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Mexico Sues Gunmakers & Musk and a Dead Horse · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:08
  Speaker 2: Mexico is suing US gun makers for ten billion dollars,
• 0:13
  Speaker 2: alleging they've fueled cartel gun violence, but it appears that
• 0:17
  Speaker 2: Mexico's lawsuit will end at the Supreme Court, where both
• 0:21
  Speaker 2: liberal and conservative justices appeared skeptical that the claims could
• 0:26
  Speaker 2: clear hurdles in US law that largely shield gun makers
• 0:30
  Speaker 2: from lawsuits when their products are used in crime. Liberal
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  Speaker 2: Justice Elena Kagan question whether Mexico's allegations were specific enough
• 0:39
  Speaker 2: to hold the gun makers like Smith and Wesson libel
• 0:43
  Speaker 2: for specific dealers that sell firearms in bulk to straw
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  Speaker 2: purchasers who traffic the guns across the border.
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  Speaker 3: What you don't have is particular dealers, right, I mean,
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  Speaker 3: it's a pretty There are lots of dealers, and you're
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  Speaker 3: just saying they know that some of them do and
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  Speaker 3: some of them, I mean, who are they aiding and
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  Speaker 3: a betting in this complaint?
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  Speaker 2: And Conservative Justice Brett Kavanaugh said he had real concerns
• 1:08
  Speaker 2: that allowing the case to go forward would have reprecautions
• 1:11
  Speaker 2: for US companies when their products are misused.
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  Speaker 1: You know, we manufacture knives, but there are a lot
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  Speaker 1: of stabbings in certain neighborhoods. We should make sure our
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  Speaker 1: products aren't sold there. Or a sporting goods company and
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  Speaker 1: baseball bats are used to you know, storm CVS's or
• 1:34
  Speaker 1: what have you, so we shouldn't sell in this city.
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  Speaker 1: Or prescription drugs are misused in a certain area, so
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  Speaker 1: we need to be alert and make sure. Is that
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  Speaker 1: where your theory of aiding and abetting leads that you
• 1:47
  Speaker 1: have to be kind of chasing tracing everything down the chain.
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  Speaker 2: My guest is Andrew Willinger, Executive director of the Duke
• 1:55
  Speaker 2: Center for Firearms Law. Andrew tell us about Mexico's claims
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  Speaker 2: in this lawsuit.
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  Speaker 4: So Mexico is alledging in this case that a group
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  Speaker 4: of major US gun manufacturers aided and embedded the illegal
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  Speaker 4: trafficking of guns into Mexico through straw purchasers that were
• 2:18
  Speaker 4: conducted by people within the United States who then trafficked
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  Speaker 4: the guns across the border. That those guns were then
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  Speaker 4: used by cartels in Mexico to commit various acts of violence,
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  Speaker 4: and Mexico is seeking to recover for the costs of
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  Speaker 4: that violence that occurred in the country and the issue
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  Speaker 4: before the court is whether these claims are barred by
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  Speaker 4: a federal statute that immunizes gun makers from certain legal
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  Speaker 4: claims based on the third party misuse of their products,
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  Speaker 4: or whether Mexico's claims fit within one of the listed
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  Speaker 4: exceptions in that federal WLAD.
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  Speaker 2: That federal law is called the Protection of Lawful Commerce
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  Speaker 2: in Arms Act from two thousand and five. So the
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  Speaker 2: exception is that it allows suits against gun makers that
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  Speaker 2: knowingly violate a state or federal gun law.
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  Speaker 4: Yes, that's right. So this is one of a series
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  Speaker 4: of exception to the immunity shield in PLACA. It's often
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  Speaker 4: called the predicate exception, and it allows, as you said,
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  Speaker 4: actions where a manufacturer knowingly violates a state or federal
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  Speaker 4: statute that's applicable to the sailor marketing of a gun,
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  Speaker 4: and then that violation has to be the proximate cause
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  Speaker 4: of the harm for which the plaintiffs is seeking to recover.
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  Speaker 3: This suit is just.
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  Speaker 2: At the very initial stages. There hasn't been any discovery
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  Speaker 2: or anything yet, has there No.
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  Speaker 4: There has not, And this is something that Mexico's council
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  Speaker 4: you mentioned repeatedly during the oral argument. This is a
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  Speaker 4: a case that has come all the way up to
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  Speaker 4: the Supreme Court on what's called a motion to dismiss,
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  Speaker 4: which means that the only thing that Mexico has done
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  Speaker 4: so far is file its complaint, which contains allegations about
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  Speaker 4: the conduct that Mexico says these gun makers have engaged
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  Speaker 4: in and how that conduct allegedly has caused these damages.
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  Speaker 4: But there has been no discovery, and since New Mexico
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  Speaker 4: hasn't been given the chance yet to come forward with
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  Speaker 4: evidence to support those allegations, the question is whether they
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  Speaker 4: can do so whether the case can progress to the
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  Speaker 4: next stage.
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  Speaker 2: So regarding that legal principle called proximate cause, No Francisco,
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  Speaker 2: the former Solicitor General who argued the case for the
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  Speaker 2: gun manufacturers, said that if Mexico is right, then every
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  Speaker 2: law enforcement organization in America has missed the largest criminal
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  Speaker 2: conspiracy in history operating right under their nose. And Budweiser
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  Speaker 2: is liable for every accident caused by underage drinkers since
• 4:58
  Speaker 2: it knows that teenagers will buy beer, drive drunk, and crash.
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  Speaker 2: That was also a concern of Justice Brett Kavanaugh, who
• 5:05
  Speaker 2: started talking about baseball bat manufacturers being held liable if
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  Speaker 2: their bad cause is injury.
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  Speaker 4: Yeah, that's right. There are a lot of extended hypothetical
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  Speaker 4: discussions about baseball bats, about beer makers, and sort of
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  Speaker 4: what level of knowledge or specific marketing to underage individuals
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  Speaker 4: of beer, for example, might be sufficient to give rise
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  Speaker 4: to liability. And you know, I think this is a
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  Speaker 4: sort of broader concern about what the impact would be
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  Speaker 4: in various industries of extending liability in this way. You know,
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  Speaker 4: it really underlies all aspects of the case at this stage,
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  Speaker 4: both the proximate cause question and the question of whether
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  Speaker 4: aiding and abedding liability. So the theory that here the
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  Speaker 4: gun makers have aided and abetted these retailers who are
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  Speaker 4: actually selling to straw purchaser knowing that they're going to
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  Speaker 4: bring the guns into Mexico, Whether allowing these claims to
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  Speaker 4: proceed could have damaging consequences beyond the gun industry, and.
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  Speaker 2: What was the answer to that from the attorney from Mexico.
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  Speaker 4: I heard Mexico's attorneys to be making a couple of
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  Speaker 4: points in response. I did hear some suggestions at various
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  Speaker 4: points that you know, things like drugs, pharmaceuticals, guns, you know,
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  Speaker 4: sort of products that might be inherently dangerous in some
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  Speaker 4: way that maybe it makes sense to have a different approach,
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  Speaker 4: to have some expanded form of liability when that's the
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  Speaker 4: type of product that you're dealing with. I also heard
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  Speaker 4: a lot of emphasis on the complaint and the specific
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  Speaker 4: allegations and the complaint about knowledge on the part of
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  Speaker 4: the gun manufacturers that there are specific what Mexico is
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  Speaker 4: called red flag dealers that are engaging in these straw sales.
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  Speaker 4: So I think Mexico also also emphasizing that in this
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  Speaker 4: specific instance, maybe there's sort of a unique level of
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  Speaker 4: knowledge and complicity in the country's view that distinguishes this
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  Speaker 4: case from the other types of hypotheticals that we heard
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  Speaker 4: discussed at oral arguments.
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  Speaker 2: Liberal Justice Elena Kagan was one of the ones talking
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  Speaker 2: about what you don't have is particular dealers, right, who
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  Speaker 2: are they aiding in a bedding in this complaint. I mean,
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  Speaker 2: it seemed to be liberals and conservatives across the board,
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  Speaker 2: we're having a problem with Mexico's lawsuit.
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  Speaker 4: I think that's right. That was my impression from the
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  Speaker 4: arguments as well, And actually I thought was notable as
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  Speaker 4: well that Justice Tanji Brown Jackson had this line of
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  Speaker 4: questioning both for NOL Francisco and also for Mexico's Council,
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  Speaker 4: that she seemed to be very concerned about this threshold
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  Speaker 4: issue of whether PLACA even contemplates sort of broader common
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  Speaker 4: law aiding at a betting as a potential predicate exception
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  Speaker 4: claim that could be brought notwithstanding the immunity shield. So
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  Speaker 4: she seemed to be voicing some concern that maybe, you know,
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  Speaker 4: Congress when it enacted PLACO was actually thinking about something
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  Speaker 4: far narrower in terms of the lawsuits that it would allow,
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  Speaker 4: and she was worried it seemed about courts, about judges
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  Speaker 4: putting in their own more expansive view of what the
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  Speaker 4: exception could permit. So I thought that was interesting, And
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  Speaker 4: you know, it's always difficult to speculate about how a
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  Speaker 4: justice will vote based solely on their questions and oral argument.
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  Speaker 4: But Justice Jackson seemed very concerned about that point, and
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  Speaker 4: it would suggest to me that maybe she's more on
• 8:43
  Speaker 4: the fence, or maybe even on the side of the
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  Speaker 4: gunmakers in this case.
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  Speaker 2: So then what issue do you think the decision will
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  Speaker 2: turn on?
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  Speaker 4: So I had to predict I think, you know, based
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  Speaker 4: on post on how the argument went today. It's most
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  Speaker 4: likely that the Court will decide this on the aiding
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  Speaker 4: and a betting point that the Court don't really want
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  Speaker 4: to get into the proximate cause case law, which you know,
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  Speaker 4: at various times, and the arguments that we heard it
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  Speaker 4: called kind of a mess and very muddled, and you
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  Speaker 4: know that it's not clear exactly you know, what the
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  Speaker 4: court requires in terms of approximate cause and it's past
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  Speaker 4: case law. So there seemed to be more of an
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  Speaker 4: appetite among several of the justices to decide, you know,
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  Speaker 4: on the basis of aiding in a betting, which would mean,
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  Speaker 4: as I suspect, the court sides with the gun makers
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  Speaker 4: and then throws this case out, it would say that
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  Speaker 4: Mexico's allegations did not plausibly establish and aiding in a
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  Speaker 4: betting violation of the straw sales by these retailers further
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  Speaker 4: down the line.
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  Speaker 2: So then could Mexico come back if with new information,
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  Speaker 2: you know, specific dealers or straw purchasers or whatever, that
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  Speaker 2: would allow them to bring the case again.
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  Speaker 4: I think that's possible. I could I could imagine there
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  Speaker 4: being a more sort of a more limited case where
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  Speaker 4: they're and again, you know, reading a little bit between
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  Speaker 4: the lines arguments today, some justices seem to maybe be
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  Speaker 4: pushing in this direction that if this were a complaint
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  Speaker 4: that was based on specific transactions, where Mexico is saying,
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  Speaker 4: you know, these specific gunmakers sold these guns to these
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  Speaker 4: distributors and then dealers, and they knew that they were
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  Speaker 4: going to go into the hands of straw purchasers and
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  Speaker 4: go into Mexico on a transaction by transaction basis listing
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  Speaker 4: that out, that maybe that would be a different outcome.
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  Speaker 4: That would obviously be a much different type of case.
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  Speaker 4: The damages would presumably be much lower because we would
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  Speaker 4: be talking about a fewer guns. But I think I
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  Speaker 4: think that's theoretically possible.
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  Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue
• 10:39
  Speaker 2: this conversation with Andrew Willinger of Duke University. This argument
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  Speaker 2: comes at a front time for US Mexico relations. There
• 10:48
  Speaker 2: seemed to be an oblique reference to that in a
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  Speaker 2: question from Justice Samuel Alito.
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  Speaker 5: There are Americans who think that Mexican government officials are
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  Speaker 5: contributing to a lot of illegal conduct.
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  Speaker 2: Here more on the oral arguments coming up next. I'm
• 11:03
  Speaker 2: June Grosse when you're listening to Bloomberg. The Supreme Court
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  Speaker 2: seems likely to block a ten billion dollar lawsuit Mexico
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  Speaker 2: filed against top firearm manufacturers in the US, alleging the
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  Speaker 2: companies have fueled cartel gun violence. Mexico has strict gun
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  Speaker 2: laws and has just one store where people can legally
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  Speaker 2: buy firearms, but thousands of guns are smuggled into the
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  Speaker 2: country by powerful drug cartels every year. The Mexican government
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  Speaker 2: says seventy percent of those weapons come from the United States,
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  Speaker 2: and the lawsuit claims that company's new weapons were being
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  Speaker 2: sold to traffickers who smuggled them into Mexico and decided
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  Speaker 2: to cash in on that market. The companies reject Mexico's claims,
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  Speaker 2: arguing it comes nowhere close to showing their responsible for
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  Speaker 2: a relatively few people using their products to commit violence.
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  Speaker 2: I've been talking to Andrew Willinger, executive director of the
• 12:02
  Speaker 2: Duke Center for Firearms Law.
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  Speaker 6: Andrew.
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  Speaker 2: This comes at a fraught time for relations between the
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  Speaker 2: US and Mexico, with President Donald Trump imposing twenty five
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  Speaker 2: percent tariffs on Mexican imports and the Mexican president promising
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  Speaker 2: to impose retaliatory tariffs Trump, I said, the tariffs are
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  Speaker 2: aimed at forcing Mexico to step up its fight against
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  Speaker 2: illicit drugs and illegal migrants crossing the southern border. I
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  Speaker 2: didn't think that that would enter into the arguments today,
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  Speaker 2: But then Justice Samuel Alito asked the lawyer representing Mexico
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  Speaker 2: this question.
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  Speaker 5: There are Americans who think that Mexican government officials are
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  Speaker 5: contributing to a lot of illegal conduct here. So suppose
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  Speaker 5: that one of the fifty States sued the government of
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  Speaker 5: Mexico for aiding and a betting illegal conduct within the
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  Speaker 5: state's orders that causes the state to incur law enforcement costs,
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  Speaker 5: public welfare costs, other costs. Would your client be willing
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  Speaker 5: to litigate that case in the courts of the United States.
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  Speaker 2: I thought that was a very aggressive question that clearly
• 13:16
  Speaker 2: revealed his position.
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  Speaker 4: Yeah, I was very surprised to hear this question be
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  Speaker 4: asked that oral argument. I will say, you know, Justice
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  Speaker 4: Leedo did preface it by sort of you know, put it,
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  Speaker 4: you know, some kind of disclaimer of you know, well,
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  Speaker 4: this doesn't actually relate to any of the legal issues
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  Speaker 4: in the case, which of course it doesn't, and you know,
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  Speaker 4: It's certainly true that this is this is going on
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  Speaker 4: in the background that you know, the case itself has
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  Speaker 4: become kind of a bargaining ship in some sense in
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  Speaker 4: these negotiations or discussions between the US and Mexico. But
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  Speaker 4: it wasn't clear to me exactly what this question was
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  Speaker 4: was meant to do, other than just to kind of
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  Speaker 4: put this idea on the record, because clearly, you know,
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  Speaker 4: Mexico's attorney in this case was not going to you know,
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  Speaker 4: go down the path of a saying that the Mexican
• 14:01
  Speaker 4: government would waive a sovereign immunity and in some kind
• 14:03
  Speaker 4: of future hypothetical litigation. So this surprised me as well.
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  Speaker 4: I didn't expect it to come up so viscerally at
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  Speaker 4: oral arguments.
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  Speaker 2: Yeah, I felt for the attorney at that point, because
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  Speaker 2: how could she possibly answer that question. Thinking back on
• 14:18
  Speaker 2: the arguments, I'm trying to think if there was one
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  Speaker 2: justice who clearly came out in favor of Mexico's position,
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  Speaker 2: perhaps Justice Sonia Soto Mayor in part.
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  Speaker 4: I think that's right. I think just the Sodoma r
• 14:34
  Speaker 4: was sort of, you know, maybe helping pulling out the
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  Speaker 4: best or most direct theory of the case for Mexico
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  Speaker 4: in terms of what was being alleged. And I think
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  Speaker 4: I think she was also, if I heard her question incorrectly,
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  Speaker 4: maybe putting the relevant point in the causal chain sort
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  Speaker 4: of further down the line, which which would help make
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  Speaker 4: proximate cause potentially in an easier sell. Right, So she
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  Speaker 4: was saying, well, you really need to look at the
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  Speaker 4: point at which the guns are sold and not necessarily
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  Speaker 4: the upstream actions of the gun manufacturers. And you know
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  Speaker 4: that that's sort of the way vicarious viability and aiding
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  Speaker 4: and embedding works, and so that's where you're starting. You
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  Speaker 4: don't have this you know, six or eight step causal
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  Speaker 4: chain that you know, the gun makers have been referring
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  Speaker 4: to in their briefing at arguments.
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  Speaker 2: You know, there were questions about whether the manufacturers are designing,
• 15:29
  Speaker 2: there and marketing their guns in order to drive up
• 15:33
  Speaker 2: demand among the cartels. For example, they have this special
• 15:37
  Speaker 2: addition cold handgun called the super el Hefe pistol, and
• 15:42
  Speaker 2: engraved there is the Mexican revolutionary Emiliano Zapata's pronouncement it's
• 15:49
  Speaker 2: better to die standing than to live on your knees.
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  Speaker 2: I mean, did that play any part and it's the
• 15:53
  Speaker 2: fact that they may be actually designing some weapons to
• 15:59
  Speaker 2: appeal to Mexicans.
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  Speaker 4: This did come up a little bit, you know, towards
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  Speaker 4: the end of the oral argument, and it seemed to me, like,
• 16:07
  Speaker 4: you know, the response to that among the justices was
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  Speaker 4: a little bit skeptical, I think due to the fact that,
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  Speaker 4: as you know, one of the justices noted, you know,
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  Speaker 4: it's not clear of those specific types of firearms. There
• 16:20
  Speaker 4: didn't seem to be evidence of what percentage were actually
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  Speaker 4: the ones that were being diverted into Mexico, So there
• 16:26
  Speaker 4: seemed to be maybe a missing link there. And then
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  Speaker 4: of course the fact that like maybe these are these
• 16:31
  Speaker 4: are things that some consumers in the United States want
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  Speaker 4: to I think the justices seemed skeptical that this rose
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  Speaker 4: to the level of the kind of deliberate targeting that
• 16:42
  Speaker 4: was discussed in some of the other context where you
• 16:44
  Speaker 4: might have, you know, a beer manufacturer that's you know,
• 16:48
  Speaker 4: designing something specifically for people who are underage, right, So
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  Speaker 4: it seemed skeptical in my view that this was at
• 16:55
  Speaker 4: the same level.
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  Speaker 2: So do you think they'll just write an opinion throwing
• 16:59
  Speaker 2: out the case, or that the opinion might have implications
• 17:03
  Speaker 2: for other cases.
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  Speaker 4: This case, of course, is a little bit unique, deals
• 17:09
  Speaker 4: with about you know, foreign country. I think one of
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  Speaker 4: the real questions will be what impact, if any, the
• 17:17
  Speaker 4: decision has on domestic tort lawsuits against the gun industry,
• 17:22
  Speaker 4: and specifically lawsuits that are brought pursuant to a recently
• 17:28
  Speaker 4: enacted set of laws in a handful of states that
• 17:32
  Speaker 4: are designed specifically within the predicate exception and provide you know,
• 17:36
  Speaker 4: a statutory claim. These are sometimes called firearm industry nuisance
• 17:41
  Speaker 4: statutes that have been passed in states like New York
• 17:43
  Speaker 4: and California, for example. And you know, I think it's
• 17:47
  Speaker 4: going to depend on what basis the court decides this
• 17:49
  Speaker 4: case what the impact on that domestic sphere will be,
• 17:54
  Speaker 4: because one of the reasons that states are passing these
• 17:57
  Speaker 4: laws is sort of to have less doubt out there
• 18:01
  Speaker 4: about whether a predicate violation is actually something being alleged.
• 18:06
  Speaker 4: So instead of having to rely on the type of
• 18:08
  Speaker 4: aiding in a betting theory that Mexico did here, if
• 18:12
  Speaker 4: you are operating under one of these state laws, you
• 18:14
  Speaker 4: have an actual statute that you can point to and say,
• 18:17
  Speaker 4: I'm alleging that this gun manufacturer violated this specific state law.
• 18:22
  Speaker 4: But on the other hand, there's still approximate cause requirements.
• 18:26
  Speaker 4: So the extent the Court does say something about proximate cause,
• 18:30
  Speaker 4: that could have an impact on these domestic lawsuits and
• 18:34
  Speaker 4: anything that is in that opinion that talks more broadly
• 18:38
  Speaker 4: about PLACA, about the intent of PLACO, what types of
• 18:42
  Speaker 4: lawsuits Placa was meant to sort of cut off. Any
• 18:46
  Speaker 4: of those broader atmospheric statements could be pretty impactful even
• 18:50
  Speaker 4: in these domestic cases.
• 18:52
  Speaker 2: Knowing the Supreme Court's recent Second Amendment jurisprudence, do you
• 18:58
  Speaker 2: think that this case really came to the court with
• 19:01
  Speaker 2: sort of an uphill battle.
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  Speaker 4: I think that's right. You know, I have said that,
• 19:05
  Speaker 4: you know, I think that the Second Amendment cases are
• 19:08
  Speaker 4: sort of a useful guide going in to think about
• 19:11
  Speaker 4: how the justices might view this case. That said, you know,
• 19:15
  Speaker 4: that issue really didn't come up an oral argument, even
• 19:18
  Speaker 4: though I think nol Francisco said something about, you know,
• 19:21
  Speaker 4: the second the Second Amendment and the possibility that this
• 19:24
  Speaker 4: was going to you know, these types of cases might
• 19:27
  Speaker 4: have a significant negative impact on the gun industry, which
• 19:30
  Speaker 4: could impact Second Amendment rights, there didn't seem to be
• 19:33
  Speaker 4: a whole lot of engagement on those points from the justices.
• 19:36
  Speaker 4: So while I think maybe that was a useful touristic
• 19:39
  Speaker 4: going in, I actually think we're likely to see a
• 19:42
  Speaker 4: decision that doesn't break down necessarily along those lines, along
• 19:47
  Speaker 4: that same partisan lines that we've seen in some of
• 19:50
  Speaker 4: the major gun cases, like the Bruin case for example,
• 19:53
  Speaker 4: that we could see something more unanimous.
• 19:56
  Speaker 2: Thanks so much for coming on the show, Andrew. That's
• 19:59
  Speaker 2: Andrew Willinger, executive director of the Duke Center for Firearms Law.
• 20:03
  Speaker 2: Coming up next on the Bloomberg Law Show. Delaware's Chancery
• 20:07
  Speaker 2: Court often gets attention because of billionaire litigants like Elon
• 20:12
  Speaker 2: Musk and Fortune five hundred companies, but a case involving
• 20:16
  Speaker 2: a construction worker whose horse was dumped in a Delaware
• 20:20
  Speaker 2: landfill after a hit and run accident highlights the chancery
• 20:24
  Speaker 2: Court's responsibility to deliver equity. I'm June Grosso. When you're listening,
• 20:32
  Speaker 2: Since I was born.
• 20:33
  Speaker 6: I dreamed of being a Budweiser Clydesdale.
• 20:37
  Speaker 4: The only problem is I was born a donkey, so
• 20:42
  Speaker 4: all my life I practiced the Clydesdale walk.
• 20:45
  Speaker 2: Who hasn't felt a tog at their heartstrings, as the
• 20:49
  Speaker 2: Budweiser Clydesdale's have bonded with donkeys, puppies and yes bulls,
• 20:54
  Speaker 2: fought against the odds, played football in the snow, and
• 20:58
  Speaker 2: even fallen in love with a dancing circus horse in
• 21:02
  Speaker 2: nearly fifty uplifting Super Bowl ads. It's no wonder, then,
• 21:06
  Speaker 2: that Breton Marquisi wanted a Clydesdale ever since seeing Budweiser's
• 21:11
  Speaker 2: famous team when he was a boy, and his dream
• 21:14
  Speaker 2: came true in twenty fifteen when a friend showed him
• 21:17
  Speaker 2: a photo of a foal named Michigan Breeze and said
• 21:21
  Speaker 2: he could buy her for eleven hundred dollars. Marquisi says
• 21:25
  Speaker 2: it melted my heart. Breeze became the cornerstone of his
• 21:29
  Speaker 2: life until a hit and run accident last December took
• 21:32
  Speaker 2: her from him. What followed brought Marquisi to the Delaware
• 21:37
  Speaker 2: Chancery Court and Chief Judge Kathleen McCormick, the same judge
• 21:41
  Speaker 2: in court that Elon Musk and his online followers have
• 21:46
  Speaker 2: been attacking for nearly a year. Joining me is Jennifer
• 21:49
  Speaker 2: Kay Bloomberg lost Senior correspondent Jennifer Tell us about the
• 21:53
  Speaker 2: history and relationship between Marquisi and Breeze.
• 21:58
  Speaker 7: So Brendon Marquisi is a construction worker. Lives in a
• 22:02
  Speaker 7: small Delaware town outside of Wilmington and its famous courthouses.
• 22:08
  Speaker 7: Is a pretty rural area for the most part, and
• 22:11
  Speaker 7: he has had this Clydesdale for about a decade. He
• 22:16
  Speaker 7: bought her when she was just a few months old.
• 22:19
  Speaker 7: She came with the name Michigan's Breeze, and you know,
• 22:23
  Speaker 7: for him, it was kind of love at first site.
• 22:26
  Speaker 7: That first sight being a picture on a friend's cell
• 22:29
  Speaker 7: phone front of a friend was selling the horse, and
• 22:31
  Speaker 7: he had always wanted a Clydesdale ever since being the
• 22:35
  Speaker 7: Budweiser team when he was a kid. Brenton Marquisi has
• 22:39
  Speaker 7: not had, I think the easiest life. He's definitely had
• 22:43
  Speaker 7: some losses and some difficult relationships, but the one steady
• 22:49
  Speaker 7: presence in his life was always this horse, Breeze, and
• 22:52
  Speaker 7: she turned out to be that way for a lot
• 22:55
  Speaker 7: of his friends as well. Some of them are military
• 22:57
  Speaker 7: veterans coming home with trauma that they need to process
• 23:02
  Speaker 7: and instead of turning maybe to different substances, you know,
• 23:07
  Speaker 7: Marquisi knew that he could always turn to this horse
• 23:11
  Speaker 7: who always needed him to show up every day, and
• 23:14
  Speaker 7: so she became kind of an emotional support animal for
• 23:17
  Speaker 7: his social network that she was always there, always happy
• 23:21
  Speaker 7: to see them, always needing them to show up, and
• 23:25
  Speaker 7: was just that kind of one steady presence. So he
• 23:29
  Speaker 7: and breathe they had a routine of just going out
• 23:32
  Speaker 7: for a short ride after work every day. And in December,
• 23:37
  Speaker 7: it was a day like any other. They were riding
• 23:39
  Speaker 7: back to the barn where she lived in a kind
• 23:43
  Speaker 7: of a double stall because she's such a large horse,
• 23:46
  Speaker 7: and unfortunately, that's when a driver came up behind them,
• 23:51
  Speaker 7: going really fast and clips her in the hind legs
• 23:55
  Speaker 7: just as she was moving, you know, off the road
• 23:58
  Speaker 7: into the shoulder of the and the driver briefly stopped.
• 24:02
  Speaker 7: Ben just kept right on going, and unfortunately, no one
• 24:06
  Speaker 7: gotta look at the car or the license plate. It
• 24:10
  Speaker 7: didn't show up on any doorbell cameras in the area,
• 24:13
  Speaker 7: and mister Marquisi was injured. Amazingly, he walked away without
• 24:18
  Speaker 7: any broken bones, but he was injured at the scene
• 24:21
  Speaker 7: and the paramedics wanted him to go to the hospital.
• 24:25
  Speaker 7: It was near the barn where the horse lived, so
• 24:27
  Speaker 7: the barn's owner came out and was waiting for a
• 24:31
  Speaker 7: veterinarian to come and take a look at the horse,
• 24:34
  Speaker 7: and mister Marquisi knew it was pretty bad, you know,
• 24:39
  Speaker 7: with the horse breaks its leg, that's usually a fatal injury.
• 24:44
  Speaker 7: He knew it was bad, but he also knew that
• 24:46
  Speaker 7: everybody who was at the scene knew how much he
• 24:48
  Speaker 7: loved this horse, and that he wouldn't want her just
• 24:51
  Speaker 7: taken away and forgotten that he would want to honor her,
• 24:54
  Speaker 7: that he'd always said that he would plan to cremate
• 24:58
  Speaker 7: any of his pets or animals, and so when he
• 25:01
  Speaker 7: left in an ambulance, he kind of left her in
• 25:03
  Speaker 7: the care of the small number of people at the scene.
• 25:07
  Speaker 7: And unfortunately, somewhere between the accident and the hospital, he
• 25:10
  Speaker 7: lost track of his phone. He wasn't able to get,
• 25:14
  Speaker 7: you know, clear word on what had happened to the
• 25:16
  Speaker 7: horse or what was happening at the scene. So it
• 25:19
  Speaker 7: was pretty much twenty four hours later before he really
• 25:22
  Speaker 7: got the messages that unfortunately the horse had to be
• 25:26
  Speaker 7: put down there at the scene, and then someone at
• 25:30
  Speaker 7: the scene gave the okay for the horse to be
• 25:33
  Speaker 7: transported to a landfill and that was the one thing
• 25:36
  Speaker 7: that he really didn't want to do with his animal.
• 25:38
  Speaker 6: An attorney volunteered to help him with this.
• 25:43
  Speaker 7: So you know, like I said, it's a small rural
• 25:46
  Speaker 7: part of Delaware, which is a pretty small state overall.
• 25:49
  Speaker 7: You know, it's one of those places where everyone kind
• 25:51
  Speaker 7: of knows everyone. And so as his story was spreading
• 25:55
  Speaker 7: in kind of the small equestrian community there outside Dover,
• 26:00
  Speaker 7: this attorney happened to see on social media a post
• 26:04
  Speaker 7: about his story and she realized that she was taking
• 26:07
  Speaker 7: writing lessons at the same barn, and so she called
• 26:11
  Speaker 7: him up and said, hey, what can I do to
• 26:13
  Speaker 7: help you? And I'll help you for free. I'll help
• 26:15
  Speaker 7: you pro bono, just because he needed someone to help
• 26:19
  Speaker 7: him walk through his chancery court process of trying to
• 26:23
  Speaker 7: get in order to go into the landfill to retrieve
• 26:26
  Speaker 7: Breeze's remains.
• 26:28
  Speaker 6: We've been hearing about chancery court and the particular judge
• 26:32
  Speaker 6: involved for quite some time because of the Elon Musk
• 26:38
  Speaker 6: pay situations.
• 26:40
  Speaker 7: Chancery Court has become a famous I think as the
• 26:42
  Speaker 7: place that Elon Musk loves to hate, right because this
• 26:46
  Speaker 7: is a court that made him by Twitter in the
• 26:48
  Speaker 7: first place is the court where the same judge has said, no,
• 26:53
  Speaker 7: your pay package at Tesla for fifty six billion dollars
• 26:57
  Speaker 7: that wasn't passed correctly. There were too many conflicts of
• 27:00
  Speaker 7: interest on the board. You can't have that. The board
• 27:03
  Speaker 7: is going to have to go back to the drawing board.
• 27:05
  Speaker 7: He's been using those rulings as a means of attacking
• 27:11
  Speaker 7: the Court of questioning basically the bedrock of corporate law
• 27:16
  Speaker 7: for corporate America, for the Fortune five hundred. You know,
• 27:20
  Speaker 7: all of his criticisms has led now to corporate law
• 27:24
  Speaker 7: amendments being proposed in the Delaware legislature. There's a lot
• 27:28
  Speaker 7: of criticism directed at the court that this is not
• 27:30
  Speaker 7: how judges are supposed to act, and some of that
• 27:33
  Speaker 7: criticism is coming from people who just really aren't regular
• 27:37
  Speaker 7: to the corporate law world. So this court is really
• 27:41
  Speaker 7: the home for any legal question involving the Fortune five
• 27:45
  Speaker 7: hundred because all the judges are business law experts, including
• 27:50
  Speaker 7: this judge, Chancellor Kathleen McCormick, who has overseen the Elon
• 27:53
  Speaker 7: Musk cases. But it's also this very traditional court where
• 27:58
  Speaker 7: anyone who is looking for some kind of remedy that
• 28:02
  Speaker 7: doesn't involve money. Like if you have a property dispute
• 28:05
  Speaker 7: and money isn't really going to solve the problem for you,
• 28:08
  Speaker 7: you go to chancery court. If you have a will
• 28:11
  Speaker 7: that you need to contest, or in a state that's
• 28:13
  Speaker 7: sort of in question, you go to chancery court. So
• 28:16
  Speaker 7: all of these judges also from time to time have
• 28:19
  Speaker 7: to take on these so called smaller cases, cases that
• 28:22
  Speaker 7: don't really rise to the headlines that you see with
• 28:25
  Speaker 7: Elon Musk. It's a very old fashioned kind of court
• 28:30
  Speaker 7: in that sense. Most states don't have a court like this.
• 28:34
  Speaker 7: They just kind of go through civil court regardless of
• 28:37
  Speaker 7: what the question is. But in Delaware there are really
• 28:39
  Speaker 7: two civil courts, and chancery court is the one where
• 28:42
  Speaker 7: you go when money isn't really going to solve the
• 28:45
  Speaker 7: problem for you. And in this case, what mister Murckisey
• 28:48
  Speaker 7: wanted wasn't money for his course. He just really wanted
• 28:51
  Speaker 7: the horseback.
• 28:52
  Speaker 6: So on Christmas Eve afternoon, his lawyer gets a call
• 28:57
  Speaker 6: from the chief judge.
• 29:00
  Speaker 7: So this crash happened basically late in the week before Christmas,
• 29:05
  Speaker 7: and it was I believe December twenty third when the
• 29:07
  Speaker 7: petition was filed and the attorney Angelica Mamani. She didn't
• 29:12
  Speaker 7: think anybody at the court was actually going to see
• 29:15
  Speaker 7: it until after Christmas because it was so close to
• 29:17
  Speaker 7: the holiday and things tend to shut down for holidays.
• 29:21
  Speaker 7: But she got word in the afternoon on Christmas Eve
• 29:24
  Speaker 7: as she was planning to take off to see her
• 29:26
  Speaker 7: family that Chancellor McCormick has a position and wanted to
• 29:31
  Speaker 7: hold a zoom meeting that night to try to see
• 29:35
  Speaker 7: what she could do to resolve the question, because there
• 29:38
  Speaker 7: was this urgency behind it.
• 29:41
  Speaker 2: So MARQUESI didn't consent to having his horse buried in
• 29:45
  Speaker 2: the landfill, but they wouldn't let him on the site
• 29:48
  Speaker 2: to retrieve her. So what were the questions that Chancellor
• 29:53
  Speaker 2: McCormick was faced with.
• 29:56
  Speaker 7: It's an unusual question for sure to come up to
• 29:58
  Speaker 7: the Chancery Court. All all Breton Mrkeusey wanted was to
• 30:02
  Speaker 7: reclaim the remains of his horse so that he could
• 30:05
  Speaker 7: have her cremated and he could, you know, celebrate her
• 30:08
  Speaker 7: life with some dignity. He didn't want to just leave
• 30:12
  Speaker 7: her remains dumped in the landfill because he had seen
• 30:15
  Speaker 7: other animal owners, other horse owners who really mistreated their horses,
• 30:20
  Speaker 7: their animals, you know, just ended up dumped, uncared for, unloved,
• 30:24
  Speaker 7: and Breeze wasn't unloved. Breeze was the dearly beloved horse
• 30:28
  Speaker 7: for Marqusi and his friends and family. What he wanted
• 30:31
  Speaker 7: was a court order go in and retrieved the horses
• 30:35
  Speaker 7: remained so that he could take it and cremate it.
• 30:37
  Speaker 7: The state agency that runs the landfill, however, said, look,
• 30:41
  Speaker 7: we understand the issue. We're not, you know, trying to
• 30:45
  Speaker 7: keep mister Murkuisi from grieving his horse, but we we
• 30:48
  Speaker 7: can't allow people in because landfills just aren't meant for
• 30:53
  Speaker 7: this purpose. When something is in, we're not going to
• 30:56
  Speaker 7: go in and try to disturb the infrastructure. We don't
• 30:59
  Speaker 7: want to really least any toxic gases or other hazardous
• 31:03
  Speaker 7: material out where it might harm public safety. So these
• 31:06
  Speaker 7: are the questions that Chancellor McCormick suddenly had to consider
• 31:10
  Speaker 7: on Christmas Eve, and.
• 31:12
  Speaker 6: So how did she weigh the equities.
• 31:15
  Speaker 7: Chancellor McCormick said that this case was presenting new questions
• 31:19
  Speaker 7: for her that she had never had to consider in
• 31:22
  Speaker 7: all of her experience in corporate law and as a
• 31:26
  Speaker 7: judge at the Chancery Court. You know, first of all,
• 31:28
  Speaker 7: has this ever happened? And has anyone been able to
• 31:32
  Speaker 7: go into a landfill to retrieve something that was wrongly
• 31:36
  Speaker 7: placed there? And then how was she supposed to balance
• 31:39
  Speaker 7: public safety with the rights of this person whose property
• 31:43
  Speaker 7: was taken without their consent? And so she said, this
• 31:47
  Speaker 7: was just a really, really hard question. That there was
• 31:49
  Speaker 7: no doubt that mister Marquisi loved his horse and wanted
• 31:54
  Speaker 7: to do right by her and really just had a
• 31:56
  Speaker 7: simple request. He didn't want anything else out of a landfill,
• 31:59
  Speaker 7: just one of his property. But she had to acknowledge
• 32:02
  Speaker 7: that landfills are really delicate things, and you know, balancing
• 32:07
  Speaker 7: the equities required her to compare the relative importance of
• 32:12
  Speaker 7: the public safety and a landfills infrastructure with you know,
• 32:16
  Speaker 7: the dignity of this horse that was longly interred there. Ultimately,
• 32:21
  Speaker 7: she decided that the risks to public safety and public
• 32:24
  Speaker 7: health were too high to allow him to go into
• 32:27
  Speaker 7: the landfill. The state argued during one of the hearings
• 32:31
  Speaker 7: before her that really no one had ever been allowed
• 32:34
  Speaker 7: to go into a landfill and search for something except
• 32:38
  Speaker 7: for a murder case about thirty years ago. A famous
• 32:41
  Speaker 7: murder case involving ubernatorial aid named Anne Marie Sahy. That
• 32:45
  Speaker 7: was a very big deal in the mid nineties at
• 32:47
  Speaker 7: the time in the area. But that was really the
• 32:49
  Speaker 7: last time that the state could say, Hey, these are
• 32:52
  Speaker 7: the circumstances under which we let someone go in and
• 32:55
  Speaker 7: search in a landfill that's been kind of already processing
• 32:58
  Speaker 7: debris and capped over.
• 33:01
  Speaker 2: And how did Marquis feel the judge treated him and
• 33:05
  Speaker 2: handled the case.
• 33:06
  Speaker 7: So this wasn't you know, the first time that Brenton
• 33:09
  Speaker 7: Marksi's had ever appeared before a judge in Delaware. Like
• 33:13
  Speaker 7: I said, he's had some troubles, some personal struggles in
• 33:17
  Speaker 7: his past, but for these interactions with Chancellor McCormick, he
• 33:21
  Speaker 7: met with her over zoom, you know, with his attorney
• 33:23
  Speaker 7: and the attorney for the state, and she really let
• 33:26
  Speaker 7: him talk at great length about his relationship with his
• 33:30
  Speaker 7: horse and why he was so adamant about retreating her remains.
• 33:34
  Speaker 7: He said, look, I didn't get what I wanted out
• 33:37
  Speaker 7: of this experience, but I know that I was heard,
• 33:40
  Speaker 7: and she let me talk, and she listened to me
• 33:42
  Speaker 7: and responded to what I was saying, not what she
• 33:46
  Speaker 7: wanted to hear. And he said that he felt like
• 33:49
  Speaker 7: she treated him with compassion and that he could at
• 33:53
  Speaker 7: least walk away from the experience knowing that she treated
• 33:56
  Speaker 7: him compassionately, even if she couldn't give him what he
• 34:01
  Speaker 7: thought he should have gotten out of this.
• 34:03
  Speaker 6: Is he going to get another horse?
• 34:05
  Speaker 7: I did ask him that, and he's said, you know,
• 34:07
  Speaker 7: maybe I'll think about it a year from now. You know,
• 34:10
  Speaker 7: horses are expensive. He's a construction workers. He's not a
• 34:14
  Speaker 7: guy who has a ton of financial resources. He was
• 34:17
  Speaker 7: living paycheck to paycheck for a lot of the time
• 34:20
  Speaker 7: that he owned Breeze. Because this is a very large horse.
• 34:23
  Speaker 7: She was about two thousand pounds when she died. So
• 34:27
  Speaker 7: I think he'd have to resolve some things financially before
• 34:30
  Speaker 7: he could commit to another lifetime with a horse.
• 34:33
  Speaker 2: So you talk to Delaware lawyers and what did they
• 34:37
  Speaker 2: think about the import of this case.
• 34:42
  Speaker 7: You know, it's it's really interesting. This opinion came out
• 34:46
  Speaker 7: right after New Year's kind of in between two big
• 34:49
  Speaker 7: rulings involving Elon Musk and Tesla. You know, everyone was
• 34:53
  Speaker 7: waiting for that second opinion regarding a settlement in Tesla
• 34:57
  Speaker 7: overboard compensation. So people will refreshing the court website. They
• 35:02
  Speaker 7: noticed when things post, and I think when this one posted,
• 35:05
  Speaker 7: and it had Chancellor McCormick's name on it, and they
• 35:08
  Speaker 7: actually read it and saw how torn she was in
• 35:13
  Speaker 7: making this decision against the horse's owner. They were really
• 35:17
  Speaker 7: struck by how she took the time when she's under
• 35:21
  Speaker 7: fire from the world's richest man and all of his
• 35:24
  Speaker 7: fans who have been swarming the court with online criticism,
• 35:29
  Speaker 7: that she would take the time to listen to this
• 35:31
  Speaker 7: one man about his horse that he can't get back
• 35:34
  Speaker 7: out of a landfill. That really struck people, as that
• 35:37
  Speaker 7: shows how special this court is, that it's not only
• 35:40
  Speaker 7: set up to weigh these kinds of questions as though
• 35:44
  Speaker 7: they are the most important questions before a corporate board
• 35:49
  Speaker 7: or a billionaire. She was able to turn around this
• 35:51
  Speaker 7: opinion really quickly, and she kind of let everybody walk
• 35:56
  Speaker 7: away feeling like they were heard, even if they couldn't
• 36:00
  Speaker 7: get exactly what they wanted. No one felt like they
• 36:03
  Speaker 7: were disadvantaged or that she was biased against them more
• 36:07
  Speaker 7: or anything like that.
• 36:08
  Speaker 2: This is a great story, Jennifer, about how the Delaware
• 36:10
  Speaker 2: chance record has these two very different sides to it.
• 36:14
  Speaker 2: That's Bloomberger Law Senior Correspondent Jennifer Ka, and that's it
• 36:18
  Speaker 2: for this edition of The Bloomberg Law Show. Remember you
• 36:20
  Speaker 2: can always get the latest legal news on our Bloomberg
• 36:23
  Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,
• 36:27
  Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,
• 36:32
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• 36:35
  Speaker 2: weeknight at ten pm Wall Street Time. I'm Junie Grosso
• 36:39
  Speaker 2: and you're listening to Bloomberg