1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,680 --> 00:00:13,200 Speaker 2: In a landmark decision, the Supreme Court divided down ideological 3 00:00:13,280 --> 00:00:18,680 Speaker 2: lines upheld Tennessee's ban on gender affirming care for transgender miners, 4 00:00:19,120 --> 00:00:24,200 Speaker 2: a stunning setback to transgender rights. Chief Justice John Roberts 5 00:00:24,200 --> 00:00:27,880 Speaker 2: wrote the majority opinion for the six Conservatives, finding the 6 00:00:27,960 --> 00:00:33,040 Speaker 2: law doesn't violate the Constitution's equal Protection clause, which requires 7 00:00:33,040 --> 00:00:37,479 Speaker 2: the government to treat similarly situated people the same Roberts 8 00:00:37,520 --> 00:00:41,080 Speaker 2: wrote that there are fierce scientific and policy debates about 9 00:00:41,120 --> 00:00:45,200 Speaker 2: the medical treatments, and that quote, we leave questions regarding 10 00:00:45,240 --> 00:00:48,960 Speaker 2: its policy to the people, their elected representatives, and the 11 00:00:49,040 --> 00:00:52,600 Speaker 2: democratic process, echoing what the Chief had said during the 12 00:00:52,720 --> 00:00:53,520 Speaker 2: oral arguments. 13 00:00:53,840 --> 00:00:55,720 Speaker 3: You know, we might think that we're, you know, we 14 00:00:55,720 --> 00:00:58,880 Speaker 3: can do just as good a job with respect to 15 00:00:59,800 --> 00:01:04,880 Speaker 3: the the evidence here as Tennessee or anybody else. But 16 00:01:05,280 --> 00:01:09,160 Speaker 3: my understanding is that the Constitution leaves that question to 17 00:01:09,360 --> 00:01:14,800 Speaker 3: the people's representatives rather than to nine people, none of 18 00:01:14,800 --> 00:01:15,640 Speaker 3: whom is the doctor. 19 00:01:15,880 --> 00:01:19,720 Speaker 2: Justice Sonya Sotomayoa wrote a blistering descent for the court's 20 00:01:19,800 --> 00:01:24,760 Speaker 2: three liberals, accusing the Conservatives of abandoning transgender children and 21 00:01:24,800 --> 00:01:28,920 Speaker 2: their families to political whims. During the oral argument, she'd 22 00:01:28,959 --> 00:01:33,200 Speaker 2: pointed out that the democratic process does not protect transgender 23 00:01:33,280 --> 00:01:35,360 Speaker 2: people against bad laws. 24 00:01:35,680 --> 00:01:39,680 Speaker 4: When you're one percent of the population or less, very 25 00:01:39,720 --> 00:01:42,560 Speaker 4: hard to see how the democratic process is going to 26 00:01:42,560 --> 00:01:46,360 Speaker 4: protect you, Well, are you. Blacks were a much larger 27 00:01:46,440 --> 00:01:50,040 Speaker 4: part of the population, and it didn't protect them. It 28 00:01:50,120 --> 00:01:53,840 Speaker 4: didn't protect women for whole centuries. 29 00:01:54,280 --> 00:01:57,960 Speaker 2: The decision will affect transgender kids in half the states 30 00:01:58,160 --> 00:02:01,600 Speaker 2: which have laws similar to the in Tennessee. Joining me 31 00:02:01,680 --> 00:02:05,000 Speaker 2: is Kate Redburn, a professor at Columbia Law School whose 32 00:02:05,080 --> 00:02:09,079 Speaker 2: expertise centers on the law of gender, sexuality, and religion. 33 00:02:09,480 --> 00:02:13,640 Speaker 2: How much of a setback is this decision for transgender rights. 34 00:02:14,040 --> 00:02:18,200 Speaker 5: It's a significant setback for transgender rights, especially regarding the 35 00:02:18,240 --> 00:02:22,840 Speaker 5: availability and access to medically necessary treatments for gender dysphoria. 36 00:02:23,000 --> 00:02:27,240 Speaker 5: So the opinion refers to SB one's Tennessee law, which 37 00:02:27,480 --> 00:02:31,280 Speaker 5: essentially prohibits transgender youth from accessing gender from maing care 38 00:02:31,400 --> 00:02:34,320 Speaker 5: while allowing all other youth to access the same treatments. 39 00:02:34,400 --> 00:02:38,640 Speaker 5: He says, that's not a sex classification. What it doesn't do, however, 40 00:02:38,960 --> 00:02:41,720 Speaker 5: is it doesn't hold that trans people are not a 41 00:02:41,760 --> 00:02:45,480 Speaker 5: suspect class in general, So it looks like at least 42 00:02:45,480 --> 00:02:47,840 Speaker 5: three justices were willing to go that far, and the 43 00:02:47,880 --> 00:02:51,600 Speaker 5: opinion didn't go that far, So it doesn't necessarily reach 44 00:02:51,800 --> 00:02:55,840 Speaker 5: as far as all transcrimination. And even though I think 45 00:02:55,880 --> 00:02:58,440 Speaker 5: the Court clearly reached the wrong conclusion about whether or 46 00:02:58,480 --> 00:03:01,400 Speaker 5: not SB one is a sex classic, it seems to 47 00:03:01,440 --> 00:03:04,400 Speaker 5: have left open the possibility that it or other courts 48 00:03:04,520 --> 00:03:07,600 Speaker 5: could be presented with evidence that laws like SB one 49 00:03:07,639 --> 00:03:11,400 Speaker 5: are really fueled by anti trans sentiment. And so because 50 00:03:11,440 --> 00:03:14,840 Speaker 5: that path remains open, I feel like this decision, while 51 00:03:15,000 --> 00:03:19,040 Speaker 5: absolutely devastating for trans kids and their families and potentially 52 00:03:19,080 --> 00:03:21,960 Speaker 5: for trans adults seeking care that is regulated, it is 53 00:03:22,000 --> 00:03:25,200 Speaker 5: not the total destruction of equal protection law that it 54 00:03:25,240 --> 00:03:27,679 Speaker 5: could have been, and that it appears at least three 55 00:03:27,880 --> 00:03:29,120 Speaker 5: justices were willing to do. 56 00:03:29,760 --> 00:03:34,600 Speaker 2: The three justices you're referring to being Clarence Thomas, Samuel Alito, 57 00:03:35,080 --> 00:03:38,920 Speaker 2: and Amy Cony Barrett explain the central legal question here 58 00:03:39,400 --> 00:03:41,400 Speaker 2: regarding the equal protection clause. 59 00:03:41,880 --> 00:03:44,200 Speaker 5: So the question before the court was whether or not 60 00:03:44,240 --> 00:03:47,800 Speaker 5: this law violated equal protection, and the United States under 61 00:03:47,800 --> 00:03:50,280 Speaker 5: the prior administration really directed the court's attention to the 62 00:03:50,360 --> 00:03:53,840 Speaker 5: question of whether or not this law constituted a sex classification. 63 00:03:54,240 --> 00:03:56,800 Speaker 5: So does the law turn on sex? And the reason 64 00:03:56,840 --> 00:03:59,600 Speaker 5: for that is because when laws do turn on sex, 65 00:03:59,800 --> 00:04:02,120 Speaker 5: the court looks more closely at the law. They call 66 00:04:02,160 --> 00:04:05,400 Speaker 5: that heightened scrutiny for sex discrimination. So the Court has 67 00:04:05,400 --> 00:04:10,440 Speaker 5: said that certain kinds of classifications, race classifications paradigmatically. 68 00:04:09,920 --> 00:04:11,200 Speaker 1: More into strict scrutiny. 69 00:04:11,240 --> 00:04:14,240 Speaker 5: So the Court's going to look very hard. Sex classifications, 70 00:04:14,240 --> 00:04:17,920 Speaker 5: the Court has previously said sometimes are permissible, it's sometimes 71 00:04:18,000 --> 00:04:21,000 Speaker 5: okay for governments to distinguish between people on the basis 72 00:04:21,000 --> 00:04:24,040 Speaker 5: of sex or make sex classifications, but because it sounds 73 00:04:24,040 --> 00:04:27,120 Speaker 5: a little bit potentially suspicious, they're going to look more closely. 74 00:04:27,160 --> 00:04:29,600 Speaker 5: And so the question here was is a sex classification? 75 00:04:29,960 --> 00:04:32,040 Speaker 5: And then the danger was what had happened in the 76 00:04:32,080 --> 00:04:34,719 Speaker 5: Sixth Circuit where in this case that court had said 77 00:04:34,800 --> 00:04:37,320 Speaker 5: that this law was not a sex classification and sort 78 00:04:37,360 --> 00:04:39,839 Speaker 5: of combined the analysis in a way that made people 79 00:04:39,880 --> 00:04:42,600 Speaker 5: concern that the Court was going to find that even 80 00:04:42,720 --> 00:04:46,159 Speaker 5: certain kinds of sex classifications don't warrant heightened scrutiny. So 81 00:04:46,240 --> 00:04:49,840 Speaker 5: here what happened was the Robert's majority opinion says that 82 00:04:50,000 --> 00:04:52,600 Speaker 5: this law is not a sex classification and therefore only 83 00:04:52,680 --> 00:04:54,320 Speaker 5: warrant's rational basis review. 84 00:04:54,640 --> 00:04:58,880 Speaker 2: Chief Justice Roberts, in his majority opinions talked about the 85 00:04:58,920 --> 00:05:03,159 Speaker 2: fierce scientific and policy debates about the safety, efficacy, and 86 00:05:03,200 --> 00:05:06,960 Speaker 2: propriety of medical treatments in an evolving field. Quote, we 87 00:05:07,080 --> 00:05:10,400 Speaker 2: leave questions regarding its policy to the people, their elected 88 00:05:10,440 --> 00:05:15,039 Speaker 2: representatives and the democratic process. Is that just the court 89 00:05:15,120 --> 00:05:18,839 Speaker 2: looking for an out? I mean, they do make policy decisions. 90 00:05:19,400 --> 00:05:22,240 Speaker 5: Yeah, So it sounds not dissimilar to what the Court 91 00:05:22,320 --> 00:05:25,800 Speaker 5: said about Dobbs when it overturned roversus Wade, which was 92 00:05:26,000 --> 00:05:29,599 Speaker 5: under the guise of changing doctrine, and that case quite significantly, 93 00:05:30,240 --> 00:05:33,560 Speaker 5: you described itself as kicking the question back to the states. 94 00:05:33,839 --> 00:05:37,760 Speaker 5: What is suspicious about that language in this context is 95 00:05:37,760 --> 00:05:40,960 Speaker 5: that the heightened scrutiny is actually designed to make it 96 00:05:41,000 --> 00:05:43,480 Speaker 5: possible for course to spend some time really looking at 97 00:05:43,480 --> 00:05:46,760 Speaker 5: the justifications that the governments are using for regulating and 98 00:05:46,760 --> 00:05:49,320 Speaker 5: classifying on sex, and then it also asks whether or 99 00:05:49,360 --> 00:05:51,920 Speaker 5: not the means justify the ed. So it might be 100 00:05:52,000 --> 00:05:54,800 Speaker 5: that there's a close relationship between the purpose of the 101 00:05:54,880 --> 00:05:58,719 Speaker 5: law and its classification, but it's nevertheless not an acceptable 102 00:05:58,720 --> 00:06:01,719 Speaker 5: purpose anyway. All that's to say that the existing doctrine 103 00:06:01,800 --> 00:06:04,039 Speaker 5: is meant to give the court the opportunity to really 104 00:06:04,080 --> 00:06:07,080 Speaker 5: weigh evidence. And what this decision does is it seems 105 00:06:07,120 --> 00:06:10,680 Speaker 5: to open up the possibility of authorizing governments to regulate 106 00:06:10,880 --> 00:06:15,400 Speaker 5: around medical procedures that touch on sex without courts even looking. 107 00:06:15,200 --> 00:06:17,440 Speaker 1: To weigh the evidence. So it might be the. 108 00:06:17,320 --> 00:06:20,160 Speaker 5: Case that the Court would have applied heightened scrutiny and 109 00:06:20,240 --> 00:06:23,440 Speaker 5: still found that this particular law had on its view 110 00:06:23,480 --> 00:06:27,200 Speaker 5: of sufficient evidentiary support, you know, in light of the 111 00:06:27,400 --> 00:06:30,880 Speaker 5: purported medical controversy. But it might not have, and it 112 00:06:30,960 --> 00:06:34,799 Speaker 5: really denied itself and potentially future courts from even looking 113 00:06:34,839 --> 00:06:35,159 Speaker 5: into that. 114 00:06:35,760 --> 00:06:39,719 Speaker 2: Justice Soto Mayor eroded descent for the three liberals. She 115 00:06:39,800 --> 00:06:41,960 Speaker 2: read a summary of it from the bench, which the 116 00:06:42,160 --> 00:06:45,400 Speaker 2: justices sometimes do when they feel strongly about a descent. 117 00:06:45,800 --> 00:06:49,679 Speaker 2: Then she ended with in sadness I dissent. She talked 118 00:06:49,680 --> 00:06:54,320 Speaker 2: about the majority abandoning transgender children and their families to 119 00:06:54,400 --> 00:06:55,640 Speaker 2: political whims. 120 00:06:56,080 --> 00:06:58,080 Speaker 5: I think that you know, her sadness stems from the 121 00:06:58,080 --> 00:07:01,719 Speaker 5: fact that this is going to for were potentially trans 122 00:07:01,839 --> 00:07:04,400 Speaker 5: kids and their families in half of the states where 123 00:07:04,440 --> 00:07:07,320 Speaker 5: similar laws are on the books to relocate in order 124 00:07:07,360 --> 00:07:08,840 Speaker 5: to simply live their lives. 125 00:07:09,200 --> 00:07:10,280 Speaker 1: The state of the. 126 00:07:10,320 --> 00:07:13,320 Speaker 5: Medical controversy about these issues, and the majority opinion is 127 00:07:13,400 --> 00:07:16,400 Speaker 5: vastly overstated. Much of the history that it relies on, 128 00:07:16,440 --> 00:07:19,040 Speaker 5: and some of the other concurring opinians rely on, it's 129 00:07:19,160 --> 00:07:21,760 Speaker 5: just untrue. And so you know what I think Justice 130 00:07:21,760 --> 00:07:25,360 Speaker 5: Sodomyor was trying to say is that the consequences for 131 00:07:25,440 --> 00:07:28,520 Speaker 5: trans youth in particular are just really, really egregious. 132 00:07:28,760 --> 00:07:33,240 Speaker 2: In her courtroom statement, she said that similar arguments were 133 00:07:33,240 --> 00:07:37,520 Speaker 2: made to defend the Virginia law that prohibited interracial marriage 134 00:07:37,560 --> 00:07:41,000 Speaker 2: that the Supreme Court struck down in nineteen sixty seven. 135 00:07:41,200 --> 00:07:43,560 Speaker 5: Yeah, so we call those equal application laws. So in 136 00:07:43,600 --> 00:07:46,680 Speaker 5: Loving versus Virginia, the argument was well for the law 137 00:07:46,880 --> 00:07:50,480 Speaker 5: prohibited interracial marriage, and the justification for it that the 138 00:07:50,520 --> 00:07:53,440 Speaker 5: state gave was this is not racial discrimination because white 139 00:07:53,440 --> 00:07:55,520 Speaker 5: people are not allowed to marry people of color and 140 00:07:55,520 --> 00:07:57,240 Speaker 5: people of color are not allowed to marry white people. 141 00:07:57,240 --> 00:08:00,720 Speaker 5: In other words, everyone is equally prohibited. The said, No, 142 00:08:01,080 --> 00:08:03,960 Speaker 5: it is still rooted in racial stereotypes that suggest that 143 00:08:04,000 --> 00:08:07,680 Speaker 5: interracial marriage is bad and also animus towards racial minorities 144 00:08:07,680 --> 00:08:10,360 Speaker 5: and trying to reinforce the racial hierarchy in the country. 145 00:08:10,400 --> 00:08:12,920 Speaker 5: So the fact that you can find in that case 146 00:08:12,960 --> 00:08:15,200 Speaker 5: white people and black people on both sides of the 147 00:08:15,240 --> 00:08:17,800 Speaker 5: line that the regulation draws does not mean that it's 148 00:08:17,840 --> 00:08:20,800 Speaker 5: not subject to heightened scrutiny. So there's a reading of 149 00:08:20,880 --> 00:08:23,400 Speaker 5: the majority's opinion here that does exactly the same thing. 150 00:08:23,440 --> 00:08:25,360 Speaker 5: And that's what she's saying that just because there are 151 00:08:25,400 --> 00:08:29,160 Speaker 5: transgender miners on both sides of the line. In other words, 152 00:08:29,240 --> 00:08:32,800 Speaker 5: transgender miners, according to the court, can still obtain sort 153 00:08:32,840 --> 00:08:35,160 Speaker 5: of treatments if they're not for the purposes of addressing 154 00:08:35,200 --> 00:08:38,680 Speaker 5: gender dysphoria. That doesn't mean that this is not motivated 155 00:08:38,679 --> 00:08:42,400 Speaker 5: by animis towards transgender people and trying to reinforce as 156 00:08:42,480 --> 00:08:45,800 Speaker 5: sex and gender hierarchy that suggest that there's something normatively 157 00:08:45,840 --> 00:08:47,640 Speaker 5: preferable about not being transgender. 158 00:08:48,120 --> 00:08:52,320 Speaker 2: The government changed its position after President Trump took office, 159 00:08:52,880 --> 00:08:57,200 Speaker 2: switching to supporting Tennessee's ban. Trump has seemed to target 160 00:08:57,280 --> 00:09:02,160 Speaker 2: transgender people in various ways, from declaring there are only 161 00:09:02,280 --> 00:09:07,080 Speaker 2: two sexes to kicking transgender service members out of the military. 162 00:09:07,480 --> 00:09:10,600 Speaker 2: Why do you think there's so much emphasis on a 163 00:09:10,640 --> 00:09:14,559 Speaker 2: group that represents less than one percent of the population. 164 00:09:15,240 --> 00:09:18,800 Speaker 5: Basically, since it's a little bit after twenty sixteen, it's 165 00:09:18,840 --> 00:09:22,920 Speaker 5: been a major priority among Republican state legislators, in particular 166 00:09:23,040 --> 00:09:25,600 Speaker 5: to attack trans right. There's a lot of reasons why 167 00:09:25,600 --> 00:09:27,439 Speaker 5: that could be the case. You know, one reason that 168 00:09:27,559 --> 00:09:30,600 Speaker 5: having lost the gay marriage fight, there's an effort to 169 00:09:30,640 --> 00:09:35,280 Speaker 5: find a different issue that touches on questions of traditional 170 00:09:35,280 --> 00:09:38,280 Speaker 5: and non traditional gender and sexual role. The search for 171 00:09:38,320 --> 00:09:41,400 Speaker 5: another issue became even stronger after Dobbs, after the Supreme 172 00:09:41,400 --> 00:09:44,839 Speaker 5: Court overturned ro versus Ways, in part because abortions actually 173 00:09:44,920 --> 00:09:47,280 Speaker 5: quite popular nationally, and so in order to create some 174 00:09:47,400 --> 00:09:50,320 Speaker 5: kind of coalition that could win national elections, needed to 175 00:09:50,320 --> 00:09:54,560 Speaker 5: find an issue which would connect to traditional gender and 176 00:09:54,600 --> 00:09:57,840 Speaker 5: sexual values without touching on something popular like gay marriage 177 00:09:57,880 --> 00:10:00,439 Speaker 5: or abortion. So a way to understand the effect of 178 00:10:00,480 --> 00:10:03,400 Speaker 5: the Trump administration is really that it has accelerated a 179 00:10:03,440 --> 00:10:07,480 Speaker 5: pre existing tendency, and it's turned what were state level 180 00:10:07,600 --> 00:10:11,840 Speaker 5: efforts to make transgender life extremely difficult, if not impossible, 181 00:10:11,880 --> 00:10:15,360 Speaker 5: into national policy. So the redefinition of sex, attempts to 182 00:10:15,360 --> 00:10:19,479 Speaker 5: regulate medical treatments, access to bathrooms, access to sports teams, 183 00:10:19,520 --> 00:10:22,520 Speaker 5: all of those efforts that we saw in the executive orders, 184 00:10:22,559 --> 00:10:25,280 Speaker 5: and of course, you know, very important restrictions and attempted 185 00:10:25,320 --> 00:10:28,800 Speaker 5: restrictions now in Congress on access to trans healthcare through 186 00:10:29,000 --> 00:10:32,440 Speaker 5: various kinds of federal aid are reflecting the nationalization of 187 00:10:32,480 --> 00:10:34,559 Speaker 5: what had been state level attacks. 188 00:10:35,080 --> 00:10:38,640 Speaker 2: Does this decision hurt challenges to attempts to roll back 189 00:10:38,880 --> 00:10:40,040 Speaker 2: transgender rights. 190 00:10:40,520 --> 00:10:42,680 Speaker 5: It might, it might not. As I said, there is 191 00:10:42,720 --> 00:10:45,600 Speaker 5: not a majority on the Court apparently to hold that 192 00:10:45,720 --> 00:10:49,160 Speaker 5: anti transiscrimination, you know, is not visible to the Constitution. 193 00:10:49,320 --> 00:10:51,800 Speaker 5: In other words, there are other kinds of anti transiscrimination 194 00:10:51,920 --> 00:10:54,800 Speaker 5: that the Court seems to have held open the possibility 195 00:10:54,840 --> 00:10:57,800 Speaker 5: for recognizing, and so it's going to really depend on 196 00:10:58,080 --> 00:11:00,800 Speaker 5: what is characterized as a medical condition. In other words, 197 00:11:00,800 --> 00:11:03,560 Speaker 5: this opinion says that SB one is discriminating on the 198 00:11:03,559 --> 00:11:06,680 Speaker 5: basis of gender dysphoria and not transgender identity, and so 199 00:11:06,840 --> 00:11:10,080 Speaker 5: other laws do not have that character of being ostensibly 200 00:11:10,440 --> 00:11:14,560 Speaker 5: justified as medical regulations. Instead, I think the normative stakes 201 00:11:14,640 --> 00:11:18,000 Speaker 5: of just trying to force people not to be transgender 202 00:11:18,080 --> 00:11:20,520 Speaker 5: are even clearer in those other situations. And the Court 203 00:11:20,640 --> 00:11:23,640 Speaker 5: hasn't totally eliminated the possibility of reading those arguments in 204 00:11:23,640 --> 00:11:24,720 Speaker 5: the future. 205 00:11:24,320 --> 00:11:27,680 Speaker 2: And we can expect the court's decision on the use 206 00:11:27,760 --> 00:11:33,080 Speaker 2: of LGBTQ friendly books in the classroom next week. Thanks 207 00:11:33,120 --> 00:11:35,920 Speaker 2: so much for joining me. That's Professor Kate Redburn of 208 00:11:35,960 --> 00:11:39,439 Speaker 2: Columbia Law School. Coming up next on the Bloomberg Law Show, 209 00:11:39,640 --> 00:11:42,360 Speaker 2: Karen Reid is acquitted of the murder of her Boston 210 00:11:42,480 --> 00:11:46,160 Speaker 2: police officer boyfriend, and a juror is dismissed from the 211 00:11:46,240 --> 00:11:49,840 Speaker 2: Sean Diddy Combs trial. I'm June Grasso, and you're listening 212 00:11:49,920 --> 00:11:58,040 Speaker 2: to Bloomberg. Cheers from hundreds of Karen Reid's supporters outside 213 00:11:58,080 --> 00:12:02,359 Speaker 2: the courthouse in Dedham, Massachusets as the jury's verdict acquitting 214 00:12:02,360 --> 00:12:06,280 Speaker 2: her of murder and manslaughter charges was announced on Wednesday. 215 00:12:06,640 --> 00:12:10,719 Speaker 2: Reid was accused of intentionally ramming her SUV into her 216 00:12:10,760 --> 00:12:15,640 Speaker 2: Boston police officer boyfriend, John o'keef in a drunken rage 217 00:12:15,679 --> 00:12:18,920 Speaker 2: after an argument, leaving him to die in a blizzard. 218 00:12:19,400 --> 00:12:22,640 Speaker 2: The defense had argued that Reid was framed by police, 219 00:12:23,000 --> 00:12:26,720 Speaker 2: and another jury nearly a year ago was deadlocked after 220 00:12:26,880 --> 00:12:31,120 Speaker 2: five days of deliberations, leading to a mistrial. This jury 221 00:12:31,120 --> 00:12:35,120 Speaker 2: in the retrial, deliberated twenty two hours over four days 222 00:12:35,280 --> 00:12:39,800 Speaker 2: before reaching its verdict. Only finding reed guilty of drunken driving. 223 00:12:40,160 --> 00:12:42,680 Speaker 2: A couple of the jurors later said that the police 224 00:12:42,720 --> 00:12:47,200 Speaker 2: investigation was sloppy, leaving holes in the prosecution's case. 225 00:12:47,920 --> 00:12:51,360 Speaker 6: As the weeks passed by, I just realized there was 226 00:12:51,400 --> 00:12:55,160 Speaker 6: too many holes that we couldn't feel, and there's nothing 227 00:12:55,200 --> 00:12:58,000 Speaker 6: that put her on the scene in our opinion, besides 228 00:12:58,120 --> 00:12:59,720 Speaker 6: just dropping. John mcckeffe off. 229 00:13:00,160 --> 00:13:02,600 Speaker 2: Thanked her supporters and said this. 230 00:13:03,000 --> 00:13:07,520 Speaker 5: No one has fought carter for justice for John O'Keefe. 231 00:13:07,360 --> 00:13:08,000 Speaker 7: And I have. 232 00:13:08,720 --> 00:13:12,199 Speaker 2: Some of the key prosecution witnesses in the trial released 233 00:13:12,200 --> 00:13:16,600 Speaker 2: a joint statement calling the not guilty verdict a devastating 234 00:13:16,679 --> 00:13:20,280 Speaker 2: miscarriage of justice. My guest is former Palm Beach County 235 00:13:20,360 --> 00:13:24,400 Speaker 2: State Attorney Dave Ehrenberg. Dave, were you surprised at the acquittal? 236 00:13:24,920 --> 00:13:28,160 Speaker 1: I was very surprised by it because I thought the 237 00:13:28,200 --> 00:13:30,920 Speaker 1: prosecution this time did an excellent job and focusing the 238 00:13:31,000 --> 00:13:35,640 Speaker 1: jury on the evidence, the data, the cell phone data, 239 00:13:35,960 --> 00:13:38,840 Speaker 1: the evidence of the battery of the cell phone and 240 00:13:38,880 --> 00:13:42,960 Speaker 1: when it started to weaken and when the phone started 241 00:13:42,960 --> 00:13:45,960 Speaker 1: to freeze, the timing. I mean, this was not speculation. 242 00:13:46,160 --> 00:13:49,679 Speaker 1: Data doesn't have any ax to grind. Data is data. 243 00:13:50,160 --> 00:13:53,720 Speaker 1: And as a result, I thought the jury would listen 244 00:13:53,800 --> 00:13:57,120 Speaker 1: to that. Instead, they got distracted by all the things 245 00:13:57,160 --> 00:13:58,920 Speaker 1: and apparently found reasonable doubt. 246 00:13:59,160 --> 00:14:03,199 Speaker 2: Obviously there were no eyewitness accounts, no direct evidence of 247 00:14:03,240 --> 00:14:06,520 Speaker 2: the hit, but there were a series of experts to 248 00:14:06,720 --> 00:14:11,560 Speaker 2: fill in the evidentiary picture. Do you think that testimony 249 00:14:11,760 --> 00:14:14,480 Speaker 2: was too sophisticated for the jury. 250 00:14:14,920 --> 00:14:17,200 Speaker 1: Whenever you get into a battle of experts, it's a 251 00:14:17,200 --> 00:14:21,960 Speaker 1: problem for prosecution because jurors these days, they want eyewitnesses, 252 00:14:22,080 --> 00:14:27,680 Speaker 1: they want the DNA, they want the conclusive smoking guns 253 00:14:28,080 --> 00:14:30,280 Speaker 1: because they're used to seeing that on TV shows which 254 00:14:30,280 --> 00:14:32,960 Speaker 1: are wrapped up in an hour at BSI and other shows. 255 00:14:33,120 --> 00:14:36,240 Speaker 1: And if you don't have that, jurors will quickly find 256 00:14:36,240 --> 00:14:39,000 Speaker 1: some reasonable doubt, especially if it becomes a battle of experts. 257 00:14:39,040 --> 00:14:41,800 Speaker 1: But I thought that it was a defense that came 258 00:14:41,880 --> 00:14:45,280 Speaker 1: up with a cockamamie alternative theory and thus raised the 259 00:14:45,280 --> 00:14:49,000 Speaker 1: bar for the defense by saying that John O'Keefe entered 260 00:14:49,000 --> 00:14:50,880 Speaker 1: the home. There's no evidence he entered the home, there's 261 00:14:50,960 --> 00:14:53,640 Speaker 1: no evidence that anything happened, but he was hit by 262 00:14:53,680 --> 00:14:58,760 Speaker 1: the car by a drunk, enraged woman who left dozens 263 00:14:58,920 --> 00:15:03,560 Speaker 1: of angry voicemails on the victim's phone while he lay 264 00:15:03,640 --> 00:15:04,400 Speaker 1: dying in the snow. 265 00:15:04,800 --> 00:15:07,960 Speaker 2: And how did the defense explain Read's own words to 266 00:15:08,000 --> 00:15:12,520 Speaker 2: paramedics afterwards, repeatedly saying I hit him. 267 00:15:12,760 --> 00:15:15,320 Speaker 1: Yeah, her own words. I mean, she admitted it, but 268 00:15:15,440 --> 00:15:18,200 Speaker 1: they were able to somehow frame it as maybe she 269 00:15:18,360 --> 00:15:22,240 Speaker 1: was unsure, maybe she thought she did, but the witnesses 270 00:15:22,240 --> 00:15:23,360 Speaker 1: said no, she said I hit him. 271 00:15:23,400 --> 00:15:23,880 Speaker 5: I hit him. 272 00:15:24,080 --> 00:15:27,880 Speaker 1: Her own lawyer when this case started said that she 273 00:15:27,960 --> 00:15:30,880 Speaker 1: did hit him, that this was an accident. But then 274 00:15:31,120 --> 00:15:33,640 Speaker 1: they changed their view to try to get away with 275 00:15:33,680 --> 00:15:34,920 Speaker 1: it entirely, and she did. 276 00:15:35,480 --> 00:15:37,720 Speaker 2: Would we call it a mixed verdict because they did 277 00:15:37,840 --> 00:15:42,200 Speaker 2: convict her of operating under the influence of alcohol? Of course, 278 00:15:42,520 --> 00:15:44,640 Speaker 2: the judge just gave her probation for that. 279 00:15:45,280 --> 00:15:48,000 Speaker 1: Well, yeah, but they didn't find her guilty of leaving 280 00:15:48,000 --> 00:15:50,640 Speaker 1: the scene of an accident, so they didn't even feel 281 00:15:50,680 --> 00:15:53,320 Speaker 1: that it was conclusive that she caused an accident. So 282 00:15:53,360 --> 00:15:56,040 Speaker 1: how did he die? It's a binary choice. Either she 283 00:15:56,160 --> 00:15:57,920 Speaker 1: hit him or he went into the house and was 284 00:15:58,000 --> 00:16:02,040 Speaker 1: murdered by law enforcement officers and soccer moms who got 285 00:16:02,040 --> 00:16:05,160 Speaker 1: together in a conspiracy of silence. The murdered their friend 286 00:16:05,400 --> 00:16:08,520 Speaker 1: and then dump his body on the front lawn. I 287 00:16:08,520 --> 00:16:11,920 Speaker 1: don't even understand how anyone can think that makes sense. 288 00:16:11,960 --> 00:16:14,600 Speaker 1: I mean, if you're a law enforcement officer and you're 289 00:16:14,600 --> 00:16:17,400 Speaker 1: in cahoots with soccer moms, wouldn't you think you would 290 00:16:17,400 --> 00:16:20,200 Speaker 1: just claim self defense if you wanted to kill another 291 00:16:20,280 --> 00:16:22,720 Speaker 1: law enforcement officer, Or wouldn't you try to hide the body? 292 00:16:23,000 --> 00:16:27,280 Speaker 1: Why would you throw the body onto the front lawns 293 00:16:27,320 --> 00:16:30,720 Speaker 1: of your house unless it didn't happen, which it didn't happen. 294 00:16:31,560 --> 00:16:34,440 Speaker 2: What some people say is the most powerful defense testimony 295 00:16:34,640 --> 00:16:39,200 Speaker 2: was a snowplow driver who passed the home several times 296 00:16:39,280 --> 00:16:43,280 Speaker 2: in the hours after the alleged collision and said he 297 00:16:43,320 --> 00:16:45,800 Speaker 2: didn't see a two hundred and sixteen pounds six foot 298 00:16:45,840 --> 00:16:47,320 Speaker 2: one man lying in the yard. 299 00:16:48,040 --> 00:16:48,880 Speaker 7: Yeah, no one did. 300 00:16:48,960 --> 00:16:51,480 Speaker 1: This snow was coming down, and no one did. The 301 00:16:51,480 --> 00:16:54,000 Speaker 1: only person who found John O'Keefe, who was then the 302 00:16:54,040 --> 00:16:56,240 Speaker 1: next morning buried under the snow. The only person who 303 00:16:56,320 --> 00:16:59,280 Speaker 1: found John O'Keefe was the person who hit him, because 304 00:16:59,320 --> 00:17:02,600 Speaker 1: she knew where his body was. Because she hit him, 305 00:17:02,760 --> 00:17:04,800 Speaker 1: she knew what happened. No one else could find him. 306 00:17:04,800 --> 00:17:07,400 Speaker 1: They were driving around looking for him, but she bought 307 00:17:07,480 --> 00:17:10,119 Speaker 1: them from a while away. Because she's the one who 308 00:17:10,200 --> 00:17:12,680 Speaker 1: hit him. So in this case, I feel the same 309 00:17:12,680 --> 00:17:16,000 Speaker 1: way as I did after the Oj Simpson verdict or 310 00:17:16,040 --> 00:17:18,639 Speaker 1: the Casey Anthony verdict, that he had a guilty person 311 00:17:18,680 --> 00:17:19,199 Speaker 1: go free. 312 00:17:19,520 --> 00:17:24,360 Speaker 2: Usually on a retrial, it's the prosecution that has the advantage. 313 00:17:24,680 --> 00:17:26,080 Speaker 2: Why do you think it was different here? 314 00:17:26,520 --> 00:17:28,359 Speaker 1: I thought the prosecution did a really good job. I 315 00:17:28,359 --> 00:17:30,800 Speaker 1: don't have any issues with him. I think the defense 316 00:17:31,080 --> 00:17:34,639 Speaker 1: was able to capitalize on this content with police, as 317 00:17:34,640 --> 00:17:37,920 Speaker 1: all it takes his futures would have issues with police. 318 00:17:38,160 --> 00:17:41,119 Speaker 1: And here the accusation was that there was a police 319 00:17:41,119 --> 00:17:43,800 Speaker 1: cover up and that the police officers were too close 320 00:17:43,880 --> 00:17:47,760 Speaker 1: to the family inside the house, and the police officers 321 00:17:48,040 --> 00:17:51,840 Speaker 1: were not only incompetent in collecting the evidence. That's the 322 00:17:51,920 --> 00:17:55,879 Speaker 1: defense talking, not me, but also that the lead investigator, 323 00:17:55,920 --> 00:17:58,000 Speaker 1: who was not even called to the stand, but that 324 00:17:58,040 --> 00:18:02,320 Speaker 1: the lead investigator was such discussing individual with his comments 325 00:18:02,320 --> 00:18:05,440 Speaker 1: about Karen Reid, and he did make offensive comments that 326 00:18:05,960 --> 00:18:08,160 Speaker 1: the whole thing was tainted. And I think that has 327 00:18:08,200 --> 00:18:10,680 Speaker 1: some residents of the jury. I think they perhaps want 328 00:18:10,680 --> 00:18:13,560 Speaker 1: to know why the lead investigator did not testify. Maybe 329 00:18:13,560 --> 00:18:15,720 Speaker 1: they were hiding something which they weren't. They just thought 330 00:18:15,720 --> 00:18:17,919 Speaker 1: that this guy was a side show distraction because of 331 00:18:17,960 --> 00:18:18,639 Speaker 1: his comments. 332 00:18:19,040 --> 00:18:21,879 Speaker 2: Yeah, and the defense seemed to emphasize that in the 333 00:18:22,440 --> 00:18:27,080 Speaker 2: closing arguments. Did the defense improve over the first trial 334 00:18:27,119 --> 00:18:29,800 Speaker 2: where it just presented a day and a half of 335 00:18:30,119 --> 00:18:31,159 Speaker 2: defense witnesses. 336 00:18:31,720 --> 00:18:33,840 Speaker 1: I thought the defense did a really good job as 337 00:18:33,880 --> 00:18:36,000 Speaker 1: they did in the first trial. I mean, anytime you 338 00:18:36,200 --> 00:18:40,159 Speaker 1: are able to get a guilty client acquitted, it's a 339 00:18:40,240 --> 00:18:43,240 Speaker 1: real feed for the defense and they deserve credit. They're 340 00:18:43,280 --> 00:18:47,400 Speaker 1: great lawyers, and it is my belief that she was guilty, 341 00:18:47,640 --> 00:18:51,399 Speaker 1: and I think the evidence conclusively establishes that. But when 342 00:18:51,440 --> 00:18:54,160 Speaker 1: you're a defense learning able to create a side show 343 00:18:54,240 --> 00:18:57,520 Speaker 1: distraction and it works with the jury, then you're doing 344 00:18:57,520 --> 00:19:00,520 Speaker 1: your job. That's a shame for the victims' family. That's 345 00:19:00,520 --> 00:19:01,040 Speaker 1: what it is. 346 00:19:01,440 --> 00:19:04,560 Speaker 2: Read, of course, is free of all criminal charges in 347 00:19:04,600 --> 00:19:08,880 Speaker 2: the case can't be retried, but she still faces a 348 00:19:08,880 --> 00:19:13,200 Speaker 2: civil wrongful death case by O'Keefe's family, and the standard 349 00:19:13,280 --> 00:19:16,159 Speaker 2: of proof there is much lower, so she could be 350 00:19:16,200 --> 00:19:17,920 Speaker 2: held liable for damages there. 351 00:19:18,680 --> 00:19:22,879 Speaker 1: Right In a civil case, the standard is just proponents 352 00:19:22,880 --> 00:19:25,480 Speaker 1: of the evidence. It's much easier to prove and you 353 00:19:25,640 --> 00:19:27,280 Speaker 1: just have to proved negligence, which is. 354 00:19:27,200 --> 00:19:28,080 Speaker 7: A lower burden. 355 00:19:28,200 --> 00:19:31,320 Speaker 1: So all around, it's easier to prove that case of 356 00:19:31,320 --> 00:19:33,359 Speaker 1: the evidence just means, is it more likely than not 357 00:19:33,560 --> 00:19:36,560 Speaker 1: that Ken Reid did something wrong here committed a tourt. 358 00:19:37,040 --> 00:19:39,359 Speaker 1: You don't have to prove anything beyond a reasonable doubt. 359 00:19:39,560 --> 00:19:43,199 Speaker 2: So is the logical conclusion after this verdict that the 360 00:19:43,280 --> 00:19:44,760 Speaker 2: murderer is still out there? 361 00:19:46,200 --> 00:19:49,200 Speaker 1: Yeah? I guess she and Odo Simpson will go search 362 00:19:49,240 --> 00:19:51,680 Speaker 1: for the real killers. That's really what this is, right, 363 00:19:51,720 --> 00:19:54,320 Speaker 1: This was a binary choice. Either she hit him with 364 00:19:54,400 --> 00:19:57,280 Speaker 1: the car or he went inside the house and was 365 00:19:57,359 --> 00:20:02,119 Speaker 1: murdered by law enforcement officers and soccer mom, and then 366 00:20:02,280 --> 00:20:04,760 Speaker 1: they threw their friend's body arms of their front law 367 00:20:04,960 --> 00:20:06,280 Speaker 1: doesn't make any sense. 368 00:20:06,640 --> 00:20:09,600 Speaker 2: So, Dave, what do you make of her supporters? I mean, 369 00:20:09,640 --> 00:20:13,040 Speaker 2: there were crowds of people outside the courthouse waiting for 370 00:20:13,119 --> 00:20:15,600 Speaker 2: the verdict. I mean why she. 371 00:20:15,560 --> 00:20:18,479 Speaker 1: Became a culture personality. I think that the narrative that 372 00:20:18,560 --> 00:20:21,880 Speaker 1: was fed by bloggers was that here's this sweet innocent 373 00:20:22,040 --> 00:20:24,960 Speaker 1: woman who's being framed for a crime she didn't commit 374 00:20:25,000 --> 00:20:28,639 Speaker 1: by the corrupt law enforcement officers. And I just feel 375 00:20:28,680 --> 00:20:31,480 Speaker 1: for those law enforcement officers and the families for having 376 00:20:31,480 --> 00:20:34,320 Speaker 1: their names dragged through the mud when they didn't deserve that. 377 00:20:34,640 --> 00:20:36,439 Speaker 1: They lost a loved one, and John o'keith was a 378 00:20:36,440 --> 00:20:40,600 Speaker 1: good man. And now, in my mind, a guilty defendant 379 00:20:40,640 --> 00:20:41,280 Speaker 1: walks free. 380 00:20:41,640 --> 00:20:43,919 Speaker 2: When Reid came out of the courthouse, she made this 381 00:20:44,040 --> 00:20:47,719 Speaker 2: statement that struck me as odd. No one has fought 382 00:20:47,720 --> 00:20:50,960 Speaker 2: harder for justice for John o'keef than I have. 383 00:20:51,760 --> 00:20:53,920 Speaker 1: That's her, oj Simpson, I'm going to find the real 384 00:20:54,000 --> 00:20:56,600 Speaker 1: killers moment and just tells you all you need to 385 00:20:56,680 --> 00:20:59,120 Speaker 1: know about her. I mean to make a statement like that, 386 00:20:59,359 --> 00:21:02,040 Speaker 1: What an install to the family. Now, what an insult? 387 00:21:02,119 --> 00:21:05,160 Speaker 1: It rubbed salt in the wounds to say something like that. 388 00:21:05,560 --> 00:21:07,800 Speaker 1: Just go on with your life and this family is 389 00:21:07,840 --> 00:21:08,480 Speaker 1: suffering enough. 390 00:21:08,800 --> 00:21:11,800 Speaker 2: Thanks for being here, Dave. That's day Arenberg, former Palm 391 00:21:11,880 --> 00:21:15,639 Speaker 2: Beach County State Attorney, and in another high profile trial, 392 00:21:16,000 --> 00:21:19,200 Speaker 2: jurors may begin deliberating towards the end of next week. 393 00:21:19,440 --> 00:21:24,040 Speaker 2: Sean Diddy Combs is entrumph for racketeering, conspiracy, and sex trafficking. 394 00:21:24,400 --> 00:21:27,720 Speaker 2: The prosecution is expected to rest its case on Monday, 395 00:21:28,080 --> 00:21:30,600 Speaker 2: and the defense says it expects to put on its 396 00:21:30,680 --> 00:21:34,520 Speaker 2: case on Wednesday and Thursday. There was some jury drama 397 00:21:34,560 --> 00:21:38,040 Speaker 2: this week as the judge dismissed a juror, despite the 398 00:21:38,080 --> 00:21:42,479 Speaker 2: defense raising concerns that putting in a white alternate juror 399 00:21:42,520 --> 00:21:45,880 Speaker 2: for the black juror would make the jury less diverse. 400 00:21:46,240 --> 00:21:49,520 Speaker 2: Joining me is former federal prosecutor Robert Mintz, a partner 401 00:21:49,600 --> 00:21:52,960 Speaker 2: Macarter In English, Bob tell us what happened with Juror 402 00:21:53,040 --> 00:21:53,760 Speaker 2: number six? 403 00:21:54,560 --> 00:21:57,760 Speaker 8: Even before we got to the close of the trial 404 00:21:58,160 --> 00:22:01,280 Speaker 8: and deliberations in front of the jury, one of the jurors, 405 00:22:01,400 --> 00:22:05,439 Speaker 8: jur number six, was removed from the panel by the 406 00:22:05,600 --> 00:22:08,879 Speaker 8: judge after it was determined that the juror had been 407 00:22:09,040 --> 00:22:12,679 Speaker 8: less than candid about where he resided during the jury 408 00:22:12,720 --> 00:22:16,840 Speaker 8: selection process. He apparently indicated that he lived in the Bronx, 409 00:22:16,880 --> 00:22:19,040 Speaker 8: which is part of the Southern District of New York, 410 00:22:19,280 --> 00:22:23,240 Speaker 8: the district where the trial is taking place, but later 411 00:22:23,359 --> 00:22:27,280 Speaker 8: information surfaced that he actually lived with his girlfriend in 412 00:22:27,359 --> 00:22:30,479 Speaker 8: New Jersey, which is not within the Southern District of 413 00:22:30,480 --> 00:22:32,919 Speaker 8: New York. And the court will say that you cannot 414 00:22:32,960 --> 00:22:36,240 Speaker 8: be sitting on the jury unless you reside within the district. 415 00:22:36,560 --> 00:22:39,679 Speaker 8: So that was ground to remove the juror, and the 416 00:22:39,800 --> 00:22:42,520 Speaker 8: judge found that there was nothing that could be done 417 00:22:42,640 --> 00:22:46,960 Speaker 8: to repair the juror's credibility, since, according to the judge, 418 00:22:47,000 --> 00:22:50,080 Speaker 8: he had apparently been less than candid about where he 419 00:22:50,160 --> 00:22:50,560 Speaker 8: was living. 420 00:22:50,960 --> 00:22:54,159 Speaker 2: The trial is in its sixth week. Do the attorneys 421 00:22:54,240 --> 00:22:57,919 Speaker 2: have a feel for which jurors may be leaning in 422 00:22:58,000 --> 00:22:59,080 Speaker 2: their direction. 423 00:22:59,480 --> 00:23:02,800 Speaker 8: Throughout the trial? It's typical for the defense and the 424 00:23:02,880 --> 00:23:06,520 Speaker 8: prosecution to be forming opinions about which jurors they think 425 00:23:06,840 --> 00:23:10,160 Speaker 8: may be favoring their case. Of course, nobody really knows 426 00:23:10,200 --> 00:23:13,920 Speaker 8: what's going on, but based upon their body language, perhaps 427 00:23:13,960 --> 00:23:17,480 Speaker 8: based upon the eye contact that they're making with witnesses, 428 00:23:18,040 --> 00:23:20,800 Speaker 8: eye contact they may be making with a defendant, just 429 00:23:20,880 --> 00:23:24,200 Speaker 8: the way they conduct themselves in the jury box during 430 00:23:24,200 --> 00:23:27,320 Speaker 8: the trial, it's inevitable that both the prostitution and the 431 00:23:27,320 --> 00:23:31,200 Speaker 8: defense formed some belief as the which jurors may be 432 00:23:31,240 --> 00:23:35,120 Speaker 8: favoring them as the trial unfold. In this case, when 433 00:23:35,160 --> 00:23:38,880 Speaker 8: the judge decided that jurors number six had to be removed, 434 00:23:38,960 --> 00:23:43,000 Speaker 8: there was an objection by the Comb's defense team. This 435 00:23:43,200 --> 00:23:45,560 Speaker 8: was only one of two black men that was on 436 00:23:45,600 --> 00:23:48,320 Speaker 8: the panel, and in this case, what you had was 437 00:23:48,359 --> 00:23:51,560 Speaker 8: the removal of a black, middle aged man who was 438 00:23:51,640 --> 00:23:53,960 Speaker 8: now replaced by the ultimate who happened to be an 439 00:23:53,960 --> 00:23:57,800 Speaker 8: older white man. The defense argued that that was unfair, 440 00:23:57,920 --> 00:24:01,760 Speaker 8: that it created a racial in the jury, but the 441 00:24:01,880 --> 00:24:05,119 Speaker 8: judge rule that race is not something that he can 442 00:24:05,520 --> 00:24:09,120 Speaker 8: consider in terms of removal of jur is something that 443 00:24:09,359 --> 00:24:13,680 Speaker 8: is beyond the scope of what is relevant for consideration 444 00:24:13,880 --> 00:24:16,359 Speaker 8: as to whether this juror can continue to sit on 445 00:24:16,400 --> 00:24:19,960 Speaker 8: the jury panel, and he therefore removes thejur is over 446 00:24:20,040 --> 00:24:22,000 Speaker 8: the objections of the defense. 447 00:24:22,240 --> 00:24:25,600 Speaker 2: This will likely be inn a pellet issue if he's convicted. 448 00:24:25,840 --> 00:24:29,320 Speaker 2: Thanks Bob. That's Robert Mince of Macarter and English. Coming 449 00:24:29,400 --> 00:24:33,080 Speaker 2: up next, Shack pays one point eight million dollars to 450 00:24:33,119 --> 00:24:36,720 Speaker 2: get out of a lawsuit over his FTX endorsements. I'm 451 00:24:36,800 --> 00:24:38,840 Speaker 2: June Grosso and you're listening to Bloomberg. 452 00:24:39,000 --> 00:24:42,320 Speaker 1: Hey's shaquillemun I'm excited to be partnering with FTX to 453 00:24:42,359 --> 00:24:44,560 Speaker 1: help make crypto accessible for everyone. 454 00:24:44,760 --> 00:24:45,840 Speaker 5: I'm all in, are you? 455 00:24:47,320 --> 00:24:52,480 Speaker 2: Shack was all in on FTX, endorsing the cryptocurrency exchange 456 00:24:52,640 --> 00:24:56,640 Speaker 2: along with a host of other celebrities and sports superstars 457 00:24:57,240 --> 00:24:58,120 Speaker 2: like Tom Brady. 458 00:24:58,400 --> 00:25:01,840 Speaker 1: A lot of people big this is how you mind bitcoin. 459 00:25:02,160 --> 00:25:03,040 Speaker 1: But you don't need a. 460 00:25:03,000 --> 00:25:08,440 Speaker 7: Flame doer to buy, sell, or trade bitcoin and crypto safely. 461 00:25:09,000 --> 00:25:10,560 Speaker 1: You just need FTX. 462 00:25:11,400 --> 00:25:14,119 Speaker 2: Steph Curry, okayryp messing around? 463 00:25:14,160 --> 00:25:17,000 Speaker 5: Man, give me some tips from crypto, you know, but 464 00:25:17,160 --> 00:25:18,359 Speaker 5: you are an expert, right. 465 00:25:18,320 --> 00:25:20,560 Speaker 7: No, I'm not an expert and I don't need to 466 00:25:20,600 --> 00:25:21,920 Speaker 7: be with FTX. 467 00:25:21,960 --> 00:25:24,520 Speaker 6: I have everything I need to buy, sell, and trade 468 00:25:24,520 --> 00:25:25,440 Speaker 6: crypto safely. 469 00:25:25,720 --> 00:25:29,040 Speaker 2: And who can forget Larry David Super Bowl commercial. 470 00:25:30,840 --> 00:25:32,719 Speaker 1: You might as well put the dishes in the shower. 471 00:25:34,400 --> 00:25:35,680 Speaker 2: Hey, Cathin, what's cooking? 472 00:25:36,119 --> 00:25:37,320 Speaker 4: We're putting them out on the moon. 473 00:25:37,520 --> 00:25:38,760 Speaker 3: Are you out of your mind? 474 00:25:38,880 --> 00:25:41,720 Speaker 1: I can't even get tuna without salary. Nobody's going to 475 00:25:41,760 --> 00:25:42,600 Speaker 1: the moon ever. 476 00:25:43,200 --> 00:25:47,679 Speaker 2: But then FTX imploded in twenty twenty two, are raising 477 00:25:47,760 --> 00:25:52,240 Speaker 2: billions of dollars in customer funds, it's founder Sam Bankman 478 00:25:52,359 --> 00:25:56,560 Speaker 2: freed convicted of fraud, money laundering, and conspiracy, and it's 479 00:25:56,600 --> 00:26:01,359 Speaker 2: celebrity endorsers. We're an obvious target from massive class action 480 00:26:01,600 --> 00:26:06,080 Speaker 2: lawsuit by investors who sued them for promoting FTX as 481 00:26:06,119 --> 00:26:11,479 Speaker 2: a trustworthy platform and allegedly enabling FTX to engage in fraud. 482 00:26:11,840 --> 00:26:17,080 Speaker 2: Shaquille O'Neil is no longer all in on FTX. In fact, 483 00:26:17,119 --> 00:26:20,800 Speaker 2: he's the first celebrity who's decided to take himself out 484 00:26:20,880 --> 00:26:24,160 Speaker 2: of the equation, walking away from the case by agreeing 485 00:26:24,200 --> 00:26:28,000 Speaker 2: to pay one point eight million dollars to settle. Joining 486 00:26:28,040 --> 00:26:32,600 Speaker 2: me is entertainment attorney Ron Beanstock, a partner at Scarinsey Hollinbeck. 487 00:26:33,040 --> 00:26:38,040 Speaker 2: Ron tell us about the lawsuits filed against FTX celebrity endorsers, 488 00:26:38,280 --> 00:26:44,680 Speaker 2: including Tom Brady, Steph Curry, Gisel Bunchen, Naomi Osaka, David Ortiz, 489 00:26:44,920 --> 00:26:45,920 Speaker 2: and Larry David. 490 00:26:46,840 --> 00:26:49,640 Speaker 7: So let me begin by explaining. If you can imagine 491 00:26:49,640 --> 00:26:53,119 Speaker 7: putting a frozen dinner into the microwave and it explodes 492 00:26:53,160 --> 00:26:56,879 Speaker 7: and gets onto everybody and everything. That's what's happened here. 493 00:26:57,160 --> 00:26:59,000 Speaker 7: So we have to go back a couple of years. 494 00:26:59,080 --> 00:27:02,920 Speaker 7: Sam Bankman, Freed and other people decide that they want 495 00:27:02,960 --> 00:27:06,520 Speaker 7: to create a cryptocurrency exchange, right they want to compete 496 00:27:06,520 --> 00:27:10,560 Speaker 7: with other well known cryptocurrency exchanges of a Haamian based company. 497 00:27:11,119 --> 00:27:14,480 Speaker 7: Hintin that should has already told somebody something and FTX 498 00:27:14,560 --> 00:27:18,639 Speaker 7: gets formed with investment capital and to create the largest 499 00:27:18,640 --> 00:27:22,119 Speaker 7: if you will, but also the rabatas of it being serious. 500 00:27:22,359 --> 00:27:26,080 Speaker 7: Who do we turn to return to media people, sports figures, 501 00:27:26,119 --> 00:27:29,680 Speaker 7: celebrities to if you will become ambassadors. You can't see 502 00:27:29,680 --> 00:27:32,280 Speaker 7: my hands, but hand quotes in the air, ambassadors for 503 00:27:32,320 --> 00:27:35,960 Speaker 7: the brand, and in return people would get either shares 504 00:27:36,080 --> 00:27:39,200 Speaker 7: or get paid. So Tom Brady gets fifty five million 505 00:27:39,240 --> 00:27:43,240 Speaker 7: dollars in stock and is now ex wife Giselle Bundes 506 00:27:43,280 --> 00:27:46,679 Speaker 7: gets nineteen point eight. The problem with all of that 507 00:27:46,840 --> 00:27:49,400 Speaker 7: is is that this is not true normal endorsement degree. 508 00:27:49,760 --> 00:27:53,760 Speaker 7: You know, if you're endorsing a product Breakfast Cereal, Wheaty's Box, right, 509 00:27:54,280 --> 00:27:57,320 Speaker 7: the chances of things going wrong with the product itself 510 00:27:57,800 --> 00:28:01,520 Speaker 7: are fairly minimalized. These are gems products. Once you get 511 00:28:01,520 --> 00:28:05,879 Speaker 7: to services like this, where you've got a currency exchange 512 00:28:05,960 --> 00:28:08,879 Speaker 7: service that you're telling people and this is the quote 513 00:28:08,880 --> 00:28:12,159 Speaker 7: from the complaint is safe and reliable. I think that 514 00:28:12,200 --> 00:28:15,240 Speaker 7: there's going to be an issue whether you were fully 515 00:28:15,240 --> 00:28:20,359 Speaker 7: advised both by the ambassador of this serves or even 516 00:28:20,400 --> 00:28:23,439 Speaker 7: your own people advising you as the ambassador, as the 517 00:28:23,440 --> 00:28:26,919 Speaker 7: potential downfalls and pitfalls of this. So it starts with 518 00:28:27,600 --> 00:28:33,520 Speaker 7: FTX rolling along becoming this sort of high investment package group. 519 00:28:33,840 --> 00:28:37,000 Speaker 7: They get naming rights to a sports stadium in Miami. 520 00:28:37,119 --> 00:28:40,800 Speaker 7: They sponsor a Formula One racing team all of the 521 00:28:40,840 --> 00:28:43,840 Speaker 7: big money looking type things to show look how well 522 00:28:43,880 --> 00:28:46,160 Speaker 7: we're doing, and then they don't make any money, and 523 00:28:46,440 --> 00:28:50,440 Speaker 7: investors file in the Southern District of Florida in Federal Core. 524 00:28:50,600 --> 00:28:54,000 Speaker 7: Obviously there's a now consolidated case. It's a five hundred 525 00:28:54,040 --> 00:28:57,680 Speaker 7: page complaint that lays out that we as investors have 526 00:28:57,720 --> 00:29:01,280 Speaker 7: been defrauded and that money went into this morass and 527 00:29:01,320 --> 00:29:03,200 Speaker 7: did not come back out as profit for us, and 528 00:29:03,240 --> 00:29:07,360 Speaker 7: you promised to profit on this unregulated cryptocurrency exchange. 529 00:29:07,440 --> 00:29:07,960 Speaker 1: So there's a. 530 00:29:08,120 --> 00:29:12,320 Speaker 7: Series of interlocking lawsuits and complaints all taking place at 531 00:29:12,320 --> 00:29:16,000 Speaker 7: the same time. Well, what occurs bankruptcy and from that 532 00:29:16,080 --> 00:29:20,120 Speaker 7: bankruptcy things just fall down the hill so fast. 533 00:29:20,960 --> 00:29:22,600 Speaker 2: Explain Shaq's involvement. 534 00:29:23,200 --> 00:29:26,800 Speaker 7: We don't know the inside story, but Shaq, along with 535 00:29:26,920 --> 00:29:33,840 Speaker 7: Larry David, Naomi Osaka, Steph Curry, and Shohiotani are all involved. 536 00:29:33,920 --> 00:29:36,760 Speaker 7: They all get paid. Now, this is not sort of 537 00:29:36,800 --> 00:29:42,760 Speaker 7: your classic influencer deal. They're paid ambassadors of this and 538 00:29:42,800 --> 00:29:45,880 Speaker 7: they put their own personal brand at stake by doing this. 539 00:29:46,320 --> 00:29:48,800 Speaker 7: Shaq gets paid seven hundred and fifty thousand dollars to 540 00:29:48,880 --> 00:29:52,360 Speaker 7: be an ambassador for the FTX and people are giving 541 00:29:52,400 --> 00:29:55,160 Speaker 7: money in based upon the assurances that these really well 542 00:29:55,200 --> 00:29:57,440 Speaker 7: known people, and Shack has reputation of being a very 543 00:29:57,440 --> 00:30:00,600 Speaker 7: good business person, that they are sure that there'll be 544 00:30:00,640 --> 00:30:04,400 Speaker 7: some successful outcome of this doesn't happen, goes into bankruptcy. 545 00:30:04,640 --> 00:30:08,240 Speaker 7: So the lawsuits begin back in that consolidated case in Florida, 546 00:30:08,320 --> 00:30:11,160 Speaker 7: and there's a serious emotions back and forth, and Shack 547 00:30:11,240 --> 00:30:15,480 Speaker 7: opts out. He settles, and there is a judge's orders 548 00:30:15,480 --> 00:30:20,400 Speaker 7: as to whether liability we expanded or curtailed involving mister 549 00:30:20,440 --> 00:30:24,240 Speaker 7: Brady and all these other people. And Shack settled prior 550 00:30:24,320 --> 00:30:26,960 Speaker 7: to the judge's order. And he settles for one point 551 00:30:27,000 --> 00:30:30,240 Speaker 7: eight million and a release. And everybody's been saying, well, 552 00:30:30,280 --> 00:30:32,680 Speaker 7: did he opt out too soon? I think that's a 553 00:30:32,720 --> 00:30:36,280 Speaker 7: fair question. I think he opted out for a cap 554 00:30:36,360 --> 00:30:39,200 Speaker 7: amount and a release, and he could walk away from this, 555 00:30:39,480 --> 00:30:41,560 Speaker 7: even though this agreement still needs to be approved by 556 00:30:41,600 --> 00:30:43,720 Speaker 7: the court, that at this point it looks like he'll 557 00:30:43,720 --> 00:30:45,320 Speaker 7: get out for one point eight where just all the 558 00:30:45,360 --> 00:30:48,520 Speaker 7: money he got plus another nearly a million dollars. 559 00:30:49,040 --> 00:30:52,720 Speaker 2: Decades ago, the Ninth Circuit found that Steve Garvey, the 560 00:30:52,880 --> 00:30:56,680 Speaker 2: star baseball player, couldn't be held liable for endorsing a 561 00:30:56,720 --> 00:31:00,680 Speaker 2: weight loss system that claimed people could lose wait just 562 00:31:00,800 --> 00:31:04,600 Speaker 2: by sitting around and doing nothing because he didn't know 563 00:31:04,640 --> 00:31:10,640 Speaker 2: about material representations. So have celebrity endorsers generally not been 564 00:31:10,720 --> 00:31:14,320 Speaker 2: found liable for the wrongful acts of the companies whose 565 00:31:14,400 --> 00:31:15,800 Speaker 2: products they promote. 566 00:31:15,960 --> 00:31:19,720 Speaker 7: It's the perfect question. The general follow is if you 567 00:31:19,840 --> 00:31:23,440 Speaker 7: had a product and the product hurts somebody or something happens, 568 00:31:23,480 --> 00:31:26,680 Speaker 7: you're generally indemnified. Right, I promoted the product, but you 569 00:31:26,720 --> 00:31:29,880 Speaker 7: indemnified me if someone got hurt with the product. Here 570 00:31:30,560 --> 00:31:36,120 Speaker 7: the harm was so substantial involving services that the harm 571 00:31:36,560 --> 00:31:39,440 Speaker 7: can't even be calculated to some extent. But the general 572 00:31:39,520 --> 00:31:42,720 Speaker 7: rule to follow is when you're an endorser of a product, 573 00:31:42,920 --> 00:31:45,720 Speaker 7: you're generally capped. Generally think they're indemnified. You know, it's 574 00:31:45,760 --> 00:31:46,720 Speaker 7: pretty straightforward. 575 00:31:46,760 --> 00:31:47,040 Speaker 3: These thinks. 576 00:31:47,040 --> 00:31:50,240 Speaker 7: They're done all the time. This is an unregulated business. 577 00:31:50,280 --> 00:31:53,200 Speaker 7: And I've got to toss in one more thing. Shack 578 00:31:53,840 --> 00:31:57,000 Speaker 7: had already been involved in an NFT promotion for those 579 00:31:57,080 --> 00:32:00,560 Speaker 7: not familiar, non fungible token that he and his son started, 580 00:32:00,840 --> 00:32:04,360 Speaker 7: and he settled for eleven million dollars. It was called 581 00:32:04,400 --> 00:32:07,240 Speaker 7: the Astros project, and he settled late last year he 582 00:32:07,800 --> 00:32:09,600 Speaker 7: was promoting it and he was one of the major 583 00:32:09,640 --> 00:32:11,760 Speaker 7: figures in it, and he settled the class action for 584 00:32:11,800 --> 00:32:17,440 Speaker 7: eleven million. Again an unregulated business. NFT's with this flash 585 00:32:17,480 --> 00:32:19,560 Speaker 7: and of pan as we've all talked about, and then 586 00:32:19,600 --> 00:32:23,520 Speaker 7: it's gone. It has no value, right the cryptocurrency exchanged 587 00:32:23,560 --> 00:32:28,160 Speaker 7: world with SDX fell apart, no value. So the answer 588 00:32:28,240 --> 00:32:33,360 Speaker 7: to that question is there are limitations as to major 589 00:32:33,880 --> 00:32:39,400 Speaker 7: endorsement agreements with regulated business, food, beverages, things of that nature. 590 00:32:39,600 --> 00:32:43,560 Speaker 7: But in the unregulated world. This is where I can't 591 00:32:43,560 --> 00:32:46,960 Speaker 7: make a flag red and big enough to waive to 592 00:32:47,040 --> 00:32:49,520 Speaker 7: people to say, are you sure? 593 00:32:50,760 --> 00:32:54,400 Speaker 2: What will the plaintiff investors have to show here that 594 00:32:54,480 --> 00:32:58,000 Speaker 2: they relied on the celebrity endorser. And it's one thing 595 00:32:58,160 --> 00:33:02,400 Speaker 2: to rely on a celebrities endors to buy beer or 596 00:33:02,520 --> 00:33:06,200 Speaker 2: chips or face cream, But how reasonable is it to 597 00:33:06,280 --> 00:33:10,440 Speaker 2: rely on a celebrities endorsement to invest your money? Does 598 00:33:10,480 --> 00:33:11,080 Speaker 2: that matter? 599 00:33:11,920 --> 00:33:16,280 Speaker 7: People have relied on celebrity endorsements for many decades. Think 600 00:33:16,320 --> 00:33:20,280 Speaker 7: about it, cigarettes, that's an unsafe product. People have done 601 00:33:20,640 --> 00:33:24,280 Speaker 7: car endorsements and there've been car crashes. So the difference 602 00:33:24,360 --> 00:33:27,360 Speaker 7: is is that it's relatively regulated. You do have FBA, 603 00:33:27,440 --> 00:33:31,640 Speaker 7: you would have you know, transportation issues, you've got regulations 604 00:33:31,680 --> 00:33:34,760 Speaker 7: to some extent. There's oversight here, and when there's no oversight, 605 00:33:34,880 --> 00:33:37,240 Speaker 7: I think that's the biggest question. What happens with non 606 00:33:37,280 --> 00:33:40,920 Speaker 7: regulated oversight business where of course this is the big money, right, 607 00:33:41,160 --> 00:33:43,800 Speaker 7: there's no end to it. People see pie in the sky. 608 00:33:43,920 --> 00:33:48,480 Speaker 7: There's the lure of the unregulated billions. It captures people, 609 00:33:48,520 --> 00:33:52,600 Speaker 7: including investors. And the complaint, like I said, stated that 610 00:33:53,040 --> 00:33:57,080 Speaker 7: the ambassadors are claiming it's safe and reliable, but the 611 00:33:57,080 --> 00:34:01,400 Speaker 7: complaint also says they knew the risks. Soquestion is shouldn't 612 00:34:01,440 --> 00:34:04,440 Speaker 7: that same theory been imputed to the investor's sophisticated money 613 00:34:04,480 --> 00:34:07,840 Speaker 7: people who would have known the risks of investing in 614 00:34:07,880 --> 00:34:11,600 Speaker 7: a cryptocurrency exchange. And I think that's the question that 615 00:34:11,640 --> 00:34:13,759 Speaker 7: we don't have the answer to. We will have it 616 00:34:13,840 --> 00:34:15,759 Speaker 7: from the court to some extent, and we'll see how 617 00:34:15,760 --> 00:34:20,240 Speaker 7: successful the claims go against the various people I mentioned before, Otani, 618 00:34:20,320 --> 00:34:24,839 Speaker 7: David Osaka Curry the liability extent to them. But Shack 619 00:34:24,920 --> 00:34:26,759 Speaker 7: got out because he saw a moment to cap it. 620 00:34:27,200 --> 00:34:29,960 Speaker 7: And I think his attorneys may have had a relationship 621 00:34:30,000 --> 00:34:33,359 Speaker 7: with Plank discouncil, and they may have known each other, 622 00:34:33,480 --> 00:34:37,080 Speaker 7: and they're probably a little back door, you know, behind 623 00:34:37,080 --> 00:34:40,120 Speaker 7: the scenes trading, and he got out for one point eight. 624 00:34:40,960 --> 00:34:44,640 Speaker 2: As you mentioned before, a Florida federal judge dismissed a 625 00:34:44,680 --> 00:34:47,440 Speaker 2: lot of the claims against the celebrities in the case, 626 00:34:48,280 --> 00:34:50,640 Speaker 2: narrowing the scope of the litigation. 627 00:34:51,360 --> 00:34:55,080 Speaker 7: He dismissed some of the potential liability aspects of it. 628 00:34:55,160 --> 00:34:58,839 Speaker 7: And again we don't really know. The voluminous paperwork on 629 00:34:58,920 --> 00:35:01,880 Speaker 7: this case is hard to explain. Like I said, complaint 630 00:35:01,880 --> 00:35:04,000 Speaker 7: alone and men to complaint to five hundred pages and 631 00:35:04,000 --> 00:35:06,839 Speaker 7: who knows can make it a third emend There are 632 00:35:07,200 --> 00:35:12,000 Speaker 7: so many decisions to have been made involving the motions 633 00:35:12,280 --> 00:35:15,839 Speaker 7: to dismiss back and forth. But at some point there 634 00:35:15,960 --> 00:35:18,040 Speaker 7: was probably a series of claims here that the judge 635 00:35:18,120 --> 00:35:19,480 Speaker 7: is going to feel, you know what, I'm going to 636 00:35:19,560 --> 00:35:22,200 Speaker 7: curtail this. I want to get the case back under control. 637 00:35:22,320 --> 00:35:25,440 Speaker 7: It's too broad, So I'm going to allow some of 638 00:35:25,440 --> 00:35:27,319 Speaker 7: this liability to come through, and I think I'm going 639 00:35:27,360 --> 00:35:28,719 Speaker 7: to dismiss other aspects of it. 640 00:35:28,960 --> 00:35:33,200 Speaker 2: Do you see these lawsuits affecting celebrity endorsement deals in 641 00:35:33,239 --> 00:35:33,800 Speaker 2: the future. 642 00:35:34,239 --> 00:35:35,840 Speaker 7: I think so I think this is going to have 643 00:35:35,880 --> 00:35:36,720 Speaker 7: some chilling effect. 644 00:35:36,800 --> 00:35:37,120 Speaker 2: I do. 645 00:35:37,640 --> 00:35:40,120 Speaker 7: And for you to be in a position you the 646 00:35:40,160 --> 00:35:44,600 Speaker 7: average you know, superstar person, media celebrity, to be in 647 00:35:44,640 --> 00:35:47,520 Speaker 7: a position where you can settle for one point eight 648 00:35:47,560 --> 00:35:50,120 Speaker 7: million or in Shack's case, eleven million and then one 649 00:35:50,120 --> 00:35:52,960 Speaker 7: point eight million, I suppose if you've got that liquidity 650 00:35:53,120 --> 00:35:55,680 Speaker 7: to do that, then maybe things don't bother you. And 651 00:35:55,760 --> 00:35:59,320 Speaker 7: maybe at that level of finance, you know, access to capital, 652 00:35:59,360 --> 00:36:01,360 Speaker 7: maybe it doesn't. But I think it's going to have 653 00:36:01,400 --> 00:36:04,360 Speaker 7: a chilling effect, and I would hope so on people 654 00:36:04,760 --> 00:36:12,600 Speaker 7: making decisions, particularly in unregulated businesses like NFT, cryptocurrency exchange, 655 00:36:12,800 --> 00:36:15,759 Speaker 7: Bitcoin which is a form of cryptocurrency, and other mean 656 00:36:15,800 --> 00:36:18,440 Speaker 7: coins and think of this nature. I think that's where 657 00:36:18,560 --> 00:36:20,719 Speaker 7: people are going to start to get a little bit 658 00:36:20,719 --> 00:36:23,879 Speaker 7: more reluctant to lend their name to something, because now 659 00:36:23,920 --> 00:36:28,880 Speaker 7: you're talking about your brand being damaged to support another brand, 660 00:36:29,160 --> 00:36:32,520 Speaker 7: and we only have the one brand, and when it's tarnished, 661 00:36:32,680 --> 00:36:36,280 Speaker 7: your ability to endorse high level things will diminish. 662 00:36:36,560 --> 00:36:39,319 Speaker 2: We'll see if any other celebrities decide to take the 663 00:36:39,400 --> 00:36:43,439 Speaker 2: settlement route like Shack. Thanks so much, Ron, that's Ron 664 00:36:43,520 --> 00:36:47,120 Speaker 2: Beanstock a partner at Scarincy Holland Beck. And that's it 665 00:36:47,160 --> 00:36:49,759 Speaker 2: for this edition of The Bloomberg Law Show. Remember you 666 00:36:49,760 --> 00:36:52,240 Speaker 2: can always get the latest legal news on our Bloomberg 667 00:36:52,320 --> 00:36:55,960 Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify, 668 00:36:56,120 --> 00:37:01,160 Speaker 2: and at www dot bloomberg dot com, slash podcast slash Law, 669 00:37:01,560 --> 00:37:04,160 Speaker 2: And remember to tune into The Bloomberg Law Show every 670 00:37:04,200 --> 00:37:08,120 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 671 00:37:08,239 --> 00:37:09,840 Speaker 2: and you're listening to Bloomberg