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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: It was spaghetti night last Wednesday at Cook's Corner Restaurant

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Speaker 2: and bar, a time when people in the tight knit

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Speaker 2: California community gathered to share a meal. But it became

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Speaker 2: the scene of another mass shooting when a retired police

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Speaker 2: sergeant came in armed with two handguns, fired at his

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Speaker 2: estranged wife, and then began to randomly shoot.

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Speaker 3: We believe he traveled from Ohio with an ongoing dispute

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Speaker 3: regarding the separation of penny divorce with his wife.

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Speaker 2: He killed three people and injured six others before he

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Speaker 2: was killed by police. More than two thirds of mass

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Speaker 2: shootings are domestic violence incidents or are perpetrated by shooters

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Speaker 2: with a history of domestic violence. That's according to a

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Speaker 2: stunted by the JOHNS. Hopkins Center for Gun Violence Solutions

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Speaker 2: and a case before the Supreme Court. This term will

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Speaker 2: determine the fate of a federal law that bar's gun

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Speaker 2: possession by people who are subject to a domestic violence

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Speaker 2: restraining order. Joining me is Second Amendment expert Eric Rubin,

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Speaker 2: a professor at the SMU Deadman's School of Law. Eric

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Speaker 2: how important is the Supreme Court case.

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Speaker 1: It's a hugely important case, and it's a hugely important

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Speaker 1: policy area because it deals with a modern day restriction

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Speaker 1: on gun possession by domestic abusers, in particular by people

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Speaker 1: found by a judge to pose a specific threat of

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Speaker 1: domestic violence and who are subject to a protective order.

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Speaker 1: And the reason why it's so important is because we

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Speaker 1: now know that women are five times more likely to

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Speaker 1: die in a domestic violence situation if a gun is present.

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Speaker 1: In fact, every month, an average of seventy women are

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Speaker 1: shot and killed by an intimate partner. And what this

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Speaker 1: decade's old law is trying to do is to remove

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Speaker 1: the ethal means of a firearm from somebody who's been

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Speaker 1: found to be violent to a spouse or someone else

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Speaker 1: in the home.

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Speaker 2: So let's remind everyone of what the test is that

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Speaker 2: was established in the landmark twenty twenty two Bruin case.

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Speaker 1: So the Bruin case, which means issued in June of

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Speaker 1: twenty twenty two, announced a brand new test for Second

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Speaker 1: Amendment cases. In particular after Bruin, the constitutionality of a

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Speaker 1: gun law like the one at issue in Rehimi turns

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Speaker 1: on whether the law is analogous in some ill defined

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Speaker 1: sense to historical gun laws and historical regulation of firearms,

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Speaker 1: and by historical the court the late seventeen hundreds or

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Speaker 1: perhaps into the eighteen hundreds at the time when the

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Speaker 1: Fourteenth Amendment was enacted. It's an unusual test. It's different

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Speaker 1: from the one that governs other individual rights contexts and

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Speaker 1: in practice, and what the Bruin case meant was that

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Speaker 1: it didn't matter at all that all of the courts

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Speaker 1: to consider the constitutionality of this domestic violence restriction before

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Speaker 1: Bruin had found it to be perfectly constitutional, because they'd

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Speaker 1: applied a different test that considered contemporary costs and benefits

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Speaker 1: and in fact litigans. After Bruin got a do over

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Speaker 1: under this new historical analogical test, not just with respect

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Speaker 1: to this domestic violence restriction, but with respect to all

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Speaker 1: weapons restrictions.

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Speaker 2: The test makes no sense to me, because how do

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Speaker 2: you judge modern weapons that the framers could never have

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Speaker 2: envisioned with a standard from centuries ago. Does it lead

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Speaker 2: to less gun control regulations?

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Speaker 1: Well, I think that that was one of the reasons

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Speaker 1: why the Supreme Court, or at least the Fist Justices

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Speaker 1: and the majority handed down this Bruin test. In the

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Speaker 1: Bruin opinion, the majority said that the lower courts were

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Speaker 1: being too deferential to legislative determinations of policy needs, and

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Speaker 1: so in effect the test cuts out, or at least

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Speaker 1: minimizes the importance of modern day assessments of what will

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Speaker 1: keep the public safe. And in this particular case, the

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Speaker 1: fifths are decided that the law contradicts the nation's historical

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Speaker 1: tradition of gun regulation. And you raise an important point,

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Speaker 1: which is, how do you actually do this analogical exercise

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Speaker 1: given how different things are today. They're different in terms

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Speaker 1: of the technology of firearms today versus back in the

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Speaker 1: age of muskets and muzzle loaded guns. They're different in

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Speaker 1: terms of our cultural norms in our legal order is

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Speaker 1: very different, and this case actually highlights these differences in

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Speaker 1: a very stark way.

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Speaker 2: So tell us about the facts of this case and

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Speaker 2: the procedural history.

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Speaker 1: In this case. The defendant. This is an appeal from

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Speaker 1: a criminal conviction. The defendant, Zachi Raheemi, had assaulted his

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Speaker 1: girlfriend and then he actually agreed to a restraining order

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Speaker 1: that prohibited from possessing firearms. He was later caught with

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Speaker 1: a gun and in fact, he had been firing the

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Speaker 1: gun a number of occasions, and he was prosecuted under

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Speaker 1: a federal law that bar's gun possession by people who

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Speaker 1: were situated like Brahemi under a restraining order found by

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Speaker 1: a judge to pose a specific threat of domestic violence,

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Speaker 1: and he argued that that federal law violated his Second

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Speaker 1: Amendment rights. The Fifth Circuit ultimately agreed, after the Bruin

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Speaker 1: case came down that this was the Second Amendment violation.

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Speaker 1: And in terms of the procedural history, where we are

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Speaker 1: is the government. The federal government appealed or sought an

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Speaker 1: intervention by the Supreme Court, and the Supreme Court decided

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Speaker 1: late last term in June of twenty twenty three, that

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Speaker 1: it was going to acceptlicate. So last week all of

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Speaker 1: the briefs in support of the government's position in support

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Speaker 1: of the constitutionality of this restriction were due and a

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Speaker 1: lot of briefs were file. In fact, thirty eight briefs

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Speaker 1: were filed last week, which I think shows the significance

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Speaker 1: of the issue.

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Speaker 2: Did the Supreme Court almost have to take the case?

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Speaker 2: How are the circuits ruling on this issue?

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Speaker 1: Yeah, So the Supreme Court has a lot of discretion

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Speaker 1: about what cases it takes, but this case presented an

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Speaker 1: issue and a conflict that made it hard for the

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Speaker 1: Supreme Court to say no to it. In particular, it's

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Speaker 1: a federal law that was struck down in the Fifth Circuit,

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Speaker 1: and the Supreme Court tends to take cases where federal

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Speaker 1: laws are struck down. And there also is just a

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Speaker 1: lot of confusion in the lower court about this issue,

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Speaker 1: and frankly all Second Amendment issues after Bruin. So the

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Speaker 1: Fifth Circuit declared that this law was unconstitutional, but other

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Speaker 1: lower federal judges have declared it to be perfectly constitutional.

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Speaker 1: And that's reflective of what we were seeing over the

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Speaker 1: past year and Second Amendment cases where judges looking at

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Speaker 1: the same historical record or reaching diametrically opposed conclusions about

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Speaker 1: whether modern day laws or constitution or not. And I

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Speaker 1: think that's very telling that this is happening, in particular

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Speaker 1: because one of the reasons that the Supreme Court issued

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Speaker 1: this historical test was purportedly to constrain judges, but the

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Speaker 1: results of opinions that were issued over the past year

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Speaker 1: show that that's not happening so far.

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Speaker 2: As you mentioned, there are more than three dozen briefs

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Speaker 2: filed by organizations ranging from women's groups to prosecutors to

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Speaker 2: history scholars.

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Speaker 4: And I know you submitted one.

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Speaker 2: Can you characterize the nature of these briefs?

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Speaker 1: Sure? So you know the briefs I think fall into

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Speaker 1: three general buckets. Some are historical, somewhere methodological, and then

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Speaker 1: some were just policy. There are a lot of briefs

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Speaker 1: that are focusing on historical regulation, and that's because Bruin

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Speaker 1: says that the constitutionality of modern laws turns on whether

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Speaker 1: or not the laws are consistent with historical tradition. So,

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Speaker 1: for example, eighteen professors of English and American history signed

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Speaker 1: on to a brief that was talking about why guns

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Speaker 1: weren't frequently used in domestic violence situations in the founding,

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Speaker 1: and in particular just because the technology at the time

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Speaker 1: didn't make them readily available in domestic conflicts. So, no

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Speaker 1: matter what we thought about domestic violence back in the

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Speaker 1: late seventeen hundreds, we wouldn't expect to see the regulation

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Speaker 1: of guns in the domestic violence context. And that brief

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Speaker 1: also pointed out that our legal view of women was

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Speaker 1: very different. Women were not viewed as equal to men

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Speaker 1: in a legal sense, and there wasn't robust protection of

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Speaker 1: those who were abused in the domestic context, even though

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Speaker 1: there were some restrictions. So the brief and others that

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Speaker 1: fall into this historical camp are looking a lot at

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Speaker 1: what the shape of historical regulations were.

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Speaker 2: And I saw that one brief said that guns in

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Speaker 2: use at the time of the founding weren't great weapons

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Speaker 2: for crimes of passion because you didn't have handguns and no.

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Speaker 1: These were muscle loaded firearms. In fact, it was unsafe

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Speaker 1: to keep them loaded. There were some regulations that required

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Speaker 1: the gun, that gunpowder be stored separate from the firearm

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Speaker 1: itself because they're liable to missfire and start fires. And

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Speaker 1: so in crimes of passion and a lot of domestic

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Speaker 1: violence fits into that category, people would grab whatever is

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Speaker 1: close at hand, such as you know, sticks and rocks

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Speaker 1: and blump force objects, but not firearms which took time

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Speaker 1: to load and then use. So the historical context is

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Speaker 1: incredibly important, and these briefs are arguing that the fifth

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Speaker 1: Circuit just didn't pay enough attention to that historical context.

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Speaker 1: So that's a major thread.

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Speaker 4: And what about your brief, What where is your argument?

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Speaker 1: So my brief, which I filed with Mariva Siegel at Yale,

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Speaker 1: Joseph B. Looker at Duke, Daryl Miller at Duke, and

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Speaker 1: Jake Charles at Pepperdine, with the assistance of Don Burrilly

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Speaker 1: at Monger Toles, who was our council, was a methodological

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Speaker 1: grief more so than an historical brief, And in particular,

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Speaker 1: what we pointed out is that a lot of the

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Speaker 1: reasons there's so much disagreement in the lower courts is

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Speaker 1: because courts are not applying an even handed analysis, an

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Speaker 1: even handed historical analysis to the scope of the right

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Speaker 1: to keep and bear arms on the one hand, and

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Speaker 1: our tradition of regulation on the other. In particular, there

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Speaker 1: are some courts that are taking a super expansive view

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Speaker 1: of what the right to keep in bear arms protects,

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Speaker 1: but then applying a different lens, a narrow lens, to

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Speaker 1: the historical regulations. To the time, they'll say that all

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Speaker 1: weapons are protected by the right to keeping bear arms,

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Speaker 1: But then when looking at a regulation, they'll say, oh,

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Speaker 1: only this particular category of person was disarmed at the founding,

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Speaker 1: and that particular category of person is not the one

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Speaker 1: that the modern regulation is. This army and therefore it's

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Speaker 1: not analogous. And what we're arguing as a methodological point

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Speaker 1: is that if we're going to do this exercise, that's

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Speaker 1: set down and Bruin courts should be doing it in

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Speaker 1: an even handed way. And if they're to do that,

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Speaker 1: I think that the result in the Raheemi case would

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Speaker 1: have come out differently.

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Speaker 2: Do all the briefs accept the Bruin test and are

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Speaker 2: not trying to say that the Brewin test was wrong.

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Speaker 1: One interesting thing is that there were a couple briefs

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Speaker 1: that argued that Bruin and Heller should be overturned because

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Speaker 1: they've just proven to be inconsistent with the approach that

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Speaker 1: the Supreme Court is taking to other issues like abortion

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Speaker 1: and unworkable in practice. And so there were some briefs

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Speaker 1: that were filed in this case that argue for a

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Speaker 1: wholesale reversal of Bruin in even the two thousand and

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Speaker 1: eight decision Heller that found an individual rights to possess

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Speaker 1: a handgun in a home for self defense. But most

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Speaker 1: of the briefs that are filed are accepting the Brewin

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Speaker 1: test and then saying even under that test, the outcome

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Speaker 1: should have been different because the historical analysis in the

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Speaker 1: lower court was wrong that the Court didn't apply Bruin

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Speaker 1: faithfully because it took a different approach with respect the

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Speaker 1: rights on the one hand and regulations on the other.

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Speaker 1: And then there's some briefs that are pointing out the

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Speaker 1: important policy implications that are modern day policy implication when

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Speaker 1: it comes to domestic violence in the home.

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Speaker 2: Which of the conservative justices are these briefs trying to convince.

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Speaker 1: It's always hard to know what various briefs are trying

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Speaker 1: to do or who the specific justice is, who the

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Speaker 1: brief seeking to make their audience, But there certainly seem

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Speaker 1: to be some briefs that are focused at the more

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Speaker 1: moderate conservative justices like Kavanaugh and Amy Cony Barrett, who

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Speaker 1: might join with other justices to make a majority and

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Speaker 1: uphold this domestic violence restriction.

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Speaker 2: Even in the Bruin case. Was it the Chief Justice

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Speaker 2: in Kavanaugh who wrote a concurring opinion?

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Speaker 1: Even Coded Derek wrote an opinion a concurring opinion, as

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Speaker 1: did Kavanaugh and Chief Justice Roberts, And the concurrence by

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Speaker 1: the Chief Justice and Justice Kabanah was interesting because it

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Speaker 1: went out of its way to emphasize that the Brewin

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Speaker 1: test even though it's a novel test is not a

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Speaker 1: straight jacket, and that it still permits ample regulation, and

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Speaker 1: that opinion even went through a list of presumptively lawful

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Speaker 1: regulations such as disarming people who've been convicted of a

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Speaker 1: felony and other restrictions that was in Heller, but Justice

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Speaker 1: Thomas did not include in the majority opinion in Bruin.

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Speaker 1: So it's possible that some of the amiki who are

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Speaker 1: submitting briefs are focused on justices like the Chief Justice

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Speaker 1: and Justice Kabanagh who took the time in space to

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Speaker 1: emphasize the limits of the Bruin decision back in twenty twenty.

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Speaker 2: Two, And we have yet to see the responding briefs

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Speaker 2: in this case. That should be interesting as well. Thanks

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Speaker 2: so much, Eric. That's Professor Eric Rubin of the SMU

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Speaker 2: Deadman's School of Law. Michael Bloomberg, the founder and majority

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Speaker 2: owner of Blue LP, the parent company of Bloomberg Radio,

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Speaker 2: is a donor to groups that support gun control, including

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Speaker 2: Every Town for Gun Safety. The National Labor Relations Board

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Speaker 2: handed unions of victory with a decision allowing unions to

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Speaker 2: represent workers without a formal vote. The NLRB's Democratic majority

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Speaker 2: created a new test that resurrected elements of the standard

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Speaker 2: from the board's nineteen forty nine ruling enjoys silk mills,

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Speaker 2: But unlike that earlier test, the new framework doesn't turn

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Speaker 2: on proving that employers had a good faith doubt that

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Speaker 2: unions have majority support in order to require them to

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Speaker 2: recognize and bargain with unions. Instead, the new framework calls

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Speaker 2: on employers to recognize a new union or promptly file

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Speaker 2: for an election when the union asks for recognition based

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Speaker 2: on a majority of workers showing support. My guest is

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Speaker 2: labor law expert Anne Marie Lofasso, a professor at West

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Speaker 2: Virginia University College of Law and a former NLRB attorney,

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Speaker 2: And do you want to give us a little background

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Speaker 2: on This is one of the.

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Speaker 3: Most difficult areas of law, so I've simplified it. So

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Speaker 3: there are two main ways for a union to get recognition.

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Speaker 3: The first way is that the employer can voluntarily recognize

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Speaker 3: the union based on a card check and that would

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Speaker 3: mean a majority of authenticated car or the employer can

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Speaker 3: reject the union's demand for recognition, and then the union

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Speaker 3: has to petition for the election, and then the election

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Speaker 3: is typically held within five weeks. Okay, so those are

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Speaker 3: the two main things, at least up until this case.

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Speaker 3: So now, during the critical period, and that's the time

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Speaker 3: between the petition for the election up to the election,

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Speaker 3: the employer will typically hold something called captive audience speeches

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Speaker 3: to explain why employees should not vote for the union.

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Speaker 3: And studies show that if the employer holds five of these,

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Speaker 3: the union has almost no chance of winning, so something

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Speaker 3: like ninety four percent chance of losing the election. But

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Speaker 3: even one captive audience speech substantially lowers the union's chances

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Speaker 3: of winning. Now, why you might ask, it's because one

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Speaker 3: these speeches are intended to dissuade employees from voting for

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Speaker 3: the union. The union has no right to reply. And

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Speaker 3: although these speeches are not per se unlawful, they often

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Speaker 3: contain threats and other coercive conduct. So there's this big

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Speaker 3: case called Gissel that's in nineteen sixty nine, goes to

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Speaker 3: the Supreme Court, and Gissle presented the paradigm fact pattern

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Speaker 3: that is in this case. So what's the paradigm fact pattern?

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Speaker 3: Hotly contested election campaign, union obtains a card majority, the

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Speaker 3: employer refuses to recognize the union based on the card majority,

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Speaker 3: lots and lots of unfair labor practices. Many of those

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Speaker 3: unfair labor practice are called hallmark unfair labor practices. Then

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Speaker 3: what happens is the union loses the election even though

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Speaker 3: it had a card majority, because of all these unfair

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Speaker 3: labor practices. So if the Board finds that the severity

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Speaker 3: of these violations makes them likely to have a lasting

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Speaker 3: inhibitive effect on a substantial percentage of the workforce, thereby

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Speaker 3: making a fair rerun election unlikely, then it can issue

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Speaker 3: what's called this gissle bargaining order. It's now the problem

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Speaker 3: with the disl bargaining order. Even though the Supreme Court said, yep,

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Speaker 3: this is fine, this is okay, by the late seventies

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Speaker 3: and eighties, the courts aren't actually enforcing these orders, so

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Speaker 3: they get harder and harder to enforce, so that they're

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Speaker 3: almost never issued anymore. The Board doesn't even try so

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Speaker 3: tell us.

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Speaker 2: About this case and the procedural history.

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Speaker 3: This case is the same fact pattern of gissel. There's

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Speaker 3: a card majority, everyone agrees, there's a card majority, and

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Speaker 3: then there's tons of unfair labor practices. So the union

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Speaker 3: loses the election. These unfair layer practices are all hallmark violations,

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Speaker 3: so really scary things that are going to reverberate through

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Speaker 3: the bargaining units. The board says, we're going to overrule

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Speaker 3: Linden Lumber. So when the un and asked for recognition,

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Speaker 3: the employer no longer can say no. It has two choices.

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Speaker 3: It has to either say yes or the employer has

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Speaker 3: to file an election petition. Those are only two choices.

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Speaker 3: It doesn't have to say no and then make the

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Speaker 3: union do it. It has to say either yes or

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Speaker 3: say no. No good faith out doesn't have to have

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Speaker 3: a good faith out. I'm going to do the election.

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Speaker 3: And the reason this simplifies the whole thing is because

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Speaker 3: joy Silk was very difficult to enforce. Because the good

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Speaker 3: faced out standard is very difficult to enforce. How do

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Speaker 3: you figure out if the employer really has a good

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Speaker 3: faced doubt gift is hard to enforce. Here, you're just saying,

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Speaker 3: at the moment that the union says to the employer,

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Speaker 3: we want recognition, here's our card majority, the employer has

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Speaker 3: to make a choice recognize or go to an election,

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Speaker 3: and it can't dilly dally. The election has to take place,

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Speaker 3: and if it refuses to do that, that's an unfair

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Speaker 3: layer of practice. That's what this case is about.

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Speaker 2: So does this restore the practices of the Obama administration?

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Speaker 3: No, it doesn't. It actually changes the whole thing. This

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Speaker 3: is not a case that is restoring something that Obama did.

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Speaker 3: This is something that is different from anything the board

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Speaker 3: has ever done. It's completely new. And what's important here

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Speaker 3: is not so much whether the employer recognizes or not

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Speaker 3: the voluntary card check, or they there's an election. The

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Speaker 3: really big problem is what happens when the employer engages

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Speaker 3: in all these unfair labor practices that make a fair

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Speaker 3: election impossible or nearly impossible, very difficult. What's the remedy.

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Speaker 3: So the remedy here is to go at that moment

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Speaker 3: when the union asks. The Obama administration would have said,

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Speaker 3: when the union asks, the employer can say no and

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Speaker 3: then just sit on its butt and do nothing. And

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Speaker 3: then the un it has to file all the election paperwork,

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Speaker 3: and then there's all these hearings. There's all this stuff, right,

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Speaker 3: and that was the way it was for a long time,

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Speaker 3: and then after several years, if there's finding that there's

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Speaker 3: all these unfair labor practices. Once the union files the

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Speaker 3: election petition, then you might get this thing called the

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Speaker 3: Gistol bargaining order. Here, the employer has to say yes

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Speaker 3: or no, has to commit, and if it says no,

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Speaker 3: it has to file the election petition, and if it

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Speaker 3: does anything during that time, it's an unfair labor practice.

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Speaker 3: So it's actually a cleaner rule. It actually simplifies the

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Speaker 3: whole rule. It makes it easier. I think it's going

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Speaker 3: to be easier to enforce in the courts, which these

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Speaker 3: other two they're very difficult to understand and they're very

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Speaker 3: difficult to enforce.

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Speaker 2: So this was two to one decision, and the Republican dissented.

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Speaker 3: Actually even the Republican right, even the descent agrees, this

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Speaker 3: is egregious. What's this employer did is egregious. And so

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Speaker 3: he says, why are we even deciding this because either

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Speaker 3: way they get a bargaining order. And the majority says, well,

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Speaker 3: because this presents the question and we can do that.

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Speaker 3: So he doesn't even want to reach the question. But

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Speaker 3: he doesn't like it anyway. He thinks it's a bad idea,

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Speaker 3: But I actually think it's a brilliant strategy. Obviously, I

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Speaker 3: can see why he's dissenting if you're on the Republican side,

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Speaker 3: But from the pro employee pro union side, it's a

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Speaker 3: brilliant strategy because if it's enforceable under either rule, the

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Speaker 3: Supreme Court won't take it because it doesn't squarely present

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Speaker 3: the issue. So that means they're going to have to

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Speaker 3: wait for other cases to percolate. So it's actually a

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Speaker 3: really smart strategy to allow this to kind of mature

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Speaker 3: among the different courts of appeals to see how they

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Speaker 3: deal with this.

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Speaker 4: Do you think this will be appealed?

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Speaker 3: Oh, definitely, no doubt. This is such a big case.

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Speaker 3: There'll be a petition for review immediately.

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Speaker 2: What were some of the things the company was accused

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Speaker 2: of doing that were so terrible in the Labor Board's eyes?

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Speaker 3: They threatened job loss. When you threaten people with jobs,

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Speaker 3: they don't vote for unions that they get really really scared.

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Speaker 3: They got rid of the main union organizer threat Those

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Speaker 3: are the main ones. But they also did coercive behavior

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Speaker 3: almost daily during this election campaign. They would, you know,

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Speaker 3: constantly do things like we won't provide you with help,

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Speaker 3: They wouldn't support the employees. They did everything they could

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Speaker 3: to make the employees' lives very difficult. They said the

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Speaker 3: employer violated the Act when it deployed security guards at

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Speaker 3: numerous plans for two weeks before the election, at all

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Speaker 3: the polling places. That's intimidating. If you wanted to change

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Speaker 3: the rule, this is the case you want, because even

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Speaker 3: your most conservative board member is going to say, yeah,

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Speaker 3: this is a gift. And any court is going to

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Speaker 3: uphold a ghistle bargaining order here because it's so egregious. Now,

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Speaker 3: there are two ways that the ghistle bargaining order might

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Speaker 3: not be upheld. And this is where the problems come in.

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Speaker 3: Is if there's like a lot of turnover, then a

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Speaker 3: lot of courts are really persuaded by that argument that oh,

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Speaker 3: there's all this employee turnover or there's lots of supervisory turnover.

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Speaker 3: And the problem with that is that the ghistle bargaining

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Speaker 3: Order was supposed to attach back when there was a majority,

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Speaker 3: and so they go, well, this is the future now.

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Speaker 3: And that's why.

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Speaker 1: Unions love this.

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Speaker 3: I think the unions will love this anyway because it says,

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Speaker 3: at that moment, the employer has to make a choice, yes,

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Speaker 3: we will recognize you or no. We're not recognizing you,

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Speaker 3: but we're going to the election, and once it does

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Speaker 3: anything to then interfere with that election, it's an unfair

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Speaker 3: layer practice. So it's sort of bringing it back to

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Speaker 3: the moment that things are happening. It's harder to make

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Speaker 3: the arguments that have been successful in getting rid of

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Speaker 3: these gifts of bargaining orders. And remember, what's the whole

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Speaker 3: point of having an election. The point of having election

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Speaker 3: is not to win the election. It's to win the

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Speaker 3: election so that you can then get a collective bargaining agreement.

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Speaker 3: So the whole point of the election is to get negotiations.

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Speaker 3: So what the player is doing here in these cases

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Speaker 3: is it's basically terrorizing its employee workforce with threats of

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Speaker 3: job loss and things like that so that they don't

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Speaker 3: vote for the union. And then there's a finding that

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Speaker 3: they didn't vote for the union, not out of ree choice,

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Speaker 3: but out of fear, so it was inhibited votes and

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Speaker 3: so therefore there wasn't really this freedom of association which

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Speaker 3: is guaranteed expressly by the Act in the words of

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Speaker 3: the Act.

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Speaker 4: So how important is this decision?

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Speaker 3: Then this is a very stunning decision because it does

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Speaker 3: something the board has never done before, and it grounds

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Speaker 3: it in the statutory language, which remember the Supreme Court,

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Speaker 3: it's textualists.

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Speaker 2: Thanks so much for being on the show. And that's

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Speaker 2: Professor and Marie La Fosso of the University of West Virginia.

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Speaker 4: School of Law.

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Speaker 2: Hawaiian Electric is being sued not only by victims of

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Speaker 2: the Lahnea fire, but also by Maui County and investors.

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Speaker 2: They claim the utility didn't cut power and take safety

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Speaker 2: measures to contain the raging flames that engulf the city

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Speaker 2: of Lahine. Joining me is Bloomberg Legal reporter Joe Rosenblatt

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00:25:29,960 --> 00:25:35,160
Speaker 2: explain the County of Maui is suing Hawaiian Electric for negligence.

438
00:25:35,320 --> 00:25:36,760
Speaker 4: Explain what their claim is.

439
00:25:37,560 --> 00:25:41,080
Speaker 5: The county is the latest entity to file a lawsuit

440
00:25:41,080 --> 00:25:44,760
Speaker 5: against Hawaiian Electric, which is unusual. In all the California

441
00:25:45,000 --> 00:25:48,560
Speaker 5: wildfires that I've covered, I've never seen a county. You've

442
00:25:48,560 --> 00:25:50,919
Speaker 5: seen in a district attorney, for example, but not the

443
00:25:50,960 --> 00:25:54,680
Speaker 5: county sue the utility, and they're suing the utility saying

444
00:25:55,160 --> 00:25:58,359
Speaker 5: it started the fire. I understand from a little bit

445
00:25:58,400 --> 00:26:01,679
Speaker 5: of reporting that this is a special unusual in Maui,

446
00:26:01,760 --> 00:26:04,960
Speaker 5: where there's a sense of community and everybody's trying to

447
00:26:05,000 --> 00:26:08,359
Speaker 5: operate together, especially in an emergency like this. But to

448
00:26:08,440 --> 00:26:12,000
Speaker 5: have the county turn on its own utility on that

449
00:26:12,080 --> 00:26:16,280
Speaker 5: island is unusual and potentially problematic. But the claims are

450
00:26:16,400 --> 00:26:18,840
Speaker 5: the same as the other lawsuits that have been filed

451
00:26:18,920 --> 00:26:21,840
Speaker 5: or similar to them, that the utility started the fire,

452
00:26:21,920 --> 00:26:24,080
Speaker 5: and the utility is responsible, and.

453
00:26:24,080 --> 00:26:27,720
Speaker 2: Tell us a little more about the specific claim of negligence.

454
00:26:28,359 --> 00:26:32,320
Speaker 5: The power lines blew down and started sparked a wildfire

455
00:26:32,400 --> 00:26:37,200
Speaker 5: in the grasses that then grew larger. There's an interesting

456
00:26:38,160 --> 00:26:43,639
Speaker 5: ripple here because the utility has in fact responded by saying,

457
00:26:43,800 --> 00:26:47,240
Speaker 5: you know what, it's actually the county's fault, because the

458
00:26:47,400 --> 00:26:52,119
Speaker 5: utility is acknowledged that their power lines did indeed start

459
00:26:52,240 --> 00:26:55,399
Speaker 5: a fire, which is unusual. That's unusual. That was news.

460
00:26:55,880 --> 00:26:58,159
Speaker 5: But then what they say is that the fired the

461
00:26:58,240 --> 00:27:01,879
Speaker 5: initial fire. Firefighters work for the county. They put the

462
00:27:01,880 --> 00:27:05,440
Speaker 5: fire out, but they didn't extinguish it. The winds came

463
00:27:05,920 --> 00:27:08,919
Speaker 5: and blew those fires into what became the fires that

464
00:27:08,960 --> 00:27:10,160
Speaker 5: destroyed Lahina.

465
00:27:10,400 --> 00:27:14,080
Speaker 2: Have you heard what the response of the plaintiff's lawyers is.

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00:27:14,600 --> 00:27:17,000
Speaker 5: I have, and the lawyers who have already filed these

467
00:27:17,000 --> 00:27:20,600
Speaker 5: suits have said that doesn't matter because you started the

468
00:27:20,600 --> 00:27:24,359
Speaker 5: initial fire that became the fire that burned down the

469
00:27:24,359 --> 00:27:27,560
Speaker 5: town of Leahina, and I should have said that. The

470
00:27:27,600 --> 00:27:31,440
Speaker 5: negligence claim is based on this argument that the utility

471
00:27:31,520 --> 00:27:35,160
Speaker 5: knew these high winds were coming and should have, as

472
00:27:35,240 --> 00:27:39,000
Speaker 5: is now done often in California, should have turned off

473
00:27:39,000 --> 00:27:41,480
Speaker 5: its power knowing that the high winds were going to

474
00:27:41,560 --> 00:27:45,240
Speaker 5: come and potentially blow down the power lines. So they're

475
00:27:45,359 --> 00:27:48,240
Speaker 5: charging forward. They don't care, and they also the explanation

476
00:27:48,359 --> 00:27:50,760
Speaker 5: is a bit convoluted, and I don't know that the

477
00:27:50,880 --> 00:27:55,280
Speaker 5: utility has empirical evidence that they indeed didn't start the

478
00:27:55,320 --> 00:27:56,520
Speaker 5: fire that did all the damage.

479
00:27:56,880 --> 00:28:00,600
Speaker 2: So is it unusual to have the lawsuits before the

480
00:28:00,640 --> 00:28:03,320
Speaker 2: official cause of the fire is determined.

481
00:28:04,080 --> 00:28:09,280
Speaker 5: Well, I've covered wildfires in California. I've covered the litigation

482
00:28:09,520 --> 00:28:12,280
Speaker 5: from those wildfires, and based on that experience, hardly unusual

483
00:28:12,320 --> 00:28:15,320
Speaker 5: at all. I mean, now, in California, if there's a wildfire,

484
00:28:15,640 --> 00:28:18,840
Speaker 5: it's a race to the courthouse. There's always multiple suits filed,

485
00:28:18,880 --> 00:28:21,639
Speaker 5: and I think lawyers in this area, I mean I

486
00:28:21,800 --> 00:28:25,000
Speaker 5: actually know all the plantiffs lawyers now who are suing

487
00:28:25,560 --> 00:28:28,200
Speaker 5: Hawaiian Electric, and they're in many cases, the same lawyers

488
00:28:28,280 --> 00:28:32,639
Speaker 5: have sued PGNE in California. So no, it's not surprising

489
00:28:32,680 --> 00:28:36,360
Speaker 5: they file suit at this point expecting that the utility

490
00:28:36,560 --> 00:28:37,160
Speaker 5: is liable.

491
00:28:38,440 --> 00:28:41,040
Speaker 2: And when you look at the numbers, I mean, it

492
00:28:41,080 --> 00:28:43,960
Speaker 2: seems as if Hawaiian Electric is found negligent in all

493
00:28:44,000 --> 00:28:47,720
Speaker 2: these cases, they're going to go bankrupt, just as pg

494
00:28:47,880 --> 00:28:48,320
Speaker 2: and E did.

495
00:28:48,960 --> 00:28:53,320
Speaker 5: That's correct. The lawyers don't really pay that much attention

496
00:28:53,640 --> 00:28:57,480
Speaker 5: to the long term health of the utility, and there's

497
00:28:57,520 --> 00:28:58,040
Speaker 5: a good reason.

498
00:28:58,080 --> 00:28:58,240
Speaker 2: Now.

499
00:28:58,240 --> 00:29:02,160
Speaker 5: There's a model for them now in PGE, which indeed

500
00:29:02,280 --> 00:29:06,080
Speaker 5: was pushed to bankruptcy but then got back on its feet.

501
00:29:06,360 --> 00:29:10,040
Speaker 5: And oftentimes, you know, what they're looking at is that

502
00:29:10,200 --> 00:29:14,360
Speaker 5: the rate increased rates will be passed on to rate payers,

503
00:29:14,840 --> 00:29:18,080
Speaker 5: and the lawyers who are representing a lot of our victims,

504
00:29:18,240 --> 00:29:20,320
Speaker 5: they think they're going to get their money. There's some

505
00:29:20,440 --> 00:29:25,360
Speaker 5: discussion now among Plants lawyers that eventually the federal government's

506
00:29:25,560 --> 00:29:28,040
Speaker 5: going to have to step in and help this utility.

507
00:29:28,400 --> 00:29:32,120
Speaker 5: That's a possibility, and if so, for the Plans lawyers,

508
00:29:32,320 --> 00:29:35,320
Speaker 5: another target or another pocket, a real deep pocket.

509
00:29:35,560 --> 00:29:38,680
Speaker 2: Tell us about a suit in San Francisco is a

510
00:29:38,760 --> 00:29:40,680
Speaker 2: securities fraud suit.

511
00:29:41,200 --> 00:29:44,560
Speaker 5: So yeah, a variety of suits with a variety of claims.

512
00:29:44,560 --> 00:29:47,200
Speaker 5: The one in San Francisco Federal Court filed last week

513
00:29:47,560 --> 00:29:51,000
Speaker 5: is on behalf of investors. Hawaiian Electric is the parent

514
00:29:51,080 --> 00:29:55,040
Speaker 5: company which has seen its stock price just get hammered

515
00:29:55,440 --> 00:29:59,880
Speaker 5: since the fire, and that's a securities fraud suit saying

516
00:30:00,120 --> 00:30:03,680
Speaker 5: that the company knew that it had these problems. It

517
00:30:03,720 --> 00:30:07,040
Speaker 5: had this exposure that its lines could have been blown down,

518
00:30:07,200 --> 00:30:11,640
Speaker 5: they didn't disclose it to investors, and they hid this

519
00:30:11,720 --> 00:30:17,600
Speaker 5: potential problem that has ended up costing investors their entire investment. Interestingly,

520
00:30:17,680 --> 00:30:21,040
Speaker 5: the stock price has since rebounded with this argument that

521
00:30:21,080 --> 00:30:23,400
Speaker 5: we discussed previously, that the utility is putting forward that

522
00:30:23,440 --> 00:30:25,800
Speaker 5: it's in fact the county's kind of response.

523
00:30:26,400 --> 00:30:31,240
Speaker 2: So some of the plaintiffs are using a theory that

524
00:30:31,400 --> 00:30:34,720
Speaker 2: was used in the PG and E cases. That would

525
00:30:34,840 --> 00:30:36,880
Speaker 2: mean that they do not have to prove negligence.

526
00:30:37,240 --> 00:30:41,960
Speaker 5: That's to me the most interesting claim. It's called inverse condemnation.

527
00:30:42,080 --> 00:30:46,400
Speaker 5: It's a cousin of eminent domain, which is more more

528
00:30:46,480 --> 00:30:50,240
Speaker 5: understood in which the government, for a government project, usually

529
00:30:50,280 --> 00:30:56,440
Speaker 5: for infrastructure, takes private property and compensates the owner, usually

530
00:30:56,480 --> 00:31:00,080
Speaker 5: a private owner for that property. That's also another express

531
00:31:00,800 --> 00:31:04,800
Speaker 5: is that land is condemned for a project. So this

532
00:31:05,000 --> 00:31:09,720
Speaker 5: is a relative of that of that doctrine called inverse condemnation.

533
00:31:09,880 --> 00:31:13,360
Speaker 5: So you invert the condemnation and this is the private

534
00:31:13,880 --> 00:31:17,040
Speaker 5: private property owner in this case, an owner of property

535
00:31:17,080 --> 00:31:20,640
Speaker 5: that was burned by the wildfire, suing the utility for

536
00:31:20,760 --> 00:31:24,560
Speaker 5: the damage, saying, you know, electricity is a publicly provided

537
00:31:25,040 --> 00:31:31,880
Speaker 5: resource and you're using public or private land to run

538
00:31:31,920 --> 00:31:36,760
Speaker 5: your power lines on, and you caused damage that was unforeseen,

539
00:31:37,160 --> 00:31:41,360
Speaker 5: and I'm holding you liable for it. In California, you

540
00:31:41,400 --> 00:31:45,320
Speaker 5: don't have to establish negligence. That claim can move forward

541
00:31:45,640 --> 00:31:48,760
Speaker 5: without that burden of proof. And so there are lawyers

542
00:31:48,920 --> 00:31:51,160
Speaker 5: here in this case who are using the same legal

543
00:31:51,200 --> 00:31:54,320
Speaker 5: doctrine to try to sue Hawaiian Electric There is a

544
00:31:54,400 --> 00:31:59,160
Speaker 5: history of inverse condemnation in some contexts in Hawaii, never

545
00:31:59,360 --> 00:32:03,040
Speaker 5: in a wildfire contexts. Because this is completely novel, completely new,

546
00:32:03,520 --> 00:32:06,840
Speaker 5: whereas this is well established in California, these lawyers are

547
00:32:06,840 --> 00:32:10,120
Speaker 5: looking to import kind of the success of that from

548
00:32:10,120 --> 00:32:14,560
Speaker 5: California to why. We'll see it's completely untested and what.

549
00:32:14,520 --> 00:32:17,200
Speaker 2: Might be one of the hardest parts of this case

550
00:32:17,280 --> 00:32:19,000
Speaker 2: for the plaintiffs, A.

551
00:32:19,040 --> 00:32:23,440
Speaker 5: Key component, a key requirement of inverse condemnation is that

552
00:32:24,160 --> 00:32:27,200
Speaker 5: you need to be suing a government entity. That's what's

553
00:32:27,280 --> 00:32:30,720
Speaker 5: required under the doctrine. And so the fight is going

554
00:32:30,760 --> 00:32:34,280
Speaker 5: to be whether or not the utility is a government entity.

555
00:32:34,400 --> 00:32:37,040
Speaker 5: It's regulated by the government in terms of what it

556
00:32:37,080 --> 00:32:40,840
Speaker 5: can charge, but it's investor owned, right, it's a privately owned,

557
00:32:41,080 --> 00:32:45,320
Speaker 5: investor owned utility that provides a public service. So the

558
00:32:45,400 --> 00:32:48,320
Speaker 5: lawyers who have filed this lawsuit and filed this claim

559
00:32:48,880 --> 00:32:51,000
Speaker 5: feel like they're not going to have any problem showing

560
00:32:51,040 --> 00:32:52,960
Speaker 5: that this is indeed a government entity that can be

561
00:32:53,000 --> 00:32:56,440
Speaker 5: a target of inverse condonation claims. But as was the

562
00:32:56,480 --> 00:32:59,600
Speaker 5: case with pg ANDE, there's a big fight in California

563
00:32:59,760 --> 00:33:02,840
Speaker 5: over whether or not the utility is actually a government

564
00:33:02,960 --> 00:33:06,600
Speaker 5: entity purely enough of a government entity to be the

565
00:33:06,680 --> 00:33:09,680
Speaker 5: target or the identified as the defendant in an inverse

566
00:33:09,720 --> 00:33:10,720
Speaker 5: condination claim.

567
00:33:10,760 --> 00:33:13,480
Speaker 2: I know you'll be watching these cases closely to find

568
00:33:13,480 --> 00:33:16,840
Speaker 2: out what happens. Thanks so much, Joel. That's Bloomberg Legal

569
00:33:16,880 --> 00:33:19,920
Speaker 2: reporter Joel Rosenblatt, and that's it for this edition of

570
00:33:19,920 --> 00:33:22,560
Speaker 2: the Bloomberg Law Show. Remember you can always get the

571
00:33:22,640 --> 00:33:25,880
Speaker 2: latest legal news on our Bloomberg Law Podcast. You can

572
00:33:25,880 --> 00:33:30,120
Speaker 2: find them on Apple Podcasts, Spotify, and at www dot

573
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Speaker 2: bloomberg dot com, slash podcast slash Law, and remember to

574
00:33:34,360 --> 00:33:37,440
Speaker 2: tune into The Bloomberg Law Show every weeknight at ten

575
00:33:37,480 --> 00:33:41,240
Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening

576
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Speaker 2: to Bloomberg