1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,200 --> 00:00:10,840 Speaker 2: From where I'm. 3 00:00:10,680 --> 00:00:12,680 Speaker 3: Saying, I could see him like through the window, and 4 00:00:12,720 --> 00:00:15,720 Speaker 3: then he just kind of turned to my right and 5 00:00:15,760 --> 00:00:18,080 Speaker 3: then he fired about ten to fifteen shots. 6 00:00:18,320 --> 00:00:19,200 Speaker 4: Well, when we heard. 7 00:00:19,040 --> 00:00:20,799 Speaker 3: The shots, he kind of just like dropped to the 8 00:00:20,840 --> 00:00:24,160 Speaker 3: floor and like flung ourselves into like a corner. 9 00:00:24,640 --> 00:00:27,920 Speaker 5: Sixteen year old Lila Sayairaz had been sitting next to 10 00:00:28,040 --> 00:00:31,440 Speaker 5: Colt Gray in a math class just before the shooting 11 00:00:31,520 --> 00:00:35,680 Speaker 5: that killed two students and two teachers and injured nine others. 12 00:00:36,040 --> 00:00:39,800 Speaker 5: The shooting at Georgia's Appalanchi High School last week is 13 00:00:39,840 --> 00:00:43,520 Speaker 5: the twenty third school shooting this year and the deadliest. 14 00:00:44,000 --> 00:00:48,800 Speaker 6: In essence, you were charged with four counts of felony murder, 15 00:00:49,400 --> 00:00:54,160 Speaker 6: as outlined in the state warrants that have been issued 16 00:00:54,200 --> 00:00:54,720 Speaker 6: against you. 17 00:00:55,080 --> 00:00:58,440 Speaker 5: Fourteen year old Colt Gray has been charged with four 18 00:00:58,520 --> 00:01:02,640 Speaker 5: counts of murder, and for only the second time nationwide, 19 00:01:02,720 --> 00:01:06,919 Speaker 5: his father is also being prosecuted for the shootings. Colin 20 00:01:07,000 --> 00:01:10,000 Speaker 5: Gray has been charged with two counts of second degree 21 00:01:10,080 --> 00:01:14,960 Speaker 5: felony murder, four counts of involuntary manslaughter, and eight counts 22 00:01:14,959 --> 00:01:16,360 Speaker 5: of cruelty to children. 23 00:01:16,480 --> 00:01:20,040 Speaker 6: The maximum penalty for each count is up to thirty 24 00:01:20,120 --> 00:01:21,880 Speaker 6: years imprisonment. 25 00:01:22,280 --> 00:01:26,320 Speaker 5: Barrow County District Attorney Brad Smith says there's no broader 26 00:01:26,440 --> 00:01:29,200 Speaker 5: meaning behind bringing charges against the father. 27 00:01:29,560 --> 00:01:31,080 Speaker 4: I'm not trying to send a message. 28 00:01:31,440 --> 00:01:32,400 Speaker 6: I'm just trying. 29 00:01:32,160 --> 00:01:34,680 Speaker 5: To use the tools. 30 00:01:34,360 --> 00:01:35,880 Speaker 4: Of arsenal to prosecute people. 31 00:01:35,880 --> 00:01:38,319 Speaker 5: For the crown to commit joining me is Echo Yanka, 32 00:01:38,440 --> 00:01:41,880 Speaker 5: a professor at the University of Michigan Law School. They 33 00:01:42,000 --> 00:01:45,520 Speaker 5: charged the father right away. Do you think the speed 34 00:01:45,640 --> 00:01:49,160 Speaker 5: is because there was sort of a precedent already set 35 00:01:49,320 --> 00:01:52,360 Speaker 5: in the case against the parents in the Michigan school shooting. 36 00:01:52,920 --> 00:01:55,600 Speaker 2: You're right to notice the speed at which they charged 37 00:01:55,600 --> 00:01:57,840 Speaker 2: the father. It is one of the things that shows 38 00:01:57,840 --> 00:02:00,840 Speaker 2: that we're entering into a new legal world. As you 39 00:02:00,920 --> 00:02:04,160 Speaker 2: point out, the Ethan Crumley case in Michigan, where the 40 00:02:04,240 --> 00:02:08,080 Speaker 2: parents were convicted, was considered precedent setting and path breaking. 41 00:02:08,240 --> 00:02:10,200 Speaker 2: But it doesn't take long for a case that was 42 00:02:10,240 --> 00:02:12,959 Speaker 2: seen as utterly novel to be in a prosecutor's back 43 00:02:13,000 --> 00:02:17,600 Speaker 2: pocket and result in charges in just hours in the 44 00:02:17,600 --> 00:02:20,960 Speaker 2: next set of gregious horrible cases. But it shows you 45 00:02:21,040 --> 00:02:26,239 Speaker 2: that what was completely novel becomes a ready made tool 46 00:02:26,560 --> 00:02:27,480 Speaker 2: for the next case. 47 00:02:28,000 --> 00:02:30,880 Speaker 5: The charges against the father, and this Georgia case are 48 00:02:30,919 --> 00:02:34,400 Speaker 5: more severe than in the Crumbley case. There the parents 49 00:02:34,400 --> 00:02:38,600 Speaker 5: were charged with involuntary manslaughter. Here the father is not 50 00:02:38,639 --> 00:02:43,720 Speaker 5: only charged with involuntary manslaughter but also with two counts 51 00:02:43,760 --> 00:02:47,280 Speaker 5: of felony murder for the deaths of the students. Do 52 00:02:47,440 --> 00:02:51,079 Speaker 5: murder charges against the father seem like a stretch? 53 00:02:51,120 --> 00:02:51,280 Speaker 6: Here? 54 00:02:51,760 --> 00:02:55,560 Speaker 2: These are charges that see yet another step forward in 55 00:02:56,080 --> 00:03:00,680 Speaker 2: holding parents accountable, to hold that they're directly responsible. Involuntary 56 00:03:00,720 --> 00:03:05,680 Speaker 2: manslaughter is typically related to somebody's recklessness or negligence the 57 00:03:05,800 --> 00:03:09,440 Speaker 2: cause death. Second degree murder is a stronger claim that 58 00:03:09,600 --> 00:03:14,120 Speaker 2: in some sense you killed somebody, even without preditation. As 59 00:03:14,160 --> 00:03:17,519 Speaker 2: you know, Georgia's murder laws are some way to do 60 00:03:17,600 --> 00:03:20,560 Speaker 2: a syncratic and so those second degree murder charges look 61 00:03:20,680 --> 00:03:24,320 Speaker 2: to be attached to the idea that his son killed 62 00:03:24,320 --> 00:03:27,320 Speaker 2: two children, and thus the cruelty charged the children the 63 00:03:27,320 --> 00:03:30,440 Speaker 2: second degree murder. But as a general position, it stands 64 00:03:30,440 --> 00:03:34,440 Speaker 2: for prosecutors being even more aggressive in saying that this 65 00:03:34,560 --> 00:03:37,480 Speaker 2: father didn't just recklessly lead to this death, but that 66 00:03:37,560 --> 00:03:40,400 Speaker 2: his actions in some serious way caused these deaths. 67 00:03:40,720 --> 00:03:43,400 Speaker 5: In May of twenty twenty three, the father and son 68 00:03:43,520 --> 00:03:48,520 Speaker 5: were interviewed in connection with online threats to carry out 69 00:03:48,600 --> 00:03:53,280 Speaker 5: a school shooting, but the teenager wasn't arrested because authorities 70 00:03:53,280 --> 00:03:56,440 Speaker 5: couldn't connect him to the online account. At some point 71 00:03:56,600 --> 00:04:01,600 Speaker 5: after that interaction, Gray bought his son an AR fifteen 72 00:04:01,720 --> 00:04:04,640 Speaker 5: style rifle. Do you think that's going to be a 73 00:04:04,760 --> 00:04:08,520 Speaker 5: main focus of the prosecution. You know, you had a 74 00:04:08,520 --> 00:04:11,360 Speaker 5: warning in this conversation and then you went and bottom 75 00:04:11,400 --> 00:04:11,760 Speaker 5: a gun. 76 00:04:12,280 --> 00:04:15,080 Speaker 2: Yeah, it sounds much like the cases we've seen that 77 00:04:15,200 --> 00:04:19,240 Speaker 2: came before. It's these sort of horrible and gut wrenching facts, 78 00:04:19,480 --> 00:04:22,120 Speaker 2: the fact that give you a feeling as though a 79 00:04:22,279 --> 00:04:25,320 Speaker 2: parent not only ignored a child who was crying out 80 00:04:25,360 --> 00:04:28,080 Speaker 2: from mental health health, not only ignored a child who 81 00:04:28,160 --> 00:04:31,600 Speaker 2: is fascinated with violence and school shootings in particular, but 82 00:04:31,800 --> 00:04:34,760 Speaker 2: instead of steering this child away from these kinds of 83 00:04:34,800 --> 00:04:38,480 Speaker 2: things or securing your weapons, you have parents in both cases, 84 00:04:38,480 --> 00:04:41,320 Speaker 2: but in particular in this great case, who not only 85 00:04:41,400 --> 00:04:45,520 Speaker 2: metaphorical but quite literally put the gun in the child's hands, 86 00:04:45,600 --> 00:04:48,520 Speaker 2: goes and buys them the weapon and arms them. And 87 00:04:48,560 --> 00:04:51,919 Speaker 2: it's those kind of egregious facts that lead prosecutors to 88 00:04:52,040 --> 00:04:56,599 Speaker 2: eventually seek direct responsibility. Now, I'll say in many parts 89 00:04:56,600 --> 00:04:58,760 Speaker 2: of the country, one of the reasons we really care 90 00:04:58,800 --> 00:05:01,560 Speaker 2: about trying people in front of juries is that different 91 00:05:01,560 --> 00:05:04,960 Speaker 2: communities will have very different relationships to these moments. So 92 00:05:05,400 --> 00:05:07,719 Speaker 2: there are just lots of communities where a father buying 93 00:05:07,760 --> 00:05:11,160 Speaker 2: a gun and taking their son hunting seems like a 94 00:05:11,200 --> 00:05:14,880 Speaker 2: perfectly ordinary part of the communal experience. I teach cases 95 00:05:14,920 --> 00:05:18,440 Speaker 2: where courts come to very different decisions because they're very 96 00:05:18,440 --> 00:05:23,120 Speaker 2: different communal norms on what counts as negligence with a gun. 97 00:05:23,480 --> 00:05:25,360 Speaker 2: You know, one of the cases is a Georgia case 98 00:05:25,400 --> 00:05:27,560 Speaker 2: where the judge says, in Georgia we have a long 99 00:05:27,600 --> 00:05:30,880 Speaker 2: and proud history of hunting, and in other communities this 100 00:05:31,000 --> 00:05:34,159 Speaker 2: is close to unthinkable. And so I don't think the 101 00:05:34,279 --> 00:05:37,760 Speaker 2: facts are without anything for a defense lawyer to point out. 102 00:05:37,960 --> 00:05:40,600 Speaker 2: But when you have a child who's so troubled, who's 103 00:05:40,600 --> 00:05:44,440 Speaker 2: so fascinated with violence, it's not surprising that we all 104 00:05:44,480 --> 00:05:48,239 Speaker 2: are outraged when a father, instead of making sure guns 105 00:05:48,240 --> 00:05:52,479 Speaker 2: are away, arms the child with essentially a rifle that's 106 00:05:52,520 --> 00:05:53,600 Speaker 2: made for war. 107 00:05:53,760 --> 00:05:56,440 Speaker 5: In the Crumbly case, there was a lot of evidence 108 00:05:56,600 --> 00:06:02,159 Speaker 5: that the parents ignored their sons, deteriorating mental health. In 109 00:06:02,200 --> 00:06:04,920 Speaker 5: the case of Colt Gray, there also seems to have 110 00:06:04,960 --> 00:06:09,160 Speaker 5: been contact between the family and the school about his 111 00:06:09,320 --> 00:06:12,440 Speaker 5: mental health. We don't know that much about the facts 112 00:06:12,480 --> 00:06:15,520 Speaker 5: at this point, but the mental health warnings are sure 113 00:06:15,560 --> 00:06:18,320 Speaker 5: to be a big part of the prosecution's case against 114 00:06:18,360 --> 00:06:18,839 Speaker 5: the father. 115 00:06:19,400 --> 00:06:22,919 Speaker 2: Look, even among trained psychiatrists, they will tell you that 116 00:06:23,000 --> 00:06:26,719 Speaker 2: it's very hard to predict when a patient is actually 117 00:06:26,760 --> 00:06:31,560 Speaker 2: going to resort to violence when there's a gap between fixation, fascination, 118 00:06:32,160 --> 00:06:36,480 Speaker 2: mental health issues, and actual action. That being said, you know, 119 00:06:36,720 --> 00:06:39,600 Speaker 2: part of what drives these cases is that there are 120 00:06:39,680 --> 00:06:43,720 Speaker 2: particularly egregious facts. So for example, when this mother took 121 00:06:43,800 --> 00:06:47,200 Speaker 2: him in seeking mental health help, apparently, and we're all 122 00:06:47,200 --> 00:06:50,360 Speaker 2: finding out the facts, but hearn notes said something like 123 00:06:50,600 --> 00:06:53,320 Speaker 2: he should have been in therapy for months now. He 124 00:06:53,480 --> 00:06:56,479 Speaker 2: deeply needs help. And so it's those facts on the 125 00:06:56,480 --> 00:06:59,479 Speaker 2: ground that parents themselves did see or could have seen 126 00:06:59,520 --> 00:07:02,479 Speaker 2: this coming. Indeed, the latest reporting shows that when he 127 00:07:02,560 --> 00:07:05,280 Speaker 2: texted her, she immediately called the school because she was 128 00:07:05,360 --> 00:07:08,200 Speaker 2: afraid that he was going to resort to violence. You know, 129 00:07:08,279 --> 00:07:11,960 Speaker 2: you mentioned earlier that this father was arrested quite quickly. 130 00:07:12,480 --> 00:07:15,080 Speaker 2: So I think one of the things that we're going 131 00:07:15,080 --> 00:07:18,680 Speaker 2: to see developed their trial is not only what was 132 00:07:18,760 --> 00:07:23,040 Speaker 2: the reported incident beforehand where he posted about school shootings? 133 00:07:23,200 --> 00:07:25,720 Speaker 2: How much was he fascinated with school shootings? How much 134 00:07:25,760 --> 00:07:29,560 Speaker 2: did parents have reason to know about his fixation with violence? 135 00:07:29,680 --> 00:07:32,320 Speaker 2: And frankly, what kinds of things did they discover in 136 00:07:32,360 --> 00:07:35,240 Speaker 2: their investigation or in their interview with him that would 137 00:07:35,320 --> 00:07:38,720 Speaker 2: lead to such quick charges. And so, you know, alongside 138 00:07:38,800 --> 00:07:40,880 Speaker 2: the rest of the country, I'll be waiting to find 139 00:07:40,880 --> 00:07:43,720 Speaker 2: out exactly who knew, what went, what did he say? 140 00:07:44,040 --> 00:07:47,400 Speaker 5: As you mentioned, the mother called the school to warn 141 00:07:47,480 --> 00:07:50,320 Speaker 5: them about her son. Could a possible defense for the 142 00:07:50,440 --> 00:07:53,480 Speaker 5: father be well, the school didn't act quickly enough. 143 00:07:53,880 --> 00:07:55,800 Speaker 2: Yeah, I don't think that'll be much of a defense 144 00:07:55,840 --> 00:07:59,400 Speaker 2: for him at his criminal trial, especially because he's not 145 00:07:59,480 --> 00:08:02,600 Speaker 2: the new did From what the reporting is now, it 146 00:08:02,680 --> 00:08:06,400 Speaker 2: seems like a horrible set of missed opportunities. A school 147 00:08:06,440 --> 00:08:09,760 Speaker 2: counselor went to see if he was there, taking him 148 00:08:09,840 --> 00:08:12,320 Speaker 2: for another child with a similar name, and took a 149 00:08:12,360 --> 00:08:15,440 Speaker 2: backpack of the wrong child. So it's all these sort 150 00:08:15,440 --> 00:08:19,000 Speaker 2: of horrible miss moments after miss moments that lead to 151 00:08:19,040 --> 00:08:22,120 Speaker 2: the death of four people. I do think the real 152 00:08:22,200 --> 00:08:25,440 Speaker 2: question will be whether or not. Those moments play into 153 00:08:25,520 --> 00:08:28,960 Speaker 2: further civil liability for the school. As you know, in 154 00:08:29,040 --> 00:08:33,160 Speaker 2: the Oxford shooting in Michigan, the Oxford School system was 155 00:08:33,240 --> 00:08:38,080 Speaker 2: eventually not found liable for any negligence on their part criminally, 156 00:08:38,480 --> 00:08:40,760 Speaker 2: But that doesn't settle the question whether or not those 157 00:08:40,800 --> 00:08:44,120 Speaker 2: individual parents and injured people will think that the school 158 00:08:44,320 --> 00:08:46,760 Speaker 2: missed its own duties to protect them. 159 00:08:47,200 --> 00:08:50,880 Speaker 5: Some critics say that charging the parents is a misguided 160 00:08:50,960 --> 00:08:55,559 Speaker 5: effort to make parents escapegoats while lawmakers failed to pass 161 00:08:55,600 --> 00:08:56,839 Speaker 5: gun control legislation. 162 00:08:57,559 --> 00:08:59,880 Speaker 2: I think that's right. I mean, look, I think in 163 00:09:00,240 --> 00:09:03,360 Speaker 2: some sense these are not the exact same question. I 164 00:09:03,400 --> 00:09:06,400 Speaker 2: am cautious about the way in which we treat every 165 00:09:06,440 --> 00:09:09,080 Speaker 2: social problem as though as a criminal law problem. But 166 00:09:09,320 --> 00:09:11,600 Speaker 2: I don't pretend to have an easy answer about whether 167 00:09:11,679 --> 00:09:14,640 Speaker 2: or not parents who are so grossly negligent or so 168 00:09:14,840 --> 00:09:18,679 Speaker 2: reckless should be held liable. You know, it goes against 169 00:09:18,720 --> 00:09:22,000 Speaker 2: a long standing criminal law principle. The principle that I 170 00:09:22,080 --> 00:09:24,840 Speaker 2: taught just last week to my criminal law students in 171 00:09:24,880 --> 00:09:27,640 Speaker 2: their first week is that you're not responsible for the 172 00:09:27,679 --> 00:09:31,240 Speaker 2: actions of others. You're not responsible. Barring of very few 173 00:09:31,280 --> 00:09:35,600 Speaker 2: exceptions for accomplished liability or felony murder. But yes, extraordinary 174 00:09:35,600 --> 00:09:39,440 Speaker 2: cases are going to push that intuition. The real point 175 00:09:39,520 --> 00:09:42,359 Speaker 2: is whether or not you think this parent should be culpable. 176 00:09:42,760 --> 00:09:45,560 Speaker 2: It's clear to me that what needs to happen is 177 00:09:45,880 --> 00:09:49,560 Speaker 2: the way we treat our society that's saturated in guns. 178 00:09:49,720 --> 00:09:52,000 Speaker 2: What do we think about gun regulation, what do we 179 00:09:52,040 --> 00:09:53,920 Speaker 2: think about red flag laws? And what do we think 180 00:09:53,920 --> 00:09:57,040 Speaker 2: about safe storage laws? In Michigan, it was only after 181 00:09:57,160 --> 00:09:59,400 Speaker 2: the Crumbley shooting that we passed the first set of 182 00:09:59,440 --> 00:10:05,040 Speaker 2: gun regular including safe storage laws in for decades. So 183 00:10:05,800 --> 00:10:09,080 Speaker 2: his heartbreaking is this particular cases and whatever one thinks 184 00:10:09,120 --> 00:10:12,160 Speaker 2: about what should happen this father. It seems to me 185 00:10:12,240 --> 00:10:14,920 Speaker 2: a kind of hopeless mission to think that we're going 186 00:10:15,000 --> 00:10:18,599 Speaker 2: to solve this never ending social problem with school shootings 187 00:10:18,800 --> 00:10:22,120 Speaker 2: by prosecuting one parent at a time. And if legislators 188 00:10:22,160 --> 00:10:25,760 Speaker 2: are going to think that we have our anger seated 189 00:10:26,320 --> 00:10:29,960 Speaker 2: by essentially, you know, blaming one parent at a time, 190 00:10:30,080 --> 00:10:32,880 Speaker 2: or bringing the hammer down on one parent at locking 191 00:10:32,960 --> 00:10:36,440 Speaker 2: up a parent here, a parent there, while forever telling 192 00:10:36,520 --> 00:10:39,800 Speaker 2: us that we'll think about gun regulation in some other time, 193 00:10:40,200 --> 00:10:42,080 Speaker 2: then we're going to keep visiting these tragedies. 194 00:10:42,679 --> 00:10:45,600 Speaker 5: The prosecutor said he wasn't trying to send out a 195 00:10:45,640 --> 00:10:49,520 Speaker 5: message by charging the father, that he was just using 196 00:10:49,559 --> 00:10:51,960 Speaker 5: the tools in his arsenal. But he gave a full 197 00:10:52,000 --> 00:10:55,679 Speaker 5: press conference after the first court appearances. Isn't there a 198 00:10:55,679 --> 00:10:56,360 Speaker 5: message here? 199 00:10:56,600 --> 00:10:59,520 Speaker 2: Prosecutors are people too, and they live in these communities, 200 00:10:59,720 --> 00:11:03,600 Speaker 2: and they are heartbroken and devastated when these things happen 201 00:11:03,679 --> 00:11:07,479 Speaker 2: as well, And so I believe that when a prosecutor 202 00:11:07,480 --> 00:11:10,240 Speaker 2: looks at something like this, they are like all of us, 203 00:11:10,480 --> 00:11:14,719 Speaker 2: outraged and think, I want to hold somebody accountable. But no. Ultimately, 204 00:11:14,880 --> 00:11:18,000 Speaker 2: of course, part of what prosecutors do is use the 205 00:11:18,120 --> 00:11:21,679 Speaker 2: law as a tool for sending a message to what 206 00:11:21,760 --> 00:11:25,120 Speaker 2: they believe is unacceptable behavior, what they believe their community 207 00:11:25,360 --> 00:11:28,640 Speaker 2: wants to hold as a line of accountability, and even 208 00:11:28,800 --> 00:11:32,200 Speaker 2: what they think matters for their own views of the 209 00:11:32,280 --> 00:11:35,240 Speaker 2: law and even their own ambition. I don't think he's 210 00:11:35,520 --> 00:11:38,600 Speaker 2: necessarily cynical or lying, but it's too much to believe 211 00:11:38,600 --> 00:11:42,199 Speaker 2: that a prosecutor wouldn't think that this kind of immediately 212 00:11:42,760 --> 00:11:45,920 Speaker 2: nationwide visible case wouldn't send the message. 213 00:11:46,080 --> 00:11:48,800 Speaker 5: Do you think this is the second case charging a 214 00:11:49,000 --> 00:11:50,720 Speaker 5: parent with many more to come. 215 00:11:51,280 --> 00:11:55,080 Speaker 2: I understand why a prosecutor would want to hold parents 216 00:11:55,120 --> 00:11:57,960 Speaker 2: like this accountable. But I do think we shouldn't be 217 00:11:58,200 --> 00:12:02,760 Speaker 2: so cavalier about what it means to hold parents accountable 218 00:12:02,760 --> 00:12:05,720 Speaker 2: for the behavior of their children, and in particular, what 219 00:12:05,800 --> 00:12:08,479 Speaker 2: will mean when the next case is not as egregious 220 00:12:08,520 --> 00:12:11,880 Speaker 2: and prosecutors still use these tools to prosecute a case. 221 00:12:12,120 --> 00:12:15,120 Speaker 2: And the overwhelming majority of our cas is something like 222 00:12:15,240 --> 00:12:18,360 Speaker 2: ninety five percent are Bee bargains. And so every time 223 00:12:18,360 --> 00:12:22,439 Speaker 2: we empower prosecutors to threaten people with further criminal liability, 224 00:12:22,520 --> 00:12:25,680 Speaker 2: we're also giving them the power to exact a huge 225 00:12:25,760 --> 00:12:29,360 Speaker 2: number of guilty pleas that will never see a jury 226 00:12:29,640 --> 00:12:30,640 Speaker 2: or a reporter. 227 00:12:30,920 --> 00:12:34,400 Speaker 5: Thanks Zecho. That's Professor Echo Yanka of the University of 228 00:12:34,440 --> 00:12:39,199 Speaker 5: Michigan Law School. A note. Michael Bloomberg, the founder majority 229 00:12:39,240 --> 00:12:42,880 Speaker 5: owner of Bloomberg LP, the parent company of Bloomberg Radio, 230 00:12:43,240 --> 00:12:46,600 Speaker 5: is a donor to groups that support gun control, including 231 00:12:46,720 --> 00:12:49,880 Speaker 5: Every Town for Gun Safety. I couldn't agree more with 232 00:12:50,000 --> 00:12:56,280 Speaker 5: President Biden. US Steel should remain American owned and American operator. 233 00:12:56,880 --> 00:13:00,640 Speaker 5: It was no coincidence that while courting union voters in 234 00:13:00,679 --> 00:13:05,920 Speaker 5: the crucial battleground state of Pennsylvania, where US Steel is headquartered. 235 00:13:06,200 --> 00:13:10,319 Speaker 5: Vice President Kamala Harris announced her opposition to nip On 236 00:13:10,440 --> 00:13:15,440 Speaker 5: Steel's fourteen point one billion dollar takeover of the iconic 237 00:13:15,480 --> 00:13:19,280 Speaker 5: American company, a deal that the US steel Workers union 238 00:13:19,559 --> 00:13:23,800 Speaker 5: vehemently opposes. The proposed deal is under review by the 239 00:13:23,920 --> 00:13:28,520 Speaker 5: Secretive Committee on Foreign Investment in the United States or SCIPHIUS. 240 00:13:28,960 --> 00:13:32,160 Speaker 5: Of course, Biden already announced his opposition to the deal 241 00:13:32,360 --> 00:13:35,680 Speaker 5: back in March, and in April at the United steel 242 00:13:35,720 --> 00:13:39,960 Speaker 5: Workers headquarters in Pittsburgh, the President made this promise to 243 00:13:40,000 --> 00:13:41,000 Speaker 5: the union workers. 244 00:13:41,600 --> 00:13:44,719 Speaker 6: US Steel has been an iconic American company for more 245 00:13:44,720 --> 00:13:48,800 Speaker 6: than a century, and it should remain a totally American company, 246 00:13:51,960 --> 00:13:56,160 Speaker 6: American owned, American operated by American union steel workers, the 247 00:13:56,160 --> 00:13:58,679 Speaker 6: best in the world, and that's going to happen, I 248 00:13:58,760 --> 00:13:59,240 Speaker 6: promise you. 249 00:14:00,720 --> 00:14:04,800 Speaker 5: Several business groups, including the US Chamber of Commerce, sent 250 00:14:04,840 --> 00:14:09,280 Speaker 5: a letter to Treasury Secretary Janet Yellen on Wednesday, warning 251 00:14:09,280 --> 00:14:13,440 Speaker 5: that the administration's national security review of the deal is 252 00:14:13,480 --> 00:14:17,560 Speaker 5: being used to further political agendas. Both nip On Steele 253 00:14:17,640 --> 00:14:21,640 Speaker 5: and US Steel have suggested they may challenge an adverse 254 00:14:21,720 --> 00:14:25,560 Speaker 5: decision in court. Joining me is Rick Sofield, a partner 255 00:14:25,560 --> 00:14:28,160 Speaker 5: at deb of was in Plimpton. He was formerly the 256 00:14:28,360 --> 00:14:32,920 Speaker 5: Justice Department, Sifius representative and participated in the review of 257 00:14:33,000 --> 00:14:36,640 Speaker 5: more than a thousand transactions Rick SCYTHEUS has yet to 258 00:14:36,640 --> 00:14:40,720 Speaker 5: make its recommendations, but in March, President Biden announced his 259 00:14:40,760 --> 00:14:43,239 Speaker 5: opposition to the deal. Is that unusual. 260 00:14:43,640 --> 00:14:47,640 Speaker 1: That's very unusual. To my knowledge, President Biden's statement was 261 00:14:47,640 --> 00:14:51,040 Speaker 1: made even before a filing had been made with Syphius, 262 00:14:51,400 --> 00:14:55,040 Speaker 1: And that's not how the process ordinarily works. Ordinarily, a 263 00:14:55,080 --> 00:14:58,160 Speaker 1: filing gets made to the committee by the parties they 264 00:14:58,240 --> 00:15:04,040 Speaker 1: usually got together, and Ciphius evaluates the transaction using what 265 00:15:04,120 --> 00:15:07,520 Speaker 1: it calls a risk based analysis, and that risk based 266 00:15:07,560 --> 00:15:11,880 Speaker 1: analysis looks at the threat posed by the fear investor, 267 00:15:12,320 --> 00:15:16,600 Speaker 1: the vulnerability of the US business, and the consequences if 268 00:15:16,600 --> 00:15:20,640 Speaker 1: the threat actor were to take advantage of vulnerable the 269 00:15:20,720 --> 00:15:23,440 Speaker 1: US business. And so looking at the threat, vulnerability and 270 00:15:23,440 --> 00:15:27,320 Speaker 1: consequences altogether, Sophius comes up with its overall risk assessment 271 00:15:27,960 --> 00:15:32,120 Speaker 1: and bases its recommendation to the President on that risk assessment. 272 00:15:32,400 --> 00:15:35,520 Speaker 1: So back in March, to my knowledge, Cifius would not 273 00:15:35,560 --> 00:15:39,000 Speaker 1: have completed a risk analysis, and so the President really 274 00:15:39,040 --> 00:15:43,040 Speaker 1: wouldn't have had the benefit of that insight from Syphius 275 00:15:43,040 --> 00:15:47,040 Speaker 1: in making his pronouncement there had been no risk analysis, 276 00:15:47,080 --> 00:15:50,040 Speaker 1: and to me, frankly, you know that creates potential litigation 277 00:15:50,240 --> 00:15:53,680 Speaker 1: risk because parties to the cifious process are entitled to 278 00:15:53,800 --> 00:15:56,600 Speaker 1: due process, and it's hard to see where there would 279 00:15:56,680 --> 00:16:00,400 Speaker 1: be adequate due process, which is to notice and opportunity 280 00:16:00,560 --> 00:16:03,240 Speaker 1: to be heard, meaningfully heard on an issue. How they 281 00:16:03,280 --> 00:16:06,280 Speaker 1: could have had due process if the President had already 282 00:16:06,280 --> 00:16:08,600 Speaker 1: made a decision before the committee had done its work 283 00:16:08,640 --> 00:16:10,440 Speaker 1: and done its risk based analysis. 284 00:16:10,720 --> 00:16:15,280 Speaker 5: In late August, as first reported by Reuters, Sophias sent 285 00:16:15,360 --> 00:16:19,080 Speaker 5: a letter to the companies warning that their proposed deal 286 00:16:19,200 --> 00:16:23,440 Speaker 5: would threaten US national security by weakening the country steel 287 00:16:23,560 --> 00:16:27,680 Speaker 5: supply chain. What can the companies do to change Siphius's 288 00:16:27,920 --> 00:16:30,520 Speaker 5: mind or alley its concerns. 289 00:16:31,440 --> 00:16:34,080 Speaker 1: So it sounds like what the company's got is what 290 00:16:34,360 --> 00:16:38,400 Speaker 1: if this colloquially calls a rawls letter or a due 291 00:16:38,440 --> 00:16:42,000 Speaker 1: process letter. This has become a pretty routine part of 292 00:16:42,040 --> 00:16:45,960 Speaker 1: the scipious process over the last decade or so. And 293 00:16:46,080 --> 00:16:51,720 Speaker 1: really the rationale guns from litigation involving company called Rolls 294 00:16:51,880 --> 00:16:55,960 Speaker 1: that was building a wind farm in Oregon, and Syphius 295 00:16:56,080 --> 00:16:59,280 Speaker 1: was concerned that the wind farm could be used to 296 00:16:59,720 --> 00:17:03,320 Speaker 1: how listening devices that would spy on a naval training 297 00:17:03,440 --> 00:17:06,480 Speaker 1: base near the wind farm, and so Sifius moved blocked 298 00:17:06,520 --> 00:17:09,960 Speaker 1: that transaction. The parties to that transaction suit and said 299 00:17:10,040 --> 00:17:13,800 Speaker 1: that Siphius's decision was not based on due process and 300 00:17:14,000 --> 00:17:18,439 Speaker 1: actually invited the court to review the president's determination. What 301 00:17:18,480 --> 00:17:22,600 Speaker 1: the court did there is it reaffirmed congresses mandate and 302 00:17:22,600 --> 00:17:26,359 Speaker 1: Thessifious statute that courts should not stand in the shoes 303 00:17:26,400 --> 00:17:30,399 Speaker 1: of the president and do their own national security assessment. 304 00:17:30,680 --> 00:17:32,520 Speaker 1: And so the court didn't say that the president got 305 00:17:32,520 --> 00:17:35,280 Speaker 1: the national security decision wrong. Instead, what it did is 306 00:17:35,320 --> 00:17:38,080 Speaker 1: it said, hey, Siphius, you need to go back and 307 00:17:38,320 --> 00:17:41,280 Speaker 1: check and make sure that you gave the parties adequate 308 00:17:41,359 --> 00:17:44,480 Speaker 1: due process. You gave them all the information about what 309 00:17:44,520 --> 00:17:47,520 Speaker 1: your concerns are and gave them an opportunity to be 310 00:17:47,600 --> 00:17:50,240 Speaker 1: hurt on those concerns and to see if there could 311 00:17:50,280 --> 00:17:54,200 Speaker 1: be some package of mitigation measures that would allay the 312 00:17:54,320 --> 00:17:58,119 Speaker 1: national security concerns short of a block. So that's what 313 00:17:58,240 --> 00:18:00,680 Speaker 1: seems to be happening here is if this is now 314 00:18:00,720 --> 00:18:06,280 Speaker 1: communicated specifically what its national security concerns are, and you know, 315 00:18:06,400 --> 00:18:09,520 Speaker 1: I would assume what's happening now is the companies are, 316 00:18:09,840 --> 00:18:11,920 Speaker 1: now that they understand what the concerns are, trying to 317 00:18:11,960 --> 00:18:15,400 Speaker 1: convince the government that those concerns can be addressed in 318 00:18:15,480 --> 00:18:19,320 Speaker 1: some way short of the President blocking the transaction. 319 00:18:20,000 --> 00:18:23,600 Speaker 5: Nip On sent a senior executive to Washington this week 320 00:18:23,840 --> 00:18:27,160 Speaker 5: to meet with White House officials about the deal. Would 321 00:18:27,200 --> 00:18:29,719 Speaker 5: you call that a last ditch effort to save the 322 00:18:29,720 --> 00:18:31,840 Speaker 5: deal or just part of the process. 323 00:18:32,440 --> 00:18:34,439 Speaker 1: I mean, you know, CIFIE hasn't already said they have 324 00:18:34,520 --> 00:18:36,840 Speaker 1: concerns they don't think they can mitigate, and so, you know, 325 00:18:37,119 --> 00:18:41,679 Speaker 1: normally in process that doesn't necessarily mean the decision is done, 326 00:18:41,760 --> 00:18:43,480 Speaker 1: but it's kind of hard to get them to change 327 00:18:43,520 --> 00:18:46,560 Speaker 1: their mind if they've gotten this far. So you know, 328 00:18:47,000 --> 00:18:48,879 Speaker 1: maybe you could call it a last ditch effort, but 329 00:18:48,960 --> 00:18:51,280 Speaker 1: it is part of the process, right where CIFIS gives 330 00:18:51,280 --> 00:18:53,920 Speaker 1: a written description of the concerns and then the parties 331 00:18:54,119 --> 00:18:55,760 Speaker 1: have discussions to try to address it. 332 00:18:56,119 --> 00:19:00,359 Speaker 5: Talking about due process, the companies were reportedly on given 333 00:19:00,440 --> 00:19:05,040 Speaker 5: something like five days to respond to Syphius's letter about 334 00:19:05,119 --> 00:19:09,480 Speaker 5: national security concerns, and according to the Washington Post, the 335 00:19:09,560 --> 00:19:13,840 Speaker 5: companies had written to Syphius asking to withdraw their submission 336 00:19:14,119 --> 00:19:17,720 Speaker 5: which would start the clock over, but Syphius never responded, 337 00:19:18,040 --> 00:19:22,119 Speaker 5: are those things that might support an argument of a 338 00:19:22,200 --> 00:19:23,680 Speaker 5: lack of due process here? 339 00:19:24,240 --> 00:19:28,320 Speaker 1: They cut SIDIS is usually pretty liberal about granting companies 340 00:19:28,560 --> 00:19:32,760 Speaker 1: an opportunity to withdraw a filing and to refile it, 341 00:19:32,840 --> 00:19:37,600 Speaker 1: to stretch the clock and continue discussions on whether a 342 00:19:37,720 --> 00:19:41,040 Speaker 1: pact of mitigation measures can be constructed that would be 343 00:19:41,200 --> 00:19:44,760 Speaker 1: adequate and appropriate to address the national security concerns. So 344 00:19:45,119 --> 00:19:48,520 Speaker 1: it is abnormal in my view for Cifius to not 345 00:19:48,760 --> 00:19:52,320 Speaker 1: allow the parties to withdraw. And that's especially true in 346 00:19:52,440 --> 00:19:56,439 Speaker 1: a transaction like this where the deal hasn't been completed. 347 00:19:56,960 --> 00:19:59,840 Speaker 1: If we're in a situation where Syphius was reviewing it 348 00:20:00,040 --> 00:20:04,320 Speaker 1: transaction that had already occurred, then the national security harm 349 00:20:04,480 --> 00:20:08,320 Speaker 1: would be accruing every day, and Syphius may choose to 350 00:20:08,400 --> 00:20:12,200 Speaker 1: act quickly in that case to stop the national security 351 00:20:12,240 --> 00:20:15,800 Speaker 1: harm from occurring. But here the transactions dot com and 352 00:20:15,880 --> 00:20:19,600 Speaker 1: so it's odd to me that Cyphius wouldn't give the 353 00:20:19,640 --> 00:20:24,200 Speaker 1: parties an opportunity to take the time to put together 354 00:20:24,480 --> 00:20:27,680 Speaker 1: some meaningful proposals on how to address the government's or 355 00:20:27,760 --> 00:20:28,600 Speaker 1: risk concerns. 356 00:20:29,000 --> 00:20:32,240 Speaker 5: If the companies decide to challenge a decision blocking the 357 00:20:32,320 --> 00:20:35,880 Speaker 5: deal in court. What are the risks to Syphius from 358 00:20:35,880 --> 00:20:39,119 Speaker 5: a proceeding like that, I mean, with the Supreme Court's 359 00:20:39,160 --> 00:20:43,800 Speaker 5: recent elimination of the Chevron doctrine and its deference to 360 00:20:43,880 --> 00:20:45,760 Speaker 5: agencies play a part. 361 00:20:46,080 --> 00:20:49,359 Speaker 1: So this is a really interesting question. Firstly, the Roles 362 00:20:49,400 --> 00:20:52,200 Speaker 1: case that I referred to earlier, it kind of gave 363 00:20:52,200 --> 00:20:56,600 Speaker 1: a guideline of how the court might think about due process, 364 00:20:57,040 --> 00:20:59,239 Speaker 1: and so I think certainly here there could be some 365 00:20:59,359 --> 00:21:03,639 Speaker 1: due process arguments, particularly in light of the fact that 366 00:21:03,680 --> 00:21:06,439 Speaker 1: the President put his thumb on the scale back in 367 00:21:06,560 --> 00:21:10,800 Speaker 1: March before any record had been put together, and so 368 00:21:10,840 --> 00:21:13,439 Speaker 1: I think that can really call into question whether or 369 00:21:13,440 --> 00:21:16,320 Speaker 1: not there has been due process here. The decision might 370 00:21:16,359 --> 00:21:19,800 Speaker 1: have been made before the transaction was even filed with 371 00:21:19,880 --> 00:21:22,040 Speaker 1: the Scifius Committee, and so I think that can put 372 00:21:22,040 --> 00:21:25,080 Speaker 1: the government in a very difficult position if due process 373 00:21:25,200 --> 00:21:28,400 Speaker 1: arguments are raised in the courts now on the issue 374 00:21:28,560 --> 00:21:32,800 Speaker 1: of what effect the overturning of Chevron deference might have. 375 00:21:33,160 --> 00:21:35,600 Speaker 1: I do think this is a tougher argument, but maybe 376 00:21:35,640 --> 00:21:39,439 Speaker 1: not an impossible one in today's environment. And that is 377 00:21:40,280 --> 00:21:44,160 Speaker 1: Congress has said that the courts should not put themselves 378 00:21:44,160 --> 00:21:48,480 Speaker 1: in the president's shoes and assess national security risk on 379 00:21:48,520 --> 00:21:51,760 Speaker 1: their row that the courts should defer to the president's 380 00:21:51,920 --> 00:21:56,080 Speaker 1: authority in this space, and deference to the executive branch 381 00:21:56,119 --> 00:21:59,320 Speaker 1: to the president on national security matters. It's a long 382 00:21:59,359 --> 00:22:02,320 Speaker 1: standing press it's a long standing difference, and it's for 383 00:22:02,400 --> 00:22:04,880 Speaker 1: good reason. Right, the president has the benefit of inputs 384 00:22:04,880 --> 00:22:07,840 Speaker 1: from the intelligence community that the courts just don't have, 385 00:22:08,440 --> 00:22:12,720 Speaker 1: and so to kind of attack that long standing deference, 386 00:22:12,960 --> 00:22:15,959 Speaker 1: I think that's an uphill battle. That said, though, you know, 387 00:22:16,200 --> 00:22:18,960 Speaker 1: we have this trend that we're seeing in the courts 388 00:22:19,119 --> 00:22:23,000 Speaker 1: away from giving difference, and so that could impact the 389 00:22:23,080 --> 00:22:27,080 Speaker 1: court's thinking here, particularly if we're in a circumstance where 390 00:22:27,119 --> 00:22:31,800 Speaker 1: there's a really weak administrative record, where there are significant 391 00:22:31,880 --> 00:22:35,520 Speaker 1: due process concerns, that could invite the court to go 392 00:22:35,680 --> 00:22:39,440 Speaker 1: further than just pointing to due process fouls and to 393 00:22:39,560 --> 00:22:44,880 Speaker 1: potentially somehow the guardrails around or curb the president's supreme 394 00:22:44,920 --> 00:22:49,600 Speaker 1: authority to make national security determinations through the Scifius process. 395 00:22:50,040 --> 00:22:51,640 Speaker 5: That would be a first, then, right. 396 00:22:51,880 --> 00:22:54,560 Speaker 1: Absolutely be a first. But you know, there's a saying 397 00:22:54,680 --> 00:22:57,920 Speaker 1: in legal circles that you've probably heard, which is bad 398 00:22:57,960 --> 00:23:00,880 Speaker 1: facts make bad law. If you've got bad facts, you've 399 00:23:00,920 --> 00:23:04,480 Speaker 1: got a bad written record. You've got a record of 400 00:23:04,800 --> 00:23:08,920 Speaker 1: sort of the decision maker making a decision months before 401 00:23:09,560 --> 00:23:13,280 Speaker 1: the matter has even been put before him, and then 402 00:23:13,800 --> 00:23:19,880 Speaker 1: the supporting documentation is not convincing that the parties are 403 00:23:19,920 --> 00:23:24,639 Speaker 1: not given an adequate time to prepare responses to the 404 00:23:24,720 --> 00:23:29,080 Speaker 1: government's written concerns. And you have all these factors pointing 405 00:23:29,160 --> 00:23:33,320 Speaker 1: to perhaps a precipitous decision by the government. You could 406 00:23:33,440 --> 00:23:37,280 Speaker 1: be inviting the courts to take aggressive action. And so yes, 407 00:23:37,560 --> 00:23:40,240 Speaker 1: I think it would be novel for sure, and I 408 00:23:40,359 --> 00:23:43,240 Speaker 1: think it would be a hard argument to make and 409 00:23:43,359 --> 00:23:47,280 Speaker 1: win to challenge the president's national security determination. But he 410 00:23:47,440 --> 00:23:49,560 Speaker 1: give the court a bad enough record, they just might 411 00:23:49,600 --> 00:23:49,920 Speaker 1: do it. 412 00:23:50,200 --> 00:23:54,280 Speaker 5: Thanks so much, Rick, that's Rick Sofield of Debevois and Plimpton. 413 00:23:54,600 --> 00:23:57,119 Speaker 5: As we've been discussing nip On and US Deal have 414 00:23:57,200 --> 00:24:00,840 Speaker 5: been making last ditch efforts to save the deal. This week, 415 00:24:00,880 --> 00:24:04,680 Speaker 5: they unveiled correspondence with the United Steel Workers to show 416 00:24:04,720 --> 00:24:08,480 Speaker 5: how union leaders snub their efforts to negotiate an agreement, 417 00:24:08,680 --> 00:24:11,360 Speaker 5: and US Steel warned that plants could be shut down 418 00:24:11,400 --> 00:24:14,760 Speaker 5: if the deal falls through. Their strategy appears to at 419 00:24:14,840 --> 00:24:17,840 Speaker 5: least have bought them some time. The Washington Post is 420 00:24:17,920 --> 00:24:21,040 Speaker 5: reporting that a decision on blocking the deal may not 421 00:24:21,160 --> 00:24:25,399 Speaker 5: be made until after the presidential election, though Biden remains 422 00:24:25,400 --> 00:24:28,920 Speaker 5: opposed to it. Coming up next seven years, and they 423 00:24:28,960 --> 00:24:33,240 Speaker 5: still haven't decided who gets the engagement ring. This is bloomberg. 424 00:24:43,880 --> 00:24:45,960 Speaker 5: And if you do decide to put a ring on 425 00:24:46,040 --> 00:24:49,440 Speaker 5: it and then the engagement is broken off, who gets 426 00:24:49,480 --> 00:24:53,720 Speaker 5: that ring, Well, it depends. And that's why a fight 427 00:24:53,800 --> 00:24:58,000 Speaker 5: over a seventy thousand dollars Tiffany engagement ring has reached 428 00:24:58,080 --> 00:25:03,040 Speaker 5: Massachusetts highest court. Bruce Johnson called off his engagement to 429 00:25:03,160 --> 00:25:07,639 Speaker 5: Caroline Settino in twenty seventeen because he suspected she was 430 00:25:07,720 --> 00:25:10,879 Speaker 5: having an affair, which she denied. He took her to 431 00:25:10,960 --> 00:25:14,399 Speaker 5: court to get the Tiffany engagement ring back, but a 432 00:25:14,480 --> 00:25:17,800 Speaker 5: judge found that he was mistaken about the affair, so 433 00:25:17,840 --> 00:25:21,480 Speaker 5: she could keep the ring. That's because in Massachusetts since 434 00:25:21,600 --> 00:25:25,880 Speaker 5: nineteen fifty nine, an engagement ring is considered a conditional 435 00:25:25,920 --> 00:25:29,360 Speaker 5: gift and the gift giver is entitled to its return 436 00:25:29,680 --> 00:25:32,600 Speaker 5: as long as that person was not at fault for 437 00:25:32,720 --> 00:25:36,680 Speaker 5: calling off the wedding. But then an appeals Court reversed 438 00:25:36,680 --> 00:25:40,080 Speaker 5: the trial court, finding that Johnson may have had other 439 00:25:40,200 --> 00:25:44,400 Speaker 5: reasons besides the alleged affair to call off the engagement. 440 00:25:44,880 --> 00:25:48,280 Speaker 5: So he gets the ring back, but not so fast. 441 00:25:48,960 --> 00:25:53,120 Speaker 5: Now Massachusetts Supreme Judicial Court will get to make the 442 00:25:53,160 --> 00:25:56,800 Speaker 5: final decision on who gets the ring, even though the 443 00:25:57,119 --> 00:26:02,359 Speaker 5: justices seemed a bit uncomfortable or even silly deciding who 444 00:26:02,440 --> 00:26:06,720 Speaker 5: was at fault in the relationship. As Justice Scott Kafker said, I. 445 00:26:06,680 --> 00:26:09,040 Speaker 7: Mean we all we seem to look silly trying to 446 00:26:09,080 --> 00:26:14,439 Speaker 7: do this, either under your justification or your fault analysis, 447 00:26:14,480 --> 00:26:19,040 Speaker 7: because it's so indetermined who's who's at fault for not 448 00:26:19,760 --> 00:26:21,160 Speaker 7: going forward with marriage? 449 00:26:21,240 --> 00:26:25,000 Speaker 5: Right, And some of the justices questioned why an engagement 450 00:26:25,080 --> 00:26:29,320 Speaker 5: ring should be given a unique legal analysis unlike other gifts. 451 00:26:29,520 --> 00:26:34,360 Speaker 5: Here are Justices Dalia Wentlin and Cathker quizzing Johnson's attorney 452 00:26:34,560 --> 00:26:37,080 Speaker 5: Stephanie Taverna siden if. 453 00:26:36,960 --> 00:26:40,600 Speaker 6: It was a tennis bracelet, yeah, or a car yeah? 454 00:26:41,040 --> 00:26:43,560 Speaker 5: I agree, I think all of those. Why is it 455 00:26:43,640 --> 00:26:44,119 Speaker 5: the ring? 456 00:26:44,840 --> 00:26:47,720 Speaker 6: Well, the ring has special value in our society. 457 00:26:47,960 --> 00:26:50,679 Speaker 7: Traditionally, but no one wants to keep the ring, and 458 00:26:50,760 --> 00:26:53,160 Speaker 7: the ring is no longer a symbol of love. It's 459 00:26:53,200 --> 00:26:56,879 Speaker 7: a symbol of you know that the thing broke a 460 00:26:56,960 --> 00:27:00,480 Speaker 7: seventy thousand dollars exactly, And that's what Cooper V's smith said. 461 00:27:00,480 --> 00:27:03,639 Speaker 7: The ris cash. It's not that the ring has any value, 462 00:27:03,640 --> 00:27:06,000 Speaker 7: it's that the ring is worth a certain amount of money. 463 00:27:06,160 --> 00:27:09,280 Speaker 5: Joining me is Rebecca Tushnett, a professor at Harvard Law 464 00:27:09,320 --> 00:27:15,040 Speaker 5: School who's an expert in intellectual property law and engagement rings. Rebecca, 465 00:27:15,119 --> 00:27:18,479 Speaker 5: most states now follow no fault rules when it comes 466 00:27:18,520 --> 00:27:23,040 Speaker 5: to returning engagement rings, but Massachusetts follows a fault rule. 467 00:27:23,720 --> 00:27:27,200 Speaker 4: Yet the most recent case on point, exactly on point, 468 00:27:27,480 --> 00:27:31,080 Speaker 4: is that it's fault based. There are old cases saying 469 00:27:31,160 --> 00:27:34,520 Speaker 4: that fault matters. I think there's a reasonable argument to 470 00:27:34,560 --> 00:27:38,160 Speaker 4: be made that they might have already adopted the sort 471 00:27:38,160 --> 00:27:40,880 Speaker 4: of modern no fault view in some ways, just by 472 00:27:40,920 --> 00:27:42,280 Speaker 4: adopting no fault divorce. 473 00:27:42,640 --> 00:27:45,800 Speaker 5: The trial court here found that Bruce Johnson was at 474 00:27:45,920 --> 00:27:49,560 Speaker 5: fault and so Caroline Satino could keep the ring. But 475 00:27:49,640 --> 00:27:53,879 Speaker 5: then the appellate court reversed, finding different facts. But isn't 476 00:27:53,880 --> 00:27:56,080 Speaker 5: the trial court the finder of facts? 477 00:27:56,520 --> 00:28:01,119 Speaker 4: So this is why many courts re treated from the 478 00:28:01,160 --> 00:28:06,240 Speaker 4: idea of fault in relationships. Because it's not actually very 479 00:28:06,280 --> 00:28:10,679 Speaker 4: easy to say, you know, what is legally wrongful, or 480 00:28:10,720 --> 00:28:13,119 Speaker 4: you know, when you're entitled to break up with someone. 481 00:28:13,320 --> 00:28:17,320 Speaker 4: Courts have become increasingly unwilling to say you're not entitled 482 00:28:17,320 --> 00:28:19,080 Speaker 4: to break up with someone just because you don't want 483 00:28:19,080 --> 00:28:19,600 Speaker 4: to be with them. 484 00:28:19,880 --> 00:28:22,320 Speaker 5: Yeah, and when they say at fault, is it fault 485 00:28:22,359 --> 00:28:24,640 Speaker 5: if you call off the engagement or is it more 486 00:28:24,720 --> 00:28:25,000 Speaker 5: than that? 487 00:28:25,400 --> 00:28:27,760 Speaker 4: So you're not supposed to call off the engagement without 488 00:28:27,760 --> 00:28:30,919 Speaker 4: a good enough reason. So, you know, the temptation of 489 00:28:30,920 --> 00:28:32,640 Speaker 4: a no fault rule is that you don't have to 490 00:28:32,680 --> 00:28:33,720 Speaker 4: make those judgments. 491 00:28:33,920 --> 00:28:37,800 Speaker 5: At the oral arguments at the Supreme Judicial Court, Satino's 492 00:28:37,840 --> 00:28:43,160 Speaker 5: attorney argued that Massachusetts should follow Montana's law, which is 493 00:28:43,160 --> 00:28:46,920 Speaker 5: a no takebacks approach. Is Montana the only state with 494 00:28:47,000 --> 00:28:47,720 Speaker 5: a rule like that? 495 00:28:48,080 --> 00:28:50,560 Speaker 4: So I think it's the only one where the state 496 00:28:50,720 --> 00:28:55,160 Speaker 4: Supreme Court has adopted that rule, And I have to say, 497 00:28:55,480 --> 00:28:58,120 Speaker 4: citing me, so I'm very happy that they did that. 498 00:28:58,880 --> 00:29:01,440 Speaker 4: It's just like any other right. So you know, if 499 00:29:01,440 --> 00:29:03,880 Speaker 4: you gave someone a car while you were dating, you 500 00:29:03,920 --> 00:29:05,719 Speaker 4: don't get to take it back just because you broke up. 501 00:29:05,840 --> 00:29:07,920 Speaker 4: But it's also you know, one of the very few 502 00:29:07,960 --> 00:29:12,520 Speaker 4: cases to decide anything on this, since you know, the eighties, 503 00:29:12,760 --> 00:29:15,200 Speaker 4: there just aren't a ton of state Supreme court cases 504 00:29:15,200 --> 00:29:16,320 Speaker 4: about engagement ranks. 505 00:29:16,680 --> 00:29:20,040 Speaker 5: Johnson's lawyer argued that the ring should be treated as 506 00:29:20,080 --> 00:29:23,240 Speaker 5: a conditional gift and it should be returned to the giver, 507 00:29:23,720 --> 00:29:26,440 Speaker 5: regardless of who's at fault. Is that a rule that 508 00:29:26,480 --> 00:29:27,520 Speaker 5: many states follow? 509 00:29:28,120 --> 00:29:30,640 Speaker 4: Yeah, in many states they made up a special rule 510 00:29:30,840 --> 00:29:33,760 Speaker 4: just for the engagement rank. So it's actually not the 511 00:29:33,920 --> 00:29:37,600 Speaker 4: usual rule for a conditional gift. Even so, the usual 512 00:29:37,680 --> 00:29:41,400 Speaker 4: rule for conditional gift is that the donye can keep 513 00:29:41,400 --> 00:29:44,800 Speaker 4: it as long as they remain willing to perform the condition. 514 00:29:45,240 --> 00:29:48,000 Speaker 4: And so if you know, your parents say I'll give 515 00:29:48,000 --> 00:29:49,719 Speaker 4: you a car if you go to law school, and 516 00:29:50,200 --> 00:29:52,440 Speaker 4: you go to law school and you remain willing to 517 00:29:52,480 --> 00:29:54,560 Speaker 4: go to law school, they can't take it back even 518 00:29:54,560 --> 00:29:55,560 Speaker 4: if they change their minds. 519 00:29:56,000 --> 00:29:56,800 Speaker 3: But for the. 520 00:29:56,760 --> 00:30:01,680 Speaker 4: Engagement ring, the condition is actually the marriage actually happening, 521 00:30:01,960 --> 00:30:05,840 Speaker 4: and so even if the donor unilaterally decides I changed 522 00:30:05,880 --> 00:30:08,440 Speaker 4: my mind, they can get the ring back. So it's 523 00:30:08,480 --> 00:30:11,480 Speaker 4: fair to say it's conditional gifts, but it's useful to 524 00:30:11,520 --> 00:30:14,920 Speaker 4: point out that it's not really the conditional gifts rule 525 00:30:15,080 --> 00:30:15,960 Speaker 4: for everything else. 526 00:30:16,200 --> 00:30:20,920 Speaker 5: Why have the courts been treating engagement rings different from 527 00:30:21,240 --> 00:30:23,920 Speaker 5: other gifts that might be as expensive. 528 00:30:24,320 --> 00:30:28,640 Speaker 4: So I have argued that it's a legacy of sexist 529 00:30:28,760 --> 00:30:33,680 Speaker 4: ideas about gold diggers that got run through various stages 530 00:30:33,720 --> 00:30:38,320 Speaker 4: of legal development. So courts initially said, well, you know, 531 00:30:38,400 --> 00:30:41,000 Speaker 4: the ring goes back if the woman was at fault, 532 00:30:41,200 --> 00:30:43,520 Speaker 4: that is, if she was a gold digger basically, and 533 00:30:43,640 --> 00:30:47,280 Speaker 4: then as no fault divorce arose, courts started saying, well, look, 534 00:30:47,400 --> 00:30:50,520 Speaker 4: you know, if getting divorced isn't a question of fault, 535 00:30:50,840 --> 00:30:54,440 Speaker 4: then breaking off an engagement can't possibly be a question 536 00:30:54,480 --> 00:30:56,719 Speaker 4: of fault. In fact, you did everyone a favor by 537 00:30:56,760 --> 00:30:58,440 Speaker 4: not getting married, you know, so it wasn't going to 538 00:30:58,480 --> 00:31:03,000 Speaker 4: work out. And so once you do that, you want 539 00:31:03,200 --> 00:31:06,400 Speaker 4: to have a no fault rule for other aspects of 540 00:31:06,400 --> 00:31:10,000 Speaker 4: the premarital relationship. And then there's just two possibilities. You 541 00:31:10,040 --> 00:31:13,240 Speaker 4: could have a no fault rule where everybody just walks away, 542 00:31:13,680 --> 00:31:15,440 Speaker 4: or you could have a no fault rule where the 543 00:31:15,480 --> 00:31:19,800 Speaker 4: gift always goes back. And they somewhat surprisingly chose the 544 00:31:19,840 --> 00:31:22,400 Speaker 4: no fault rule where the gift always goes back. I 545 00:31:22,440 --> 00:31:26,000 Speaker 4: think that's because of this sort of history of suspicion 546 00:31:26,040 --> 00:31:27,200 Speaker 4: of women, and. 547 00:31:27,240 --> 00:31:31,080 Speaker 5: You favor the no takebacks approach. 548 00:31:31,480 --> 00:31:35,200 Speaker 4: Neither approach is exactly how sort of ordinary people are 549 00:31:35,240 --> 00:31:37,440 Speaker 4: likely to think about it, Like people do think that 550 00:31:37,480 --> 00:31:40,520 Speaker 4: there is such a thing as fault in relationships. But 551 00:31:40,760 --> 00:31:45,120 Speaker 4: the course have, in my view, wisely decided it's really 552 00:31:45,160 --> 00:31:46,920 Speaker 4: hard for us to do this. It's not a good 553 00:31:46,920 --> 00:31:49,280 Speaker 4: thing for a legal system to try and do. And 554 00:31:49,360 --> 00:31:52,600 Speaker 4: so you have to choose between two situations or two 555 00:31:52,760 --> 00:31:55,440 Speaker 4: rules that aren't perfect, that don't match up with people's 556 00:31:55,520 --> 00:31:58,280 Speaker 4: you know, intuitions about morality. And I think the one 557 00:31:58,360 --> 00:32:01,600 Speaker 4: more consistent with our our goals for a legal system 558 00:32:02,080 --> 00:32:05,520 Speaker 4: is you just walk away that gifts stay where they're given. 559 00:32:06,160 --> 00:32:11,080 Speaker 5: The justices seem to be dismayed about delving into the 560 00:32:11,160 --> 00:32:16,200 Speaker 5: details of this messy romantic relationship. Justice Scott Casker said 561 00:32:16,360 --> 00:32:19,560 Speaker 5: this old rule seems old fashioned and kind of silly, 562 00:32:20,080 --> 00:32:23,680 Speaker 5: and Justice Dahalia wen Lent questioned if the ring was 563 00:32:23,760 --> 00:32:26,760 Speaker 5: different from any other gifts. She asked, what if it 564 00:32:26,800 --> 00:32:29,840 Speaker 5: was a tennis bracelet, why is it the ring? Do 565 00:32:29,880 --> 00:32:32,720 Speaker 5: you think that the court will make new law here? 566 00:32:33,080 --> 00:32:35,440 Speaker 4: So, you know, I think in the sense that the 567 00:32:35,640 --> 00:32:39,760 Speaker 4: possible rules are reasonably clear, and we have examples of 568 00:32:39,840 --> 00:32:42,600 Speaker 4: all of them. So my guess is that they won't 569 00:32:42,720 --> 00:32:45,840 Speaker 4: keep the old Massachusetts rule, but some of them may 570 00:32:45,840 --> 00:32:48,840 Speaker 4: be attracted to the idea that there's a special set 571 00:32:48,840 --> 00:32:52,120 Speaker 4: of expectations around the engagement rank as opposed to a 572 00:32:52,160 --> 00:32:53,600 Speaker 4: car or a tennis bracelet. 573 00:32:54,200 --> 00:32:57,600 Speaker 5: I mean, would you be surprised if the Massachusetts Supreme 574 00:32:57,640 --> 00:33:00,640 Speaker 5: Court didn't change the rule, just left as it is? 575 00:33:01,240 --> 00:33:03,560 Speaker 4: Yeah, I think I would. You know, this is classic 576 00:33:03,760 --> 00:33:07,520 Speaker 4: common law material, where you know, the job of the 577 00:33:07,720 --> 00:33:11,120 Speaker 4: court is to make sure that the common law evolves 578 00:33:11,160 --> 00:33:13,880 Speaker 4: and reflects you know, current situations and understanding. 579 00:33:14,600 --> 00:33:17,400 Speaker 5: And do you have any feel for which way they'll go? 580 00:33:17,920 --> 00:33:19,800 Speaker 4: You know, I have my own preference, but I wouldn't 581 00:33:19,840 --> 00:33:20,600 Speaker 4: say I have any feel. 582 00:33:20,840 --> 00:33:21,000 Speaker 1: You know. 583 00:33:21,160 --> 00:33:24,000 Speaker 4: I think in general and in relationships, you get what 584 00:33:24,080 --> 00:33:27,280 Speaker 4: you get, and so I would favor a rule that says, 585 00:33:27,440 --> 00:33:29,520 Speaker 4: you know, we're not going to go back into any 586 00:33:29,560 --> 00:33:32,280 Speaker 4: of the gifts and reallocate them. You know, if you 587 00:33:32,320 --> 00:33:34,360 Speaker 4: gave a gift, that stays a gift. So I just 588 00:33:34,360 --> 00:33:38,840 Speaker 4: don't think the conditional gift framework works very well. This 589 00:33:38,920 --> 00:33:42,640 Speaker 4: is an example of the ways in which the rules 590 00:33:42,640 --> 00:33:47,760 Speaker 4: for living may not be reducible to legal rules. Right 591 00:33:47,840 --> 00:33:51,160 Speaker 4: that there may be plenty of conducts worthy of judgment 592 00:33:51,280 --> 00:33:54,040 Speaker 4: in relationships that court still shouldn't be judging. 593 00:33:54,920 --> 00:33:58,719 Speaker 5: The parties have been in litigation for close to seven years. 594 00:33:59,200 --> 00:34:01,760 Speaker 5: I mean, with all this litigation, it seems like it 595 00:34:01,840 --> 00:34:04,960 Speaker 5: might be more expensive than the seventy thousand dollars ring. 596 00:34:05,080 --> 00:34:06,400 Speaker 5: Is there more to this? 597 00:34:07,000 --> 00:34:10,840 Speaker 4: I don't know the parties in any way, but this 598 00:34:10,960 --> 00:34:14,480 Speaker 4: is actually one of the things motivating the courts from 599 00:34:14,560 --> 00:34:20,000 Speaker 4: withdrawing from faults in most relationship situations, which is, you know, 600 00:34:20,120 --> 00:34:23,799 Speaker 4: they don't want to be deciding these cases because of 601 00:34:23,840 --> 00:34:27,279 Speaker 4: course there's lots of motives that are non monetary, right, 602 00:34:27,400 --> 00:34:31,040 Speaker 4: The relationships are intimate, and you know, you're dealing with 603 00:34:31,200 --> 00:34:34,880 Speaker 4: a lot of emotions, and it's just it's just a 604 00:34:35,000 --> 00:34:40,040 Speaker 4: very difficult situation. And you know, it's awkward to look 605 00:34:40,080 --> 00:34:42,920 Speaker 4: at that and say, Okay, who's the one who's really 606 00:34:43,000 --> 00:34:46,719 Speaker 4: to blame for this relationship falling apart when frankly, you know, 607 00:34:46,920 --> 00:34:49,160 Speaker 4: your usual reaction is these people shouldn't be together. 608 00:34:49,400 --> 00:34:52,359 Speaker 5: It seems like the engagement ring should be something that's 609 00:34:52,360 --> 00:34:55,320 Speaker 5: addressed if there's a prenup, so certainly. 610 00:34:55,040 --> 00:34:58,799 Speaker 4: That, and you know, it's also useful to remember that 611 00:34:58,840 --> 00:35:01,600 Speaker 4: of course, most broken in don't end up in court, 612 00:35:01,920 --> 00:35:06,400 Speaker 4: and you know, usually people live with whatever happens, including 613 00:35:06,480 --> 00:35:09,120 Speaker 4: you know, many times a woman will give the ring 614 00:35:09,239 --> 00:35:12,680 Speaker 4: back because it does have symbolic meeting. But my interest 615 00:35:12,680 --> 00:35:15,080 Speaker 4: in this situation came about after I read a case 616 00:35:15,120 --> 00:35:17,560 Speaker 4: where the man and the woman were at a bar. 617 00:35:17,920 --> 00:35:20,360 Speaker 4: They got in a fight and the man hit the woman. 618 00:35:20,719 --> 00:35:24,359 Speaker 4: The woman quite sensibly stumped out, you know, she threw 619 00:35:24,640 --> 00:35:27,279 Speaker 4: the ring in a field and didn't want to see 620 00:35:27,360 --> 00:35:29,480 Speaker 4: him again, and she was held liable because of the 621 00:35:29,520 --> 00:35:31,880 Speaker 4: no fault rule for the value of the ring, and 622 00:35:32,560 --> 00:35:33,920 Speaker 4: that just seemed. 623 00:35:33,840 --> 00:35:34,360 Speaker 1: Wrong to me. 624 00:35:34,840 --> 00:35:38,680 Speaker 5: Are there cases where after marriage, let's say, in a divorce, 625 00:35:38,880 --> 00:35:40,160 Speaker 5: there's a fight over the ring. 626 00:35:40,760 --> 00:35:44,880 Speaker 4: So this is a classic legal fiction. So at the 627 00:35:45,160 --> 00:35:51,360 Speaker 4: moment you get married, the ring retroactively becomes a gift 628 00:35:51,400 --> 00:35:55,479 Speaker 4: that was given during the engagement, and therefore it enters 629 00:35:55,520 --> 00:35:57,919 Speaker 4: into the marriage as separate property of the woman. 630 00:35:58,239 --> 00:35:59,480 Speaker 5: That really is a legal fiction. 631 00:36:00,040 --> 00:36:02,400 Speaker 4: Yeah, it's quite wild. So if you're married for you know, 632 00:36:02,520 --> 00:36:04,480 Speaker 4: two hours, the ring is yours. 633 00:36:04,840 --> 00:36:09,680 Speaker 5: And these cases over engagement rings are the last vestige 634 00:36:09,840 --> 00:36:12,680 Speaker 5: of litigation over broken engagements. 635 00:36:13,239 --> 00:36:17,399 Speaker 4: Yeah, so most states abolished by statute the heart bomb 636 00:36:17,480 --> 00:36:21,600 Speaker 4: tourts reach to promise mary alienation of affections, criminal conversation 637 00:36:21,719 --> 00:36:24,920 Speaker 4: and seduction. Criminal conversation is a great one. It means 638 00:36:24,920 --> 00:36:25,760 Speaker 4: having sex. 639 00:36:25,560 --> 00:36:26,239 Speaker 1: With a married woman. 640 00:36:26,480 --> 00:36:29,200 Speaker 4: And so they have bossed them by statute. And then 641 00:36:29,800 --> 00:36:35,400 Speaker 4: basically people men used conditional gift theory to say, you know, 642 00:36:35,560 --> 00:36:37,759 Speaker 4: I'm not doing for one of the heartbone sports. I'm 643 00:36:37,800 --> 00:36:40,759 Speaker 4: doing you know, on a basically a contract theory, and 644 00:36:41,120 --> 00:36:44,960 Speaker 4: many courts allowed that to proceed despite the abolition the 645 00:36:44,960 --> 00:36:48,799 Speaker 4: heart bonb courts. And then that became increasingly weirder as 646 00:36:48,920 --> 00:36:50,040 Speaker 4: all states adopted new. 647 00:36:50,040 --> 00:36:50,640 Speaker 2: Fault of force. 648 00:36:51,200 --> 00:36:54,319 Speaker 5: This has been fascinating. Rebecca, thanks so much, and we'll 649 00:36:54,360 --> 00:36:57,560 Speaker 5: see what the court decides here. That's Harvard Law School 650 00:36:57,600 --> 00:37:00,719 Speaker 5: professor Rebecca Tushnet, and that's it for this edition of 651 00:37:00,719 --> 00:37:03,759 Speaker 5: the Bloomberg Law Podcast. Remember you can always get the 652 00:37:03,800 --> 00:37:06,680 Speaker 5: latest legal news by subscribing and listening to the show 653 00:37:06,920 --> 00:37:10,880 Speaker 5: on Apple Podcasts, Spotify, and at Bloomberg dot com slash 654 00:37:10,920 --> 00:37:15,400 Speaker 5: podcast Slash Law. I'm June Grosso and this is Bloomberg