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Trump Grabs Agency Power & J&J Bankruptcy Trial · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
• 0:08
  Speaker 2: The President has already signed seventy three executive orders. That
• 0:12
  Speaker 2: is more than double the number signed by Joe Biden
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  Speaker 2: and more than quadruple the number signed by Barack Obama
• 0:19
  Speaker 2: over the same period.
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  Speaker 3: Despite the enthusiasm from the White House Press Secretary, a
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  Speaker 3: president signing an executive order is not an indicator of success.
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  Speaker 3: It's simply a directive. Witness how many of President Trump's
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  Speaker 3: executive orders are already mired in legal battles. With his
• 0:38
  Speaker 3: executive orders, Trump is making a brond push to centralize
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  Speaker 3: the power of the federal government in the White House.
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  Speaker 1: And now a judge who's an activist judge wants to
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  Speaker 1: try and stop us from doing this.
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  Speaker 3: And why would they want to do that. I campaign
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  Speaker 3: on this.
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  Speaker 1: I campaign to the fact that I said government is corrupt.
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  Speaker 3: And this week, in a to clamp down the power
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  Speaker 3: of some of Washington's most powerful regulators, Trump issued an
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  Speaker 3: executive order declaring he has direct control over dozens of
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  Speaker 3: independent agencies like the Securities in Exchange Commission, the Federal
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  Speaker 3: Trade Commission, and the Federal Communications Commission. It allows him
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  Speaker 3: to direct their rulemaking, policy agendas, spending, and interpretations of
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  Speaker 3: the law, undercutting the congressional protections against political influence that
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  Speaker 3: independent agencies have historically operated under. Joining me is Carrie Colinisi,
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  Speaker 3: who directs the University of Pennsylvania Carrie Law School's program
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  Speaker 3: on Regulation. Carrie, will you broadly explain what Trump's executive
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  Speaker 3: Order on independent Agencies entails?
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  Speaker 4: It is taking several strands of White House review and
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  Speaker 4: oversight of administrative agencies that have normally applied to those
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  Speaker 4: agencies that are non independent, called executive branch agencies, and
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  Speaker 4: now applying that same suite of oversight mechanisms to independent agencies.
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  Speaker 4: The point is that this is now sort of treating
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  Speaker 4: independent agencies as if they're no longer independent.
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  Speaker 3: Yeah, explain what being an independent agency up until this
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  Speaker 3: point entails as opposed to executive branch agencies.
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  Speaker 4: So executive branch agencies are like the cabinet level departments
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  Speaker 4: agencies like the Environmental Protection Agency that are headed by
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  Speaker 4: officials who are appointed by the President, confirmed by the Senate,
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  Speaker 4: but then they can be removed for any reason by
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  Speaker 4: the President. So if the President just doesn't like the tie,
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  Speaker 4: even that one of the administrators might be wearing or
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  Speaker 4: whatever a tire they might have. You could fire them
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  Speaker 4: for any reason whatsoever. Usually that be in the form
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  Speaker 4: of policy disagreements. You know, if they're not following the
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  Speaker 4: administration's agenda, then.
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  Speaker 5: They can be fired.
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  Speaker 4: And that puts a lot of leverage and control on
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  Speaker 4: what agencies do or don't do. Needless to say, independent
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  Speaker 4: agencies have been established by Congress with a kind of
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  Speaker 4: tenure protection where the heads of those agencies can't be
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  Speaker 4: removed just for any old reason or for policy disputes
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  Speaker 4: with the president. There has to be some really good
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  Speaker 4: cause before president can fire the head of an independent agency.
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  Speaker 4: And those independent agencies include a lot of multi member
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  Speaker 4: commissions like the Federal Communications Commission, the Federal Trade Commission,
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  Speaker 4: the Federal Reserve Board. They are headed by officials who
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  Speaker 4: have fixed terms of office and can enjoy some sense
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  Speaker 4: of autonomy that comes from knowing that they can't be
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  Speaker 4: fired just because they're adopting policy decisions that might not
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  Speaker 4: be in a total alignment with what the White House wants.
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  Speaker 3: But the President does appoint the heads of these agencies, right,
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  Speaker 3: so they do share his philosophy.
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  Speaker 4: Yeah, so there's often in practice a great deal of
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  Speaker 4: alignment already between what at least a majority of the
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  Speaker 4: members on these commissions want to do. Many of the
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  Speaker 4: commissions have a political balance requirement, so they allow for
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  Speaker 4: a majority of the commissioners to be of the same
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  Speaker 4: political party as the president, but there needs to be
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  Speaker 4: some minority of other commissioners. But once you have the
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  Speaker 4: majority control on a commission and they're appointed by the president,
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  Speaker 4: they are coming in with an ideology and a predisposition
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  Speaker 4: to do the sorts of things that the president wants. Anyway,
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  Speaker 4: so as a practical matter, these agencies are now as
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  Speaker 4: totally independent as maybe the label an independent agency might
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  Speaker 4: make them seem.
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  Speaker 3: Yeah, because when a new administration comes in, you see
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  Speaker 3: the different kinds of enforcements. For example, the SEC it
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  Speaker 3: was very tough on crypto, for example, and now with
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  Speaker 3: a new SEC under President Trump, it seems to be
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  Speaker 3: letting go of crypto, so to speak. So, I mean,
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  Speaker 3: you see, the difference is in the way the agencies
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  Speaker 3: govern from president to president.
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  Speaker 4: Right, So that always existed and you know, many respects.
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  Speaker 4: It may be you know, eighty or ninety percent of
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  Speaker 4: the way there for what a president wants by way
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  Speaker 4: of controlling the direction of these agencies. This executive order, though, eliminates,
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  Speaker 4: at least its claiming to eliminate what kind of hands
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  Speaker 4: off approach that quite frankly many presidents have taken with.
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  Speaker 5: Respect to some of the.
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  Speaker 4: Very institutionalized review processes, of having budgets not reviewed by
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  Speaker 4: the White House, of having regulations not.
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  Speaker 5: Reviewed by the White House.
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  Speaker 4: This administration is now claiming, well, We're not only going
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  Speaker 4: to have our loyalists heading these agencies, but we also
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  Speaker 4: want to scrutinize your budgets, we want to scrutinize your
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  Speaker 4: strategic plans, we want to scrutinize your legal decision making,
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  Speaker 4: we want to scrutinize your important regulations, just like we
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  Speaker 4: do the Department of Transportation, just like we do the
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  Speaker 4: Department of Labor. All of those are agencies that are
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  Speaker 4: headed by folks that have been appointed by the president,
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  Speaker 4: too right, and share the president's objectives. But you know
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  Speaker 4: what white houses have found is that you know, they
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  Speaker 4: want to coordinate and they want to make sure that
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  Speaker 4: all of these you know, dozens of dozens of agencies
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  Speaker 4: that are conducting activity, are doing the president's bidding and
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  Speaker 4: sometimes you know, you can get heads of these agencies
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  Speaker 4: that have viewpoints that do depart a little bit from
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  Speaker 4: what the White House wants, or heads of agencies that
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  Speaker 4: are not as vigilant about carrying out the president's agenda.
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  Speaker 4: And these institutional processes that the Trump administration says now
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  Speaker 4: it's going to apply to the independence are there to
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  Speaker 4: try to really put the hammer down and make sure
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  Speaker 4: that agencies follow what the White House wants them to do.
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  Speaker 3: So under this executive order, the agencies would have to
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  Speaker 3: take positions that are the same as the presidents and
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  Speaker 3: the Attorney generals.
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  Speaker 5: That's right.
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  Speaker 4: Some independent agencies also have independent litigating authority That means
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  Speaker 4: they can go into court and say some things about
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  Speaker 4: what the laws that they're implementing say and what they
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  Speaker 4: mean that haven't been vetted by the Department of Justice
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  Speaker 4: like an executive branch agency has. And so this executive
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  Speaker 4: order is aiming to bring that process of coming to
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  Speaker 4: independent understandings of their statutes under an umbrella of White
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  Speaker 4: House review and the Attorney General and Department of Justice review.
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  Speaker 3: And it makes Russell Vaught, the OMB director, like a
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  Speaker 3: super regulator. Everything goes through him.
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  Speaker 4: Yeah, you could look at it that way, right, And
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  Speaker 4: this has been a process for regulations at least that
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  Speaker 4: have been that's been in place since nineteen eighty one,
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  Speaker 4: where there's some centralized review of regulations of executive departments
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  Speaker 4: and agencies. This is now saying independent agencies, you also
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  Speaker 4: need to have your new regulations reviewed and approved by
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  Speaker 4: O and B before you can go forward and put
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  Speaker 4: them out.
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  Speaker 3: I mean, the agencies have particular expertise, so then you're
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  Speaker 3: going to have someone who doesn't have that expertise overseeing this.
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  Speaker 5: That's right.
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  Speaker 4: It's a particular problem with this latest move to bring
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  Speaker 4: on board independent financial regulatory bodies under O and B
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  Speaker 4: review because the particular office within O and B that
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  Speaker 4: reviews regulations, known as OIRA or the Office of Information
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  Speaker 4: and Regulatory Affairs, has built up expertise and capacity for
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  Speaker 4: the kinds of regulations that they've been reviewing over the
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  Speaker 4: last forty plus years, which are you know, tend to
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  Speaker 4: be transportation, environmental, health and safety and so forth regulations,
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  Speaker 4: not financial regulatory decisions, because the financial regulatory agencies haven't
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  Speaker 4: fallen under the ambit of their review. So if this
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  Speaker 4: is going to be any meaningful expert oversight of what
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  Speaker 4: independent financial regulatory bodies are doing. OHIRA will need to
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  Speaker 4: build up its internal capacity to understand and evaluate the
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  Speaker 4: benefits and the costs of financial regulations, something it doesn't
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  Speaker 4: currently possess.
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  Speaker 3: And how does this order treat the Federal Reserve.
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  Speaker 4: Well, it brings the Federal Reserve as a regulator under
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  Speaker 4: the ambit of the Executive Order, but it specifically exempts
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  Speaker 4: the Federal Reserve in its exercise of monetary policy decision
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  Speaker 4: making from White House scrutiny and oversight and control under
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  Speaker 4: the Executive Order.
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  Speaker 5: So, at least for.
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  Speaker 4: Now, and this is a good thing for the country,
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  Speaker 4: the Federal Reserve's monetary policy is supposed to remain independent
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  Speaker 4: and free from political interference from the White House. Not
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  Speaker 4: so with respect to say, the banking regulatory functions of.
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  Speaker 5: The Federal Reserve.
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  Speaker 4: At least as this order is is now drafted.
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  Speaker 3: Each agency would have to have a liaison to the
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  Speaker 3: White House.
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  Speaker 5: Yeah.
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  Speaker 4: Yeah, there's supposed to be a liaison to the White House.
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  Speaker 5: There's DOGE leaders.
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  Speaker 4: That are now going to, you know, be helping the
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  Speaker 4: White House oversee what's going on at these agencies. In
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  Speaker 4: some ways, it seems a bit of an overkill. If
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  Speaker 4: you already are putting in place loyalists at the very
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  Speaker 4: top of the agency, why you would need this additional
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  Speaker 4: layer of scrutiny or oversight. But yeah, that's what's contemplated here.
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  Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue
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  Speaker 3: this conversation with Professor Carrie COLINIESI. Well, the Supreme Court
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  Speaker 3: support Trump's power grab. You're listening to Bloomberg. I've been
• 11:54
  Speaker 3: talking to an expert in regulatory law, Professor Carry Colonies
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  Speaker 3: of the University of Sylvania Law School, about an executive
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  Speaker 3: order from President Trump this week claiming vast control over
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  Speaker 3: independent agencies like the Securities and Exchange Commission and the
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  Speaker 3: Federal Trade Commission. What do you think are some of
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  Speaker 3: the dangers of a president taking control of independent agencies
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  Speaker 3: in the way envisioned by this order.
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  Speaker 4: Well, there's a lot of practicalities behind the order. At least,
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  Speaker 4: let's start with the regulations that will need to be
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  Speaker 4: worked out. I've already mentioned the need for expertise by
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  Speaker 4: folks in the White House Regulatory Review Office, but there's
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  Speaker 4: also other aspects of that traditional review process that just
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  Speaker 4: don't fit structurally at all with a multi member commission.
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  Speaker 4: It's really been a model designed for overseeing agencies that
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  Speaker 4: are headed by a single administrator. The White House staff
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  Speaker 4: goes back and forth with agency staff and ultimately even
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  Speaker 4: with the agency head at times to work out any
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  Speaker 4: disagreements or iron out any wrinkles that there might be.
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  Speaker 5: How that works with a.
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  Speaker 4: Multi member body. I don't really know. In fact, the
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  Speaker 4: current process that this new Executive Order says will apply
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  Speaker 4: to independent agencies regulations has a dispute resolution process that
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  Speaker 4: specifically says the agency head shall be able to appeal
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  Speaker 4: some disagreement with O and B to the President. It's
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  Speaker 4: not clear who the agency head is in a multi
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  Speaker 4: member commission. Do they all have to vote on whether
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  Speaker 4: they go appeal something to the president or not. There
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  Speaker 4: are going to be some guidelines that are supposedly issued
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  Speaker 4: by O and B as to how this new executive
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  Speaker 4: Order gets worked out, and so I think, you know,
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  Speaker 4: some of these practicalities will have to remain as to
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  Speaker 4: the large your issue about, you know, what we're getting
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  Speaker 4: and what we're losing. I think all agencies, whether they're
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  Speaker 4: executive branch agencies or independent regulatory agencies, need a degree
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  Speaker 4: of autonomy from the kind of raw politics that can
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  Speaker 4: often be important to presidents, and I think are clearly
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  Speaker 4: important to this president.
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  Speaker 5: We don't want a government where.
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  Speaker 4: Agencies are acting on impulses of favoritism retribution, and some
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  Speaker 4: presidents might want that, this president might want that. And
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  Speaker 4: if we don't have a degree of autonomy and our
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  Speaker 4: governmental institutions from that kind of raw politics, we really
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  Speaker 4: suffer as a country.
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  Speaker 3: This is all part of the theory of the unitary executive,
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  Speaker 3: which gives the president sweeping powers sole authority over the
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  Speaker 3: federal government's executive brand. And the speculation is that the
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  Speaker 3: Trump administration wants to push the Supreme Court to adopt
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  Speaker 3: the unitary executive theory.
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  Speaker 4: Right they're basically acting is if the Court has already
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  Speaker 4: adopted wholesale the unitary executive theory by in effect overturning
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  Speaker 4: the nineteen thirty five Supreme Court decision called Humphrey's Executor.
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  Speaker 4: That decision, the Supreme Court said that Congress can create
• 15:31
  Speaker 4: these independent agencies that are headed by officials who have
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  Speaker 4: some kind of tenure protection and can't be removed at
• 15:40
  Speaker 4: will by presidents. You know, this administration is taking action
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  Speaker 4: that one would expect to see if Humphrey's Executor had
• 15:50
  Speaker 4: already been determined to be unconstitutional, that is that Congress
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  Speaker 4: isn't allowed to insulate any agencies from presidential removal. That
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  Speaker 4: will they're firing already some officials at the NRB that
• 16:05
  Speaker 4: have had good cause protections and taking other actions like
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  Speaker 4: this executive order that are very aggressive, and I think
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  Speaker 4: they're setting up and hoping that they'll get the Supreme
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  Speaker 4: Court to overturn Humphrey's Executor. It wouldn't be a big
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  Speaker 4: stretch to expect the Supreme Court will do that. The
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  Speaker 4: Supreme Court's been whittling away.
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  Speaker 5: At Humphrey's Executor for easily.
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  Speaker 4: Ten years or so now, and you know it's probably
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  Speaker 4: expected by most observers to be on the chopping block.
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  Speaker 4: The big deal will be if Humphrey's executor goes, Will
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  Speaker 4: it go big time, that is, by sweeping in civil
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  Speaker 4: service protections and protections for the federal reserves, monetary policy,
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  Speaker 4: or will there be some way that the Supreme Court says, well,
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  Speaker 4: it's unconstitutional for Congress to create insulation for every other
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  Speaker 4: position in government, but we still think it's okay for
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  Speaker 4: civil servants to be protected with some good cause protections
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  Speaker 4: or for the Federal Reserve when it's adopting monetary policy
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  Speaker 4: to have that. Hard to know exactly how the Supreme
• 17:17
  Speaker 4: Court will decide when this case comes before us, But
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  Speaker 4: I think it's headed there, and this administration, I think
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  Speaker 4: is already acting in effect as if it's been there.
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  Speaker 5: And they want do we know.
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  Speaker 3: Which Supreme Court justices are fully behind the unitary executive theory.
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  Speaker 5: Well, I think there's probably a good majority.
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  Speaker 4: That are inclined to this. I mean, you know, as
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  Speaker 4: Chief Justice Roberts even has been kind of spearheading decisions
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  Speaker 4: to whittle away at Humphrey's executor going back to the
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  Speaker 4: decisions that first started to say that we couldn't have
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  Speaker 4: sub agencies that have good cause protection if the head
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  Speaker 4: agency did that was held to be unconstitutional. Then it
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  Speaker 4: was held that you can't have a single headed body
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  Speaker 4: that has an administrator that's got good cause protection. So
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  Speaker 4: there's a clear majority that looks suspiciously on these They've
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  Speaker 4: just been moving incrementally and maybe waiting for the case
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  Speaker 4: that will take it to the next step.
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  Speaker 3: I don't understand why a judge would want to give
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  Speaker 3: more power to the head of the executive branch on
• 18:32
  Speaker 3: check power. I would think they want to keep more
• 18:35
  Speaker 3: balance between the branches of government.
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  Speaker 4: Yeah, you know, I think if you look at at
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  Speaker 4: a lot of the cases over the years, and there
• 18:44
  Speaker 4: haven't been that many, but when these issues have arisen,
• 18:48
  Speaker 4: the courts have been suspicious of Congress's power, believe it
• 18:52
  Speaker 4: or not, and Congress's power to kind of interfere with
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  Speaker 4: the administration of government by putting in place limitations on
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  Speaker 4: who can head up agencies or how they can be removed.
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  Speaker 4: And I think there's been, you know, some sensible decisions
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  Speaker 4: that have said, you know, Congress, you can't pick who
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  Speaker 4: are the heads of agencies, or you can't yourself have
• 19:21
  Speaker 4: a role in deciding whether an agency head is removed
• 19:25
  Speaker 4: or not. But you know, now those cases and the
• 19:29
  Speaker 4: suspicion of Congress is sort of going to the extreme.
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  Speaker 4: And you know, we do have justices on the Court
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  Speaker 4: who have spent time, like Justice Roberts and Justice Kavanaugh
• 19:42
  Speaker 4: and so forth, who have spent time working in the
• 19:45
  Speaker 4: White House, and maybe that has emboldened them to think
• 19:50
  Speaker 4: in presidentialist terms. There's also I think a mindset of
• 19:55
  Speaker 4: sort of formalist, rigid hierarchical authority that some of our
• 20:00
  Speaker 4: justices and the majority seem to exhibit that they think
• 20:04
  Speaker 4: that there should be just one person at the top
• 20:07
  Speaker 4: of the executive branch who should get to say everything
• 20:12
  Speaker 4: that the government does and have the ability to shape
• 20:16
  Speaker 4: the course of all policies. Now that's not really I
• 20:20
  Speaker 4: think how the text of the Constitution is necessarily written.
• 20:25
  Speaker 4: There are actually no provisions in the Constitution dealing with
• 20:29
  Speaker 4: the removal of officials, So you know, it's not something
• 20:35
  Speaker 4: that's demanded by the text of the Constitution, Nor is
• 20:38
  Speaker 4: it really in our history, whether at the time of
• 20:42
  Speaker 4: the founding or subsequently, to say that Congress can't create
• 20:47
  Speaker 4: bodies that have some degree of autonomy from the president.
• 20:51
  Speaker 3: So we're a month into Trump's second term and the
• 20:54
  Speaker 3: administration is already going to the Supreme Court asking for
• 20:59
  Speaker 3: an unusual invention, asking the Justices to step into a
• 21:04
  Speaker 3: newly filed lawsuit and allow the president to fire the
• 21:08
  Speaker 3: head of a federal whistleblower agency Hampton Dellinger. Do you
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  Speaker 3: think how the Court handles this will be an indication
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  Speaker 3: of how they're going to respond to other attempts by
• 21:23
  Speaker 3: Trump to gain power.
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  Speaker 5: Yes, or no.
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  Speaker 4: I mean, it depends on how sweeping they want to
• 21:29
  Speaker 4: make their decision. It could be that this is just
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  Speaker 4: a very narrow decision that follows from a prior precedent,
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  Speaker 4: like I was saying before about where you know, there's
• 21:42
  Speaker 4: double layers of protection that can't exist, or so forth.
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  Speaker 4: It may be a very narrow decision, in which case
• 21:49
  Speaker 4: we might not learn very much. I suspect that's probably
• 21:54
  Speaker 4: the easiest thing for the court to do, but you know,
• 21:58
  Speaker 4: I prize that Trump versus the United States says, yeah, well,
• 22:03
  Speaker 4: are the court wanted to really go at it and
• 22:07
  Speaker 4: make a very broad ruling about presidential immunity?
• 22:10
  Speaker 5: So we'll have to see.
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  Speaker 3: Most people are assuming that lawsuits are going to be
• 22:15
  Speaker 3: brought over these executive orders, but we've seen that in
• 22:19
  Speaker 3: some of these cases over executive orders, the judges are
• 22:24
  Speaker 3: finding that the plaintiffs don't have standing to bring the case,
• 22:29
  Speaker 3: basically an interest in the outcome of the case. Who
• 22:32
  Speaker 3: would be able to bring a lawsuit over this executive order?
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  Speaker 3: I mean, the heads of the agencies are Trump appointdee,
• 22:39
  Speaker 3: so they're not bringing a case right exactly.
• 22:42
  Speaker 4: It's going to be difficult because, first of all, the
• 22:45
  Speaker 4: executive order itself is hard to challenge. As an executive order.
• 22:52
  Speaker 4: It has to be some kind of concrete decision that
• 22:55
  Speaker 4: an agency's making that adversely affects somebody that you can
• 23:01
  Speaker 4: claim would not have been made that way but for
• 23:04
  Speaker 4: the executive order. And there's creative lawyers out there, and
• 23:09
  Speaker 4: there will be arguments in lawsuits that I think.
• 23:11
  Speaker 5: Will be filed.
• 23:12
  Speaker 4: Whether they're persuasive to the lower courts or ultimately to
• 23:17
  Speaker 4: the Supreme Court remains to be seen. It is though
• 23:21
  Speaker 4: the case that you know, executive orders rarely are themselves
• 23:26
  Speaker 4: directly vehicles for litigation. It's the actions that follow from them.
• 23:32
  Speaker 4: And as we were talking earlier, sometimes these actions that
• 23:35
  Speaker 4: might be thought to follow from them might be just
• 23:39
  Speaker 4: due to having a loyalist in these independent agencies to
• 23:44
  Speaker 4: begin with. So it may be hard to untangle how
• 23:46
  Speaker 4: much an adverse action that is being challenged is due
• 23:51
  Speaker 4: to the executive order versus just having a loyalist heading
• 23:55
  Speaker 4: up the commission. It's going to be probably facts specific,
• 23:59
  Speaker 4: and I think it also is a pretty long shot
• 24:02
  Speaker 4: given the predisposition of a majority of the Supreme Court
• 24:07
  Speaker 4: to be a pro presidentialist.
• 24:11
  Speaker 3: I'm sure Trump will keep the Supreme Court very busy.
• 24:14
  Speaker 3: Thanks so much, Carrie Death. Professor Kerry Coliniesi, who directs
• 24:18
  Speaker 3: the University of Pennsylvania Carry Law Schools program on regulation.
• 24:22
  Speaker 3: Coming up next on the Bloomberg Law Show, Jay and
• 24:25
  Speaker 3: Jay is on trial in bankruptcy court over its plan
• 24:29
  Speaker 3: to end thousands of lawsuits over its baby powder causing
• 24:33
  Speaker 3: cancer in a bankruptcy settlement. I'm June Grosso. When you're
• 24:37
  Speaker 3: listening to Bloomberg, Johnson and Johnson is trying to use
• 24:42
  Speaker 3: the power of bankruptcy to drive a settlement of thousands
• 24:46
  Speaker 3: of lawsuits filed by women or their family members who
• 24:50
  Speaker 3: claim it's baby powder gave them cancer. Jay and Jay,
• 24:53
  Speaker 3: one of the most profitable companies in the world, has
• 24:56
  Speaker 3: put a very small unit into bankruptcy to achieve this end.
• 25:00
  Speaker 3: Courts in New Jersey and Philadelphia stopped earlier attempts by
• 25:05
  Speaker 3: Jay and Jay to tap bankruptcy, but now the company
• 25:08
  Speaker 3: is betting on a different conclusion from a Texas court.
• 25:12
  Speaker 3: Joining me is Stephen Church, Bloomberg Bankruptcy Reporter. This case
• 25:16
  Speaker 3: has a long and complicated history. Tell us how we
• 25:20
  Speaker 3: got to this point. With a trial in Houston Texas Sure.
• 25:24
  Speaker 1: For the last ten years, Johnson and Johnson has been
• 25:27
  Speaker 1: fighting allegations that painted baby powder, something that has asbestos
• 25:34
  Speaker 1: in it, allegedly pauses ovarian cancer and other gynecological cancers
• 25:39
  Speaker 1: in women who use this powder just about every day.
• 25:44
  Speaker 1: Those lawsuits have slowly been building. There have been more
• 25:47
  Speaker 1: and more than filed. Now there are about sixty thousand
• 25:51
  Speaker 1: lawsuits that have been filed and another twenty five thousand
• 25:55
  Speaker 1: or so claims that have not yet been filed in
• 25:58
  Speaker 1: court but are still being prepared by lawyers. The company
• 26:01
  Speaker 1: has fought them throughout the entire time and has refused
• 26:06
  Speaker 1: to settle, and has claimed repeatedly that there is no
• 26:10
  Speaker 1: scientific link between bata by powder and other calc based
• 26:15
  Speaker 1: products and cancer. The problem is they've had at least
• 26:18
  Speaker 1: one major verdict that went all the way to the
• 26:21
  Speaker 1: Supreme Court, forcing Johnson and Johnson to pay out more
• 26:25
  Speaker 1: than two billion dollars two about twenty winning. That got
• 26:29
  Speaker 1: the company's attention, and they tried to find a new
• 26:33
  Speaker 1: way to resolve these all at once. That new way,
• 26:36
  Speaker 1: just a few years ago, was to go into bankruptcy court.
• 26:39
  Speaker 1: The theory is they took a small unit and made
• 26:44
  Speaker 1: this unit responsible for paying off all the CALC claims.
• 26:48
  Speaker 1: Then they gave this unit a contract that promised that
• 26:52
  Speaker 1: Johnson and Johnson would cover all the expenses. They've tried
• 26:55
  Speaker 1: this three times. The first two bankruptcy cases of a
• 27:00
  Speaker 1: unit of Johnson and Johnson where they tried to create
• 27:03
  Speaker 1: this settlement failed. They're now on their third attempt, and
• 27:07
  Speaker 1: this third attempt has gotten further than the other two.
• 27:10
  Speaker 1: They're after an actual trial where a judge will decide
• 27:14
  Speaker 1: whether the plan to pay nine billion dollars out is
• 27:19
  Speaker 1: legitimate or has fatal flaws that cannot be approved.
• 27:23
  Speaker 3: I don't know how many attorneys there are, but there
• 27:25
  Speaker 3: are many attorneys and they're fighting. Some want the settlement,
• 27:29
  Speaker 3: some don't want the settlement correct.
• 27:31
  Speaker 1: There are about two dozen or so prominent attorneys who
• 27:35
  Speaker 1: represent tens of thousands of women who have some sort
• 27:40
  Speaker 1: of health issues that they claim came from the baby
• 27:43
  Speaker 1: powder or related products. Most of those attorneys have settled
• 27:47
  Speaker 1: with Johnson and Johnson in this third effort, and they
• 27:51
  Speaker 1: have agreed that a trust fund with nine billion dollars
• 27:55
  Speaker 1: in it will be set up to handle almost all
• 27:59
  Speaker 1: of the talk really claims. There may be a few
• 28:02
  Speaker 1: hundreds that are exempt, but almost all of these claims
• 28:05
  Speaker 1: will go to a special trust where they have rules
• 28:07
  Speaker 1: set up to decide who gets paid and how much
• 28:11
  Speaker 1: they get paid. Holdouts, a handful of attorneys who represent
• 28:15
  Speaker 1: several thousand women object. They say there isn't enough money
• 28:18
  Speaker 1: and that the plan itself is flawed and legally can't
• 28:23
  Speaker 1: be justified.
• 28:24
  Speaker 3: What made it different this time around was that Johnson
• 28:27
  Speaker 3: and Johnson got pre approval from a majority of the claimants.
• 28:32
  Speaker 1: Yes, Johnson and Johnson made a couple of changes in
• 28:35
  Speaker 1: between their second failure and this third effort. After a
• 28:38
  Speaker 1: Philadelphia federal appeals court rejected their second attempt to win
• 28:44
  Speaker 1: approval of this trust fund, Johnson and Johnson negotiated heavily
• 28:48
  Speaker 1: with many of the plaintiffs firms and got a new deal.
• 28:52
  Speaker 1: They added more than a billion dollars on top of
• 28:56
  Speaker 1: the original offer, bringing it to nine billion. And they
• 28:59
  Speaker 1: also did something that happens in many bankruptcies, big giant bankruptcies,
• 29:03
  Speaker 1: where they took a vote of all of the claimants
• 29:07
  Speaker 1: in order to prepackage the bankruptcy case. They wrote the plan,
• 29:11
  Speaker 1: they developed the trust, and they asked more than eighty
• 29:15
  Speaker 1: thousand women to vote in favor of it. Many of
• 29:18
  Speaker 1: the women did, most of the women. Johnson and Johnson
• 29:21
  Speaker 1: claims that more than seventy five percent voted in favor
• 29:26
  Speaker 1: of the plan. The holdouts claim that those numbers are
• 29:29
  Speaker 1: not accurate because of some flaws in the way the
• 29:33
  Speaker 1: voting took place. They claimed Johnson and Johnson bought votes.
• 29:37
  Speaker 1: They claimed Johnson and Johnson counted votes in favor of
• 29:40
  Speaker 1: the plan that should have been counted against the plan.
• 29:43
  Speaker 1: And so that's a very technical aspect of this trial.
• 29:48
  Speaker 1: Was the voting fair? Was it in compliance with these
• 29:52
  Speaker 1: detailed rules that happen in bankruptcy court? Both sides have
• 29:55
  Speaker 1: spent a lot of money fighting on this case.
• 29:58
  Speaker 3: Is that the main question that the judge is going
• 30:01
  Speaker 3: to decide? Or is he going to decide the fairness
• 30:04
  Speaker 3: of this? I mean, what's his major question?
• 30:08
  Speaker 1: There are two big focuses. The one is the voting.
• 30:11
  Speaker 1: Was the voting does correctly? Then once you get past
• 30:13
  Speaker 1: the voting, there's another set of objections that might be
• 30:17
  Speaker 1: even more serious. Those complaints are mostly coming from the
• 30:22
  Speaker 1: US Trustee, that's the arm of the US Justice Department
• 30:25
  Speaker 1: that is a watchdog in corporate bankruptcies. Some of the
• 30:28
  Speaker 1: holdout playments, some of the holdout women who are assuming
• 30:31
  Speaker 1: also back this type of argument against the plan, and
• 30:35
  Speaker 1: that is Johnson and Johnson is one of the world's
• 30:38
  Speaker 1: most profitable companies. How is it possible that they can
• 30:42
  Speaker 1: use these special bankruptcy rules that are designed for companies
• 30:47
  Speaker 1: in financial distress, companies with serious financial problems in order
• 30:52
  Speaker 1: to cancel a bunch of debt and create this new trust.
• 30:57
  Speaker 1: Jaun Cheen Johnson argues, well, there's an exception under a
• 31:00
  Speaker 1: law that Congress passed many years ago, cases that are
• 31:04
  Speaker 1: about asbestos. If a company uses asbestos, which is a
• 31:08
  Speaker 1: known toxic substance in one of its products, and that
• 31:12
  Speaker 1: company files for bankruptcy, then related parties related companies can
• 31:18
  Speaker 1: also benefit from that bankruptcy case. So in this case,
• 31:23
  Speaker 1: the two big issues are was the voting done properly?
• 31:26
  Speaker 1: And then step back, did Johnson and Johnson even be
• 31:28
  Speaker 1: allowed to take advantage of these bankruptcy rules If the
• 31:32
  Speaker 1: company itself doesn't go bankrupt and they take advantage of
• 31:35
  Speaker 1: this tiny little unit put it in bankruptcy, and then
• 31:38
  Speaker 1: that giant corporation gets the benefit.
• 31:40
  Speaker 3: Is the bankruptcy trustee afraid that this would set a
• 31:45
  Speaker 3: precedent if Johnson and Johnson's allowed to do this.
• 31:48
  Speaker 1: There is that argument that this will encourage other very
• 31:52
  Speaker 1: profitable companies to use sort of a loophole to avoid
• 31:57
  Speaker 1: bankruptcy themselves. You can dump and eliminate these big lawsuits
• 32:03
  Speaker 1: without actually going bankrupt yourself.
• 32:05
  Speaker 3: Was one of the first witnesses, one of the plaintiff's
• 32:09
  Speaker 3: lawyers talking about, you know, the position that some of
• 32:12
  Speaker 3: his clients are in.
• 32:13
  Speaker 1: Yes. What's unusual about this is that there's only been
• 32:17
  Speaker 1: one major victory against Johnson and Johnson that made them
• 32:22
  Speaker 1: all the way through the appeal process, and that forced
• 32:25
  Speaker 1: Johnson Johnson to pay money to victims. What has happened
• 32:29
  Speaker 1: until now is many of these cases have been stuck
• 32:31
  Speaker 1: on appeal. So some women have won hundreds of millions
• 32:36
  Speaker 1: of dollars, but those cases were overturned on appeal, and
• 32:40
  Speaker 1: now there are still fights going on in state courts
• 32:43
  Speaker 1: and in federal courts over whether some of these cases
• 32:47
  Speaker 1: should eventually be upheld or rejected. That has stalled a
• 32:52
  Speaker 1: lot of the plaintiff's lawyers from being able to move forward.
• 32:56
  Speaker 1: So the net result is that none of these women
• 33:00
  Speaker 1: have actually collected money from Johnson and Johnson other than
• 33:03
  Speaker 1: that one unusual case that've been all the way to
• 33:06
  Speaker 1: the Supreme Court. One lawyer testified earlier this week that
• 33:10
  Speaker 1: he has at least twenty thousand women that he represents
• 33:14
  Speaker 1: who haven't collected the dining yet, and his argument in
• 33:17
  Speaker 1: favor of the cases, this is the fastest way to
• 33:20
  Speaker 1: get money to them. Put the money in the trust
• 33:23
  Speaker 1: and then let the women go to the trust explain
• 33:26
  Speaker 1: their situation, fill out a whole lot of incredibly complicated
• 33:30
  Speaker 1: forms explaining their health condition, how they got cancer, what
• 33:33
  Speaker 1: cancer stage they are in, what types of ailments they have,
• 33:38
  Speaker 1: and then a trust board will then decide, based on
• 33:42
  Speaker 1: complicated rules, how much they get paid. That this attorney
• 33:47
  Speaker 1: and many of his allies argue is the fastest way
• 33:50
  Speaker 1: to get money into the pockets of women who have cancer.
• 33:55
  Speaker 3: Is it expected that this decision here would be taken
• 33:58
  Speaker 3: up on appeal and then eventually end up at the
• 34:02
  Speaker 3: Supreme Court.
• 34:03
  Speaker 1: Most of the lawyers in the court room in this
• 34:06
  Speaker 1: trial have accepted the idea that there will be an
• 34:08
  Speaker 1: appeal no matter what. Whether that appeal goes all the
• 34:10
  Speaker 1: way to the Supreme Court is an open question. But
• 34:14
  Speaker 1: the Federal Appeals Court in Texas has a much different
• 34:18
  Speaker 1: standard when it comes to certain kinds of cases and
• 34:23
  Speaker 1: how you decide whether a case fits the law than
• 34:28
  Speaker 1: the Philadelphia Appeals Court. So the assumption is that when
• 34:33
  Speaker 1: this gets appealed, no matter who, whether one side wins
• 34:35
  Speaker 1: and one side loses, somebody is going to go to
• 34:37
  Speaker 1: the appeals court in Texas, the Federal Appeals Court in Texas,
• 34:41
  Speaker 1: and that's where a lot of the answers will come from,
• 34:45
  Speaker 1: probably the last stage. But even that could be appealed
• 34:48
  Speaker 1: to the US Supreme Court, and if that happens, we
• 34:52
  Speaker 1: could see a precedent that other companies will will try
• 34:56
  Speaker 1: to take advantage.
• 34:57
  Speaker 3: Of, and that appeals court will be the Fifth Circuit,
• 35:01
  Speaker 3: which is the most conservative circuit in the country and
• 35:06
  Speaker 3: has often come up with, shall we say, novel theories
• 35:10
  Speaker 3: of the law. Thanks so much, Steven, we'll check back
• 35:13
  Speaker 3: with you at the end of the trial. That's Stephen Church,
• 35:17
  Speaker 3: Bloomberg Bankruptcy Reporter, and that's it for this edition of
• 35:20
  Speaker 3: The Bloomberg Law Show. Remember you can always get the
• 35:23
  Speaker 3: latest legal news on our Bloomberg Law podcast. You can
• 35:26
  Speaker 3: find them on Apple Podcasts. Spotify and at www dot
• 35:30
  Speaker 3: bloomberg dot com. Slash podcast Slash Law, and remember to
• 35:35
  Speaker 3: tune into The Bloomberg Law Show every weeknight at ten
• 35:38
  Speaker 3: pm Wall Street Time. I'm June Grosso and you're listening
• 35:42
  Speaker 3: to Bloomberg