:36:17,880 --> 00:36:21,760 Speaker 1: and like. So, right out of the bat, he's fled 581 00:36:21,800 --> 00:36:25,399 Speaker 1: a claim that confers jurisdiction of the federal court, does 582 00:36:25,440 --> 00:36:29,880 Speaker 1: not require an administrative proceeding, and is using that essentially 583 00:36:29,960 --> 00:36:33,920 Speaker 1: to generate supplemental jurisdiction on state state discrimination claims. It's 584 00:36:33,920 --> 00:36:36,680 Speaker 1: an interesting pleading strategy. It allows him, I think, to 585 00:36:36,760 --> 00:36:41,279 Speaker 1: file the complaints in federal court before approaching the agencies 586 00:36:41,920 --> 00:36:44,080 Speaker 1: UM and obtaining what's called the right to see letter. 587 00:36:44,320 --> 00:36:49,000 Speaker 1: It creates, I think from a timing perspective is very um, 588 00:36:49,320 --> 00:36:53,040 Speaker 1: very intentional. Again, it's Black History Month, the super Bowl 589 00:36:53,080 --> 00:36:57,120 Speaker 1: is approaching. It creates a sort of public lends and 590 00:36:57,200 --> 00:37:00,239 Speaker 1: a public scrutiny of the NFL that I think is 591 00:37:00,320 --> 00:37:05,160 Speaker 1: very strategic here as a litigation perspective. And then, you know, essentially, 592 00:37:05,160 --> 00:37:10,120 Speaker 1: in parallel, while his class certification determination is pending, he 593 00:37:10,160 --> 00:37:13,920 Speaker 1: can approach the agencies and and escalate ultimately to a 594 00:37:14,000 --> 00:37:18,200 Speaker 1: Title a Title seven claim which he would he could, 595 00:37:18,480 --> 00:37:20,959 Speaker 1: I think, could easily mend his pleading to include once 596 00:37:20,960 --> 00:37:23,400 Speaker 1: he obtains the right to suit. So it's very unusual 597 00:37:23,440 --> 00:37:26,480 Speaker 1: way of pleading this claim. But how do you force 598 00:37:27,120 --> 00:37:35,160 Speaker 1: individual teams within an organization to hire minorities? It's a 599 00:37:35,239 --> 00:37:40,399 Speaker 1: really good question. So so two aspects here. One is procedural. 600 00:37:40,719 --> 00:37:45,080 Speaker 1: The Flora's complaint does name several league teams and also 601 00:37:45,200 --> 00:37:48,520 Speaker 1: states that you know, with further discovery, he may name 602 00:37:49,320 --> 00:37:52,239 Speaker 1: essentially every team in the league. So essentially there's John 603 00:37:52,280 --> 00:37:55,319 Speaker 1: Doe defendants, so he's he's holding open the possibility of 604 00:37:55,480 --> 00:37:59,240 Speaker 1: expanding is defendant list to include all of the league teams. 605 00:37:59,360 --> 00:38:02,120 Speaker 1: But to answer your question more substantively, this goes back 606 00:38:02,160 --> 00:38:05,920 Speaker 1: to that Title seven issue I raised earlier, which is 607 00:38:06,360 --> 00:38:10,080 Speaker 1: in a section claim a butt for causation requirement, you 608 00:38:10,160 --> 00:38:13,160 Speaker 1: need to be able to prove as a plaintiff that 609 00:38:13,480 --> 00:38:16,839 Speaker 1: the adverse action would not have occurred but for your race, 610 00:38:17,160 --> 00:38:19,920 Speaker 1: whereas in the alternative claims Title seven you can look 611 00:38:19,960 --> 00:38:23,759 Speaker 1: at disparate impact. And that's ultimately I think where the 612 00:38:23,800 --> 00:38:27,200 Speaker 1: Florist suit will go after he files with the e 613 00:38:27,280 --> 00:38:30,640 Speaker 1: o C and the DHRS is to use this disparate 614 00:38:30,719 --> 00:38:35,560 Speaker 1: impact data to infer that the policies and procedures of 615 00:38:35,560 --> 00:38:40,320 Speaker 1: the NFL are discriminatory. Now under the Walmart decision Screme 616 00:38:40,360 --> 00:38:44,160 Speaker 1: Court issued was a school a decision and it denied 617 00:38:44,160 --> 00:38:46,800 Speaker 1: class certification of something like one point five million women. 618 00:38:46,840 --> 00:38:49,719 Speaker 1: There is a problem with that strategy. Still have to 619 00:38:49,880 --> 00:38:53,720 Speaker 1: identify a policy or practice that results in the disparate impact. 620 00:38:53,760 --> 00:38:57,720 Speaker 1: You can't simply say that there's disparate impact ipso facto 621 00:38:57,760 --> 00:39:01,320 Speaker 1: there's discrimination. I think that we're really getting to standards 622 00:39:01,320 --> 00:39:04,879 Speaker 1: of proof, and from again from a technical point of view, 623 00:39:04,920 --> 00:39:06,680 Speaker 1: I do believe that Floors will be in ending a 624 00:39:06,760 --> 00:39:11,120 Speaker 1: complaint to include um claims where the evidence can be 625 00:39:11,680 --> 00:39:14,920 Speaker 1: a little bit more inferential and circumstantial, rather than a 626 00:39:15,000 --> 00:39:18,400 Speaker 1: strict buffalo causation anality. But your question is very, very 627 00:39:18,440 --> 00:39:22,240 Speaker 1: perceptive because obviously we're dealing with the league that consists 628 00:39:22,239 --> 00:39:25,600 Speaker 1: of multiple teams with many owners, and that's where the 629 00:39:25,640 --> 00:39:30,040 Speaker 1: evidence of culture becomes really important, of a pervasive culture 630 00:39:30,040 --> 00:39:32,680 Speaker 1: of discrimination, and that is I think why the complaints 631 00:39:33,200 --> 00:39:36,279 Speaker 1: spends so much time discussing what might appear to be 632 00:39:36,320 --> 00:39:41,239 Speaker 1: ancillary issues about prejudices and the tolerance of prejudice at 633 00:39:41,280 --> 00:39:45,319 Speaker 1: the management level. He says the interviews were sham interviews. 634 00:39:45,640 --> 00:39:49,920 Speaker 1: How do you prove that well, ordinarily you can't without discovery, right, 635 00:39:49,960 --> 00:39:52,600 Speaker 1: So what's really fascinating about this case. What's kind of 636 00:39:52,600 --> 00:39:55,719 Speaker 1: extraordinary is that Floor has got a text from Bill 637 00:39:55,760 --> 00:39:59,799 Speaker 1: Belichick's basically saying congratulations, you've got the job. But it 638 00:40:00,080 --> 00:40:03,280 Speaker 1: is sent two. It was meant for the other recipient. 639 00:40:03,320 --> 00:40:06,239 Speaker 1: It was not meant for Flora. It was meant for 640 00:40:06,280 --> 00:40:09,920 Speaker 1: the white candidate who ultimately was hired. And what's fairly 641 00:40:09,960 --> 00:40:13,080 Speaker 1: extraordinary about that text is that Flores receives it three 642 00:40:13,160 --> 00:40:18,560 Speaker 1: days before his actual interview. So his evidence, which really 643 00:40:19,960 --> 00:40:22,600 Speaker 1: he puts right at the top of his complaint before 644 00:40:22,640 --> 00:40:24,960 Speaker 1: he even gets into the paragraph, he quotes this text 645 00:40:25,000 --> 00:40:28,919 Speaker 1: from Bill Belichick and he says that Belichick basically let 646 00:40:28,960 --> 00:40:31,680 Speaker 1: the cat out of the bag, that he was being 647 00:40:31,680 --> 00:40:37,239 Speaker 1: called infant an interview when the organization had already UM 648 00:40:37,440 --> 00:40:41,000 Speaker 1: had already settled on Brian uh to Ball, not Brian Flora. 649 00:40:41,360 --> 00:40:45,200 Speaker 1: So that's that's really striking. Normally, you wouldn't see that 650 00:40:45,320 --> 00:40:48,000 Speaker 1: kind of documentary evidence at the pleading stage of the case. 651 00:40:48,000 --> 00:40:51,440 Speaker 1: You would see that coming out and discovery. But here UM, 652 00:40:51,520 --> 00:40:57,000 Speaker 1: the plaintiff actually has has essentially written admission. Let's talk 653 00:40:57,040 --> 00:41:01,400 Speaker 1: about this allegation that the owner of the Dolphins offered 654 00:41:01,480 --> 00:41:04,600 Speaker 1: him a hundred thousand dollars a game for each loss. 655 00:41:05,600 --> 00:41:11,360 Speaker 1: How does that fit into this complaint about the league. Yeah, 656 00:41:11,440 --> 00:41:16,480 Speaker 1: you know, it's it's a fairly interesting point. Um. Number one, 657 00:41:17,400 --> 00:41:22,440 Speaker 1: there was this explanation given for Flores's firing from the Dolphins, 658 00:41:22,480 --> 00:41:24,880 Speaker 1: that he was sort of uncooperative or that there were 659 00:41:24,920 --> 00:41:29,920 Speaker 1: issues between him and and management. And that explanation was 660 00:41:29,960 --> 00:41:35,120 Speaker 1: given in part because Um, he performed well as a 661 00:41:35,160 --> 00:41:38,799 Speaker 1: coach the Dolphins, and so part of his allegation really 662 00:41:38,880 --> 00:41:43,440 Speaker 1: is to give more color into what really happened. And 663 00:41:43,480 --> 00:41:47,719 Speaker 1: what he's saying is that I refused to essentially tank 664 00:41:47,800 --> 00:41:52,239 Speaker 1: games to optimize our draft position, and because of that 665 00:41:52,320 --> 00:41:54,879 Speaker 1: I was punished. Now it seems a little bit ancillary 666 00:41:54,960 --> 00:41:59,200 Speaker 1: to the UM. It certainly seems a little b answer 667 00:41:59,239 --> 00:42:02,960 Speaker 1: to claim. But it let's get to several other issues, 668 00:42:03,120 --> 00:42:07,040 Speaker 1: which one it I think it's an attempt to rebut 669 00:42:07,600 --> 00:42:11,960 Speaker 1: the Dolphins position that he was terminated due to some 670 00:42:12,040 --> 00:42:17,440 Speaker 1: kind of interpersonal issue or inability to work with UM, 671 00:42:17,480 --> 00:42:20,200 Speaker 1: with owners and management. I think that's really where that's 672 00:42:20,200 --> 00:42:23,560 Speaker 1: getting at. But number two obviously raises a whole host 673 00:42:23,640 --> 00:42:28,080 Speaker 1: of other issues, um in terms of you know, the 674 00:42:28,160 --> 00:42:31,160 Speaker 1: NFL has has times and deals with draft Kings and 675 00:42:31,200 --> 00:42:34,760 Speaker 1: several other sports betting sites, and if if there's a pattern, 676 00:42:34,840 --> 00:42:37,759 Speaker 1: or if there's some allegation that owners are trying to 677 00:42:38,360 --> 00:42:41,840 Speaker 1: tank games for for draft optimization, it certainly affects the 678 00:42:41,880 --> 00:42:44,400 Speaker 1: betting markets. And I think that there's other issues that 679 00:42:44,440 --> 00:42:47,640 Speaker 1: are totally ant to complaints. But really what it does 680 00:42:47,760 --> 00:42:52,120 Speaker 1: is it completely cast a new light on his termination 681 00:42:52,160 --> 00:42:57,240 Speaker 1: from the Dolphins. This seems to be way way larger 682 00:42:57,280 --> 00:43:00,400 Speaker 1: than just as you've mentioned a termination and you know 683 00:43:00,480 --> 00:43:06,879 Speaker 1: you fired me wrongfully. Lawsuits agree with that. I think 684 00:43:06,960 --> 00:43:10,759 Speaker 1: that this lawsuit when you when you consider what they're 685 00:43:10,840 --> 00:43:13,040 Speaker 1: actually asking for at the end of the day, in 686 00:43:13,120 --> 00:43:16,200 Speaker 1: terms of their relief. This is not your typical employment 687 00:43:16,239 --> 00:43:19,320 Speaker 1: discrimination claim for a plaintiff is speaking back pay and 688 00:43:19,320 --> 00:43:23,320 Speaker 1: and you know, wages and compensation. This complaint is seeking 689 00:43:23,360 --> 00:43:26,800 Speaker 1: sweeping relief in terms of systemic change at the NFL. 690 00:43:27,360 --> 00:43:30,800 Speaker 1: And I just as a litigator, when I read this complaint, 691 00:43:30,840 --> 00:43:33,040 Speaker 1: what I see is a complaint that is as much 692 00:43:33,080 --> 00:43:35,320 Speaker 1: pitch that the federal court as it is to the public. 693 00:43:36,080 --> 00:43:37,719 Speaker 1: And I may be going on a little bit out 694 00:43:37,719 --> 00:43:40,080 Speaker 1: on the limear, but I think win or lose, the 695 00:43:40,160 --> 00:43:42,879 Speaker 1: point of this litigation was simply to make that point. 696 00:43:43,080 --> 00:43:46,359 Speaker 1: And when you examine how this complaint is really kind 697 00:43:46,400 --> 00:43:49,200 Speaker 1: of a walkthrough of the history of the NFL going back, 698 00:43:49,400 --> 00:43:52,360 Speaker 1: you know, there's references to to Plus the versus ferguson 699 00:43:52,400 --> 00:43:56,759 Speaker 1: the Supreme Court case. There's references to the first black 700 00:43:56,800 --> 00:43:59,880 Speaker 1: players in the league. It's clear that what this complaint 701 00:43:59,920 --> 00:44:03,680 Speaker 1: is trying to do is not just adjudicate an employment 702 00:44:03,719 --> 00:44:08,239 Speaker 1: dispute between Flores and a team. It's really trying to 703 00:44:08,280 --> 00:44:11,080 Speaker 1: put the NFL under the lens and say that we 704 00:44:11,120 --> 00:44:13,840 Speaker 1: need systomach change. I'm not saying I necetarily agree with 705 00:44:13,880 --> 00:44:15,520 Speaker 1: the plaint or disagree. I'm just saying that is what 706 00:44:15,560 --> 00:44:18,920 Speaker 1: the complaint is saying that that explains so much of 707 00:44:18,920 --> 00:44:21,200 Speaker 1: this complaint, why it is led as a class action, 708 00:44:21,680 --> 00:44:23,920 Speaker 1: you know, and why it takes the rhetorical pitch that 709 00:44:23,960 --> 00:44:25,840 Speaker 1: it does, and also the timing of the filing and 710 00:44:26,080 --> 00:44:29,680 Speaker 1: the technicalities pleading. All of it is consistent with the 711 00:44:29,719 --> 00:44:33,399 Speaker 1: same general point, which is that this is the case 712 00:44:33,440 --> 00:44:36,960 Speaker 1: about change. It's a case I think motivated more by 713 00:44:37,000 --> 00:44:40,840 Speaker 1: a desire to write some historic injustice and the principle, 714 00:44:41,040 --> 00:44:44,080 Speaker 1: rather than a typical employment dispute, which may have some 715 00:44:44,239 --> 00:44:47,240 Speaker 1: of that, but it is also usually on a painted 716 00:44:47,239 --> 00:44:50,719 Speaker 1: on a much smaller canvas, and is focused on compensation 717 00:44:50,800 --> 00:44:54,560 Speaker 1: and and a more simpler remedy for the plaintiff. Might 718 00:44:54,640 --> 00:44:58,719 Speaker 1: the NFL file emotion to dismiss here? I suspect the 719 00:44:58,800 --> 00:45:03,080 Speaker 1: league is going to be you thinking more about class certification, frankly, 720 00:45:03,120 --> 00:45:06,279 Speaker 1: than um emotion to dismiss, although who's to say that 721 00:45:06,360 --> 00:45:09,120 Speaker 1: they may move to dismiss, But I suspect they're going 722 00:45:09,160 --> 00:45:12,239 Speaker 1: to be attacking the idea that you could certify a 723 00:45:12,280 --> 00:45:15,759 Speaker 1: class here, and you know, just speculating they might try 724 00:45:15,760 --> 00:45:18,879 Speaker 1: to produce evidence or create a narrative that even if 725 00:45:18,920 --> 00:45:22,920 Speaker 1: you could somehow identify a class, that the individual's claims 726 00:45:22,920 --> 00:45:24,880 Speaker 1: would be so different and rest on such a different 727 00:45:24,920 --> 00:45:27,560 Speaker 1: pattern of effects that it would be inefficient to adjudicate 728 00:45:27,960 --> 00:45:30,520 Speaker 1: under Rule twenty three class action. And that probably takes 729 00:45:30,560 --> 00:45:32,120 Speaker 1: some of the window of the stales of this case. 730 00:45:32,440 --> 00:45:35,640 Speaker 1: I certainly think that Flores has made a point, you know, 731 00:45:35,719 --> 00:45:38,200 Speaker 1: in terms of the media spotlight that he's put on 732 00:45:38,360 --> 00:45:40,640 Speaker 1: his case, and what he's alleging is a more pervasive 733 00:45:40,640 --> 00:45:44,480 Speaker 1: pattern discrimination here that will need to be dealt with 734 00:45:44,560 --> 00:45:48,040 Speaker 1: some fashion by the NFL simply, frankly, to contain reputational 735 00:45:48,080 --> 00:45:52,720 Speaker 1: damage was really a referendum on, you know, a history 736 00:45:52,760 --> 00:45:56,480 Speaker 1: of segregation and the history of prejudice, and that this 737 00:45:57,400 --> 00:46:01,080 Speaker 1: specific incident was Floras. They don't want to student isolation. 738 00:46:01,400 --> 00:46:03,640 Speaker 1: I also think they're responding to this but for causation 739 00:46:03,719 --> 00:46:06,440 Speaker 1: problem the Supreme Court. The Supreme Court clarified that the 740 00:46:06,520 --> 00:46:10,239 Speaker 1: standard one claims you have to show that race is 741 00:46:10,280 --> 00:46:13,120 Speaker 1: the cost that there isn't, you know, the but for 742 00:46:13,280 --> 00:46:16,080 Speaker 1: your race, you would have been hired or you wouldn't 743 00:46:16,080 --> 00:46:18,439 Speaker 1: have suffered some adverse actions. So it's a fairly high 744 00:46:18,480 --> 00:46:21,480 Speaker 1: threshold um and I think that's why they're bringing some 745 00:46:21,760 --> 00:46:24,719 Speaker 1: ammunition to the table on this. Thanks for being on 746 00:46:24,760 --> 00:46:28,360 Speaker 1: the show. That's to Doretha row, a partner Romano Law. 747 00:46:28,680 --> 00:46:31,000 Speaker 1: And that's it for this edition of The Bloomberg Law Show. 748 00:46:31,360 --> 00:46:33,640 Speaker 1: Remember you can always get the latest legal news on 749 00:46:33,719 --> 00:46:38,000 Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 750 00:46:38,200 --> 00:46:43,239 Speaker 1: and at www dot Bloomberg dot com, Slash podcast Slash Law, 751 00:46:43,680 --> 00:46:46,280 Speaker 1: and remember to tune to The Bloomberg Law Show every 752 00:46:46,320 --> 00:46:49,760 Speaker 1: week night at ten pm Wall Street Time, I'm June 753 00:46:49,760 --> 00:46:51,960 Speaker 1: Grosso and you're listening to Bloomberg