WEBVTT - Can Scarlett Johansson Win Against Disney?

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<v Speaker 1>This is Bloomberg Law with June Bresso from Bloomberg Radio.

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<v Speaker 1>Part was an avenger, I mean mistakes and a lot

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<v Speaker 1>of enemies. As Natasha Romanov, Scarlett Johansson is an elite

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<v Speaker 1>spy trained in the martial arts who has no fear

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<v Speaker 1>and fights much bigger bad guys, and in real life,

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<v Speaker 1>movie star Johansson is taking on the biggest entertainment company

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<v Speaker 1>in the world. She's suing Walt Disney, claiming it broke

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<v Speaker 1>its promise when it released her latest film, Black Widow,

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<v Speaker 1>simultaneously in movie theaters and on the Disney Plus streaming service.

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<v Speaker 1>Joining me is Bobby Sports, a partner at Quinn Emmanuel.

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<v Speaker 1>Did this lawsuit come as a surprise to those in

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<v Speaker 1>the entertainment industry and No. Yes in the sense that

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<v Speaker 1>it is surprising that Disney would have engaged in this

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<v Speaker 1>conduct and not have resolved it the way other companies

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<v Speaker 1>have to avoid litigation, most notably Warner Brothers. No, in

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<v Speaker 1>the sense that everybody who has been following the migration

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<v Speaker 1>to streaming has predicted that sooner or later, a major talent,

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<v Speaker 1>and Scarlett Johansen is certainly a major talent, would get

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<v Speaker 1>mistreated and feel compelled to sue tell Us about her allegations. Well,

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<v Speaker 1>it's two things. First, the basic allegation is she had

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<v Speaker 1>a contract with Marvel, and Marvel promised to compensate her

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<v Speaker 1>both with a cash payment upfront when she made the

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<v Speaker 1>movie and additional payments based on the box office performance

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<v Speaker 1>of the movie, so there'd be fixed payments at each

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<v Speaker 1>level of specified box office results. And what happened is

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<v Speaker 1>everyone who made that contract did it on the basis

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<v Speaker 1>that there would be a major theatrical release, and therefore,

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<v Speaker 1>as the picture performed well in theaters, she'd earned more money.

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<v Speaker 1>But Disney frustrated that by making a picture available at

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<v Speaker 1>the same time it was in theaters on its Disney

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<v Speaker 1>Plus service, and it gave people an incentive to not

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<v Speaker 1>go to theaters and watch it at home. And so

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<v Speaker 1>what she's saying is, look, you breached the contract. You

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<v Speaker 1>promised me a big theatrical release from which I could

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<v Speaker 1>earn additional money, and you ruined it. And the proof

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<v Speaker 1>of that is the survey results and other information that

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<v Speaker 1>show a large number of people who watched that movie

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<v Speaker 1>who would have gone to see it in theaters, stayed

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<v Speaker 1>home and watched it on Disney plus, so it's a

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<v Speaker 1>breach of her contract. That's the basic part of the lawsuit.

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<v Speaker 1>What makes this one more interesting is she didn't sue Marvel,

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<v Speaker 1>the party she had the contract with, for breach of contract. Instead,

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<v Speaker 1>she sued Disney for inducing Marvel tortiously breach her contract.

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<v Speaker 1>So she has the prospect not only of getting contract damages,

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<v Speaker 1>but getting punitive damages. So let's just say this doesn't

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<v Speaker 1>settle and it goes to court. Could it end up

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<v Speaker 1>being a question of the language in the contracts, specifically

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<v Speaker 1>that her contract guaranteed a wide theatrical release for Black Widow,

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<v Speaker 1>but not necessarily an exclusive theatrical release. I'm sure Disney

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<v Speaker 1>will argue that Marvel didn't breach the contract because it

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<v Speaker 1>was not promised to be an exclusive theatrical release. But

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<v Speaker 1>I think there are two problems with that. First, at

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<v Speaker 1>the time people negotiated this contract, nobody thought that theatrical

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<v Speaker 1>would be anything other than exclusive. It's always been exclusive.

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<v Speaker 1>Every window, every studio's release pattern is exclusive, and that's

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<v Speaker 1>what protects it against cannibalizing by the downstream windows. So

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<v Speaker 1>every movie is always available only in theaters, and that's

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<v Speaker 1>what the studios say, when they advertised the movies, so

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<v Speaker 1>everyone expected it to be that way, and nobody would

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<v Speaker 1>have thought if you didn't say exclusively in theaters in

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<v Speaker 1>a contract negotiated pre COVID, you were giving the studio

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<v Speaker 1>the right to cannibalize it with its own streaming service.

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<v Speaker 1>But the other thing is, even without that language, you've

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<v Speaker 1>frustrated the expectations of the parties. And even if it's

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<v Speaker 1>not a breach of the express contract under California law,

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<v Speaker 1>it is likely a breach of what's called the implied

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<v Speaker 1>covenant of good faith and fair dealing. So I think

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<v Speaker 1>she comes out on top on that argument. Should she

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<v Speaker 1>have sued Marvel as well as Disney? Is it all

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<v Speaker 1>that you did ensue Marvel? No, we, those of us

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<v Speaker 1>who watched this, have been assuming that this would happen,

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<v Speaker 1>because this is how we prosecute similar cases. If she

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<v Speaker 1>sued Marvel, she was bound by an arbitration provision and

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<v Speaker 1>this would never see the light of day, which is

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<v Speaker 1>what Marvel would want. And so she still has a

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<v Speaker 1>claim against Marvel, but it's more to her advantage to

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<v Speaker 1>make this a public fight and maybe even shame Disney

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<v Speaker 1>into settling. What she's asserting against Disney is tortious interference

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<v Speaker 1>with contract inducing breach of contract. These are tort claims.

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<v Speaker 1>Now they depend on mar of all having breached her contract,

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<v Speaker 1>But if you look at her complaint, there is no

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<v Speaker 1>claim for pure breach of contract. It's just the torts

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<v Speaker 1>and it's just against Disney. The theory is that basically,

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<v Speaker 1>the executives at Disney told Marvel, this picture is going

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<v Speaker 1>to be released day and date on Disney Plus and

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<v Speaker 1>you'll just have to live with it. So Johansson is

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<v Speaker 1>asserting tortious interference, doesn't she have to show intentional and

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<v Speaker 1>unjustified inducement of a breach of the contract. Well, she

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<v Speaker 1>has to show the contract was breached, and she has

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<v Speaker 1>to show that Disney knew that she had a contract

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<v Speaker 1>when Disney told Marvel that the picture would be released

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<v Speaker 1>day and date on Disney Plus. In terms of the wrongfulness,

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<v Speaker 1>that's actually an element of a slightly different claim called

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<v Speaker 1>interference with prospective economic advantage, which really isn't at play here.

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<v Speaker 1>And that's when two parties are negotiating a contract and

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<v Speaker 1>a third party swoops in does something wrongful to induce

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<v Speaker 1>one of the parties not to do business with the

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<v Speaker 1>other party and instead do business with the interloping third party.

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<v Speaker 1>That's not really an issue here. She alleges that Disney

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<v Speaker 1>should have delayed the release of the movie. It's surrendered

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<v Speaker 1>hundreds of millions of dollars in theater ticket sales by

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<v Speaker 1>releasing the picture when it knew that theatrical market was weak.

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<v Speaker 1>But is there a point for Disney to come back

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<v Speaker 1>and say, well, you are ready delayed the release for

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<v Speaker 1>an entire year, and we had other movies coming up.

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<v Speaker 1>I think that's a fair argument for Disney to make

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<v Speaker 1>unless the contract specifies a time period within which the

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<v Speaker 1>picture has to be released, either a certain number of

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<v Speaker 1>months after its completed or between the months of X

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<v Speaker 1>and Y in a given year. And yes, I think

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<v Speaker 1>Disney does have latitude to say, you know, we waited

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<v Speaker 1>around long enough and the time had finally come. There

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<v Speaker 1>was a good window. It's the summer blah blah blah. Yes,

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<v Speaker 1>that's an art meant Disney will advance. So Disney and

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<v Speaker 1>Response revealed that she'd made twenty million dollars on the

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<v Speaker 1>movie so far, without the back end profits it said

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<v Speaker 1>the suit had. So Disney and Response revealed that she'd

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<v Speaker 1>made twenty million dollars on the movie so far. It

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<v Speaker 1>said the suit had no merit and called it especially

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<v Speaker 1>sad and distressing in its callous disregard for the horrific

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<v Speaker 1>and prolonged global effects of the COVID nineteen pandemic. Is

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<v Speaker 1>this a little more personal than you'd expect from Disney?

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<v Speaker 1>I don't know if it's more personal than I'd expect

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<v Speaker 1>from Disney per se. It is more personal that I

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<v Speaker 1>would expect from anybody in Disney's position, you know, but

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<v Speaker 1>if Disney certainly wants to be viewed as a talent

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<v Speaker 1>friendly studio, then yes, it's more personal than necessary. And

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<v Speaker 1>it's not only tone deaf. It's a stupid argument, I mean,

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<v Speaker 1>really really stupid, because what they're saying essentially is we

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<v Speaker 1>paid you twenty million dollars and that's a lot of money.

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<v Speaker 1>You should be happy with that, and no matter what

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<v Speaker 1>we did to destroy the rest of a contract, that's

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<v Speaker 1>just tough luck, and that's the wrong signal descent. I

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<v Speaker 1>think Disney was very foolish to have made that that point.

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<v Speaker 1>I mean, look, Disney is in business to make money,

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<v Speaker 1>and they desired her talents, her skills and her ability

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<v Speaker 1>to attract an audience by making promises to her. They

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<v Speaker 1>need to honor their promises. The pandemic has nothing to

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<v Speaker 1>do with this, I mean nothing whatsoever. If that were Disney,

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<v Speaker 1>really what Disney was motivated to do that? Why are

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<v Speaker 1>they charging people for Disney Plus during a pandemic when

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<v Speaker 1>people are out of work and you know, stuck at home.

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<v Speaker 1>They should be giving it away for free. I mean,

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<v Speaker 1>they don't behave that way. So I think what they're

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<v Speaker 1>saying is just shallow and instance here and way way

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<v Speaker 1>way out of line. You know, they didn't have to

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<v Speaker 1>release this day and date on Disney Plus. That had

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<v Speaker 1>nothing to do with the pandemic. They made a calculated

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<v Speaker 1>business decision that it was a Disney Plus his interest

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<v Speaker 1>to make this movie available as soon as possible, and

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<v Speaker 1>they had every right to do that. But they if

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<v Speaker 1>they wanted to do that, they needed to protect everybody

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<v Speaker 1>who's compensation was tied to the theatrical performance of the

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<v Speaker 1>movie because they were harming it. That's all that's at

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<v Speaker 1>stake here, And for Disney to try to turn this

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<v Speaker 1>into some pandemic related matter where they're all doing very well.

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<v Speaker 1>They're making money from these motion pictures to me is preposterous.

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<v Speaker 1>Are these kinds of disputes between talent and studios unusual

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<v Speaker 1>or is it junce that they're usually carried on behind

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<v Speaker 1>closed doors, not in courts. It's both of those. Most

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<v Speaker 1>talent wants to work. They don't want to be viewed

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<v Speaker 1>as difficult or troublemakers, so they don't want to sue

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<v Speaker 1>under any circumstances, and if they do, they'll arbitrate because

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<v Speaker 1>their contracts require that, because the studios want this to

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<v Speaker 1>be done as much in private as possible. So losses

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<v Speaker 1>like this are rare, But there are plenty of arbitrations

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<v Speaker 1>going on that no one hears about. It reads about

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<v Speaker 1>between talent and studios or between financiers and studios over

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<v Speaker 1>these back end deals. So a streaming going to be

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<v Speaker 1>handled in the contract language from now on, absolutely, absolutely,

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<v Speaker 1>starting certainly by mid two thousand twenty, the talent lawyers

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<v Speaker 1>saw this coming and they just changed the structure of

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<v Speaker 1>the deals. But in fact, Disney itself on the TV side,

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<v Speaker 1>was one of the first studios to go out to

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<v Speaker 1>its TV talent, showrunners, actors and the like and say,

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<v Speaker 1>you know what TV business is changing. We're going to

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<v Speaker 1>change our method of back end compensation and instead of

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<v Speaker 1>providing a percentage of profits from the exhibition, we're going

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<v Speaker 1>to pay you bonuses based on the number of episodes

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<v Speaker 1>that are produced, the number of seasons, awards and the like,

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<v Speaker 1>and moved to a different system. And it's also been

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<v Speaker 1>happening on the feature film side. So this lawsuit and

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<v Speaker 1>others like it are really unique to this point in time.

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<v Speaker 1>As the industry transitions into this new streaming world, has

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<v Speaker 1>consolidation in the industry hurt the position of talent. What

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<v Speaker 1>I've I've observed is it's changed the dynamic where failure

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<v Speaker 1>is better rewarded and success is less rewarded. And so

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<v Speaker 1>you know, if you zoom back and look at it,

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<v Speaker 1>the consolidation has allowed for a lot more content to

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<v Speaker 1>be created, and that's good for talent. It has affected

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<v Speaker 1>their back ends. So you will never see the kind

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<v Speaker 1>of money that people made and that careers were based

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<v Speaker 1>on a Norman Lear for example. More recent entrepreneurs, you're

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<v Speaker 1>not going to see that kind of reward. But what

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<v Speaker 1>you are seeing is much bigger upfront payment to creators

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<v Speaker 1>called showrunners, people who create the idea for a series

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<v Speaker 1>or create the idea for a movie franchise. These people

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<v Speaker 1>are getting huge amounts of money up front because you

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<v Speaker 1>have Netflix, you have Amazon Prime of Hulu, they're all

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<v Speaker 1>in the streaming business. There's a war talent, and so

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<v Speaker 1>it's been very good for them. What it has not

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<v Speaker 1>been good for is the back end. So the money

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<v Speaker 1>is just shifting up front, and what that means, frankly,

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<v Speaker 1>is more risk for the studios, more upfront money for talent,

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<v Speaker 1>less money paid out on the success. So it's just

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<v Speaker 1>changed the dynamic in both directions. So the big question

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<v Speaker 1>what do you think will happen in Johansson's case? So

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<v Speaker 1>I predict that what Disney is going to do is

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<v Speaker 1>tie this lawsuit up for at least a year and

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<v Speaker 1>a half or two in the court and it will

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<v Speaker 1>really not go forward because what I predict Disney will

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<v Speaker 1>do is argue that this claim needs to be arbitrated.

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<v Speaker 1>And even if Disney is wrong about that, and I

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<v Speaker 1>think they are wrong about that, the way of the

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<v Speaker 1>California legal system works is if you petition a court

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<v Speaker 1>to compel the plaintiff to arbitrate, even if you lose,

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<v Speaker 1>you have an automatic right to appeal and the case

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<v Speaker 1>goes nowhere. It is stayed until the California Court of

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<v Speaker 1>Appeal has a chance to weigh in on that, and

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<v Speaker 1>that can add a year and a half two years

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<v Speaker 1>to the case where nothing will happen. There's no depositions,

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<v Speaker 1>there's no documents, and there's certainly no trial. So this

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<v Speaker 1>case is going to languish for a long time. I predict,

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<v Speaker 1>just knowing how studios like to take advantage of arguments.

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<v Speaker 1>There's likely an arbitration clause in her contract with Marvel,

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<v Speaker 1>but how does Disney force her into arbitration? If it's

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<v Speaker 1>in her contract with Marvel, they will urge the court

0:13:25.600 --> 0:13:28.560
<v Speaker 1>to give that a very broad read and say that

0:13:28.760 --> 0:13:32.360
<v Speaker 1>her assertion of tourist claims against Disney is really just

0:13:32.440 --> 0:13:35.840
<v Speaker 1>an attempt to avoid her agreement to arbitrate. And it

0:13:35.880 --> 0:13:38.320
<v Speaker 1>doesn't matter if they're wrong. They don't really care if

0:13:38.360 --> 0:13:41.160
<v Speaker 1>they're wrong. They win simply by making the argument and

0:13:41.200 --> 0:13:43.920
<v Speaker 1>then appealing it and slowing the case down. Do you

0:13:43.920 --> 0:13:47.600
<v Speaker 1>think it will eventually settle? I don't know. Probably most

0:13:47.640 --> 0:13:51.160
<v Speaker 1>cases do. I think it's in everyone's interest to settle,

0:13:51.480 --> 0:13:54.920
<v Speaker 1>but I don't know. Thanks Bobby, that's Bobby Shorts of

0:13:55.000 --> 0:13:57.280
<v Speaker 1>Quinn Emmanuel and that's it for this edition of the

0:13:57.320 --> 0:14:00.040
<v Speaker 1>Bloomberg Law Show. I'm June Grosso and your list the

0:14:00.120 --> 0:14:08.480
<v Speaker 1>name to Bloomberg. This is Bloomberg Law with June Brusso

0:14:08.880 --> 0:14:14.720
<v Speaker 1>from Bloomberg Radio. Before the CDC issued its latest coronavirus

0:14:14.760 --> 0:14:19.240
<v Speaker 1>eviction moratorium, President Joe Biden anticipated that it might be

0:14:19.440 --> 0:14:22.160
<v Speaker 1>struck down by the courts in light of the Supreme

0:14:22.200 --> 0:14:27.400
<v Speaker 1>Court's decision on the last moratorium. The bulk of the

0:14:27.440 --> 0:14:33.240
<v Speaker 1>constitutional scholarship says that it's not likely to pass Constitutional

0:14:33.280 --> 0:14:38.640
<v Speaker 1>Must number one, but there are several key scholars who

0:14:38.680 --> 0:14:41.960
<v Speaker 1>think that it may and it's worth the effort. But

0:14:43.080 --> 0:14:46.120
<v Speaker 1>the present you could not. The Court's already ruled on

0:14:46.200 --> 0:14:51.080
<v Speaker 1>the present eviction moratorium, and it only took the day

0:14:51.120 --> 0:14:55.120
<v Speaker 1>for landlord groups to challenge the new moratorium, which bands

0:14:55.160 --> 0:14:59.280
<v Speaker 1>evictions in places hit hardest by the coronavirus for sixty days.

0:15:00.120 --> 0:15:02.720
<v Speaker 1>Joining me is Anthony christ, a professor at the Georgia

0:15:02.760 --> 0:15:07.000
<v Speaker 1>State University College of Law, explain the legal basis for

0:15:07.040 --> 0:15:11.560
<v Speaker 1>the challenge to the eviction moratorium. So essentially, what we

0:15:11.640 --> 0:15:15.000
<v Speaker 1>have here is a question of statutory interpretation, and the

0:15:15.080 --> 0:15:19.560
<v Speaker 1>CDC is relying on a four statute which basically said

0:15:19.760 --> 0:15:23.320
<v Speaker 1>that the partner of Healthy Human Services, the CDC, they

0:15:23.360 --> 0:15:27.360
<v Speaker 1>have the power to basically do almost whatever they think,

0:15:27.440 --> 0:15:30.880
<v Speaker 1>in their judgment, is necessary to prevent the transmission of

0:15:30.960 --> 0:15:35.120
<v Speaker 1>communicable diseases, either internationally or across state line. There's a

0:15:35.200 --> 0:15:38.200
<v Speaker 1>second part to that statute which kind of talks about

0:15:38.280 --> 0:15:42.600
<v Speaker 1>in greater detail the types of regulations that those folks

0:15:42.680 --> 0:15:46.000
<v Speaker 1>have the power to enforce. So the argument is that

0:15:46.280 --> 0:15:49.640
<v Speaker 1>the CDC power here is rather constrained, and that there

0:15:49.760 --> 0:15:53.280
<v Speaker 1>isn't this kind of wide sweeping ability for the CDC

0:15:53.400 --> 0:15:55.440
<v Speaker 1>in public health officials in the federal government to do

0:15:55.480 --> 0:15:59.000
<v Speaker 1>whatever they want, including an eviction moratorium, which the CDC

0:15:59.280 --> 0:16:02.560
<v Speaker 1>argues is nest sarry to stem the tide of COVID

0:16:02.600 --> 0:16:06.440
<v Speaker 1>transmission across state line, and the c d C basically

0:16:06.480 --> 0:16:08.960
<v Speaker 1>went back to the drawing board to come up with

0:16:08.960 --> 0:16:12.800
<v Speaker 1>a moratorium that's a little different from the last one.

0:16:13.320 --> 0:16:17.000
<v Speaker 1>They've now pegged it in this new order to disease prevalence,

0:16:17.160 --> 0:16:20.200
<v Speaker 1>so places where there's the highest matter transmission of COVID,

0:16:20.560 --> 0:16:24.000
<v Speaker 1>the CDC is issuing the vital moratorium with the argument

0:16:24.280 --> 0:16:27.000
<v Speaker 1>again which is the same as last time, the argument

0:16:27.040 --> 0:16:29.840
<v Speaker 1>being that if people are kicked out of their homes

0:16:29.920 --> 0:16:32.280
<v Speaker 1>and they're either rendered homeless or that they have to

0:16:32.280 --> 0:16:35.880
<v Speaker 1>go into some other congregate setting or moved into other households,

0:16:35.960 --> 0:16:38.560
<v Speaker 1>so that actually will contribute to the spread of COVID.

0:16:38.840 --> 0:16:41.920
<v Speaker 1>And so I think by being slightly more tailored to

0:16:42.640 --> 0:16:47.520
<v Speaker 1>imposing the moratorium on high transmission areas, I suspect there

0:16:47.560 --> 0:16:49.440
<v Speaker 1>is an attempt there to say that this is quarely

0:16:49.560 --> 0:16:53.120
<v Speaker 1>within that first part of the provision that gives federal

0:16:53.160 --> 0:16:58.120
<v Speaker 1>officials wide discretion in stopping transmission and spread of communical disease,

0:16:58.160 --> 0:17:00.120
<v Speaker 1>and in this case in COVID. You know, whether I

0:17:00.120 --> 0:17:03.640
<v Speaker 1>think that's going to be ultimately persuasive to court, I

0:17:03.720 --> 0:17:06.680
<v Speaker 1>doubt it. But I suspect that's really the idea here,

0:17:06.920 --> 0:17:09.560
<v Speaker 1>being we're going to argue that this is slightly different

0:17:09.600 --> 0:17:12.960
<v Speaker 1>and so the arguments need to be rehashed out in court.

0:17:13.200 --> 0:17:15.720
<v Speaker 1>Whereas you know, the real Estate Association is continuing to

0:17:15.760 --> 0:17:18.119
<v Speaker 1>make the same arguments as our landlords, which is that

0:17:18.240 --> 0:17:21.159
<v Speaker 1>to succeed the federal government's power. So this is the

0:17:21.240 --> 0:17:25.919
<v Speaker 1>same group that took the last moratorium to the Supreme Court,

0:17:26.680 --> 0:17:30.080
<v Speaker 1>and the Supreme Court by a five to four vote

0:17:30.640 --> 0:17:34.199
<v Speaker 1>allowed that to stay in place, but there was a

0:17:34.200 --> 0:17:38.120
<v Speaker 1>warning there from the only justice who wrote about it,

0:17:38.480 --> 0:17:42.920
<v Speaker 1>Justice Brett Kavanaugh. So essentially, Justice Cavanaugh took the position

0:17:43.240 --> 0:17:45.840
<v Speaker 1>that in order for the CDC in the federal government

0:17:45.880 --> 0:17:49.119
<v Speaker 1>to take this action, that it would require a specific

0:17:49.200 --> 0:17:53.240
<v Speaker 1>authorization from Congress. So he was signaling that he believed

0:17:53.240 --> 0:17:57.960
<v Speaker 1>that the action exceeded the CDC statutory authority under the

0:17:58.000 --> 0:18:01.040
<v Speaker 1>Public Health Act. However, he was willing to kind of

0:18:01.040 --> 0:18:04.679
<v Speaker 1>show some restraints and not have the Court day the

0:18:04.720 --> 0:18:08.320
<v Speaker 1>moratorium order, citing the fact that there are some problems

0:18:08.520 --> 0:18:11.600
<v Speaker 1>in the distribution of funding which has already been allocated

0:18:11.640 --> 0:18:14.399
<v Speaker 1>to assist tenants who have been struggling as a result

0:18:14.440 --> 0:18:17.159
<v Speaker 1>of COVID, and so given the fact that at the

0:18:17.160 --> 0:18:19.560
<v Speaker 1>time of order came to the Supreme Court that the

0:18:19.600 --> 0:18:22.760
<v Speaker 1>previous order only had a few more days left, and

0:18:22.880 --> 0:18:26.880
<v Speaker 1>given the difficulty of getting tenant assistant funds out, that

0:18:27.000 --> 0:18:30.639
<v Speaker 1>he was weighing the equities of the situation and determined that,

0:18:30.720 --> 0:18:33.359
<v Speaker 1>notwithstanding the fact that he thought was we unlawful, that

0:18:33.400 --> 0:18:36.199
<v Speaker 1>the courts should not intervene at that particular time, given

0:18:36.480 --> 0:18:39.439
<v Speaker 1>that the harms would fall on tenants much more so

0:18:39.520 --> 0:18:42.240
<v Speaker 1>than it would fall on the landlords challenging the action.

0:18:42.760 --> 0:18:47.320
<v Speaker 1>For Gealstices Clarence Thomas, Samuel Alito, Neil Gorsuch, and any

0:18:47.400 --> 0:18:52.440
<v Speaker 1>Coney Barrett voted against the moratorium, and Kavanaugh basically said

0:18:52.480 --> 0:18:55.320
<v Speaker 1>he would. So then are there five votes saying the

0:18:55.400 --> 0:18:58.439
<v Speaker 1>c d C doesn't have the authority to issue a

0:18:58.560 --> 0:19:02.560
<v Speaker 1>nationwide eviction more torium. I suspect that's right. You know,

0:19:02.720 --> 0:19:04.679
<v Speaker 1>if I had to put a bet on it, I

0:19:04.680 --> 0:19:07.080
<v Speaker 1>would bet on the side of there being at least five,

0:19:07.119 --> 0:19:10.600
<v Speaker 1>if not just vote to keep the CDC from enforcing

0:19:10.760 --> 0:19:14.160
<v Speaker 1>the moratorium or having more touring in place. So I

0:19:14.240 --> 0:19:17.760
<v Speaker 1>don't think that this will survive, although arguably this is

0:19:17.760 --> 0:19:20.480
<v Speaker 1>slightly different to the extent that it's been much more

0:19:20.600 --> 0:19:23.840
<v Speaker 1>tailored towards public health interests than in the broader more

0:19:23.920 --> 0:19:26.680
<v Speaker 1>touring that had been placed before, right, the moratorium being

0:19:26.760 --> 0:19:29.920
<v Speaker 1>not tied to disease prevalence anyway, But I don't think

0:19:29.960 --> 0:19:32.720
<v Speaker 1>that they would alsoly matter to Justice Cavanaugh or the

0:19:32.760 --> 0:19:35.720
<v Speaker 1>other four justices who said that they would have lifted

0:19:35.720 --> 0:19:39.479
<v Speaker 1>the moratorium. Did the White House sort of shoot itself

0:19:39.520 --> 0:19:43.359
<v Speaker 1>in the foot with President Biden's comments on Tuesday. Listen

0:19:43.359 --> 0:19:48.680
<v Speaker 1>to what he said. Whether that option will pass constitutional

0:19:49.720 --> 0:19:54.879
<v Speaker 1>measure with this administration, I can't tell you. I don't know.

0:19:55.960 --> 0:19:59.239
<v Speaker 1>There are a few scholars who say it will and

0:19:59.320 --> 0:20:03.879
<v Speaker 1>others who say it's not likely to. But at a minimum,

0:20:03.960 --> 0:20:06.920
<v Speaker 1>by the time it gets litigated, we will probably give

0:20:07.000 --> 0:20:10.840
<v Speaker 1>some additional time. So basically he's saying we're buying time here.

0:20:11.320 --> 0:20:14.040
<v Speaker 1>I mean, the Supreme Court and courts generally will listen

0:20:14.080 --> 0:20:17.000
<v Speaker 1>to scholars when they want to, and they'll disregard scholary

0:20:17.080 --> 0:20:19.439
<v Speaker 1>opinions when they don't. I mean, I wish the Supreme

0:20:19.440 --> 0:20:21.679
<v Speaker 1>Court was site my law review racles all the time, right,

0:20:21.720 --> 0:20:23.679
<v Speaker 1>But they're just not going to unless they want to.

0:20:23.720 --> 0:20:26.560
<v Speaker 1>And it's relevant. So the opinions of folks on the

0:20:26.640 --> 0:20:29.920
<v Speaker 1>legal academy generally aren't just not going to be dispositive

0:20:30.119 --> 0:20:32.280
<v Speaker 1>of what the Supreme Court or any federal court for

0:20:32.320 --> 0:20:35.120
<v Speaker 1>that matter, is going to do. So it might be that,

0:20:35.359 --> 0:20:38.000
<v Speaker 1>you know, it's not necessarily the most politically artful or

0:20:38.200 --> 0:20:41.200
<v Speaker 1>perhaps most strategic thing to do to admit that there's

0:20:41.320 --> 0:20:43.840
<v Speaker 1>a heavy argument against the constitutionality of what you want

0:20:43.880 --> 0:20:46.320
<v Speaker 1>to do, but it's it's going to make any significant

0:20:46.320 --> 0:20:48.800
<v Speaker 1>difference in the outcome, although I will point out that

0:20:48.840 --> 0:20:51.960
<v Speaker 1>the plaintiff realtors here have made a lot of pay

0:20:52.400 --> 0:20:55.320
<v Speaker 1>of that comment and some of the commentary surrounding this

0:20:55.480 --> 0:20:58.920
<v Speaker 1>from Democrats, where there's been kind of a concession essentially

0:20:59.000 --> 0:21:03.080
<v Speaker 1>that Justice calv a concurring somehow basically controlling laws. The

0:21:03.200 --> 0:21:07.880
<v Speaker 1>National Apartment Association has filed a lawsuit to recover damages

0:21:08.200 --> 0:21:12.480
<v Speaker 1>it says its members suffered as a result of the moratorium.

0:21:12.600 --> 0:21:15.359
<v Speaker 1>Is there an argument to be made that getting damages

0:21:15.520 --> 0:21:18.320
<v Speaker 1>after the fact is the better way to go here?

0:21:18.880 --> 0:21:21.240
<v Speaker 1>I think that's the real question, because it seems to

0:21:21.280 --> 0:21:23.560
<v Speaker 1>me that if you're trying to balance the equities and

0:21:23.600 --> 0:21:27.400
<v Speaker 1>balance the harms, the real irreparable harms here are not

0:21:27.480 --> 0:21:31.200
<v Speaker 1>to the landlord, there to the tenants. Landlords hopefully are

0:21:31.280 --> 0:21:35.640
<v Speaker 1>going to be paid once individuals are able to secure

0:21:35.840 --> 0:21:38.960
<v Speaker 1>the federal funding that's been allocated to a system. I

0:21:38.960 --> 0:21:42.199
<v Speaker 1>don't think anyone doubts that landlords are going to be

0:21:42.359 --> 0:21:47.000
<v Speaker 1>completely made whole. That's not true of pennants who will

0:21:47.040 --> 0:21:51.520
<v Speaker 1>be kicked out. You can't backtrack someone's experience being homeless.

0:21:51.560 --> 0:21:55.200
<v Speaker 1>You can't backtrack uprooting children from schools. You just can't

0:21:55.240 --> 0:21:57.600
<v Speaker 1>undo that kind of harm. Thanks for being on the show.

0:21:58.000 --> 0:22:01.600
<v Speaker 1>That's Anthony christ of the Georgia's University College of Law.

0:22:01.960 --> 0:22:04.359
<v Speaker 1>And that's it for this edition of the Bloomberg Law Show.

0:22:04.720 --> 0:22:07.560
<v Speaker 1>I'm June Grasso, and you're listening to Bloomberg