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Abortion Rights Votes & Trump Judiciary Tactics · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:11
Speaker 1: Constitutional amendments to protect or expand abortion rights passed in
0:16
Speaker 1: seven of the ten states where they appeared on the
0:19
Speaker 1: ballot yesterday, including in some states that voted fort Donald Trump.
0:24
Speaker 1: Abortion rights amendments passed in Arizona, Colorado, Maryland, Missouri, Montana, Nevada,
0:30
Speaker 1: and New York, but failed in Florida, Nebraska, and South Dakota.
0:35
Speaker 1: It's a winning record for abortion rights ballot measures since
0:38
Speaker 1: the Supreme Court ended the constitutional right to abortion in
0:42
Speaker 1: twenty twenty two fourteen to three, but Tuesday did end
0:47
Speaker 1: the winning streak, joining me his healthcare attorney Harry Nelson,
0:51
Speaker 1: a partner at Leech Tishman Nelson Hardiman Harry. Abortion rights
0:55
Speaker 1: ballot measures passed in four states that voted for Trump.
1:00
Speaker 1: How do you reconcile that, considering his having bragged about
1:04
Speaker 1: getting Roe v. Wade reversed.
1:07
Speaker 2: It's clear that abortion rights and you know, reproductive health
1:12
Speaker 2: access have a majority of support in pretty much every
1:16
Speaker 2: corner of America, except that the issue is not the
1:21
Speaker 2: driver in this election that it was in the twenty
1:23
Speaker 2: twenty two midterms, for example, and that clearly voters who
1:28
Speaker 2: supported Trump were you know, willing to see his abortion
1:34
Speaker 2: policy and politics as distinct from the broader anti abortion movement.
1:40
Speaker 2: So it does seem like abortion was not the powerful
1:44
Speaker 2: issue that it was in the previous election cycles since
1:47
Speaker 2: the repeal of Roe v. Wade, even though it still
1:50
Speaker 2: clearly garnered significant support in most of the places where
1:53
Speaker 2: it was before.
1:54
Speaker 1: The voters Missouri, Trump won fifty eight point five percent
1:58
Speaker 1: of the vote, but the state voted in favor of
2:01
Speaker 1: a constitutional amendment protecting abortion rights, and Missouri's abortion law
2:06
Speaker 1: is very strict right now.
2:09
Speaker 2: Yeah, Missouri had a near total ban on abortion, and
2:13
Speaker 2: so this is a significant decision. You know. I think
2:16
Speaker 2: one of the things we can certainly take away is
2:18
Speaker 2: it seems that this election, there was a huge gender
2:20
Speaker 2: gap in this election, but that many men who sort
2:23
Speaker 2: of you know, propelled Trump to victory in the presidential
2:26
Speaker 2: race also supported abortion rights and voted, and this was
2:30
Speaker 2: not a victory for anti abortion activists there. So I
2:34
Speaker 2: don't find that result surprising. It's clear that, you know,
2:38
Speaker 2: President Trump opened up some space between himself and the
2:42
Speaker 2: anti abortion movement, and it's also apparent that the driving
2:46
Speaker 2: factors that propelled his victory had less to do with
2:50
Speaker 2: reproductive rights than other issues when you see this kind
2:53
Speaker 2: of a slaur result.
2:54
Speaker 1: Now, Arizona, which had the longest ballot in state history.
2:58
Speaker 1: It took up like two pages, and apparently, you know,
3:01
Speaker 1: momentum was gained there because the state Supreme Court ruling
3:05
Speaker 1: in April found that the state could enforce this strict
3:08
Speaker 1: abortion ban from eighteen sixty four.
3:12
Speaker 2: Yeah, that's the court decision earlier in Arizona. Obviously shocked
3:16
Speaker 2: voters there. And so yeah, Proposition one point thirty nine,
3:20
Speaker 2: it protects the right to abortion in the state constitution itself,
3:24
Speaker 2: which is really significant up to the point of fetal viability,
3:27
Speaker 2: which replaces and gives a longer period than the fifteen
3:30
Speaker 2: week ban that had been there. So that's a significant
3:33
Speaker 2: move on the part of Arizona. And again, you know,
3:36
Speaker 2: not that surprising. In general, the victories that the anti
3:40
Speaker 2: abortion movement has had have come from court for the
3:43
Speaker 2: most part, but certainly Arizona is an example of voters,
3:47
Speaker 2: you know, reflecting the same trend that we've seen in
3:49
Speaker 2: the previous election cycles since ROW was repealed, and coming
3:53
Speaker 2: out to ensure protection for access to abortion.
3:56
Speaker 1: So Colorado's measure, besides enshrining access to abortion, also undoes
4:03
Speaker 1: an earlier amendment that barred using state and local government
4:08
Speaker 1: funding for abortion. So what does that mean?
4:11
Speaker 2: Yeah, so that's e sic hint in that it really
4:14
Speaker 2: opens up not just access itself, but funding, you know,
4:18
Speaker 2: reimbursement for providers to keep professionals who are working this area,
4:22
Speaker 2: facilities open, and ensuring access to the state portion of
4:26
Speaker 2: Medicaid funds. So one of the issues that we may
4:29
Speaker 2: see come up now that it looks like we're going
4:31
Speaker 2: to have a Republican control over both parts of Congress
4:35
Speaker 2: and the presidency is potentially more restrictions on federal funding.
4:40
Speaker 2: So Colorado seems to be the first state to ensure
4:43
Speaker 2: that there's going to be state funding and we're talking
4:45
Speaker 2: here mostly Medicaid funding and other facilities working on special
4:50
Speaker 2: grant programs in this area. So I think that's a
4:52
Speaker 2: harbinger of a trend that we're likely to see in
4:54
Speaker 2: other states, particularly as we see a likelihood of more
4:59
Speaker 2: federal restrictions.
5:01
Speaker 1: So in Maryland and Montana, abortion is already legal until
5:06
Speaker 1: viability and in Nevada up to twenty four weeks. So
5:10
Speaker 1: what difference does the ballot measure there make in those states.
5:16
Speaker 2: In Maryland, it was a constitutional amendment, which is significant
5:20
Speaker 2: because it establishes a much more permanent right than a
5:25
Speaker 2: mere ballot measure. You know, obviously, when something is placed
5:30
Speaker 2: into the constitution itself, it establishes it as a fundamental
5:34
Speaker 2: a more fundamental right, and it forces court to sort
5:38
Speaker 2: of put a privacy on that right. And so recognizing
5:41
Speaker 2: a right to abortion as part of a broader right
5:43
Speaker 2: to privacy really sets a direction and state policy that's
5:47
Speaker 2: going to reverberate much further in the future, and not
5:51
Speaker 2: only in court review, but with regard to future ballot measures.
5:55
Speaker 2: It sort of just sets a higher order of magnitude
5:58
Speaker 2: of priority on the question. And so it's obviously it's
6:02
Speaker 2: a better place to be right. We see some states
6:05
Speaker 2: that have moved to pass ballot initiatives because those are
6:08
Speaker 2: the quickest way to get things done, just to present
6:11
Speaker 2: a measure to the voters where state law allows. But
6:14
Speaker 2: actually amending the state constitution really is a fundamental way
6:18
Speaker 2: to give more security to the principle of a constitutional
6:22
Speaker 2: right to reproductive freedom.
6:23
Speaker 1: So New York's measure was a little different. It didn't
6:26
Speaker 1: even mention the word abortion New York, it was.
6:30
Speaker 2: A supposal that prohibited discrimination based on pregnancy outcome, So
6:35
Speaker 2: it was not a direct abortion rights New York already
6:37
Speaker 2: has an abortion rights law. But it's interesting New York
6:41
Speaker 2: kind of went a step further in a different direction, right,
6:43
Speaker 2: Colorado went further on funding on public funding, but New
6:47
Speaker 2: York went further on identifying a possible risk of discrimination
6:51
Speaker 2: that an employer could, for example, make an adverse decision
6:56
Speaker 2: based on pregnancy outcome. So it's sort of to fight
7:00
Speaker 2: and broadened the scope of protected rights beyond the right
7:04
Speaker 2: to the abortion itself, which was already in place.
7:06
Speaker 1: Just because they passed these amendments, that doesn't mean that
7:10
Speaker 1: the abortion bands in these states are suddenly off the books.
7:15
Speaker 1: It requires some court action, doesn't it.
7:18
Speaker 2: Like we've seen, you know, with abortion going back for
7:21
Speaker 2: the last fifty years, a lot of times these laws
7:24
Speaker 2: stay on the books, and we're actually going to need
7:26
Speaker 2: test cases to come up and have courts formally rule,
7:31
Speaker 2: you know, on the status of some of these old laws.
7:33
Speaker 2: So there are a couple of places where these laws
7:36
Speaker 2: are going to change things, but we're still going to
7:38
Speaker 2: have to see cases filed a little bit of anxiety
7:42
Speaker 2: and stress for the you know, providers and the patients
7:45
Speaker 2: who are in those cases. But for better or worse,
7:48
Speaker 2: that's just the process that we're going to see go
7:50
Speaker 2: forward here.
7:51
Speaker 1: I mean, can we assume that judges are going to
7:54
Speaker 1: follow the amendments and not put their own sort of
8:00
Speaker 1: stamp on it.
8:02
Speaker 3: No.
8:02
Speaker 2: I think the guarantee of abortion rights is something that
8:06
Speaker 2: should give security here. I do think that while we
8:08
Speaker 2: do see some opportunism from judges who feel strongly on
8:13
Speaker 2: the anti abortion side, they can't do very much given
8:16
Speaker 2: the appeal structure, and obviously appellic courts put the issue
8:19
Speaker 2: before multiple judges and hopefully ensure that the law actually
8:23
Speaker 2: gets followed. So I don't think anyone should worry that
8:26
Speaker 2: these laws are not going to actually be you know,
8:28
Speaker 2: implemented and enforced. It's just we're going to have to
8:30
Speaker 2: go through a process to actually make that happen.
8:34
Speaker 1: And abortion amendments did not pass in Florida, Nebraska, and
8:38
Speaker 1: South Dakota, Florida, which unusual is that most voters supported
8:44
Speaker 1: the Florida measure fifty seven percent, but it fell short
8:48
Speaker 1: of the sixty percent. So what's happening is a minority
8:51
Speaker 1: of voters are able to keep the abortion ban in place.
8:56
Speaker 2: Yeah, that's a very surprising result. You know, obviously came
9:00
Speaker 2: very close. It's good news, right that fifty seven percent
9:03
Speaker 2: of the voters support abortion rights, but obviously this sixty
9:07
Speaker 2: percent threshold that Florida law requires to amend the constitution
9:11
Speaker 2: was a barrier. And so we're stuck with the current
9:14
Speaker 2: Florida abortion ban, which is a six week abortion ban,
9:17
Speaker 2: very early, and that's a problem. So Florida has more
9:20
Speaker 2: work to do and we're going to see the fight continue.
9:24
Speaker 2: The fact that it was fifty seven percent, that it
9:26
Speaker 2: came so close makes me suspect that we're going to
9:28
Speaker 2: see this issue return on the ballot in midterms in
9:32
Speaker 2: election cycle that is likely to draw out a different
9:36
Speaker 2: voting pool in midterms. That's pretty close. That's a very
9:39
Speaker 2: narrow margin of defeat. So while it is a victory
9:42
Speaker 2: that the anti abortion activist can claim, it's a pretty
9:47
Speaker 2: narrow victory and I don't think it's one that will
9:50
Speaker 2: will hold up. The problem is, for at least the
9:52
Speaker 2: next two years, we're stuck with the six weeks ban
9:55
Speaker 2: in Florida, and also.
9:56
Speaker 1: The governor there, Ron DeSantis pulled out all the stops
10:01
Speaker 1: against the amendment, having election police go to voters front
10:05
Speaker 1: doors to question them about signing a petition to add
10:09
Speaker 1: the abortion referendum.
10:10
Speaker 4: He had a website.
10:12
Speaker 1: I mean, he really went out of his way to
10:15
Speaker 1: try to get that defeated.
10:17
Speaker 2: Yeah, it's a little bit surprising that the Santis went
10:21
Speaker 2: to such extreme measures. But you know, who knows what
10:24
Speaker 2: his plan is. You know, he came away from the
10:28
Speaker 2: presidential election kind of seated and sailed, and obviously someone
10:33
Speaker 2: is advising him that this is a winning place for
10:36
Speaker 2: him to be tough. I think the broad result in
10:38
Speaker 2: the fact that it's still got fifty seven percent of
10:40
Speaker 2: voter support, should hopefully raise questions with whoever pushed him
10:45
Speaker 2: on that strategy and give him pause. But very surprising
10:48
Speaker 2: that he made such a stand on this issue.
10:50
Speaker 1: So now, in Nebraska, it was the first time in
10:53
Speaker 1: the state's history that conflicting petitions appeared on the same ballot,
10:58
Speaker 1: and I'm wondering if that had anything to do with
11:01
Speaker 1: the defeat of the abortion measure.
11:04
Speaker 2: Yeah, I think there's an issue of confusing the voters
11:08
Speaker 2: with competing ballot measures here, right, the one that was
11:11
Speaker 2: approved was the one that enshrines the current twelve week
11:14
Speaker 2: ban with an exception for rape for incests into the
11:17
Speaker 2: life of the mother, but the broader measure that would
11:21
Speaker 2: have added the right to abortion access to the state
11:24
Speaker 2: constitution failed. I do think there was an element of,
11:28
Speaker 2: you know, voters going for a more modest choice when
11:32
Speaker 2: presented with two alternatives. And I also think that here too,
11:36
Speaker 2: this election drove out a different voter base than we're
11:41
Speaker 2: likely to see in the midterm elections. And I think
11:43
Speaker 2: that this is not the last word in Nebraska. So
11:47
Speaker 2: that while this is a setback certainly for the you know,
11:50
Speaker 2: reproductive health access advocates, it was an unfortunate kind of
11:55
Speaker 2: competition and one that has flowed things down in Nebraska.
11:59
Speaker 5: Now.
12:00
Speaker 1: South Dakota is a state with a strict ban on abortion,
12:04
Speaker 1: and the Abortion Rights Amendment failed, and it was a
12:08
Speaker 1: decisive fail.
12:09
Speaker 2: Yeah, that's probably the biggest victory for anti abortion activists
12:13
Speaker 2: South Dakota as one of the most restrictive. What was
12:17
Speaker 2: rejected was a constitutional amendment there that would have put
12:20
Speaker 2: in a trimester based system, which was what Rote was
12:23
Speaker 2: based on, essentially, with no ability to limit abortion whatsoever.
12:27
Speaker 2: In the first trimester, you know, very much tied to
12:29
Speaker 2: wrote in the reasonable regulation in the second trimester and
12:33
Speaker 2: only you know, heavy regulation or prohibition in the third trimester.
12:37
Speaker 2: And so the problem is that the defeat of that
12:40
Speaker 2: amendment really leaves South Dakota as essentially a state with
12:44
Speaker 2: a total ban. And I do think it's definitely the
12:47
Speaker 2: biggest victory of this election cycle for the anti abortion movement.
12:51
Speaker 2: I suspect that whatever you know happens next in South Dakota,
12:55
Speaker 2: that there will be more activity to protect and restore
12:59
Speaker 2: rights to avoid, but that it will probably be a
13:02
Speaker 2: more modest initiative. And the result here, by the way,
13:05
Speaker 2: was strong, right, sixty one percent. Again, so it looks
13:08
Speaker 2: like the likelihood for South Dakota is that any future
13:11
Speaker 2: challenge will have to be a more modest approach and
13:14
Speaker 2: not one that tries to completely reinstate Roe v.
13:18
Speaker 1: Wade.
13:19
Speaker 4: What kind of.
13:19
Speaker 1: An impact can Trump as president have on abortion rights
13:25
Speaker 1: in the country.
13:26
Speaker 2: Well, so we've heard a lot about whether there's going
13:28
Speaker 2: to be some kind of national position created to coordinate
13:32
Speaker 2: abortion restriction. Obviously, you know, we have enormous amounts of
13:37
Speaker 2: federal healthcare dollars at stake through not only you know,
13:42
Speaker 2: Medicare Medicaid, but through all the various federal funding programs.
13:45
Speaker 2: So I think there is room if Trump is inclined
13:49
Speaker 2: to be you know, supportive of anti abortion activists. Those
13:53
Speaker 2: are certainly two major ways. The thing I'm watching most
13:56
Speaker 2: closely is that we avoided a problem with the FDA
14:00
Speaker 2: pill that was challenged mifipristone, the abortion pill that activists
14:05
Speaker 2: in Texas got a federal judge to ban, and we
14:08
Speaker 2: saw a whole drama there that the Supreme Court put
14:10
Speaker 2: to rest. But now the biggest question to me is
14:13
Speaker 2: whether you know, Trump's or Trump's people are going to
14:18
Speaker 2: try to make the FDA a site of more problems
14:22
Speaker 2: for telemedicine abortion. We already know telemedicine abortion is with
14:26
Speaker 2: mifipristone is now something like sixty percent or more of
14:30
Speaker 2: all abortion, you know, which has really transformed it to
14:33
Speaker 2: a much more private matter, you know, where women don't
14:35
Speaker 2: have to come to clinics to have a procedure. They
14:37
Speaker 2: can choose the time and place where they take the
14:39
Speaker 2: medication and have much more privacy in the process itself.
14:43
Speaker 2: So to me, the sort of scariest possibility is the
14:46
Speaker 2: politicization of the FDA. It's going to be very interesting
14:50
Speaker 2: to see what happens with health policy under Trump. A
14:53
Speaker 2: couple of years ago when he was elected in twenty sixteen,
14:56
Speaker 2: I co authored a book making a lot of predictions,
14:59
Speaker 2: and I learned my last and it's always dangerous to
15:01
Speaker 2: get ahead of what's going to happen here. But I'm
15:03
Speaker 2: definitely watching with data breathless see how much the FDA
15:06
Speaker 2: gets politicized or hopefully whether you know, will allow the
15:11
Speaker 2: experts who are policing the safety of our drugs and
15:15
Speaker 2: other medical devices supplies do their workout interruptions so that
15:19
Speaker 2: remains you soon, Thanks.
15:21
Speaker 4: So much, Harry.
15:22
Speaker 1: That's Harry Nelson of Leech Tishman Hardiman Nelson Coming up next.
15:26
Speaker 1: Will the Third Time be the Charm? For Johnson and Johnson?
15:29
Speaker 1: You're listening to Bloomberg? Will the Third Time be the Charm?
15:33
Speaker 1: The fate of Johnson and Johnson's latest push to use
15:37
Speaker 1: bankruptcy courts to end thousands of cancer lawsuits tied to
15:41
Speaker 1: its iconic baby powder now hinges on a high stakes
15:45
Speaker 1: trial in January. A federal judge in Houston will decide
15:49
Speaker 1: early next year whether Jay and Jay's bid to quickly
15:52
Speaker 1: settle the claims with an eight point two billion dollar
15:56
Speaker 1: payout can move ahead. A lead attorney for some whole
16:00
Speaker 1: out claims of vote by claimants in support of the
16:03
Speaker 1: deal was rigged, a charge that Jay and Jay denies.
16:07
Speaker 1: Joining me is an expert in mass torts, Elizabeth Birch,
16:10
Speaker 1: a professor at the University of Georgia School of Law.
16:14
Speaker 1: What are the stakes in this fifteen year long litigation?
16:19
Speaker 3: Well, I mean, there are certainly stakes for Johnson and
16:22
Speaker 3: Johnson in particular, but I think you know, they're really
16:25
Speaker 3: even bigger stakes for how we handle these mass harms
16:29
Speaker 3: and whether we handle them through bankruptcy or whether we
16:32
Speaker 3: handle them through Article three courts. You know, So, even
16:36
Speaker 3: as Johnson and Johnson is trying now for the third
16:38
Speaker 3: time to in my opinion, sort of ram this bankruptcy
16:42
Speaker 3: through the Article one system, we have questions about whether
16:47
Speaker 3: bankruptcy can become kind of a court of first resort
16:51
Speaker 3: rather than a last resort for handling massive tort claims
16:54
Speaker 3: like this.
16:55
Speaker 1: Will you explain how Johnson and Johnson is trying to
16:58
Speaker 1: resolve the claim using a legal strategy known as the
17:03
Speaker 1: Texas two step, where corporate shell was created to absorb
17:07
Speaker 1: the cancer claims and then file for bankruptcy, and that
17:11
Speaker 1: was rejected in New Jersey.
17:13
Speaker 3: Sure, so it actually started off by filing in North Carolina,
17:18
Speaker 3: which had fairly friendly case law to them. In the
17:21
Speaker 3: Fourth Circuit, that case was transferred up to New Jersey,
17:25
Speaker 3: which is in the Third Circuit, and then back in
17:28
Speaker 3: I believe it was twenty twenty three. The Third Circuit
17:31
Speaker 3: found that the filing by Johnson and Johnson unit, which
17:35
Speaker 3: is called LTL, was in bad faith essentially because the
17:39
Speaker 3: TALC unit wasn't sufficially distressed. Instead, you know, it had
17:43
Speaker 3: a funding source, which was Johnson and Johnson. So it
17:47
Speaker 3: didn't pass the test of being filed in good faith
17:50
Speaker 3: and it was dismissed. And then not long after that
17:52
Speaker 3: they filed a second time, and then now again a
17:55
Speaker 3: third time. But this one is down in Texas.
17:58
Speaker 4: I mean, what makes Texas different?
18:00
Speaker 3: Well, Texas is a little bit different. So there have
18:04
Speaker 3: been unfavorable rulings in this regard in both the Third
18:08
Speaker 3: Circuit and in the Seventh Circuit. There has been a
18:11
Speaker 3: favorable ruling in the Fourth Circuit, which is where Johnson
18:15
Speaker 3: and Johnson originally tried to go by filing in North Carolina,
18:19
Speaker 3: but yet to be determined what the Fifth Circuit will
18:21
Speaker 3: do to this, although there is some reason to think
18:24
Speaker 3: that maybe Fifth Circuit law would be a bit more
18:27
Speaker 3: favorable to Johnson and Johnson than the Third or the
18:30
Speaker 3: Seventh Circuit would.
18:31
Speaker 1: It's before a bankruptcy judge in Texas. The plaintiffs or
18:37
Speaker 1: some of the plaintiffs tried to send it back to
18:38
Speaker 1: New Jersey, but the judge rule that it could stay
18:41
Speaker 1: in Texas.
18:42
Speaker 3: That's correct. So that was the most recent ruling that
18:45
Speaker 3: I know about. Was the judge in Texas, Judge Lopez,
18:49
Speaker 3: which is who is a bankruptcy judge, said that the
18:52
Speaker 3: case did not need to move back to New Jersey
18:54
Speaker 3: and that he would be able to handle the case
18:56
Speaker 3: quickly and fairly.
18:58
Speaker 1: So this time Jay and Day went sort of prepared.
19:02
Speaker 1: It got a pre approved vote of the plaintiffs.
19:07
Speaker 3: Supposedly, so you know, this is what we're hearing and
19:11
Speaker 3: what we're reporting. So in order for a bankruptcy plan
19:14
Speaker 3: to go through, there are two ways to do it.
19:16
Speaker 3: There's something called a pre pack, which is where you
19:19
Speaker 3: gather the votes beforehand and when you file the bankruptcy plan,
19:23
Speaker 3: you sort of have all your ducks in a row
19:25
Speaker 3: such that the plan confirmation goes through very quickly. And
19:28
Speaker 3: then there is just sort of the ordinary Chapter eleven
19:31
Speaker 3: reorganization where you're trying to get the requisite votes as
19:35
Speaker 3: you go here, they're saying that they have the requisite vote.
19:38
Speaker 3: There is a pretty big split among the plaintiff's law
19:41
Speaker 3: firms as to whether they are in favor of this
19:43
Speaker 3: plan or against this plan. And there have been, you know,
19:46
Speaker 3: a lot of campaigns on both sides trying to get
19:49
Speaker 3: TOUP claimants to vote one way or the other, depending
19:52
Speaker 3: on which firms are spigned with.
19:54
Speaker 1: And now one of the plaintiff's lawyers, who is a
19:58
Speaker 1: lead attorney for the holdouts, Andy birch he accused another
20:02
Speaker 1: plaintiff's attorney and the consulting firm hired by Jay and
20:05
Speaker 1: Jay to run the pre bankruptcy vote of illegally switching
20:09
Speaker 1: eleven four hundred and thirty four votes from reject to accept.
20:14
Speaker 3: You know, I know that Andy Birchfield and Mike Papantonio
20:18
Speaker 3: have been very vocal in opposing the town bankruptcy plans,
20:23
Speaker 3: whether it was the first, the second, or the third,
20:26
Speaker 3: and certainly with regard to the third So you know,
20:29
Speaker 3: in some respects, it's a it's a very interesting way
20:32
Speaker 3: to see what's happening with this risk and the planeff Bar.
20:35
Speaker 3: There may have been evidentiary hearings on that motion. I
20:38
Speaker 3: have not seen those, so I'm not sure about what
20:40
Speaker 3: the allegations are or whether they are true. The judge
20:43
Speaker 3: will ultimately have to decide that, you know. But even
20:46
Speaker 3: without the plaintiffs bar themselves getting involved, you have the
20:50
Speaker 3: US Trustee who is against the plan, and so it
20:53
Speaker 3: will be interesting to see what happens. I suspect that
20:55
Speaker 3: we'll see an appeal either way, you know, regardless of
20:59
Speaker 3: how many plaintifs ultimately vote in favor of the plan.
21:02
Speaker 1: I mean, for plaintiffs attorneys, the longer they litigate and
21:06
Speaker 1: the more cases they litigate, the more compensation they get
21:09
Speaker 1: in attorney's fees.
21:11
Speaker 3: Well, it really depends, you know. Oftentimes you'll see retainer
21:15
Speaker 3: agreements that are staggered in terms of the amount of
21:18
Speaker 3: work that the attorney has to put in. So you know,
21:21
Speaker 3: if you settle before you ever file a complaint, you
21:23
Speaker 3: get a smaller percentage of a contingency fee than you
21:26
Speaker 3: would if you had to file a complaint or ultimately
21:29
Speaker 3: file an appeal. I haven't seen the retainer agreements in TALC,
21:34
Speaker 3: so it's hard to say, and I suspect they vary
21:36
Speaker 3: from firm to firm. But one of the concerns I
21:38
Speaker 3: think that I have about resolving mass towork cases through
21:43
Speaker 3: the bankruptcy process is that you don't always have the
21:46
Speaker 3: differentation between different types of planes. So, in other words,
21:51
Speaker 3: bankruptcy courts really aren't equipped to try these cases and
21:55
Speaker 3: to say this plaintiff should get this much and that
21:58
Speaker 3: plantiff should get that much. And oftentimes what you have
22:01
Speaker 3: is just sort of a you know, everybody gets a haircut,
22:04
Speaker 3: and oftentimes it's not a very good haircut, And so
22:07
Speaker 3: claims that might be weaker from a causation perspective could
22:11
Speaker 3: be getting the same or more than claims that are
22:14
Speaker 3: much stronger from a causation perspective. So that's the sort
22:18
Speaker 3: of big concern coming out of bankruptcy.
22:20
Speaker 1: Now, if you don't have a global settlement, I mean,
22:24
Speaker 1: how long would it take to get these cases litigated
22:28
Speaker 1: and how long would the plaintiffs have to wait to
22:31
Speaker 1: get any money?
22:33
Speaker 3: Well, I mean that's the flip side argument. Is that
22:35
Speaker 3: you know, at some point a dollar today is worth
22:38
Speaker 3: a lot more than a dollar, you know, five ten
22:41
Speaker 3: years from now. And for many of the plaintiffs, I
22:44
Speaker 3: think they need the money sooner rather than later, which
22:47
Speaker 3: is why I suspect you see some support for the plan.
22:50
Speaker 3: The other side is that, you know, not all plaintiffs
22:52
Speaker 3: are in it for the money. A lot of them
22:54
Speaker 3: are in it to make their voices heard, to have
22:57
Speaker 3: some sort of change in the system. Of course, TALC
22:59
Speaker 3: is no longer. We don't have baby powder on the
23:02
Speaker 3: market anymore. Johnson and Johnson quietly pulled baby powder from
23:06
Speaker 3: the shelves. They didn't actually take the baby powder off
23:09
Speaker 3: the shelves, but they stopped restocking it in the midst
23:11
Speaker 3: of COVID. So you know, at some point we would
23:14
Speaker 3: have statutes of limitation that kick in. The difficulty here
23:18
Speaker 3: is that a lot of these injuries take a long
23:20
Speaker 3: time to manifest. So any of the cases that are
23:24
Speaker 3: alleging that they have some sort of as bestice exposure
23:27
Speaker 3: and as best as related diseases would take you know,
23:31
Speaker 3: between five to twenty to sometimes forty years to actually manifest.
23:35
Speaker 3: So yes, to answer your question, we would certainly have
23:39
Speaker 3: to wait a lot longer to get any sort of
23:41
Speaker 3: compensations to the plaineiffs if the bankruptcy plan doesn't go through.
23:45
Speaker 3: But there's a question about who gets what and why
23:47
Speaker 3: and whether that's going to be fair.
23:49
Speaker 1: What is Jay and Jay offering in this settlement. Does
23:53
Speaker 1: it just twelve billion across the board to claimants or
23:56
Speaker 1: you know, I haven't.
23:57
Speaker 3: Seen the numbers or what the breakdown of the numbers
24:00
Speaker 3: would be. You know, certainly a portion of that will
24:02
Speaker 3: go to the attorneys, the ones who have handled this case.
24:06
Speaker 3: And I don't know how much of that is ear
24:08
Speaker 3: march for the lawyers. I'm not sure how their contracts
24:12
Speaker 3: would be affected by the bankruptcy process. And you also
24:15
Speaker 3: have a question about how much of that money is
24:18
Speaker 3: going to get eaten up in administrative costs. So oftentimes
24:22
Speaker 3: what we see is kind of the sticker price of
24:24
Speaker 3: the settlement fund ends up being a good bit smaller
24:27
Speaker 3: once you figure out who gets what and why and tell.
24:30
Speaker 1: Us about the hearing before Judge Lopez in January.
24:34
Speaker 3: So that is the hearing about whether to accept the
24:38
Speaker 3: Chapter eleven prepackaged plan. That'll be the next sort of
24:42
Speaker 3: you know, big moment to determine whether the plan is
24:45
Speaker 3: going to proceed forward or whether they could ultimately get
24:49
Speaker 3: derailed early on.
24:50
Speaker 1: Do you think if this plan goes through with the
24:54
Speaker 1: you know, bankruptcy part of it, do you think that
24:56
Speaker 1: that could encourage other companies to try the same thing.
25:00
Speaker 3: Well, you know, we've really seen an EBB and a flow.
25:03
Speaker 3: You know, the short answer is yes. You know, if
25:06
Speaker 3: it works for Johnson and Johnson, then you know, I
25:08
Speaker 3: worry that bankruptcy is going to become the new go
25:11
Speaker 3: to plan for resolving these major mass tort cases. You know,
25:15
Speaker 3: but we have seen a lot of hesitation by the
25:17
Speaker 3: Third Circuit and these early tout cases, as well as
25:20
Speaker 3: the Seventh Circuit and the Free and Military airploig cases.
25:24
Speaker 3: And then of course, you know, we had the Supreme
25:26
Speaker 3: Court in Harrington versus Purdue Pharma say that you couldn't
25:29
Speaker 3: allow for these third parties like the Sacklers to get
25:32
Speaker 3: the protections of bankruptcy without filing bankruptcy themselves. And my
25:37
Speaker 3: understand of the plan here is that you have a
25:39
Speaker 3: little bit of that happening in the Red River Tout case.
25:43
Speaker 3: So it's yet to be seen exactly what's going to
25:46
Speaker 3: come out of the January hearing.
25:48
Speaker 1: Can you compare the taut litigation to other mass tort
25:53
Speaker 1: litigations in the past, Yes and no.
25:56
Speaker 3: So certainly mass tort litigation starts in the bankruptcy proceeding
26:01
Speaker 3: with the Augustot cases. In fact, section five twenty four G,
26:05
Speaker 3: which is the as bestest code for bankruptcy, came out
26:09
Speaker 3: of the asbestos litigation, and it actually started early on
26:13
Speaker 3: with the Johns Manville as vestice proceedings, and then Congress
26:17
Speaker 3: enacted five twenty four G to try to help streamline
26:20
Speaker 3: the process. But what we're seeing with the talent cases
26:23
Speaker 3: is really a new use of bankruptcy for a parent
26:26
Speaker 3: company that doesn't really qualify as bankrupt, but using the
26:30
Speaker 3: bankruptcy process through kind of a piecemeal approach with corporate
26:35
Speaker 3: laws and in a way that seems maybe not particularly fair.
26:38
Speaker 3: And I think that's the concern that we have that
26:40
Speaker 3: we don't have really an insolvent parent company. We're using
26:44
Speaker 3: the bankruptcy process to try to shed mass toward liability,
26:48
Speaker 3: but nothing else, you know, at least without these sort
26:50
Speaker 3: of clear guardrails to prevent any sort of bankruptcy abuses
26:54
Speaker 3: and preserve you know, traditional trial process within the article
26:57
Speaker 3: three courts. I worry about these cases. You know, we're
27:01
Speaker 3: going to have less information production coming out of the
27:04
Speaker 3: litigation process, less law development, less judicial review, and potentially
27:09
Speaker 3: less due process and opportunities for the plaintiffs themselves to
27:12
Speaker 3: have their voices heard.
27:14
Speaker 1: Thanks so much for those insights, Elizabeth. That's Professor Elizabeth
27:17
Speaker 1: Birch of the University of Georgia Law School. Turning now
27:21
Speaker 1: to the federal courts, half of the twelve circuit courts
27:25
Speaker 1: have a majority of judges appointed by Republican presidents, up
27:29
Speaker 1: from a third eight years ago, and some of the
27:32
Speaker 1: most historically liberal benches, including the San Francisco based US
27:37
Speaker 1: Court of Appeals for the Ninth Circuit, are trending rightward
27:41
Speaker 1: with only a narrow liberal majority. So what will happen
27:45
Speaker 1: when Donald Trump has another four years to appoint judges?
27:49
Speaker 1: Joining me is an expert in the federal judiciary, Carl Tobias,
27:52
Speaker 1: a professor a professor at the University of Richmond Law School.
27:56
Speaker 1: Let's start at the top with the Supreme Court. Do
27:59
Speaker 1: you see any changes on the court with Trump in power?
28:03
Speaker 5: Well, it's possible, but I think unlikely. The two possible
28:07
Speaker 5: people who might resign or step down or retire are
28:11
Speaker 5: Alito and Thomas, and they're really acendant right now, so
28:16
Speaker 5: why would they want to step down. They also seem
28:18
Speaker 5: very independent, and I don't think anybody is going to
28:22
Speaker 5: persuade them to do that. If they don't want to
28:25
Speaker 5: do it, it's their decision. And so it's not clear
28:27
Speaker 5: to me at all that there'll be any changes there.
28:30
Speaker 1: And I think that Thomas once said that he was
28:32
Speaker 1: going to die on the Supreme Court in order to
28:36
Speaker 1: get back at the Liberals.
28:37
Speaker 5: Well, as I said, they're ascendent right now, and they're
28:41
Speaker 5: not that old. I mean, they're in their mid seventies, right,
28:44
Speaker 5: and so we're accustomed to having justices who serve for life.
28:49
Speaker 5: I don't know that there will be any resignations in
28:53
Speaker 5: the next four years. It seems unlikely to me.
28:56
Speaker 4: Now, let's talk about the circuit courts.
28:58
Speaker 1: Half of the twelve circuit courts have a majority of
29:02
Speaker 1: judges appointed by Republican presidents, up from a third eight
29:07
Speaker 1: years ago. Trump tipped the ideological balance of the Third Circuit,
29:12
Speaker 1: which is based in Philadelphia, the Eleventh Circuit, which is
29:16
Speaker 1: based in Atlanta, and the Second Circuit.
29:19
Speaker 4: Based in New York.
29:20
Speaker 1: But President Biden wasn't able to replicate his success with
29:26
Speaker 1: appellate courts in.
29:27
Speaker 5: Terms of numbers, that's true. And in terms of tipping
29:30
Speaker 5: as you're suggesting or flipping, I think he did flip
29:33
Speaker 5: back the second circuit right, but not the third as
29:37
Speaker 5: you say. Though if Mongy is confirmed it it becomes
29:40
Speaker 5: very close, maybe tied, and so we'll see. He I
29:45
Speaker 5: think will still confirm something like forty nine, perhaps maybe fifty,
29:52
Speaker 5: and Trump confirmed fifty four. So I think that's a
29:57
Speaker 5: pretty substantial success given how many seats vacancies were saved
30:04
Speaker 5: in twenty fifteen sixteen for Trump by McConnell and the
30:07
Speaker 5: Republicans when they had the majority and basically just shut
30:11
Speaker 5: down the process for the Obama nominees in those last
30:14
Speaker 5: two years. So it shouldn't be surprising. But now the
30:19
Speaker 5: Democrats have returned the favor because it may be that
30:22
Speaker 5: there's only a few and maybe only one or two
30:26
Speaker 5: appellate vacancies available for Trump at least at the beginning
30:30
Speaker 5: of his tenure in January. But there are of course
30:34
Speaker 5: eligible appellate judges who satisfy the rule of eighty. They're
30:40
Speaker 5: sixty five and have fifteen years of experience, and they
30:43
Speaker 5: could assume senior status. And I think there are a
30:45
Speaker 5: couple of dozen of those who are Republican appointees and
30:49
Speaker 5: five or so who are Democratic appointees. So some of
30:52
Speaker 5: them may decide to assume senior status, but it's not
30:55
Speaker 5: entirely clear.
30:57
Speaker 1: And so the death or retirement of a Democrat an
31:00
Speaker 1: appointee on the Second Circuit or two on the Ninth
31:05
Speaker 1: would flip those courts to a majority of Republican appointees.
31:10
Speaker 5: Guests could do that. Of course, those are big courts
31:13
Speaker 5: that have large numbers of members and many senior judges.
31:18
Speaker 5: But you're right, and that would be important for the
31:20
Speaker 5: en banc Court, of course, as well as for three
31:24
Speaker 5: judge panels.
31:25
Speaker 1: So the Ninth Circuit got a reputation in the eighties
31:28
Speaker 1: and early nineties, you know, as being this liberal court,
31:32
Speaker 1: and even you know, till recently, it was how many
31:35
Speaker 1: times was the Ninth Circuit going to be reversed by
31:38
Speaker 1: the Supreme Court. It was always the top circuit to
31:41
Speaker 1: be reversed until recently. But even that court, though it's
31:45
Speaker 1: majority Democrat appointees, is not as liberal.
31:49
Speaker 4: As it used to be.
31:51
Speaker 5: That's right. Trump, I think appointed ten people to that court,
31:54
Speaker 5: and it's a twenty nine judge court, and so that
31:58
Speaker 5: is making a difference, I think, and moving a court
32:02
Speaker 5: back to the middle, if you will, there may be
32:05
Speaker 5: opportunities because I think some of the Republican appointees on
32:10
Speaker 5: that court now, especially Bush appointees, are eligible for senior
32:15
Speaker 5: status and may take it.
32:17
Speaker 1: So Trump would more likely with the Circuit Court succeed
32:20
Speaker 1: in making in making the Republican appointees younger, rather than
32:27
Speaker 1: flipping to more Republican than Democratic appointees.
32:33
Speaker 5: Well, I think it depends on what he wants to
32:35
Speaker 5: do and who is advising him, and the vacancies that
32:39
Speaker 5: he has. And I don't think the tradition, such as
32:44
Speaker 5: it is of resigning or taking senior status with the
32:49
Speaker 5: president of the same party has appointed you, necessarily holds
32:53
Speaker 5: beyond the Supreme Court. So I think we have seen
32:57
Speaker 5: in modern times that in the last decade that often
33:03
Speaker 5: judges tried to honor that if they can, and that
33:06
Speaker 5: reflects some greater partisanship on the appeals courts then maybe
33:11
Speaker 5: was the case before, because of course the appeals courts
33:15
Speaker 5: are the decision makers. In ninety nine percent of cases.
33:19
Speaker 4: Let's talk about district courts.
33:21
Speaker 1: What do you see as the outlook there for Trump?
33:24
Speaker 5: Well more in terms of numbers, of course, but of
33:27
Speaker 5: course they're six hundred and seventy seven judge ships at
33:30
Speaker 5: the district level and only one hundred and seventy nine
33:32
Speaker 5: at the appellate level, so there are more possibilities there, though.
33:39
Speaker 5: I think Biden and the White House have committed to
33:45
Speaker 5: confirming as many people for the districts as possible, and
33:50
Speaker 5: I think that the number will be something like thirty
33:56
Speaker 5: or maybe even twenty if Biden confirms all the people
33:59
Speaker 5: who are on the floor now or close to being
34:03
Speaker 5: on the floor and trying to eclipse Trump. I mean,
34:06
Speaker 5: they're committed to topping the two hundred and thirty one circuit
34:09
Speaker 5: and district appointees of Trump, and they're closing in on that,
34:15
Speaker 5: and I think that's what they'll do in the five
34:17
Speaker 5: weeks of the lame Duck that starts on November twelveth.
34:21
Speaker 1: We've talked before about how the Trump appointees were often
34:26
Speaker 1: ideological picks rather than being picked because of their legal acumen.
34:33
Speaker 1: So what do you think in this second term? Will
34:36
Speaker 1: it be even more so.
34:38
Speaker 5: Well, it's possible, and there have been a number of
34:40
Speaker 5: articles in the legal press suggesting that the Federal Society
34:45
Speaker 5: picks from Leonard Leo are not sufficiently conservative and so
34:51
Speaker 5: calls for the people to be basically loyalists for Trump,
34:56
Speaker 5: which is I think his view, and so that's what
35:01
Speaker 5: some people are concerned about, and there's been a number
35:04
Speaker 5: of articles to that effect. Depends partly on the majority
35:07
Speaker 5: and the size of the majority in the Senate and
35:10
Speaker 5: whether Democrats can have any Republicans who will vote against
35:15
Speaker 5: Trump's people who he nominates, and how many steets he
35:20
Speaker 5: actually has. So some of that is just, you know,
35:23
Speaker 5: contingent on a lot of different factors, and so it
35:26
Speaker 5: may not come to pass that there'll be that many
35:30
Speaker 5: people who move through. Also, the situation this year was
35:35
Speaker 5: particularly difficult for Democrats to hold the razor thin majority
35:40
Speaker 5: they had, so something like twenty three seats were up
35:43
Speaker 5: they were defending. Well that's exactly the number that or
35:46
Speaker 5: something very close to that, which Republicans will be defending
35:50
Speaker 5: in twenty twenty six. So the majority may be short
35:53
Speaker 5: lived in the Senate, and so we'll just have to
35:56
Speaker 5: see what happens there. So that's a lot of contingencies,
36:00
Speaker 5: and especially whether the GOP appointees on the bills courts
36:06
Speaker 5: will choose to step down. Some may for age or
36:09
Speaker 5: health reasons, but we don't know how many that'll be.
36:12
Speaker 5: I think they are about three dozen who are eligible.
36:16
Speaker 5: Many contingencies operating now, and we just have to see
36:20
Speaker 5: how that works. The new Chair of Judiciary will be
36:23
Speaker 5: Chuck Grassley from Iowa, who of course have chaired in
36:26
Speaker 5: the four years of the Trump administration. So he will
36:30
Speaker 5: take the reins of that committee over from me.
36:33
Speaker 4: He's ninety one years old.
36:35
Speaker 5: Yes, but still going strong apparently, and I think in
36:39
Speaker 5: his eighth term. And he does have the history. Of course,
36:43
Speaker 5: he's the one who created the circuit exception that Trump
36:47
Speaker 5: was able to use, but he also has been there
36:52
Speaker 5: and seeing how that can be detrimental, and so Durbin
36:57
Speaker 5: has retained it. He said, we're not having one rule
36:59
Speaker 5: for Democrats in a different rule for Republicans. Actually, this
37:02
Speaker 5: year there was a big debate in committee when the
37:07
Speaker 5: North Carolina Senators were upset that the White House had
37:10
Speaker 5: put somebody up as a nominee they didn't want in
37:14
Speaker 5: North Carolina. Tom Tellis called for regular order, a return
37:18
Speaker 5: to regular order, and Durmann said, yes, absolutely, Well let's
37:21
Speaker 5: do that after the election. So we'll see if that
37:25
Speaker 5: comes to pass.
37:26
Speaker 1: And what do you think will happen in the lame
37:28
Speaker 1: duck session.
37:29
Speaker 5: Biden and the White House are committed to confirming everybody
37:34
Speaker 5: who is in process, and that would be five appellate
37:38
Speaker 5: nominees and around twenty more district nominees and that would
37:44
Speaker 5: allow them to eclipse Trump's two thirty one in his term.
37:49
Speaker 5: And that's the goal and they're committed to it, and
37:51
Speaker 5: they have five weeks to do it.
37:53
Speaker 1: Well, see if it can be done. Thanks so much, Carl.
37:56
Speaker 1: That's Professor Carl Tobias of the University of Richmond lost
38:00
Speaker 1: its cool. And that's it for this edition of the
38:02
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38:14
Speaker 4: I'm June Grosso and this is Bloomberg