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Landmark Social Media Addiction Trial · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:09
Speaker 1: Mister Zuckerberg, you and the companies before us.
0:13
Speaker 2: I know you don't mean it to be so, but
0:15
Speaker 2: you have blood on your hands. You have a product.
0:20
Speaker 3: You have a product that's killing people.
0:24
Speaker 2: That was Republican Senator Lindsay Graham during a Senate Judiciary
0:28
Speaker 2: Committee hearing two years ago, a rare example of Democrats
0:32
Speaker 2: and Republicans coming together to attack social media CEOs like
0:38
Speaker 2: Mark Zuckerberg for not protecting kids online. Zuckerberg pushed back
0:43
Speaker 2: on some recent studies that suggested that social media use
0:48
Speaker 2: was detrimental to the mental health of teenagers.
0:52
Speaker 4: Mental health is a complex issue, and the existing body
0:55
Speaker 4: of scientific work has not shown a cause a link
0:58
Speaker 4: between using social media and young people having worse mental
1:01
Speaker 4: health outcomes.
1:02
Speaker 2: Well, now, Zuckerberg will have a chance to make his
1:05
Speaker 2: case to a jury in a landmark trial overclaims that
1:09
Speaker 2: the top social media companies have deliberately gotten teenagers addicted
1:14
Speaker 2: through design choices on trial or Meta, the owner of
1:18
Speaker 2: Instagram and Facebook, and Google, the owner of YouTube Snap
1:23
Speaker 2: settled the case last week, and TikTok settled on the
1:27
Speaker 2: eve of trial. Joining me is Colin Walkee, a cybersecurity
1:31
Speaker 2: and data privacy partner at hall Estell. Colin. The plaintiff
1:35
Speaker 2: in this case is a California woman who is now
1:38
Speaker 2: twenty years old. Tell us about our allegations in this lawsuit.
1:42
Speaker 3: This is really the first one that's going to trial.
1:44
Speaker 1: There are dozens of not hundreds of similar lawsuits out there.
1:48
Speaker 3: And the basic allegation in this case, in.
1:50
Speaker 1: All the cases, is that the algorithms that have been
1:54
Speaker 1: put out there by the social media companies, as well
1:57
Speaker 1: as all the bells and whistles they put on their
1:59
Speaker 1: social media platforms, have made their products addictive. So this
2:04
Speaker 1: is very much akin to the tobacco litigation in the
2:07
Speaker 1: nineteen nineties. Are there harms that flow from that addiction?
2:11
Speaker 3: One?
2:12
Speaker 1: Is it addictive? And then two are there harms that
2:13
Speaker 1: flow from it? The jury is ultimately going to decide
2:15
Speaker 1: that in this case.
2:17
Speaker 2: This is a novel theory that compares social media sites
2:22
Speaker 2: to defective products.
2:24
Speaker 1: Yes, and in fact some of the claims even relate
2:26
Speaker 1: back to like a nuisance type claim. But long story
2:29
Speaker 1: short is is that the way these algorithms operate is
2:33
Speaker 1: they get you addicted through casino style techniques. So casinos know,
2:37
Speaker 1: for example, that every time that you put a quarter
2:39
Speaker 1: in you shouldn't get a reward because then you won't
2:41
Speaker 1: come back.
2:41
Speaker 3: So it's the timing with which.
2:43
Speaker 1: You see and the content that you see it in
2:46
Speaker 1: and then what are the consequences that flow from that, So,
2:48
Speaker 1: for example, mental health harms as a result of that.
2:52
Speaker 1: You can think about children in school and the distractions.
2:55
Speaker 1: That's some of the allegations that have come out in
2:57
Speaker 1: these cases is you know Instagram started using teenagers and
3:01
Speaker 1: they were sitting there going, how do we get back
3:03
Speaker 1: more teenagers. Well, let's figure out a way to get
3:05
Speaker 1: our platforms in schools, right, And so the harms that
3:09
Speaker 1: flow from this are unique to each individual, but you
3:11
Speaker 1: can see how they compound.
3:12
Speaker 2: So do they have to show or are they they're
3:15
Speaker 2: alleging that the social media companies deliberately made these design choices,
3:22
Speaker 2: correct that.
3:23
Speaker 1: It is intentional that they have done this. And the
3:25
Speaker 1: thing is is I think that there's plenty of testimony
3:28
Speaker 1: out there that probably supports the goal of making individuals
3:32
Speaker 1: remain on.
3:33
Speaker 3: Platforms as long as possible.
3:34
Speaker 1: Keeping their attention there so that they can increase the
3:37
Speaker 1: number of viewers and thereby increase the number of advertisements.
3:41
Speaker 1: So I don't think there's really anything new about that.
3:44
Speaker 1: But the tech companies are coming in and saying, well, whoa, whoa.
3:47
Speaker 1: We already know based off of the Spring Courts ruling
3:50
Speaker 1: on Section two thirty that the algorithms themselves are protected speech.
3:55
Speaker 1: And so the unique claim in this particular case is, yes,
3:58
Speaker 1: that may be speech, but the other bells and whistles
4:02
Speaker 1: that you're putting onto this and what you're doing within
4:04
Speaker 1: it is not speech, and rather it's conduct that it's
4:07
Speaker 1: getting us addicted to your platform.
4:09
Speaker 2: Explain Section two thirty for those who are not familiar
4:13
Speaker 2: with it.
4:14
Speaker 1: So Section two thirty is a law that was passed
4:16
Speaker 1: in the mid nineties at the infancy of the Internet, and.
4:19
Speaker 3: The goal of Section two thirty was to say, hey.
4:21
Speaker 1: Listen, all of these people are on America Online posting
4:25
Speaker 1: all sorts of things. Maybe some of them are child pornography,
4:28
Speaker 1: maybe some of them are pictures of elephants.
4:30
Speaker 3: Who knows who cares, But we don't.
4:32
Speaker 1: Want to hold aol America Online liable for what someone
4:36
Speaker 1: else posts. And so, in today's day and age, with
4:39
Speaker 1: regard to Facebook, TikTok, all of those sorts of companies.
4:42
Speaker 1: Whatever you post on there, the companies can't be held
4:46
Speaker 1: liable for. And that's the result of a now decades
4:50
Speaker 1: old law that needs to be updated pretty badly.
4:53
Speaker 2: As far as this case has the judge ruled about
4:56
Speaker 2: the applicability of Section two.
4:59
Speaker 1: Thirty, well, there were attempts to get the case dismissed
5:02
Speaker 1: under those claims, and thus far the case is going
5:05
Speaker 1: to trial, and so ultimately the judge denied those defenses.
5:08
Speaker 1: I have no doubt this is the type of case
5:10
Speaker 1: that will be brought up in front of the United
5:11
Speaker 1: States Supreme Court ultimately to make that decision. But I
5:14
Speaker 1: will tell you in many of the other copycat lawsuits,
5:17
Speaker 1: it's the exact same sort of thing. They're making the
5:18
Speaker 1: argument that Section two thirty affords in this protection and
5:22
Speaker 1: that's why it's probably gonna go to.
5:23
Speaker 3: The Supreme Court.
5:24
Speaker 2: And so the tech companies are arguing they're not legally
5:28
Speaker 2: responsible for the effect of the content made by users.
5:32
Speaker 2: So explain what they're out is here what they're trying
5:35
Speaker 2: to get.
5:35
Speaker 1: To, right, So, in short, the fact that you're being
5:39
Speaker 1: shown what you want to see is your own choice
5:42
Speaker 1: you could choose to see and view different things based
5:45
Speaker 1: off of the likes, and you're viewing habits and all
5:48
Speaker 1: of that. So they're essentially saying, all we're doing is
5:50
Speaker 1: giving you what you want. We're not doing anything to
5:53
Speaker 1: make it more enticing than it already is. And you know,
5:56
Speaker 1: part of the argument too is how much is your
5:59
Speaker 1: cell phone self addictive versus the platforms themselves? Right, So
6:05
Speaker 1: every time you get an iPhone update, for example, it
6:07
Speaker 1: becomes a little bit brighter. Why the brighter the screen,
6:11
Speaker 1: the more dopamine in the brain. The more dopamine the brain,
6:13
Speaker 1: the more you want to look on in your screen.
6:14
Speaker 1: That's why it's hard for you to figure out without
6:17
Speaker 1: going to Google how to set your screen to black
6:18
Speaker 1: and white.
6:19
Speaker 3: They don't want you to know that.
6:20
Speaker 1: So part of their argument here too is is how
6:22
Speaker 1: do you distinguish which component of this is addictive?
6:25
Speaker 2: I hadn't realized that I learned something new today about
6:28
Speaker 2: the screens. Here, the twenty year old woman says that
6:32
Speaker 2: more than a decade of social media you left her
6:35
Speaker 2: addicted and depressed. Google's challenged the narrative, saying that she
6:39
Speaker 2: experienced difficult family relationships, abuse, and bullying at school and
6:44
Speaker 2: that played a role in her mental health struggles. I mean,
6:47
Speaker 2: how difficult is causation going to be here for her
6:51
Speaker 2: to prove that, you know, it was her addiction to
6:55
Speaker 2: the platform rather than all the other things happening in
6:58
Speaker 2: her life.
6:59
Speaker 1: Well, well, it's one of the sayings that we have
7:01
Speaker 1: in personal injury cases, which is you find your planiffs
7:04
Speaker 1: as they are. And so in this particular case, yes,
7:07
Speaker 1: they have some pretty good arguments that the mental health
7:09
Speaker 1: harms are a result of her history. But the question
7:13
Speaker 1: then becomes were they exacerbated by virtue of the negligent conduct?
7:19
Speaker 1: And if that's the case, then the approximate cause is
7:21
Speaker 1: in fact the social media platform and not the historical
7:25
Speaker 1: trauma that she experienced. And so that's what I was
7:27
Speaker 1: saying earlier about the mental health harms as part of
7:30
Speaker 1: the allegations in this case, because it is going to
7:33
Speaker 1: be an issue for the jury to determine what was
7:35
Speaker 1: the ultimate cause, what are those damages, and on top
7:38
Speaker 1: of that, are punitive damage is something that.
7:40
Speaker 3: Could be afforded.
7:41
Speaker 2: There is a debate within the mental health field about
7:44
Speaker 2: the connection between social media and increasing teenage rates of depression,
7:50
Speaker 2: anxiety suicide ideation. But there is a twenty twenty three
7:54
Speaker 2: report by the American Psychological Association that found that social
7:58
Speaker 2: media used is not inherently benefit official or harmful to
8:01
Speaker 2: young people. Is that debate going to enter the courtroom
8:04
Speaker 2: where we're going to see, you know, experts on both
8:07
Speaker 2: sides of the issue.
8:09
Speaker 1: Absolutely, you will, just like you saw with the tobacco litigation.
8:12
Speaker 1: I mean, that's the reality is You're going to find
8:14
Speaker 1: experts on both sides of this issue. But at the
8:17
Speaker 1: end of the day, the reason why the jury trial
8:19
Speaker 1: system is so good here in the United States is
8:22
Speaker 1: because our jurors really are good at detecting bs, and
8:26
Speaker 1: so they'll be able to figure out pretty quickly not
8:29
Speaker 1: just from what the testimony is, but from their own
8:32
Speaker 1: personal experiences. I don't think that anyone can ultimately hear
8:36
Speaker 1: the testimony of these executives and former executives and decide
8:40
Speaker 1: that they didn't at least try.
8:42
Speaker 3: To make it more addictive.
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Speaker 1: Whether they accomplish that goal maybe a different story, but
8:46
Speaker 1: it's pretty clear they at least tried.
8:48
Speaker 2: As you mentioned, there are more than sixteen hundred plaintiffs,
8:51
Speaker 2: including there were over three hundred and fifty families and
8:54
Speaker 2: two hundred and fifty school districts on the federal and
8:57
Speaker 2: state level. Why isn't this being true as a class
9:01
Speaker 2: action lawsuit.
9:02
Speaker 3: Well, because the harms flow differently.
9:04
Speaker 1: So for a class action you have to have similarity
9:07
Speaker 1: in damages and several other similar class items to make
9:10
Speaker 1: you a class. So, for example, if your dishwasher went out,
9:13
Speaker 1: all the other thousand people who bought that dishwasher, you're
9:16
Speaker 1: in the similar class.
9:16
Speaker 3: You've got similar damages.
9:18
Speaker 1: But in this particular case, the harm of this particular
9:21
Speaker 1: female plaintiff right is different than a mother bringing in
9:25
Speaker 1: a lawsuit on behalf of her child. And those damages
9:28
Speaker 1: are different because you're going to calculate a different lifespan
9:31
Speaker 1: based on age alone. And then not only that, but
9:33
Speaker 1: you look at the school district lawsuits, Well, what are
9:35
Speaker 1: the damages there. It's the disruption in the classroom, it's
9:38
Speaker 1: the additional counselors that are needed. So each of these
9:41
Speaker 1: different damage components makes them difficult even for a litany
9:45
Speaker 1: of school districts to come together. You couldn't see that
9:47
Speaker 1: across the country because everybody is funded differently, So that's
9:51
Speaker 1: why you're not seeing it as a class action.
9:52
Speaker 3: But I'm confident that if.
9:54
Speaker 1: This case goes to trial and there is a judgment,
9:57
Speaker 1: you're going to see a lot more of these cases.
9:59
Speaker 2: Sudden explain what a Bellweather trial is and is this
10:03
Speaker 2: a Bellweather trial?
10:04
Speaker 3: This is absolutely a bell Weather trial. So it's very similar.
10:07
Speaker 1: Recently, for example, you saw Tesla actually went to trial
10:11
Speaker 1: and won on one of the cases where they're automatic
10:14
Speaker 1: driving vehicle injured somebody, and so that is going to
10:17
Speaker 1: embolden Tesla into the future. So if you imagine a
10:20
Speaker 1: scenario in which the social media companies do win this case,
10:24
Speaker 1: they're going to feel embolden to continue to pursue it.
10:27
Speaker 1: On the flip side of that coin, if the plaintiffs
10:29
Speaker 1: win this case, then at the end of the day,
10:30
Speaker 1: you're going to start seeing a lot more settlements.
10:32
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
10:34
Speaker 2: this conversation with Colin Walke of hall Estel. Jury's selection
10:39
Speaker 2: is underway in the case. So what kind of jurors
10:43
Speaker 2: are the lawyers from each side looking for and how
10:46
Speaker 2: much depends on the testimony of a CEO like Mark Zuckerberg.
10:50
Speaker 2: I'm June Grosso and you're listening to Bloomberg.
10:54
Speaker 3: Would you'd like now to apologize to the victims who
10:57
Speaker 3: have been harmed by your product? Show them the pictures.
11:00
Speaker 4: Would you like to apologize for what you've done to
11:02
Speaker 4: these good people?
11:03
Speaker 2: Meta CEO Mark Zuckerberg was lectured by both Republican and
11:07
Speaker 2: Democratic senators when he testified at a hearing on the
11:11
Speaker 2: harm social media platforms posed to young people in January
11:15
Speaker 2: of twenty twenty four. Now, Zuckerberg will have to testify
11:19
Speaker 2: in a courtroom in a landmark social media addiction trial.
11:24
Speaker 2: Part of his testimony will most likely echo some of
11:27
Speaker 2: what he said before Congress when he elaborated on the
11:31
Speaker 2: safeguards Meta has added over the years.
11:34
Speaker 4: Over the last eight years, we've built more than thirty
11:36
Speaker 4: different tools, resources, and features that parents can set time
11:39
Speaker 4: limits for their teens using our apps, see who they're following,
11:43
Speaker 4: or if they report someone for bullying. For teens, we've
11:47
Speaker 4: added nudges to remind them when they've been using Instagram
11:49
Speaker 4: for a while, or if it's getting late and they
11:50
Speaker 4: should go to sleep, as well as ways to hide
11:53
Speaker 4: words or people without those people finding out.
11:56
Speaker 2: I've been talking to an expert in data privacy Colin Walkee,
12:00
Speaker 2: a partner at Halestel. Colin the fact that Snap settled
12:04
Speaker 2: last week and TikTok settled on the eve of trial,
12:08
Speaker 2: what does that tell you about how the social media
12:10
Speaker 2: companies are evaluating the risk of going to trial.
12:15
Speaker 1: I think what most people don't realize is that lawyer's
12:18
Speaker 1: jobs are to manage risk.
12:19
Speaker 3: We are risk managers, that is it. And so for the.
12:22
Speaker 1: Plaintiffs in this case, if they settled, the reason why
12:25
Speaker 1: is because they know that this is going to be
12:27
Speaker 1: taken all the way to Supreme Court and that's going
12:28
Speaker 1: to take another five years, whereas they can get some.
12:31
Speaker 3: Money today and avoid that risk, right.
12:33
Speaker 1: So there's an incentive for the plaintiffs to settle from
12:35
Speaker 1: that regard, and there's an incentive for the defendant to
12:38
Speaker 1: settle because they don't want this information to get out
12:40
Speaker 1: there in the real world about how much you know
12:42
Speaker 1: your privacy is being pilfered for profit. They don't want
12:45
Speaker 1: to figure that out. They don't want their dirty laundry aired.
12:48
Speaker 1: And so this is why settlements happen, is because both
12:50
Speaker 1: sides are incentivized to not continue on with the case
12:54
Speaker 1: whether they're right or wrong, and.
12:55
Speaker 2: I'm wondering how they evaluate the risks because even if
13:01
Speaker 2: they settle this case, there is the next case and
13:04
Speaker 2: the next case in the next case, whereas if they
13:06
Speaker 2: try this case and win, they'll have a better road ahead.
13:11
Speaker 3: That's absolutely correct.
13:12
Speaker 1: And one other thing is is that Meta has plenty
13:15
Speaker 1: of money for lobbying, So at the end of the day,
13:18
Speaker 1: if this does result in some sort of liability to them,
13:21
Speaker 1: I have no doubt that all of the tech companies
13:23
Speaker 1: are going to go to Congress to seek some form
13:25
Speaker 1: of a Section two thirty type amendment to further protect
13:28
Speaker 1: them in the future from this type of litigation.
13:30
Speaker 2: It's most likely that Meta CEO Mark Zuckerberg and Adam Musserri,
13:35
Speaker 2: who heads Instagram, are going to take the stand. Zuckerberg
13:39
Speaker 2: has testified before Congress explain how different it is to
13:43
Speaker 2: be in a courtroom and subject across examination and being
13:47
Speaker 2: in Congress.
13:49
Speaker 3: Well, it's wildly different.
13:50
Speaker 1: Because if you remember back in twenty fourteen, when Mark
13:53
Speaker 1: Zuckerberg came and testified in front of Congress, one of
13:56
Speaker 1: the congressmen actually thought the reference to a cookie was
13:59
Speaker 1: an edible item and not a pixel contained on your
14:02
Speaker 1: computer screen. Okay, So the difference is is that these
14:05
Speaker 1: attorneys in the courtroom know the technology, they know the facts,
14:10
Speaker 1: and they're going to be able to effectively cross examine
14:12
Speaker 1: someone about what a cookie is and how they're tracking
14:15
Speaker 1: your data from one website to another. And then it
14:18
Speaker 1: begs the question, why are you tracking my information from
14:21
Speaker 1: my insurance carrier? Oh, well so we can show you
14:24
Speaker 1: more ads. Okay, why are you showing more ads? Well,
14:26
Speaker 1: so we can get your addicted. So that's how the
14:28
Speaker 1: cross examination is going to work that you would have never.
14:29
Speaker 3: Seen in commerce.
14:30
Speaker 2: I think that Zuckerberg has a tandency to seem sort
14:34
Speaker 2: of wooden when he talks. Suppose he comes across that
14:37
Speaker 2: way to a jury, I mean, how much depends on
14:40
Speaker 2: how they view him.
14:42
Speaker 1: Well, it goes back to the old saying that you
14:44
Speaker 1: know a jury, if they like you, they like your cause.
14:47
Speaker 1: And so that's a hurdle that the tech companies are
14:49
Speaker 1: going to have to overcome at the start of this trial,
14:51
Speaker 1: because they've had enough black eyes already that the jury's
14:54
Speaker 1: not going to like them out out.
14:55
Speaker 2: The gate, and the plaintiff here will have to take
14:57
Speaker 2: the stand.
14:58
Speaker 1: Yes, the plan for lap take the stand, and I
15:01
Speaker 1: have no doubt that her mental health history will come
15:03
Speaker 1: up and the trauma that she has suffered, and all
15:05
Speaker 1: of that is fodder for cross examination.
15:08
Speaker 3: As painful as.
15:10
Speaker 1: It may be for someone to go through that process,
15:13
Speaker 1: it has to occur in order for the jury to
15:15
Speaker 1: have a full understanding and appreciation of whether or not
15:18
Speaker 1: the trauma in this case was related to addiction from
15:21
Speaker 1: social media or prior.
15:23
Speaker 2: This is a civil trial, not a criminal trial. So
15:26
Speaker 2: people may have heard old defendants don't have to testify, etc.
15:30
Speaker 2: But explain how a civil trial is different.
15:33
Speaker 1: Yeah, so there is no right against self incrimination in
15:36
Speaker 1: a civil trial. In fact, if you let's assume for
15:39
Speaker 1: half a second that Mark Zuckerberg had planned on doing
15:43
Speaker 1: something illegal.
15:43
Speaker 3: In order to make this an addictive product.
15:46
Speaker 1: If he asserted his Fifth Amendment right in a civil trial,
15:49
Speaker 1: the judge would instruct the jury that they are able
15:52
Speaker 1: to make an adverse inference as to his response. Otherwise,
15:59
Speaker 1: you don't have a Fifth Amendment right against self incrimination
16:01
Speaker 1: in a civil trial. Rather, because you're not going to jail. Rather,
16:05
Speaker 1: you face damage damages as a result.
16:08
Speaker 3: Of your conduct.
16:09
Speaker 2: Jerry selection is underway right now. Tell us the kind
16:12
Speaker 2: of jurors that the plaintiff's lawyer will be looking for,
16:16
Speaker 2: and the kind of jurors that the defendant's lawyer will
16:18
Speaker 2: be looking for.
16:20
Speaker 3: Yeah.
16:20
Speaker 1: So if I'm the planeff's lawyer, I am looking for
16:22
Speaker 1: individuals who are going to be used to using social
16:28
Speaker 1: media and find it problematic for themselves or their family members.
16:32
Speaker 3: Right.
16:32
Speaker 1: So we all have the uncle or the dad who
16:34
Speaker 1: spends all day long on Twitter and you're rolling your
16:37
Speaker 1: eyes like.
16:38
Speaker 3: Sitting there, going do you not have anything else to do? That?
16:41
Speaker 1: You want somebody who is frustrated about the system on there.
16:44
Speaker 1: From the Planetf's perspective and from the defendants perspective, you're
16:47
Speaker 1: looking for someone who is willing to say, you know what,
16:51
Speaker 1: we live in a capitalistic society in which individuals have
16:55
Speaker 1: freedom of choice, and these people are choosing to download
17:00
Speaker 1: this app and spend time on it. That is a
17:03
Speaker 1: choice that they are making. And so you're gonna want
17:06
Speaker 1: someone who is very libertarian in their perspectives on life.
17:10
Speaker 2: What about parents?
17:11
Speaker 3: Yeah, and that goes back to it.
17:13
Speaker 1: I think that if I am on the plant side,
17:15
Speaker 1: I want as many parents on there as possible.
17:17
Speaker 3: Again, you're gonna have some parents who don't care.
17:19
Speaker 1: Right, we have created a situation in which the reason
17:22
Speaker 1: why our children are addicted is because we're sitting there
17:25
Speaker 1: throwing these in their hands at the age of five
17:27
Speaker 1: years of age. And so you know, some parents may
17:31
Speaker 1: not care, but it's the parents who do care that
17:33
Speaker 1: you want on that stand or in that jury box.
17:36
Speaker 2: Do you know besides a testimony, are there internal documents
17:41
Speaker 2: that are going to be introduced.
17:43
Speaker 1: Yes, there will be internal documents that will be utilized
17:46
Speaker 1: that were utilized in depositions. Many of them have been
17:49
Speaker 1: redacted for public use at this time. The judge will
17:52
Speaker 1: figure out how to handle that with the jury on
17:55
Speaker 1: any confidential information. But yes, there will be documentation as
17:58
Speaker 1: well that the jury can rely upon a side from
18:00
Speaker 1: the testimony itself.
18:01
Speaker 2: These are state cases, but there are also federal cases
18:05
Speaker 2: that are going to trial in June. Is that also
18:08
Speaker 2: bell Weather or yes?
18:10
Speaker 1: Yes, And you could also think about it this way, right,
18:13
Speaker 1: So we're talking about these bell Weather cases. What if
18:15
Speaker 1: the plantiff wins, what if the defendant wins? And earlier
18:17
Speaker 1: we talked about, well, well, the defendant feel in Bolden
18:20
Speaker 1: and they probably will as a social media company, feel
18:23
Speaker 1: in Bolden. But you have to remember, going back to
18:25
Speaker 1: the original point of why these aren't.
18:26
Speaker 3: Class action cases.
18:27
Speaker 1: Each case is different and unique, and so in this
18:30
Speaker 1: particular case, we have a plaintiff who doesn't have the
18:33
Speaker 1: best history, so to speak, Versus if you had a
18:36
Speaker 1: five year old child in there who's got mental health
18:38
Speaker 1: issues from being addicted.
18:40
Speaker 3: They're not going to have the same traumatic history.
18:41
Speaker 1: They're only five years old, right, So each case is
18:44
Speaker 1: going to turn on the facts uniquely. But I do
18:46
Speaker 1: certainly think that this is going to embolden whoever wins.
18:48
Speaker 2: And also some states are enacting laws to protect against this.
18:53
Speaker 3: Well, each state is doing something a little bit different.
18:56
Speaker 1: So for example, you know, Oklahoma has passed a law
18:59
Speaker 1: that says you're not allowed to have cell phones during
19:01
Speaker 1: the school day, and so that keeps cell phones and
19:04
Speaker 1: social media away from.
19:05
Speaker 3: Kids at least for nine hours of the day.
19:08
Speaker 1: But you're also seeing other states require age verification for
19:13
Speaker 1: children and those sorts of things.
19:16
Speaker 3: Whether that's actually effective is a different story.
19:19
Speaker 1: You and I have had this conversation before about a
19:21
Speaker 1: lot of this is about personal responsibility on the parents.
19:24
Speaker 1: So for example, Oklahoma and many other states have past
19:26
Speaker 1: age verification laws for pornography. All a child has to
19:29
Speaker 1: do is download a VPN and bop. Now they're in Washington,
19:32
Speaker 1: d C. They're not in a state with an age
19:33
Speaker 1: verification law, and so, you know, trying to keep up
19:36
Speaker 1: with the technology is very hard from a legal perspective,
19:40
Speaker 1: and that's why personal responsibility is so important.
19:42
Speaker 2: You talk about addictive I can start reading one news
19:46
Speaker 2: story and then go on to the next about the
19:49
Speaker 2: same subject, and then the next and the next, all
19:51
Speaker 2: on different sites. It seems pretty addictive to me, And
19:55
Speaker 2: I'm wondering if you have jurors who are like that,
19:58
Speaker 2: if it hurts the plaintiff's case, because there are so
20:01
Speaker 2: many addictive things on your phone. You have games that
20:04
Speaker 2: are addictive.
20:05
Speaker 1: Well, but to your point, I mean what you just said,
20:08
Speaker 1: you can read news from us several different sites, right,
20:11
Speaker 1: So are you addicted to a social media platform or.
20:15
Speaker 3: The internet itself? Because here you are spending eight hours
20:18
Speaker 3: a day.
20:18
Speaker 1: You're not on social media platform, but you're going to
20:20
Speaker 1: Washington Post, You're going to Bloomberg News, You're going to
20:22
Speaker 1: New York Times. You go into all of these various
20:24
Speaker 1: websites and you're spending all day on there, and you
20:27
Speaker 1: forget about what you're supposed to actually be responsible for.
20:29
Speaker 2: Let's just say plaintiffs win here, how will they look
20:32
Speaker 2: at the damages the jury?
20:35
Speaker 1: So I'm not an expert in California law, but generally speaking,
20:38
Speaker 1: they're going to look at the actual damages.
20:40
Speaker 3: So to the extent that this.
20:41
Speaker 1: Woman had gone to the see of therapist and those sorts
20:44
Speaker 1: of things, that'll be a calculation included in there. How
20:46
Speaker 1: much did it cost? The amount of time taking off
20:49
Speaker 1: of work or the inability to obtain a job may
20:52
Speaker 1: be a component of for damages and then ultimately a
20:55
Speaker 1: request for punitive damages because if it can be shown
20:57
Speaker 1: that this was done with intentional and reckless condom, then
21:01
Speaker 1: there's an argument to be had that they should be
21:03
Speaker 1: punished for that behavior.
21:04
Speaker 2: I heard one of the plaintiff's lawyers talk about, we
21:06
Speaker 2: want them to correct this conduct. I mean, could a
21:09
Speaker 2: judge actually order meta two?
21:13
Speaker 3: Yes?
21:13
Speaker 1: Yeah, there could be injunctive relief as a component of this.
21:18
Speaker 1: So for example, ultimately in some of these cases, if
21:20
Speaker 1: it's declared a nuisance, then the social media companies are
21:24
Speaker 1: going to have to abate that nuisance. And how are
21:26
Speaker 1: they going to do that? They're going to go in
21:29
Speaker 1: and fix their algorithms to make them less addictive, to
21:32
Speaker 1: show you things that you don't necessarily want to see,
21:34
Speaker 1: which might actually be a good thing for a few
21:36
Speaker 1: of us.
21:37
Speaker 2: Would you say it's more or less likely that the
21:40
Speaker 2: trial is actually going to start after jury selection?
21:44
Speaker 1: I mean so, first of all, ninety three percent of
21:46
Speaker 1: all cases settle before trial, so only some percent of
21:50
Speaker 1: cases actually go to trial. And in that regard, many.
21:52
Speaker 3: Cases settle midway through trial.
21:54
Speaker 1: You get through, you pick your jury, and you sit
21:56
Speaker 1: there and you go, I don't really like this, let's
21:58
Speaker 1: go talk.
21:59
Speaker 3: There is still a chance for to settle.
22:01
Speaker 1: Although again I was recently involved in the case where
22:04
Speaker 1: the other side made it clear this is a test
22:06
Speaker 1: case for them. And so if that's the position of
22:09
Speaker 1: either the social media company or the plaintiffs, and I've
22:11
Speaker 1: got to imagine the plaintiffs have invested enough money at
22:13
Speaker 1: this stage they don't have a choice but to keep going.
22:17
Speaker 1: Then you know, this is their bell Weather case and
22:19
Speaker 1: they're going to figure out the answer.
22:20
Speaker 2: I guess we'll find out how the lawyers are weighing
22:23
Speaker 2: the risk. Thanks so much, Colin. That's Colin Walkee, A
22:27
Speaker 2: partner at Hall Estill. President Donald Trump has taken an
22:32
Speaker 2: expansive view of executive power during his second term, issuing
22:37
Speaker 2: orders upending immigration enforcement, higher education, and the federal workforce,
22:43
Speaker 2: and the Supreme Court has been greenlighting Trump's policies while
22:48
Speaker 2: cases are being litigated, citing overwhelmingly with Trump when challenges
22:53
Speaker 2: arrive via the emergency docket. Joining me is Bloomberg Law
22:57
Speaker 2: reporter Suzanne Monnac. Suzanne, you did and analysis of the
23:01
Speaker 2: Supreme Court's emergency docket and found that the court overwhelmingly
23:05
Speaker 2: sided with President Trump. So tell us about the numbers.
23:10
Speaker 5: Absolutely, it's a trend, of course that we saw anecdotally.
23:13
Speaker 5: But then when we took a look at all the
23:16
Speaker 5: emergency docket orders in these Trump related cases over the
23:19
Speaker 5: past year, the first year of his second administration, we
23:22
Speaker 5: really saw that born out. It was just around the
23:24
Speaker 5: seventy seven percent of the time that when we saw
23:27
Speaker 5: challenges the Trump Administration's policies or actions reach the emergency
23:31
Speaker 5: docket and have an order, it was around seventy seven
23:34
Speaker 5: percent of the time that the justices ruled in favor
23:37
Speaker 5: of the administration, usually in the form of, say, allowing
23:40
Speaker 5: a policy that had been contested to move forward while
23:42
Speaker 5: litigation continued.
23:44
Speaker 2: As you mentioned, it's on the emergency docket. But one
23:47
Speaker 2: of the professors you spoke to brought out the point
23:50
Speaker 2: that even though the decisions are temporary, in many cases
23:54
Speaker 2: they end up being final.
23:57
Speaker 5: That's right. Of course, the emergency docket or inner docket
24:00
Speaker 5: as some people call it, our decisions that come during
24:03
Speaker 5: cases at earlier stages, so the justices haven't gotten full briefing,
24:06
Speaker 5: there hasn't been a full argument, but at the same
24:09
Speaker 5: time they can have more permanent ramifications. Immigration is a
24:12
Speaker 5: really good example of that. If an immigration policy, say
24:15
Speaker 5: granting humanitarian protections for a population, is put on hold
24:19
Speaker 5: while litigation continues, you could see people being deported in
24:22
Speaker 5: the interim. And even if the justices were to ultimately
24:25
Speaker 5: say no this policy, these protections have to stay, it
24:29
Speaker 5: would certainly be too late for anyone who left the
24:31
Speaker 5: country while the case was pending. And so while yes,
24:34
Speaker 5: this is of course early stages, but they really can
24:37
Speaker 5: have significant on the ground impacts.
24:40
Speaker 2: A lot of people have expressed concerns that the docket
24:42
Speaker 2: has grown so much, the emergency docket in recent years,
24:47
Speaker 2: because with the emergency docket, there are no full briefings.
24:52
Speaker 2: Oftentimes there's not even a decision written, so you don't
24:56
Speaker 2: know how the justices came to the result they did.
25:00
Speaker 5: That's right. We really often see these very short orders
25:03
Speaker 5: that have little to know explanation as to the decisions,
25:06
Speaker 5: and sometimes not even as spelled out vote count to
25:08
Speaker 5: see how each justice came down. Occasionally we are seeing
25:12
Speaker 5: some dissenting opinions by the liberal wing of the court,
25:15
Speaker 5: which may provide some insight into, you know, how the
25:17
Speaker 5: decision was made, or at least how it wasn't made.
25:20
Speaker 5: But that's correct on how the docket has grown because
25:23
Speaker 5: we've been seeing concerns raised by Supreme Court justices themselves
25:26
Speaker 5: really on both sides of the you know, ideological span
25:30
Speaker 5: here on the court that you know, they're concerned about
25:33
Speaker 5: how many but these petitions are coming in. They do feel,
25:36
Speaker 5: i think pressure to decide them without the benefit of
25:39
Speaker 5: as much briefing as they would like, and as we
25:41
Speaker 5: said earlier, they can these decisions really do have a
25:43
Speaker 5: lot of impact on people's lives.
25:45
Speaker 2: You mentioned liberals in descent, and in a lot of
25:48
Speaker 2: these emergency decisions, you'll find the liberals in dissent. Is
25:54
Speaker 2: it because the issues that the Trump administration takes to
25:57
Speaker 2: the Supreme Court involve idgy and partisanship. What's the reason
26:03
Speaker 2: that the liberals are in descent?
26:05
Speaker 5: Certainly it varies by case, but we have seen, you
26:09
Speaker 5: somewhat some common threads through their descents have been sort
26:12
Speaker 5: of exactly what the data showed, which are concerns that
26:15
Speaker 5: the High Court is just greenlighting the Trump administration too
26:19
Speaker 5: many times with some of these actions and policies that
26:23
Speaker 5: they're implementing that are drawing so much legal scrutiny. And
26:26
Speaker 5: so I think that that's kind of a common theme
26:28
Speaker 5: that we're seeing from the liberal justices. But of course
26:31
Speaker 5: they're in the minority here. It's a six' three court
26:33
Speaker 5: conservative to, liberal and so we, are you, know somewhat
26:36
Speaker 5: makes some sense that we would be seeing The trump
26:39
Speaker 5: administration winning perhaps more.
26:41
Speaker 2: Often you also found that during this first year of
26:44
Speaker 2: the second, term The court was more likely to grant
26:47
Speaker 2: requests for relief from lower court rulings in challenges to
26:51
Speaker 2: the administration's policies than it was in cases unrelated to the.
26:56
Speaker 2: Administration that's.
26:57
Speaker 5: Correct we took a look at sort of the by
27:00
Speaker 5: circuit data just to kind of get a look at
27:02
Speaker 5: from which appeals courts are these cases on the emergency
27:05
Speaker 5: docket coming, from and are there any trends where The
27:08
Speaker 5: Supreme court is aligned more with some appeals courts and
27:11
Speaker 5: less aligned with. Others and what we, found which was pretty,
27:13
Speaker 5: interesting was that it really had less to do with
27:16
Speaker 5: where the case was coming from and a lot more
27:18
Speaker 5: to do than a lot more to do with what
27:20
Speaker 5: the case was. About and so when we had cases
27:23
Speaker 5: that were totally unrelated To trump administration, actions criminal, cases business,
27:27
Speaker 5: disputes things like that that reached the emergency, docket we
27:31
Speaker 5: saw The High court generally aligned with the circuit and
27:34
Speaker 5: very rarely you, know deciding to you, know halt lower
27:37
Speaker 5: court rulings while litigation. Continued they were leaving those in,
27:40
Speaker 5: place but when it came To trump administration, challenges they
27:43
Speaker 5: were a lot more likely to press pause on the
27:46
Speaker 5: lower court ruling against The trump, administration essentially allowing whatever
27:50
Speaker 5: the contested policy was to move.
27:52
Speaker 2: Forward so which of the circuit courts was most let's
27:58
Speaker 2: call it reversed for simplicity's, sake.
28:02
Speaker 5: Right so some of that was somewhat. Expected and of,
28:04
Speaker 5: course when we say. Reversed we don't mean reversed reverse
28:06
Speaker 5: since is not on the. Merits but when we see
28:09
Speaker 5: The Supreme, court you, know lift or pause a lower court.
28:12
Speaker 5: Ruling we saw that of the emergency docket orders most
28:15
Speaker 5: often at The First Circuit court Of, appeals which is
28:17
Speaker 5: based In. Boston that's not entirely surprising because that's a
28:21
Speaker 5: court that up until very recently had All democratic appointed
28:24
Speaker 5: judges on its. Bench it houses a number of federal
28:27
Speaker 5: trial courts with Majority democratic appointee, benches and it's been
28:31
Speaker 5: a major hub For trump administration. Challenges AND i think
28:34
Speaker 5: that's what's really kind of key here to look, at is, well,
28:37
Speaker 5: yes we are seeing kind of this high rate of
28:39
Speaker 5: The Supreme, court you, know deciding otherwise deciding differently than
28:44
Speaker 5: The First circuit, Had so in a way it does
28:46
Speaker 5: show how out of step they. Are but it's also
28:48
Speaker 5: a lot to do with the volume of cases that
28:50
Speaker 5: The First circuit is. Handling so you, know we're seeing
28:53
Speaker 5: this kind of narrative from The trump administration that you,
28:55
Speaker 5: know these courts are out of, control but you, know
28:57
Speaker 5: there's quite a bit of selection bias here when it
29:00
Speaker 5: comes to where these cases are being. Filed and then
29:02
Speaker 5: of course also which cases go up to The Supreme.
29:05
Speaker 5: Court to begin, with The trump administration gets to choose
29:07
Speaker 5: which appeals court orders they think they have a better chance,
29:10
Speaker 5: at you, know contesting at the high court.
29:12
Speaker 2: Level and what other circuits come? In second and third let's, say.
29:17
Speaker 5: Yes second was the and this is of course for
29:21
Speaker 5: all of the all the. Cases we looked, at Both
29:23
Speaker 5: trump and Non trump. Cases so overall we saw the
29:27
Speaker 5: first circuit had the highest rate of having The Supreme
29:30
Speaker 5: court you, know grant stays in legal, parlance where we
29:34
Speaker 5: saw The Supreme court press pause on underlying. Rulings next
29:37
Speaker 5: up was The Ninth, circuit and then behind that was
29:41
Speaker 5: The washington d. C circuit here in The.
29:42
Speaker 2: Capitol how does this compare to the emergency docket during
29:48
Speaker 2: let's say The biden.
29:49
Speaker 5: Administration, well it's more difficult to make a perfect apples
29:53
Speaker 5: to apples comparison from a year that, happened you, know
29:55
Speaker 5: multiple years. Ago we do know that there were far
29:58
Speaker 5: fewer emergency petitions even filed during The biden, administration and
30:02
Speaker 5: we saw cases where The Supreme court ruled for the
30:06
Speaker 5: administration and AGAINST.
30:08
Speaker 2: I want to turn now to The Chief judge of
30:10
Speaker 2: The Minnesota Federal Trial court BECAUSE i know you did
30:13
Speaker 2: a profile of. Him Judge Patrick, schiltz A GEORGE. W bush,
30:18
Speaker 2: appointee criticized The trump administration for its approach to its
30:23
Speaker 2: sweeping immigration, operation and he wrote that the court has
30:27
Speaker 2: been extremely patient with the, government but the court's patience
30:32
Speaker 2: is at an.
30:32
Speaker 5: End quite a lot of litigation has been filed In
30:36
Speaker 5: minnesota related TO ice and this immigration operation happening in that,
30:42
Speaker 5: state and we're seeing the Chief judge of the court
30:45
Speaker 5: start to sort of push back and really express quite
30:47
Speaker 5: a bit of frustration With trump administration officials about how
30:51
Speaker 5: this is all being handled in. Court so we saw
30:54
Speaker 5: a pretty sharply worded order that was unsealed over this
30:57
Speaker 5: past weekend regarding arrest warrants that they administration had wanted
31:01
Speaker 5: to pursue against protesters at a, church and they took
31:05
Speaker 5: issue with the fact that the magistrate judge had not
31:08
Speaker 5: wanted to grant all of the warrants that they wanted
31:10
Speaker 5: and had tried to seek review of. That and The
31:12
Speaker 5: Chief judge said that this was essentially like an unprecedented
31:14
Speaker 5: request from the, administration and he went so far as
31:16
Speaker 5: to call it. Frivolous we also saw another very sternly
31:20
Speaker 5: worded order from The Chief judge On, monday in which
31:23
Speaker 5: he essentially ordered the acting leader OF Us immigration And
31:26
Speaker 5: Customs enforcement to come to court and testify as to
31:29
Speaker 5: why he shouldn't be held in contempt for defying court.
31:32
Speaker 5: Orders we're seeing a lot of these habeas petitions Brought,
31:35
Speaker 5: minnesota not just in The Chief Judge Patrick schultz's, courtroom
31:38
Speaker 5: but in other courtrooms as, well of immigrants who are
31:40
Speaker 5: detained by, ice of, course and then not given a
31:43
Speaker 5: bond hearing within the legally required number of. Days and
31:47
Speaker 5: so we were seeing the judge here in this instance
31:49
Speaker 5: expressing quite a bit of frustration about that and threatening
31:52
Speaker 5: to hold an administration official and, contempt which is a
31:56
Speaker 5: very serious action that we don't see too. Often of,
31:58
Speaker 5: course we did see somewhat of a similar contempt threat
32:01
Speaker 5: in an immigration case by A washington d. C chief
32:03
Speaker 5: judge last. Year and so you, know this is you,
32:06
Speaker 5: know making out to be a bit of a trend
32:08
Speaker 5: of federal judges expressing some consternation at how The Justice
32:12
Speaker 5: department's attorneys are conducting themselves in.
32:14
Speaker 2: Court and this judge is a conservative who's known as
32:18
Speaker 2: being even keeled and a down the middle.
32:21
Speaker 5: Jurist, yes he is absolutely from a conservative. Background you
32:25
Speaker 5: really can't argue. Otherwise he he clerked twice for the
32:29
Speaker 5: Late justice Antonin. Scalia he's seen as an. Originalist he you,
32:33
Speaker 5: know has background at you, know Major catholic law schools
32:36
Speaker 5: Like Notre dame as a. Professor so, absolutely you, know
32:39
Speaker 5: he was a mentor to Current Justice Amy Coney. Barrett
32:42
Speaker 5: and so this is somebody who's not coming from some
32:44
Speaker 5: super liberal. Background this is a judge who's you, know
32:47
Speaker 5: expressing frustration that his orders aren't being. Followed and we
32:50
Speaker 5: were also told when speaking with those who knew him
32:52
Speaker 5: in The minnesota legal, community that he's not really one
32:55
Speaker 5: to be you, know sharp in his orders at, least you,
32:58
Speaker 5: know not quick to jump to. That he's a measured.
33:00
Speaker 5: Person he's, tempered and so to kind of see, him you,
33:03
Speaker 5: know issue a rebuke like, this you, know maybe says you,
33:07
Speaker 5: know says a lot about how at least he's Perceiving
33:11
Speaker 5: ICE's approach to this enforcement action in the.
33:13
Speaker 2: State thanks so much for joining me, Today. Suzanne That's
33:17
Speaker 2: Bloomberg law Reporter Suzanne monyac and that's it for this
33:20
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