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Weekend Law: Birthright Citizenship, SCOTUS Stats & Lululemon Suit · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
• 0:08
  Speaker 2: No matter how much the Trump administration may dislike it,
• 0:12
  Speaker 2: they cannot break it, they cannot ignore it. It is
• 0:15
  Speaker 2: the right of every child born in this country.
• 0:19
  Speaker 3: The legal battle over President Trump's executive order on birthright
• 0:23
  Speaker 3: citizenship went all the way up to the Supreme Court
• 0:27
  Speaker 3: and is now back at the district courts where it started.
• 0:30
  Speaker 3: And on Thursday, a federal judge in New Hampshire placed
• 0:34
  Speaker 3: a new nationwide block on the order and certified a
• 0:38
  Speaker 3: class action lawsuit against the administration on behalf of all
• 0:43
  Speaker 3: children whose automatic citizenship could be jeopardized by the president's order.
• 0:48
  Speaker 3: Cody Wafsei of the ACLU is the lead attorney on
• 0:52
  Speaker 3: this class action lawsuit.
• 0:54
  Speaker 2: The idea that the president can rewrite who is a
• 0:58
  Speaker 2: citizen and decide who gets to count as an American
• 1:02
  Speaker 2: is extremely dangerous and deeply deeply contrary to our national values.
• 1:07
  Speaker 3: This case may be on a fast track back to
• 1:10
  Speaker 3: the Supreme Court. Joining me is Leon Fresco, a partner
• 1:14
  Speaker 3: at Honda Knight and the former head of the Office
• 1:16
  Speaker 3: of Immigration Litigation in the Obama administration. Leam at the
• 1:21
  Speaker 3: end of June. The Supreme Court in the birthright Citizenship
• 1:25
  Speaker 3: case limited the ability of federal judges to issue nationwide injunctions,
• 1:31
  Speaker 3: but it left open the path to reach the same
• 1:34
  Speaker 3: result with a class action lawsuit. Explain how this lawsuit
• 1:38
  Speaker 3: did just that.
• 1:40
  Speaker 4: So this was the first of many cases where basically
• 1:44
  Speaker 4: litigates raced to the Court House and tried to get
• 1:48
  Speaker 4: a class certified that would encompass the entire nation. And
• 1:53
  Speaker 4: the judge here actually did certify a class. The judge
• 1:56
  Speaker 4: certified a class of all current and future persons who
• 2:00
  Speaker 4: are born honor after February twenty at twenty twenty five,
• 2:04
  Speaker 4: where the person's mother was unlawfully present in the United
• 2:07
  Speaker 4: States and the person's father was not a United States
• 2:10
  Speaker 4: citizen or lawful permanent residence, and then vice versa, the
• 2:14
  Speaker 4: same thing on the other side. So the government objected
• 2:17
  Speaker 4: to this and said, well, the Supreme Court stated that
• 2:21
  Speaker 4: they didn't want class certification to be used as an
• 2:24
  Speaker 4: end run around the nationwide injunction issue, to which this
• 2:29
  Speaker 4: court said, there's nationwide class actions all the time for
• 2:33
  Speaker 4: all kinds of issues, and the judge wasn't actually ordering
• 2:38
  Speaker 4: a quote unquote nationwide class action. The judge was just
• 2:41
  Speaker 4: saying that he was ordering a class action of people
• 2:44
  Speaker 4: who were born honor after February twenty, twenty twenty five
• 2:48
  Speaker 4: that were subject to this Birthright Citizenship Executive Order. So
• 2:52
  Speaker 4: if those people are in one state or another, it's
• 2:55
  Speaker 4: not his problem. He's just looking at it from the
• 2:57
  Speaker 4: perspective of is this a common class with typical claims?
• 3:02
  Speaker 4: And so the judge certified that class. Interestingly, the judge
• 3:06
  Speaker 4: did not include the parent, even though the litigants wanted
• 3:09
  Speaker 4: to include the parent in the class, because the judge said, look,
• 3:12
  Speaker 4: the problem with the parents is each parent is going
• 3:15
  Speaker 4: to suffer a different kind of harm from their kids
• 3:19
  Speaker 4: not receiving citizenship, and so that's not going to be
• 3:22
  Speaker 4: common to a class. So the judge was actually very
• 3:24
  Speaker 4: precise and thorough there, and the judge said, the only
• 3:27
  Speaker 4: thing that's common that you can form a class is
• 3:30
  Speaker 4: you get the passport or not. Essentially, so we're kind
• 3:34
  Speaker 4: of back to where we were before the Supreme Court's decision,
• 3:37
  Speaker 4: as the judge has stayed the order for seven days,
• 3:40
  Speaker 4: allowing for an appeal, is allowing the first Circuit to
• 3:43
  Speaker 4: be able to weigh in. I'm sure the first circuit
• 3:46
  Speaker 4: will approve of what this district court judge did, and
• 3:50
  Speaker 4: then the question will be, what, if anything, does the
• 3:52
  Speaker 4: Supreme Court do about this?
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  Speaker 3: In issuing the injunction, Judge Joseph Leplant, who by the way,
• 3:58
  Speaker 3: is a George W. Point said it wasn't even a
• 4:02
  Speaker 3: close call. Do you think his preliminary injunction and class
• 4:06
  Speaker 3: certification will pass muster at the Supreme Court?
• 4:11
  Speaker 4: It's going to be a very interesting test from the
• 4:14
  Speaker 4: standpoint of does the Supreme Court really want to crack
• 4:18
  Speaker 4: down on anything nationwide? And will simply say, look, you
• 4:22
  Speaker 4: have to just have class actions that are not nationwide either.
• 4:27
  Speaker 4: But that's going to be very strange because, for instance,
• 4:30
  Speaker 4: let's say there's some products that's not working and causing
• 4:34
  Speaker 4: the same damage to every single person. Is there really
• 4:37
  Speaker 4: supposed to be eleven different class actions in different circuits
• 4:42
  Speaker 4: where they say, you know, everybody who's mechanism exploded in
• 4:45
  Speaker 4: the first circuit and everybody whose mechanism exploded in the
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  Speaker 4: second circuit. That doesn't seem like it would make a
• 4:51
  Speaker 4: lot of sense. So why a class action with regard
• 4:55
  Speaker 4: to people affected by birthrights citizenship should be constrained a
• 5:00
  Speaker 4: particular circuit or a particular state doesn't seem to be
• 5:03
  Speaker 4: very compatible here. There's that and the fact that the
• 5:07
  Speaker 4: judge really took pains to not just willy nearly certify
• 5:10
  Speaker 4: a class, but go through the fact that the parents
• 5:14
  Speaker 4: didn't have these common and typical claims, but the kids
• 5:17
  Speaker 4: did have this one typical claim, which is they want
• 5:20
  Speaker 4: citizen chip and they aren't able to get it. Seems
• 5:23
  Speaker 4: to me very strong, and I don't know how the
• 5:26
  Speaker 4: Supreme Court would say that you can't certify a class
• 5:29
  Speaker 4: that would then operate nationally in a case like this,
• 5:32
  Speaker 4: But we'll have to wait and see.
• 5:34
  Speaker 3: This looks like it's on a fast track to return
• 5:37
  Speaker 3: to the Supreme Court, and during the oral arguments in
• 5:40
  Speaker 3: the case, several of the justices indicated that they wanted
• 5:45
  Speaker 3: to rule quickly on the actual legality of the executive order.
• 5:50
  Speaker 3: Justice Neil Gorsuch said, how do we get to the
• 5:53
  Speaker 3: merits fast? Obviously they did not do that, But on
• 5:57
  Speaker 3: its return to the Supreme Court, do you think the
• 6:00
  Speaker 3: justices will actually decide the merits of Trump's executive order
• 6:05
  Speaker 3: on birthright citizenship.
• 6:07
  Speaker 4: They could say that we will preserve the injunction and
• 6:11
  Speaker 4: we will take up very fast the merits of this
• 6:14
  Speaker 4: first thing in October when we come back, so they
• 6:17
  Speaker 4: could do that. They could also just issue one of
• 6:20
  Speaker 4: those stays that's basically a one page order that stays
• 6:24
  Speaker 4: the District Court's order. And if they do that, then
• 6:28
  Speaker 4: what that would mean is that the Birthright Citizenship Executive
• 6:33
  Speaker 4: Order will actually go into effect while the case is
• 6:37
  Speaker 4: working its way as a matter of the full merit,
• 6:40
  Speaker 4: through a final judgment in the District Court, through the
• 6:42
  Speaker 4: first Circuit, and back up to the Supreme Court. Because
• 6:46
  Speaker 4: there have already been two of these stay orders with
• 6:49
  Speaker 4: respect to eliminating temporary protected status and parole and being
• 6:54
  Speaker 4: able to deport people to any country you want to
• 6:57
  Speaker 4: be able to deport them to other than their home country,
• 7:01
  Speaker 4: that were decided with these very brief stays and not
• 7:05
  Speaker 4: really the merit discussions of the ramifications of making those decisions.
• 7:10
  Speaker 4: And I saw that former Ernie General Alberto Gonzalez said
• 7:15
  Speaker 4: that he didn't think that there were the votes right
• 7:19
  Speaker 4: now to say that the Birthright Citizenship Executive Order is unconstitutional,
• 7:26
  Speaker 4: and that's why the court pumped the issue. So if
• 7:29
  Speaker 4: he's right, then they might issue this state which would
• 7:33
  Speaker 4: be quite n upheaval to figure out then what happens
• 7:36
  Speaker 4: to these individuals during the time period that this case
• 7:39
  Speaker 4: is working its way up to the Supreme Court.
• 7:42
  Speaker 3: That kind of stay would be against Supreme Court precedent,
• 7:45
  Speaker 3: But they have overturned president before, so we'll see. LeAnn,
• 7:49
  Speaker 3: I want to turn out of this federal trial in
• 7:51
  Speaker 3: Boston where several university associations are challenging the Trump administrations
• 7:57
  Speaker 3: cracked down on non citizen students and faculty who participated
• 8:02
  Speaker 3: in pro Palestinian demonstrations. They argue it's suppressing free speech
• 8:07
  Speaker 3: on campuses. The plaintiffs have singled out several activists by name,
• 8:11
  Speaker 3: including Columbia University graduate student mamou Khalil, who was the
• 8:17
  Speaker 3: first target of this crackdown and spent one hundred and
• 8:20
  Speaker 3: four days in federal immigration detention before being released.
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  Speaker 5: They tried to portray me as a violent person. They
• 8:30
  Speaker 5: tried to portray me as a terrorist, as some lunatic,
• 8:37
  Speaker 5: but not presenting any evidence, not presenting any shred of
• 8:42
  Speaker 5: credibility to their claims.
• 8:44
  Speaker 3: This is the first case of its kind to actually
• 8:47
  Speaker 3: go to trial where the judge isn't just looking at
• 8:49
  Speaker 3: what happened to specific individuals, but rather as looking at
• 8:53
  Speaker 3: the policy now. The Trump administration denies that it has
• 8:57
  Speaker 3: any such policy and says that it's enforcing the immigration
• 9:00
  Speaker 3: laws to protect national security. The trial judge William Young
• 9:05
  Speaker 3: has said the trial is likely to center on the
• 9:08
  Speaker 3: question of whether non citizens legally in the country have
• 9:12
  Speaker 3: the same free speech rights as citizens. Is there case
• 9:15
  Speaker 3: law on that?
• 9:16
  Speaker 6: Well, there actually is case law on that, and that
• 9:19
  Speaker 6: case law is pretty bad. There's a case called Haresiatis
• 9:23
  Speaker 6: versus Shaughnessy from the nineteen fifties, and it dealt with
• 9:26
  Speaker 6: actual lawful permanent residents of the United States, so not
• 9:30
  Speaker 6: non immigrant visa holders like student visa or visitor visa holders.
• 9:34
  Speaker 6: These were actual lawful permanent residents. And the issue was
• 9:38
  Speaker 6: there was a statute that said not just current Communists,
• 9:42
  Speaker 6: but even former members of the Communist Party could be deported.
• 9:47
  Speaker 6: And this was in the height of the Cold War,
• 9:49
  Speaker 6: and these folks argued, wait a second, I'm not even
• 9:52
  Speaker 6: in the Communist Party anymore. I've renounced my affiliation with
• 9:55
  Speaker 6: the Communist Party. And even if I was a Communist,
• 9:59
  Speaker 6: what differ would it make if I wasn't actually violently
• 10:03
  Speaker 6: seeking to overthrow the government? Why would I be deported
• 10:06
  Speaker 6: for my First Amendment values? And that court in nineteen
• 10:10
  Speaker 6: fifty two said no, in these statutes involving non citizens,
• 10:15
  Speaker 6: the First Amendment does not overcome the security concerns and
• 10:19
  Speaker 6: the legitimate security concerns of the government, even if the
• 10:22
  Speaker 6: person is a lawful permanent residence. So if the Supreme
• 10:26
  Speaker 6: Court actually upholds that doctrine here again in twenty twenty five,
• 10:31
  Speaker 6: then it will remain the same, which is that when
• 10:34
  Speaker 6: you're not a citizen of the United States, your First
• 10:37
  Speaker 6: Amendment right are not superior to the rights of the
• 10:40
  Speaker 6: government to be able to deport you for conduct that
• 10:43
  Speaker 6: they feel is deportable conduct. We shall see.
• 10:46
  Speaker 3: Is a judge also going to consider whether the Secretary
• 10:49
  Speaker 3: of State is revoking these visas in good faith because
• 10:53
  Speaker 3: of concerns about foreign policy and national security?
• 10:57
  Speaker 6: Yes, first, what First Amendment rights do the non sene
• 11:00
  Speaker 6: than have? But then number two, the judge may say, well, fine,
• 11:04
  Speaker 6: that's all fined in dandy. But if the adjudications here
• 11:07
  Speaker 6: are pretextual, and I can find that they're completely pretextual,
• 11:11
  Speaker 6: meaning there actually is no threat to foreign policy of
• 11:14
  Speaker 6: any kind, I can still halt these deportations.
• 11:19
  Speaker 3: The trive will continue next week. And in yet another lawsuit,
• 11:23
  Speaker 3: Mamu Khalil has filed a twenty million dollar claim against
• 11:27
  Speaker 3: the Trump administration for false imprisonment. So many immigration cases.
• 11:33
  Speaker 3: Thanks so much, Leon. That's Leon Fresco of Holland and
• 11:36
  Speaker 3: Knight coming up next on the Bloomberg Law Show. The
• 11:39
  Speaker 3: stats are out on the Supreme Court's recent term. I'm
• 11:43
  Speaker 3: June Grosso and you're listening to Bloomberg. Justice Katanji Brown
• 11:48
  Speaker 3: Jackson has been a vocal critic of the Trump administration
• 11:51
  Speaker 3: this term. She's written strong dissents bemoaning Trump's attempts to
• 11:56
  Speaker 3: expand presidential authority, raising concerns about a life lack of
• 12:00
  Speaker 3: willingness to adhere to the rule of law, and accusing
• 12:03
  Speaker 3: her conservative colleagues of running the risk of a rooting
• 12:07
  Speaker 3: public trust in the impartiality of judicial decisions. That viewpoint
• 12:12
  Speaker 3: was apparent as she answered questions at an Indianapolis bar
• 12:16
  Speaker 3: association on Thursday.
• 12:18
  Speaker 4: What keeps you up at night?
• 12:22
  Speaker 7: I would say the state of our democracy.
• 12:32
  Speaker 1: I would say.
• 12:33
  Speaker 7: That I am really very interested in getting people to
• 12:38
  Speaker 7: focus and to invest and to pay attention to what
• 12:43
  Speaker 7: is happening in our country and in our government.
• 12:46
  Speaker 3: So it comes as no surprise that Jackson was the
• 12:49
  Speaker 3: justice most often in dissent. This term joining me is
• 12:53
  Speaker 3: constitutional law scholar Harold Krent, a professor at the Chicago
• 12:57
  Speaker 3: Kent College of Law, how Scotus blows. Stats of the
• 13:01
  Speaker 3: term have come out, and forty two percent of the
• 13:04
  Speaker 3: Supreme Court's decisions were unanimous. And that's something that Chief
• 13:08
  Speaker 3: Justice John Roberts in particular likes to point to in
• 13:12
  Speaker 3: order to show how much the justices are in agreement.
• 13:16
  Speaker 3: But does that agreement really matter when in all the
• 13:19
  Speaker 3: controversial cases involving hot button issues like LGBTQ rights, religious rights,
• 13:26
  Speaker 3: those all fall down ideological lines.
• 13:29
  Speaker 8: Six to three well be given and me, I think
• 13:31
  Speaker 8: as a reminder to us that it's still a court.
• 13:35
  Speaker 8: Yet members of the court can't agree with each other
• 13:38
  Speaker 8: in questions in terms of you know, air review, in
• 13:41
  Speaker 8: terms of the courts with appeals making mistake, which is
• 13:43
  Speaker 8: in terms of reconciling a split in the circuits. And
• 13:46
  Speaker 8: I think it's a good reminder that the Court is
• 13:48
  Speaker 8: a court, but that shouldn't obscure the fact that, as
• 13:51
  Speaker 8: you said, in the socially divisive cases, there's almost inevitably
• 13:56
  Speaker 8: a six' to three, split with some changes around the.
• 13:59
  Speaker 3: Margins roberts was in the majority ninety five percent of the,
• 14:02
  Speaker 3: time the most of any of the, justices followed By
• 14:05
  Speaker 3: brett kavanaught eighty six percent And Amy Cony barrett at
• 14:09
  Speaker 3: eighty one.
• 14:09
  Speaker 1: Percent do any.
• 14:11
  Speaker 3: Of those numbers surprise, you just to tell you that
• 14:13
  Speaker 3: the middle of the court.
• 14:14
  Speaker 8: Is, Ruling, no it doesn't surprise me at. All, obviously
• 14:18
  Speaker 8: those three justices do wield a lot of the power
• 14:22
  Speaker 8: on this current, court and they will do so for
• 14:24
  Speaker 8: the foreseeable. Future obviously there's some changes around the. MARGIN
• 14:28
  Speaker 8: i mean Sometimes justice corsicch sides with the, minority same
• 14:31
  Speaker 8: thing With Justice, barrett AND i think we've even Seen
• 14:33
  Speaker 8: Justice kagan occasionally trying to side with the more conservative
• 14:38
  Speaker 8: wing of the court in order TO i, think in her,
• 14:40
  Speaker 8: view probably try to establish more than middle.
• 14:43
  Speaker 3: Ground, yeah what's gotten a lot of tension in the
• 14:46
  Speaker 3: legal press was That Justice kagan came in. Fourth she
• 14:49
  Speaker 3: was in the majority of seventy percent of the term's
• 14:53
  Speaker 3: non unanimous. Outcomes there was a thirteen percent drop in
• 14:57
  Speaker 3: agreement Between kagan And Justice Sonya, sotomayor and the agreements
• 15:02
  Speaker 3: Between keig and in conservative justices up twenty two points
• 15:06
  Speaker 3: With Justice alito and up twenty nine points With Justice.
• 15:09
  Speaker 3: Thomas some people, say, oh, well she's getting more, conservative
• 15:12
  Speaker 3: but is that really the case?
• 15:14
  Speaker 8: NOW i think she tries to find common ground when she,
• 15:18
  Speaker 8: can and maybe that can be criticized as bet she's
• 15:22
  Speaker 8: sort of tempering her own views to that of trying
• 15:25
  Speaker 8: to help the institution gain a middle. Ground BUT i
• 15:29
  Speaker 8: think it is perhaps a positive institution, development as she
• 15:33
  Speaker 8: is least in my, view and some of her decisions
• 15:35
  Speaker 8: trying to establish that there is common ground amongst the
• 15:40
  Speaker 8: so called conservatives so called liberal, justices and not in all,
• 15:44
  Speaker 8: cases but in some ways she. Can't AND i don't
• 15:47
  Speaker 8: know if that'll have any kind of long lasting impact
• 15:49
  Speaker 8: or if it will change the trajectory of the, court
• 15:52
  Speaker 8: BUT i think that's her.
• 15:53
  Speaker 3: Goal Justice Katanji Brown jackson had the honor of being
• 15:56
  Speaker 3: in the majority the least of all the justices at
• 16:00
  Speaker 3: seventy two, percent and she's written some biting.
• 16:04
  Speaker 8: Descents she is carving out her role as being the
• 16:08
  Speaker 8: most progressive justice and the one least willing to compromise
• 16:12
  Speaker 8: with the rest of the. Court voices like that are
• 16:14
  Speaker 8: important to, hear but they're not necessarily positive ways to
• 16:18
  Speaker 8: galvanize a majority of the.
• 16:19
  Speaker 3: Court my favorite part of the stat pack is seeing
• 16:22
  Speaker 3: which circuits get reversed the, most and this year The
• 16:25
  Speaker 3: Fourth circuit went from being the best to the, worst
• 16:29
  Speaker 3: or at least one of the. Worst from two thousand
• 16:31
  Speaker 3: and seven through twenty twenty, three it had the lowest
• 16:34
  Speaker 3: rate of being reversed sixty two point one, percent but
• 16:38
  Speaker 3: this term it jumped to a one hundred percent reversal.
• 16:41
  Speaker 3: Rate eight out of eight cases. Overturned any idea, WHY.
• 16:45
  Speaker 8: I think a little bit is just. Uplip these variances
• 16:48
  Speaker 8: occur from time to. Time BUT i also think that
• 16:51
  Speaker 8: given the location Of Fourth, circuit they are centered where
• 16:55
  Speaker 8: so many federal government employees are, centered where there's a
• 16:58
  Speaker 8: lot of grants in turn terms OF hhs, Offices Social Security,
• 17:02
  Speaker 8: administration and so, forth that there's a lot of current
• 17:06
  Speaker 8: litigation against the tough, administration which is just center geographically
• 17:11
  Speaker 8: in that. District so it's not surprising that there's a
• 17:14
  Speaker 8: higher percentage of cases from The Fourth circuit that are
• 17:17
  Speaker 8: reaching The Supreme, court and of course it's a little
• 17:19
  Speaker 8: bit of a, blip but it's understandable that there's going
• 17:22
  Speaker 8: to be more cases that The Supreme court is going
• 17:24
  Speaker 8: to resolve against The Fourth. Circuit Fourth circuit is relatively ideologically,
• 17:28
  Speaker 8: balanced so it's not considered to be either a very
• 17:31
  Speaker 8: liberal or a very conservative. Court but nonetheless there's a
• 17:35
  Speaker 8: lot of these cases that have arisen, there and so
• 17:39
  Speaker 8: we're seeing intention between The Fourth circuit and The Supreme.
• 17:41
  Speaker 3: Court the reversals of The Fourth circuit included some of
• 17:45
  Speaker 3: the blockbuster cases of the, term like the birthright citizenship,
• 17:49
  Speaker 3: case where The court made it harder for judges to
• 17:52
  Speaker 3: issue nationwide, injunctions the case where The court allowed religious
• 17:56
  Speaker 3: parents to opt their children out of lessons WHERE lgbtq
• 18:01
  Speaker 3: friendly books are, read and the case paving the way
• 18:04
  Speaker 3: For South carolina to exclude a planned parenthood affiliate from
• 18:08
  Speaker 3: its medicaid.
• 18:09
  Speaker 1: Program all of.
• 18:10
  Speaker 3: Those cases were six to three with the liberals. Dissenting
• 18:14
  Speaker 3: So i'm wondering if The Fourth circuit is more in
• 18:17
  Speaker 3: line with the liberals on The court than the conservatives
• 18:21
  Speaker 3: on the. Court is there a certain partisanship?
• 18:23
  Speaker 8: THERE i would frame it that The Fourth circuit is
• 18:27
  Speaker 8: aligned with traditional conservative judicial. Principles that This court has
• 18:32
  Speaker 8: veered from those traditional conservative judicial, principles which is why
• 18:36
  Speaker 8: we're seeing the. GAP i think that That Fourth circuit
• 18:39
  Speaker 8: is cautious and it's trying to adhere to the sort
• 18:43
  Speaker 8: of judicial principles or judicial customs perspectives the way they've
• 18:47
  Speaker 8: understood them for a, generation and that's running against the
• 18:52
  Speaker 8: Current Supreme court's, position which seems to be far more
• 18:57
  Speaker 8: solicitous of both judicial power as well as presidential.
• 19:01
  Speaker 3: Power it used to be that The Ninth circuit had
• 19:04
  Speaker 3: the most cases reviewed by The Supreme, court but now
• 19:08
  Speaker 3: it's The Fifth, circuit the most conservative. Circuit it had
• 19:12
  Speaker 3: thirteen cases taken up by The court this, term compared
• 19:15
  Speaker 3: to four from The Ninth, circuit and The Fifth circuit
• 19:18
  Speaker 3: was reversed in ten of the thirteen, Cases so has
• 19:22
  Speaker 3: it taken the place of The Ninth circuit as most.
• 19:25
  Speaker 8: Reversed, well The Fifth circuit is known as the most
• 19:28
  Speaker 8: conservative but an activist conservative. Court The Ninth circuit has
• 19:32
  Speaker 8: been historically known as the most activist of progressive or liberal,
• 19:37
  Speaker 8: courts so it's not surprising that decisions from those two
• 19:41
  Speaker 8: circuits disproportionately go to The Supreme. Court and indeed we've
• 19:45
  Speaker 8: seen an interesting switch now in The Fifth, circuit because
• 19:47
  Speaker 8: The Fifth circuit led the charge against The biden administration
• 19:50
  Speaker 8: in some very surprising, cases including two delegation cases in
• 19:54
  Speaker 8: which The Supreme court struck them down this. Term and
• 19:57
  Speaker 8: the question is will they be as anti administration when
• 20:01
  Speaker 8: it comes time to review that which The trump administration is.
• 20:05
  Speaker 8: Doing and early records are, mixed so that's something to look.
• 20:08
  Speaker 8: TO i think that some of the ardor of The
• 20:09
  Speaker 8: Fifth circuit in terms of being anti administration will be.
• 20:12
  Speaker 8: Damp and now with the switch politically at the top.
• 20:15
  Speaker 3: Of the, helm has The Fifth circuit been trying to
• 20:18
  Speaker 3: push the, envelope so to, speak and be more aggressive
• 20:22
  Speaker 3: in terms of conservative policies or.
• 20:26
  Speaker 8: Jurisprudence, WELL I fisirka has been at the cusp in
• 20:29
  Speaker 8: terms of pushing against administrative, power power of the agencies to.
• 20:36
  Speaker 8: RULE i, mean for, instance in the telecommunications, case they
• 20:40
  Speaker 8: had sought to curb the power of The Federal Communications
• 20:44
  Speaker 8: commission to impose attacks on, telecoms and that of course was.
• 20:49
  Speaker 8: UPHELD i, Mean biden administration pursued that, plan but so
• 20:53
  Speaker 8: did The trump. Administration and so the question is will
• 20:55
  Speaker 8: the Fith circuit continue its sort of skepticism about administrative
• 21:01
  Speaker 8: power given That President trump is now a top of
• 21:05
  Speaker 8: the executive. Branch so time will tell whether they'll. Continue but,
• 21:09
  Speaker 8: clearly in case after, case particularly during The biden, administration
• 21:13
  Speaker 8: they challenged the legitimacy of the administrative, agencies you, know
• 21:18
  Speaker 8: in terms of the vaccine, policies in terms of the
• 21:21
  Speaker 8: student loans and.
• 21:22
  Speaker 3: More when the justices take, cases they usually take them to,
• 21:26
  Speaker 3: reverse don't. THEY i, mean forty four out of the
• 21:28
  Speaker 3: fifty nine cases they took this term were.
• 21:31
  Speaker 8: Reversed that's generally the, case but obviously more generally they
• 21:35
  Speaker 8: take cases when there's a split and the court needs
• 21:37
  Speaker 8: to resolve is split in the. Circuits so sometimes it's
• 21:40
  Speaker 8: just the matter which of the two cases they, take
• 21:43
  Speaker 8: because one case goes one way and one case goes the.
• 21:45
  Speaker 8: Other so sometimes those figures are a tad.
• 21:48
  Speaker 3: MISLEADING a lot of the action this term has been
• 21:51
  Speaker 3: on the shadow or emergency, docket where The trump administration
• 21:55
  Speaker 3: has repeatedly been asking The Supreme court to lift lower
• 21:59
  Speaker 3: court orders while the case is Proceed just this, week
• 22:03
  Speaker 3: The court Gave trump the okay to move ahead with
• 22:06
  Speaker 3: mass layoffs of federal. Workers is this just part of
• 22:11
  Speaker 3: the trend of The court on the emergency docket lifting
• 22:15
  Speaker 3: lower court orders that blocked The trump. Agenda, Well i'm
• 22:19
  Speaker 3: of two.
• 22:19
  Speaker 8: Minds about the most recent. DECISION i, mean what The
• 22:22
  Speaker 8: court did is removed as an injunction on the administration
• 22:26
  Speaker 8: from trying to carry out the, rift but it did
• 22:29
  Speaker 8: not say that the riff was appropriate or consistent With congressional.
• 22:33
  Speaker 8: Direction AND i think that was made clear as well
• 22:36
  Speaker 8: because of the fact That Justice kagan went along with
• 22:39
  Speaker 8: the majority allowing the administration's action to. Proceed and the
• 22:43
  Speaker 8: executive order says that the riff or the Reduction force
• 22:47
  Speaker 8: must proceed according to applicable. Law and the applicable, law of,
• 22:50
  Speaker 8: course Is congress's very detailed instructions for how agencies should.
• 22:55
  Speaker 8: Proceed AND i think the reason Why Justice kaikan did
• 22:58
  Speaker 8: join the majority was because we have yet to see
• 23:01
  Speaker 8: whether the administration will conform to the congressional blueprint for
• 23:06
  Speaker 8: hiding out the Reduction force or. Not and so, yes
• 23:10
  Speaker 8: The court is giving the benefit of the doubt the
• 23:12
  Speaker 8: administration and the spending would think that administration doesn't deserve
• 23:15
  Speaker 8: the benefit of the. Doubt BUT i think what the
• 23:18
  Speaker 8: court's action is, saying, well let's wait until there's a
• 23:21
  Speaker 8: merit's decision as to whether the applicable congressional rules were
• 23:25
  Speaker 8: followed before we actually tell the administration they can't move
• 23:30
  Speaker 8: forward in that. Way the administration they can't move forward
• 23:34
  Speaker 8: in that.
• 23:34
  Speaker 3: Way, well all, along The court has been letting The
• 23:37
  Speaker 3: trump administration go ahead for. Now but the problem is
• 23:42
  Speaker 3: that getting to the merits of these cases take so,
• 23:44
  Speaker 3: long and by that time the damage is.
• 23:47
  Speaker 1: Done people have been.
• 23:48
  Speaker 8: Fired, yeah the court has been very, cavalier if you,
• 23:51
  Speaker 8: will in terms of balancing the. HARMS i think the
• 23:55
  Speaker 8: reduction enforced case is a good illustration of, that, because,
• 23:58
  Speaker 8: yes the government wants to save money and restructure the federal,
• 24:01
  Speaker 8: government and there is a loss if they can't do
• 24:04
  Speaker 8: that to what they consider to be the public. Good
• 24:07
  Speaker 8: but on the other, hand the dislocation and financial deprivations
• 24:11
  Speaker 8: that these employees may face should be, counted perhaps even more,
• 24:15
  Speaker 8: greatly and The court's not doing.
• 24:17
  Speaker 3: That thanks for joining. Me how That's Professor Harold krent
• 24:20
  Speaker 3: of The Chicago Kent college Of law coming up. Next
• 24:23
  Speaker 3: While lululemon is Suing. Costco I'm June grosso and you're
• 24:27
  Speaker 3: listening To bloomberg.
• 24:28
  Speaker 1: Colors if you go.
• 24:30
  Speaker 3: To Hashtag lululemon, dupes you'll find social media influencers promoting
• 24:36
  Speaker 3: knockoffs or dupes of their, apparel like, hoodies, jackets and
• 24:40
  Speaker 3: pans At costco that look authentic but sell for a
• 24:44
  Speaker 3: fraction of the. Price, Well lululemon is making a federal
• 24:49
  Speaker 3: case out of, it Taking costco to court for copying their.
• 24:52
  Speaker 3: Designs my guest Is Susan, scaffiti a professor At Fordham
• 24:56
  Speaker 3: Law school and director of The Fashion Law. Institute susan
• 25:00
  Speaker 3: a very basic question to start off, with are dupes
• 25:04
  Speaker 3: what we used to call?
• 25:05
  Speaker 1: Knockoffs we have.
• 25:07
  Speaker 9: Definitely seen an evolution in, nomenclature, Right so it used
• 25:10
  Speaker 9: to be counterfeits and, knockoffs and then replicas and then
• 25:14
  Speaker 9: reps and now. Dupes AND i, think, honestly part of
• 25:17
  Speaker 9: the story of the public accepting them more is they
• 25:21
  Speaker 9: sound cute and. Adorable now you know you could have
• 25:23
  Speaker 9: a pet, dupe you cannot have a pet.
• 25:25
  Speaker 3: Counterfeit, well, also social media right is blasting out where
• 25:29
  Speaker 3: to find these precisely dupes are being sold all. Over
• 25:34
  Speaker 3: is selling a dupe?
• 25:35
  Speaker 9: Illegal, well it, depends. Right dupe like knockoff, before it
• 25:40
  Speaker 9: is a broad ambigus term when they are very, exact
• 25:44
  Speaker 9: and in those cases in which THE ip is, protected
• 25:48
  Speaker 9: yes that is. Illegal but if we're getting a little
• 25:50
  Speaker 9: further away from the, original or if the original itself
• 25:53
  Speaker 9: is not protected UNDER us, law then no it is.
• 25:56
  Speaker 9: Not so we do indeed have a lot of gray area,
• 25:59
  Speaker 9: here and it's not a chic little chucoal or, dove
• 26:01
  Speaker 9: something a lot more sinister from the brand's.
• 26:03
  Speaker 3: Perspectus Lulu, lemon of, Course pioneered Yoga ware tell us
• 26:08
  Speaker 3: what it's Accusing costco.
• 26:09
  Speaker 9: Of So Lula lemon is claiming that the things that
• 26:13
  Speaker 9: have been copied and are being sold At costco do
• 26:16
  Speaker 9: in fact cross the line into. Illegal and what's so
• 26:19
  Speaker 9: interesting about this, Case, june is that they have gone
• 26:23
  Speaker 9: through the entire list of POTENTIAL ip claims and are
• 26:28
  Speaker 9: basically throwing everything except copyright At. Costco they're looking at,
• 26:34
  Speaker 9: patents as specifically design, patent because they do have a
• 26:37
  Speaker 9: design patent on their scuba design for. Hoodies they are
• 26:40
  Speaker 9: looking at trade dress protection that subset of trademark that focuses,
• 26:45
  Speaker 9: on among other, things product. Design, Right so when a
• 26:49
  Speaker 9: product design itself is so, iconic like the red souls
• 26:53
  Speaker 9: On lobaton's or the ermez, berkeens the design is so
• 26:57
  Speaker 9: iconic that it served as its own sorce indicator that
• 27:01
  Speaker 9: can be. Protected so they're claiming that kind of protection
• 27:04
  Speaker 9: in the case of Their define. Jackets then they're claiming
• 27:09
  Speaker 9: unregistered protection for men's. Trousers they're claiming wordmarks in the
• 27:14
  Speaker 9: case of, scuba and a wordmark for the colored tidewater
• 27:17
  Speaker 9: teal that they say is proprietary to, them and then
• 27:21
  Speaker 9: they're throwing in some state law unfair competition. Claims so
• 27:23
  Speaker 9: they are really going across the, board looking At costco
• 27:27
  Speaker 9: in house brands Like, kirkland but also other brands being
• 27:31
  Speaker 9: sold At costco like Dan skin And jockey in this.
• 27:35
  Speaker 9: Case so they are really taking a very broad brush
• 27:38
  Speaker 9: approach to the items That costco is selling that Lu
• 27:42
  Speaker 9: lemon believes are protected intellectual.
• 27:44
  Speaker 3: Property costco is known for That kirkland, brand and people
• 27:49
  Speaker 3: often say that their products are high quality but sold
• 27:53
  Speaker 3: for much less than name brand. Products what kind of
• 27:57
  Speaker 3: a price differential are we talking about with Lou.
• 28:00
  Speaker 9: Apparel, well in the case of the men's, trousers they were,
• 28:03
  Speaker 9: saying you're eight dollars versus one hundred and eighteen, dollars
• 28:05
  Speaker 9: so quite a bit, less which has actually been consistent
• 28:08
  Speaker 9: with the prices of knockoffs over the. Years we always
• 28:11
  Speaker 9: say somewhere between five and twenty percent when we're looking
• 28:13
  Speaker 9: at knockoffs across the.
• 28:15
  Speaker 3: Board that is quite a big price, Difference, Susan what
• 28:18
  Speaker 3: Would Lulu lemon have to prove if this case went to?
• 28:21
  Speaker 3: Trial in these, cases.
• 28:23
  Speaker 9: The first step is going to have to be convincing
• 28:26
  Speaker 9: of the jury that the claims That Lula lemon is
• 28:29
  Speaker 9: making are actually valid with regard to What Lulu lemon.
• 28:33
  Speaker 9: Owns now they've done their, homework they have warmed, up
• 28:36
  Speaker 9: stretched and prepared for this particular case by registering some
• 28:39
  Speaker 9: of those, marks trademarks and design. Patents so in the
• 28:42
  Speaker 9: case of a, registration there's already an, assumption but it's
• 28:45
  Speaker 9: an assumption that can be. Overturned So lululemon is going
• 28:48
  Speaker 9: to have to be able to prove that these particular
• 28:51
  Speaker 9: marks are indeed source, indicators or in the case of design,
• 28:54
  Speaker 9: patents that they are indeed new these. Designs with regard
• 28:58
  Speaker 9: to the things that are not, registered they have a
• 29:00
  Speaker 9: somewhat higher far to pass in order to convince the
• 29:03
  Speaker 9: jury that they deserve. Protection but if they can do,
• 29:06
  Speaker 9: that then they actually have to be able to show
• 29:09
  Speaker 9: that The costco items are close enough the Lu lemon
• 29:12
  Speaker 9: items that they actually. Infringe in other, words it's a
• 29:15
  Speaker 9: two step. Process is THE ip valid and if, so
• 29:20
  Speaker 9: are The costco items? Infringing and they do need to
• 29:23
  Speaker 9: persuade a jury this is a jury.
• 29:25
  Speaker 3: Claim what about the fact that you, know there's that
• 29:27
  Speaker 3: Hashtag lululemon dupes and apparently some dupes are being sold On, Amazon,
• 29:34
  Speaker 3: Walmart target and. Elsewhere so why Is Lula.
• 29:38
  Speaker 1: Lemon focusing on Suing?
• 29:40
  Speaker 3: Costco and you, know Will costco be able to, say but,
• 29:43
  Speaker 3: look they're selling these.
• 29:45
  Speaker 9: Elsewhere, Well costco will be able to do. That but of,
• 29:48
  Speaker 9: course when you're engaged in grand, protection you need to make.
• 29:51
  Speaker 9: Choices no, company not even the very largest wealthiest, ones
• 29:55
  Speaker 9: have unlimited legal, budgets much to the sadness of their.
• 29:58
  Speaker 9: Lawyers do they make. Choice AND i think Choosing costco
• 30:01
  Speaker 9: was smart in some. Ways it's one stop. Shopping they're
• 30:05
  Speaker 9: suing that Only costco over its house, brand but they're
• 30:07
  Speaker 9: suing over some of the other brands That costco, carries
• 30:10
  Speaker 9: and they are suing an entity that is highly recognizable
• 30:15
  Speaker 9: and trusted by The american. Public so it's going to
• 30:18
  Speaker 9: get attention when they go After, costco much the way
• 30:21
  Speaker 9: it got attention When rimes, said, yes we know there
• 30:24
  Speaker 9: are lots of Counterfeit burgen's out, there but we're going
• 30:27
  Speaker 9: after the work in The Walmart. Burgen so if that
• 30:29
  Speaker 9: kind of press release aspect to a complaint is relevant,
• 30:34
  Speaker 9: here they want the attention on this. Case they may
• 30:37
  Speaker 9: not win the hearts and minds of. Consumers they may
• 30:39
  Speaker 9: not change this social tide toward the acceptance of dupes
• 30:44
  Speaker 9: as something to be celebrated rather than, hidden but they
• 30:48
  Speaker 9: will be able to convince some people that these dupes
• 30:52
  Speaker 9: are not a good, thing and they will also be
• 30:54
  Speaker 9: able to send a warning to vendors across the board
• 30:57
  Speaker 9: That lululemon is not to be messed. With of, Course
• 31:00
  Speaker 9: Lulu lemon has a history of bringing other lawsuits in the,
• 31:03
  Speaker 9: past so this has been a long term strategy for
• 31:06
  Speaker 9: them to try to become a harder, target if you, Will.
• 31:09
  Speaker 1: And what happened with the copy of The Birken.
• 31:11
  Speaker 9: Bag, well they're no longer available for sale At. Walmart
• 31:14
  Speaker 9: so let's assume that one has, settled which IS i
• 31:16
  Speaker 9: think the likelihood here is that we will get a.
• 31:18
  Speaker 9: Settlement it would be from a legal, respective wonderful to
• 31:22
  Speaker 9: see what a jury thinks and then what mappellate court
• 31:24
  Speaker 9: thinks about how close is too close in these, Cases
• 31:28
  Speaker 9: but more than likely we will get a. Settlement if
• 31:31
  Speaker 9: this In, europe of, course this would be a very short.
• 31:33
  Speaker 9: Complaint we would simply have that other category of design,
• 31:37
  Speaker 9: protection so we wouldn't be looking separately at trademarks and
• 31:40
  Speaker 9: patents and asking whether the law applies in these. Cases
• 31:45
  Speaker 9: we would go straight to design protection and be done with.
• 31:48
  Speaker 1: It just suppose it does get to.
• 31:50
  Speaker 3: Trial is it an uphill battle For lululemon to convince a.
• 31:54
  Speaker 9: JURY i think it's going to vary amongst the different styles.
• 31:57
  Speaker 9: CLAIMED i think for the registered trade dress and registered design,
• 32:01
  Speaker 9: patterns that's going to be an easier. Cell for the
• 32:05
  Speaker 9: claims of unregistered, protection like for the MEN'S abc trousers
• 32:09
  Speaker 9: and The tidewater teals, color it's going to be a
• 32:11
  Speaker 9: little more difficult but not, Impossible and Does.
• 32:15
  Speaker 3: Lula lemon have to prove that consumers are confused by the.
• 32:19
  Speaker 9: Dupes with regard to the trademark related, Claims so the
• 32:23
  Speaker 9: trade dressed, claim they do have to prove likelihood of consumer,
• 32:27
  Speaker 9: confusion which is why something like Hashtag lululemon dupe is
• 32:31
  Speaker 9: maybe not helpful To Lulu. Lemon it certainly fuels the
• 32:35
  Speaker 9: fire to go after these, dupes but it's also saying
• 32:39
  Speaker 9: that consumers may not be, confused at least at point of.
• 32:43
  Speaker 9: Sale now there's always post seal. Confusion there's the concern
• 32:46
  Speaker 9: that consumers will see others wearing the dupes and think
• 32:50
  Speaker 9: that They're. Lululemon so there's that form of consumer confusion
• 32:54
  Speaker 9: that might be easier to prove in the era of
• 32:56
  Speaker 9: Hashtag lululemon, dupes but it's problematic consumers are not actually.
• 33:01
  Speaker 9: Confused you. Know it's interesting in that Regard june is
• 33:04
  Speaker 9: That lululemon it actually has a trademark application pending for
• 33:10
  Speaker 9: the Phrase lululemon. Dupe in the context of retail, stores
• 33:13
  Speaker 9: they haven't said exactly how they'll use, it and they
• 33:16
  Speaker 9: don't have to do that, yet and the trademark has
• 33:18
  Speaker 9: not yet. Issued they filed the application back In, december
• 33:21
  Speaker 9: but they're obviously thinking about playing in this field in
• 33:25
  Speaker 9: another way as.
• 33:26
  Speaker 3: Well you, say most of these cases are, settled but
• 33:29
  Speaker 3: is a lot of money spent just reaching the point of?
• 33:33
  Speaker 1: Settlement what are legal fees?
• 33:35
  Speaker 9: Like? Oh of, course just developing this complaint with a
• 33:39
  Speaker 9: dozen different claims has taken a lot of, time and
• 33:43
  Speaker 9: surely there has been some conversation between the companies in
• 33:47
  Speaker 9: advance of. This so it has already been an expensive.
• 33:50
  Speaker 9: Process it may be worthwhile because again it is a
• 33:53
  Speaker 9: legal process and a public relations. Process you, know if
• 33:57
  Speaker 9: it's one thing that a company that makes yoga pants
• 34:00
  Speaker 9: familiar with its, inversions AND i think they would really
• 34:02
  Speaker 9: like to be able to invert the public's perception of.
• 34:06
  Speaker 9: Dupes that's really the goal here from a public, perspective
• 34:10
  Speaker 9: much the way that just as you, know a few years,
• 34:12
  Speaker 9: Ago lululemon set up a dupe swap in a mall
• 34:16
  Speaker 9: In Los angeles and, said, look bring us your, dupe any,
• 34:19
  Speaker 9: Brand we will give you genuine Aligned lululemon. Trousers they
• 34:23
  Speaker 9: are so great that you'll be able to tell the difference,
• 34:26
  Speaker 9: immediately and you will Become lululemon. Fans so they are
• 34:29
  Speaker 9: playing both a legal game and an extra legal game
• 34:33
  Speaker 9: as part of their brand protection. Strategy and it's something
• 34:36
  Speaker 9: that they've done for. Years so if they can start
• 34:40
  Speaker 9: to again invert the perception of, dupes maybe restore them
• 34:45
  Speaker 9: to their former sub rosa, underground slitely shameful, status or
• 34:50
  Speaker 9: at the very least convince people that Lu lemon products
• 34:53
  Speaker 9: are of higher quality so that they can recapture some
• 34:57
  Speaker 9: of the folks who would have instead gone to cost or.
• 35:00
  Speaker 9: Elsewhere that's going to be a win without ever getting
• 35:03
  Speaker 9: as far as a.
• 35:03
  Speaker 3: JURY i remember when if you had a, knockoff you
• 35:06
  Speaker 3: hid the fact that it was a. Knockoff you tried
• 35:09
  Speaker 3: to pass it off.
• 35:09
  Speaker 1: As the real.
• 35:10
  Speaker 3: Thing nowadays they don't care.
• 35:13
  Speaker 9: Exactly there has been a huge shift in perception over fifteen.
• 35:17
  Speaker 9: Years it used to be that brands didn't want to
• 35:19
  Speaker 9: talk about counterfeits or. Knockoffs then they finally acknowledged the.
• 35:22
  Speaker 9: Problem but CONSUMERS i have also gone from hiding the
• 35:27
  Speaker 9: fact that their items were knockoffs or trying to pass
• 35:30
  Speaker 9: them off as the real, thing to bragging about them
• 35:32
  Speaker 9: on social. Media and that is actually of almost greater.
• 35:37
  Speaker 9: Concern the law hasn't changed a, lot but consumer perceptions has.
• 35:42
  Speaker 9: Changed so the law still is not great in THE
• 35:46
  Speaker 9: us with regard to protecting, fashion but there are these
• 35:49
  Speaker 9: bits and pieces of law that can protect fashion a little.
• 35:52
  Speaker 9: Bit but the, perception the social norms have changed, dramatically you, Know.
• 35:58
  Speaker 9: Jane in my, CLASSES i tell my students that when
• 36:00
  Speaker 9: we're dealing with, law we're dealing with it at several.
• 36:02
  Speaker 9: Levels we think about black letter law when we go
• 36:05
  Speaker 9: to law, school things that come out of legislatures and.
• 36:07
  Speaker 9: Courts but then there's also, rules things like in the fashion,
• 36:11
  Speaker 9: context office dress codes or school dress. Codes but at
• 36:14
  Speaker 9: the most, basic, simple diffuse, level there are social. Norms
• 36:18
  Speaker 9: sometimes those social norms are subsequently written into law what's
• 36:22
  Speaker 9: decent or, indecent for, Example but social norms are really
• 36:26
  Speaker 9: powerful in terms of controlling how we, dressed how we
• 36:29
  Speaker 9: perceive what we, dress how we perceive what other people.
• 36:32
  Speaker 9: Dress and we've seen a shift in social norms. Here
• 36:35
  Speaker 9: we haven't seen a shift into. Law we've seen a
• 36:38
  Speaker 9: shift in the norms so that it went from being
• 36:41
  Speaker 9: knockoffs are bad and shameful and cheap and to be
• 36:44
  Speaker 9: hidden to knock offs there to be, celebrated and that's
• 36:47
  Speaker 9: part of What Lulu lemon is addressing in this.
• 36:50
  Speaker 3: Case In, December benefit lost a lawsuit TO elf over
• 36:56
  Speaker 3: their last and role, mascara which is six dollars can
• 37:00
  Speaker 3: To benefits twenty nine dollars.
• 37:02
  Speaker 1: Misscara does that have any relevance to this.
• 37:05
  Speaker 9: Case it's another trade dress. Lawsuit because the actual WORD
• 37:09
  Speaker 9: elf was right on, there there was an undermining of
• 37:13
  Speaker 9: the question of likelihood of consumer. Confusion so here well
• 37:16
  Speaker 9: to back, up when we're dealing with, counterfeits when we're
• 37:19
  Speaker 9: dealing with substantially identical copies of trademarks that we can.
• 37:24
  Speaker 9: Identify so if we were dealing with copies of the Wordmark,
• 37:27
  Speaker 9: lululemon or if we were dealing with copies of its
• 37:31
  Speaker 9: little symbol that looks a little bit like an, omega,
• 37:34
  Speaker 9: right that would be. Easy there's no question of whether
• 37:37
  Speaker 9: or not consumers are. Confused we just assume that if
• 37:40
  Speaker 9: we're dealing with those substantially identical. Copies when we move
• 37:44
  Speaker 9: into the realm of trade, dress and we are talking
• 37:47
  Speaker 9: about infringement rather than, counterfeitings so we're dealing with things
• 37:51
  Speaker 9: that are not necessarily quite as identical but merely confuse the.
• 37:56
  Speaker 9: Consumer then, yes that likelihood of consumer confusion does have
• 38:01
  Speaker 9: to be proven By lululemon in this, case in other,
• 38:04
  Speaker 9: words by the. Plaintiff and that's a little bit, tougher
• 38:07
  Speaker 9: it's a little bit of extra work that has to be.
• 38:09
  Speaker 9: Done it's why this case is. Interesting it's why Lul
• 38:13
  Speaker 9: lemon is going for full on four waste threats in this.
• 38:17
  Speaker 9: Regard they're not going for easy. Things they're not going
• 38:21
  Speaker 9: for counterfeits that would not probably be sold at costco
• 38:26
  Speaker 9: the copies of the, signs the symbols that we all
• 38:29
  Speaker 9: recognize easily as. Trademarks they're going for product configuration trade. Dress,
• 38:34
  Speaker 9: Right so there are two kinds of trade. Dress there's product,
• 38:37
  Speaker 9: packaging so the shape of a coke bottle or the
• 38:39
  Speaker 9: shape of some shampoo. Bottles and then there's the product.
• 38:42
  Speaker 9: Design and that's where fashion has to live because we
• 38:46
  Speaker 9: get so little protections on the three dimensional aspects of
• 38:49
  Speaker 9: a garment. Generally so if we are going to claim
• 38:52
  Speaker 9: trademark beyond the, label beyond the, logo we're looking at
• 38:57
  Speaker 9: product configuration trade. Dress we are going to have to show,
• 39:01
  Speaker 9: that first of, all consumers recognize that trade dress as
• 39:05
  Speaker 9: a source. Indicator it's not just a great looking warm up,
• 39:08
  Speaker 9: jacket it's one that looks Like, lululemon one that we
• 39:12
  Speaker 9: recognize As, lululemon just on the basis of curved. Themes,
• 39:16
  Speaker 9: Right so we have to be able to prove that
• 39:18
  Speaker 9: consumers see What lulemon says consumers, see and then we
• 39:23
  Speaker 9: have to show that those consumers are confused when they
• 39:25
  Speaker 9: see a. Knockoff and it's not, easy it's not, impossible
• 39:29
  Speaker 9: but it is definitely going to be a, battle, or.
• 39:32
  Speaker 3: As you, say perhaps a. Settlement always great to have you, On,
• 39:36
  Speaker 3: Susan thanks so. Much That's Professor Susan scaffiti Of Fordham Law.
• 39:40
  Speaker 1: School and that's it for this edition Of The Bloomberg Law.
• 39:43
  Speaker 3: Show remember you can always get the latest legal news
• 39:46
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• 39:58
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• 40:02
  Speaker 3: June grosso and you're listening To bloomberg