HBO's John Oliver hit with defamation lawsuit from healthcare executive over 'Last Week Tonight' episode - Ep. 64
Welcome to litigation nation. I'm your host, Jack Sanker, here with my cohost, Danessa Watkins. This is the show where we talk about some of the most important and interesting legal stories of the past couple of weeks. Danessa, what do you have today?
Danessa Watkins:Today, I'm going to cover a newly filed defamation lawsuit against John Oliver for an episode of Last Week Tonight on HBO that touched on the state of Medicaid in our country. And then I wanna quickly discuss the recent presidential executive orders that have been issued against law firms and the amicus curia brief that was filed in support of some of those law firms.
Jack Sanker:Oh, boy. I'm gonna be talking a bit about tariffs and specifically how at the state level, some of the governors are trying to work with and or work around, the new tariffs that are are now infamous at this point. We're gonna be talking about the charter of Rhode Island from 1663. We'll be talking about unilateral free trade deals between California and China. And then in Illinois here, maybe some attempts at sneaking some imported goods through the duty free zones at the airport.
Danessa Watkins:Sounds very Illinois.
Jack Sanker:Yeah. All that and more, here's what you need to know.
Danessa Watkins:John Oliver, the host of Last Week Tonight, which is a show on HBO, was recently sued for defamation in federal court in the Southern District Of New York. Now this lawsuit relates to a show that aired on 04/14/2024, so almost exactly a year ago, which focused on Medicaid, including health care companies' cost cutting measures and the toll that that was taking on patients across various states. So more specifically, according to the lawsuit, Oliver represented to his audience, quote, there was a nearly 900% increase in members being illegally denied services or care, and some of the cost cutting was absolutely enraging, end quote. Oliver then went on to explain the role of managed care organizations, or MCOs, within the healthcare system and stated, but the most infuriating thing about MCOs is that, as with so many players in our for profit healthcare system, they are incentivized to cut costs at the expense of necessary care. Because MCOs get paid a set monthly amount per person, meaning they get a fixed rate.
Danessa Watkins:So their profit is whatever they don't spend on patients, and you can probably see where this is going, end quote. In the show, John Oliver then shared a news segment from a 2018 broadcast that featured a cerebral palsy patient in Iowa whose care was specifically impacted by the MCO involvement in the state. And one of the effects was that his daily nursing care visits were cut. So as his mom explained, for six weeks, this poor man went through, or went without the in home bathing and diaper changing that he had received for years. And she simply couldn't afford to pay for the nursing care anymore.
Danessa Watkins:So now comes the defamatory, alleged defamatory portion of the show. After showing that news clip, John Oliver states, quote, look, that's Lewis' situation. Obviously, it's maddening. And it doesn't get any better when you hear a doctor at AmeriHealth, the CMO that took over in Iowa, explain in a hearing about a similar patient just what the corporate thinking was about the necessity of keeping people clean, end quote. And then he plays this snip of Doctor.
Danessa Watkins:Morley, who is the plaintiff in this case. Now Doctor. Morley at the time in 2017, he was the head of the Emera Health, which was the CMO that had taken over in Iowa. So his role was essentially to oversee Medicaid, make sure that they were following regulations, not providing services or care that didn't fall within, I guess, the parameters that were being set. So he was a high ranking position.
Danessa Watkins:He was the decision maker. So he, as part of his duties, often had to testify at these hearings. So this was taken from one of those administrative hearings. And this is the clip that was played on, last week tonight. Quote, people have bowel movements every day where they don't completely clean themselves, and we don't fuss over them too much.
Danessa Watkins:People are allowed to be dirty. I would allow him to be a little dirty for a couple of days, end quote.
Jack Sanker:Okay.
Danessa Watkins:So this is they played the audio clip and then showed the words printed on the screen. But they do show on the screen that there is a part where it says people are allowed to be dirty, dot dot dot, so it's an ellipses. So you understand that it's, you know, there there was something else there before the next comment, which is I would allow him to be a little dirty for a couple of days. So I guess the argument that John Oliver would make in this case is the viewer understands this is not, you know, a verbatim, or it is a verbatim quote, but there's some missing pieces in there. Sure.
Danessa Watkins:So John Eller goes on to tell his audience that he, when he first heard this testimony from Doctor. Morley, he thought this has to be taken out of context. But then he conveys to his audience that he reviewed the full testimony at the hearing and this was in fact what Doctor Morley said and what he meant.
NY Judge:So the That's his opinion though.
Danessa Watkins:It's his opinion but he, this is where fact versus opinion and defamation gets a little I'm
Jack Sanker:learning so much from that.
Danessa Watkins:Because he's saying I actually reviewed this hearing in full. So while he's providing his opinion, he's providing the facts for which the opinion is based, which then can cross the line into this could be potentially defamatory. So the issues that Doctor. Morley takes with this are that he claims his his words were both manipulated and misrepresented. So he made this bowel movement comment in regards to a hypothetical average person who is independently mobile and can transfer to the toilet by themselves.
Danessa Watkins:He was not referring to someone like, the individual with cerebral palsy that was shown in the news clip who is in a wheelchair, you know, unable to care for his his basic ADLs, basic needs.
Jack Sanker:Mhmm. Basic ADLs, by the way, what is that?
Danessa Watkins:Activities of daily living. There we go. So, yeah.
Jack Sanker:Classic lawyer.
Danessa Watkins:I know, sorry. Washing, brushing your teeth, you know, just basic caring for yourself.
Jack Sanker:I asked for the sake of the audience, yeah.
Danessa Watkins:Yeah, yeah, sorry. So apparently, well according to the complaint anyways, last week tonight or John Oliver did not inform the audience of the context of Morley's comments. So the way that they placed them, like I said, was after this this image and this, you know, very emotionally driven, you know, statements by this mother of this child who, wasn't getting the care he needed. And then not only that, but John Oliver announced Morley's clip as testimony referring to quote a similar patient. So he kind of set this stage for where Morley's testimony should fit in that, according to Doctor.
Danessa Watkins:Morley, was completely inaccurate. I did read the full quote, and yeah, it's misleading, the way that they portray it for sure.
Jack Sanker:I mean, I don't wanna jump ahead, but but I mean, like, taking things out of context and putting them on, you know, news shows or, like, late night shows, I mean, that's, you know, as American as apple pie, right? Yeah. It goes back forever.
Danessa Watkins:Yeah. I mean, so you you saw exactly where I was going with this. Okay. So there are obviously first amendment protections for satire and parody and, you know, comedians in our country, probably more than anywhere else in the world, have a lot of freedom to pursue their craft. So I will say when I saw the news headlines for this one, my initial thought was, oh, that's an easy motion to dismiss.
Jack Sanker:Sure.
Danessa Watkins:But having reviewed the complaint, having watched the clip, I do think that John Oliver could have some problems here. Like I said, you know, he's representing to the audience that he reviewed the full hearing. So he's he's essentially saying, everything I told you and how I portrayed this statement is absolutely the way it was portrayed at the hearing.
Jack Sanker:Yeah.
Danessa Watkins:And that's not accurate. There's also some allegations in the complaint that, I guess someone from the show at some point reached out to Doctor. Morley. I don't know who reached out first to one another, but it was prior to the show airing. And Doctor.
Danessa Watkins:Morley's representative specifically asked, you know, did you review this hearing in its entirety? And the response from the show was, yes, we did. Well, the testimony is over three hours long. So I think right off the bat, they were a little bit like, okay, did John Oliver really sit and read this? Probably not.
Danessa Watkins:But, you know, we can trust that editors of an HBO show are gonna do their due diligence. Like, and
Jack Sanker:I mean, the comedy writers though, you know?
Danessa Watkins:True. True. But either way, that's what they represented. Mhmm. And then went ahead and broadcast the show anyways.
Danessa Watkins:So, there is also a claim against the show's producers saying that based on their, representations, they reviewed the full hearing. Had they actually done that, they would have understood that this was not Doctor. Morley's intent, and yet they portrayed it that way anyways. So that's the intentional And I'd say the way that they portrayed this is, you know, per se defamatory. It's it's a want of integrity against Doctor.
Danessa Watkins:Morley in performing his employment duties, and it also certainly prejudices him and his profession.
Jack Sanker:He's not a public figure, at least not till now.
Danessa Watkins:So that's an interesting question because he there could be an argument that he's a limited purpose public figure. Mhmm. He's testifying publicly hearing voluntarily thrusting himself into this debate about a very public issue.
Jack Sanker:That's very interesting.
Danessa Watkins:So
Jack Sanker:Well, voluntarily
Danessa Watkins:Mhmm.
Jack Sanker:He was was not employed or I'm sorry, I missed it.
Danessa Watkins:No, was. He was at the time that he testified at this hearing.
Jack Sanker:Okay.
Danessa Watkins:But
Jack Sanker:Well, might have been compelled to testify then or required to.
Danessa Watkins:Per his duties, yeah. That's interesting. But either way, he was definitely participating in a hearing about an issue of public concern. So that could, yeah, that would be an interesting argument for the defense to say that he has to prove actual malice.
Jack Sanker:Oh, and also if he was testifying as like a corporate rep rather than his personal capacity, is he speaking or is the company speaking?
Danessa Watkins:True.
Jack Sanker:I wonder if you could I don't know how that plays with First Amendment stuff, but Yeah. I wonder if that's
Danessa Watkins:That's it. That's an interesting, yeah, argument too. But maybe he did anticipate that defense, which is why he included those facts about the the network saying, yes, we reviewed the full hearing. Because that would show, like, well, if you did review the full hearing, then you would know that you're portraying him poorly, or not even poorly, but incorrectly.
Jack Sanker:Yeah. And it's also, I mean, I don't know, it's this, I mean, I'm not gonna add anything helpful here that from a legal perspective other than like to care, like to take someone's testimony and twist it around and characterize it however you want is also an American tradition, know, that's what we do as litigators. So, I mean, is not happening in a courtroom, so that's different. But I I I think, I don't know, I I I'd be interested. This one is is is particularly interesting because it's courtroom testimony.
Jack Sanker:It's not a quote from a newspaper, you know?
Danessa Watkins:Yeah. I think it's an administrative hearing but, yeah, mean, quasi judicial sort of situation but,
Jack Sanker:because that happens all the time, you know, trial, right, someone gets up in an argument and says, well, so and so witness said this. No, they didn't. They didn't. Right. You know, they literally didn't say that.
Jack Sanker:Like, that's not what the transcript says. That's not a fair reading of the transcript, whatever. And then, you know, it's
Danessa Watkins:But that's privilege because you're within a judicial setting. Yeah, I don't know. And I mean, the question is, right, what does the reasonable viewer think? And so if you're watching John Oliver, you understand, you know, the the nature of the type of show it is. You're gonna, you know, take some take everything with a grain of salt to some extent.
Danessa Watkins:I just I to me, the the fact that works most against him is is him saying, look, guys, I'm not gonna show you the full clip. I reviewed the full hearing, and I'm telling you right now, this is what he said. This is what he meant. So he would kinda want that extra step, you know? And they the plaintiff did include in his complaint snips of comments on YouTube where you can view this episode.
Danessa Watkins:The episode itself garnered nearly 3,500,000 views, and the comments do show that people generally believe that Doctor. Morley thinks it's okay for an immobile patient to sit in a dirty diaper for a few days.
Jack Sanker:I mean, that's also not flattering even under his facts, by the way. Like, even, he's like, no, in context, like, I would let someone, like, that's not a flattering thing for him to talk about, like, even in his context, by the way. So I don't know.
Danessa Watkins:It's we yeah. It's it's a weird statement in general. He's kind of just saying, like, oh, some people don't have good bathroom habits and and they survive, you know? But, yeah.
Jack Sanker:And and we have no duty to help them, you know?
Danessa Watkins:But he did, I will say, having read the full statement that, you know, was was snipped and clipped in certain ways, he does make clear that he in no way was applying that logic to someone who's obviously unable to care for themselves.
Jack Sanker:Right.
Danessa Watkins:So, so I do think it was kind of a gross misrepresentation.
Jack Sanker:I mean, the intent element here is like seems to be based on Oliver's statement that, you know, I read the transcript so you can trust me, right?
Danessa Watkins:Yeah.
Jack Sanker:To what extent could he just say, oh, sorry, I misread it then?
Danessa Watkins:Do you
Jack Sanker:know what mean?
Danessa Watkins:Isn't this sort of like a ignorance of the law is no excuse or anything? I mean, that
Jack Sanker:would negate intent though if he was like, I I literally did read the transcript and I'm just too stupid to understand it and then I went and talked about it.
Danessa Watkins:I feel like that would go to a reasonable person standard. Like, any reasonable person reading this would have understood that that is not what he meant to say.
Jack Sanker:I suppose. I I mean reasonable people aren't reading court transcripts though, which can be like difficult to follow.
Danessa Watkins:True.
Jack Sanker:You know?
Danessa Watkins:So okay, well to give you specifically what he says, so right before that quote, he says, this is Doctor. Morley during his hearing testimony. In certain cases, yes, with the patient with significant comorbidities. Yeah, right? Yeah.
Danessa Watkins:Comorbidities, there we go. You would want to have someone wiping them and getting the feces off.
Jack Sanker:Well, that's good.
Danessa Watkins:Yeah. So he does say, like when we're talking about, for example, someone with cerebral palsy, yes, of course, you need to give that type of care.
Jack Sanker:Of course. In case you're But
Danessa Watkins:yeah, but then goes on. Yeah. We don't fuss about, you know, people who can take care of themselves and don't wipe well. Like, it's it's just I don't know. The whole thing is a weird thing to say.
Danessa Watkins:But, yeah. I don't know. He also brings up that the response from people on YouTube or the there's an increased likelihood that viewers would have believed that this was actually doctor Morley's position on this is because of how John Oliver allegedly feigned this outrage over the testimony. Mhmm. And he actually goes so far to say, quote, fuck that doctor with a rusty canoe.
Danessa Watkins:I hope he gets tetanus of the balls, end quote. So he definitely like goes off on Doctor. Morley.
Jack Sanker:I mean, I've seen the show. He like he does that whole thing. He's like the type of person that like loves to abuse the word literally, you know? Mhmm. Which everyone does, but he totally, you know, this is literally figuratively, you know?
Danessa Watkins:Okay, so yeah, I don't know. So maybe there would be that argument that his reasonable viewer understands him.
Jack Sanker:I mean, I don't know that either.
Danessa Watkins:I don't know either.
Jack Sanker:That's credit you wanna give to John Oliver viewers.
Danessa Watkins:I don't wanna sorry, John. I don't watch your show, so I can't comment on that. But, yeah, I don't know. Well, this just got filed, so, I would imagine there's gonna be motions to dismiss coming, but, yeah, kind of stay tuned and and find out.
Jack Sanker:Well, and also those comments about, I hope you get tetanus everything also speaks to, like, malicious intent. Right? Like, definitely, like, you know, not being super nice about this.
Danessa Watkins:He's not being nice. However, I don't know that that's a basis for liability. So malice in this context would be that he knew what he was saying was false. It's not the, like, I intended to harm you. That type of malice would go to punitive damages.
Jack Sanker:Okay.
Danessa Watkins:So, yeah, I don't know. But this is one of those too where like this this show, in order to survive, kind of has to take a strong stance on this and not fold. Yeah. You know, they can't if otherwise, like, they're gonna get sued every show. Yeah.
Danessa Watkins:So
Jack Sanker:Yeah. Yeah. I mean, or or just settle with an NDA, right. I mean, that's the other anticlimactic outcome.
Danessa Watkins:I don't know. I feel like ever since George Stephanopoulos' settlement Mhmm. With Trump, I feel like there's a lot of pressure the entertainment industry to not settle because that's just set such a crappy precedent.
Jack Sanker:Yeah. And and and there seems like to be more more claimants willing to test those, you know? Mhmm. Like, I remember, like, way back in the first Trump administration, like, every now and then he'll, like, he would say say something and I'm like, who told him about that? Like, he was talking about, Oh god, what was the case?
Jack Sanker:It's is it USP Sullivan or am I getting that right?
Danessa Watkins:Is a case. I don't know what you're talking about.
Jack Sanker:Oh, it's it's like it's like the like kind of quintessential like, like, libel Mhmm. Case for like newspapers, like publishers' liability and things like that. Do I have right?
Danessa Watkins:New York Times? Yeah. For Sullivan?
Jack Sanker:New York
Danessa Watkins:Times for Sullivan.
Jack Sanker:And like like I remember Trump like very vividly being like, we should repeal that case and
NY Judge:I'm like,
Jack Sanker:do you know about that case?
Danessa Watkins:Yeah.
Jack Sanker:That's such a weird thing for you to know about. But I kind of ever since that I feel like there's, like for a while he was on this thing where he was like, we were gonna roll back the libel laws and all this. So that's like kind of been a, you know, like item like 100 on the list of things that's gotten weird. But like that's one of them for sure.
Danessa Watkins:Yeah. It's it's interesting too because Trump's been on both sides of defamation cases, right? Like so with Stephanopoulos, like it worked the the law worked in his favor on defamation law, you know? Yeah. But then he's obviously lost big on the other side too, so.
Danessa Watkins:Gosh, why is it like we're always three steps away from bringing up Trump at all times? I I didn't even think we were gonna go there, but
Jack Sanker:No, I'm sorry.
Danessa Watkins:That's okay. What are we gonna do?
Jack Sanker:He's like, he's like bizarro Forrest Gump where he's just in everything, you
Danessa Watkins:know? Yes.
Jack Sanker:Just he was there for everything.
Danessa Watkins:Just shows up and not.
Jack Sanker:Yeah, he was like, yeah, he met the president. He won the ping pong contest. He was like, yeah. It's yes. Anyways.
Danessa Watkins:Okay. Well, that's that. Alright. So we'll see what happens there.
Jack Sanker:So in that same vein of, we don't wanna keep talking about Trump, but, like, what are you gonna do? We've mentioned tariffs on the show quite a bit. We've talked about, from the legal perspective, like, what's their basis, which is a statutory delegation of power from Congress to the president, and then which has to be invoked via, like, a declaration of national emergency, etcetera, etcetera. You can check back to some of our most recent episodes if you wanna hear more about that. What I wanted to talk about today is, how some of the, different states are are are are trying to address this and and if they even can, because by and large a lot of like local politics, I would say, does not like tariffs like at the local level because, you know, you are a politician like in your district or in your town or whatever and it's like some guy approaches you and is like, hey, my thing that I import that I either, you know, attach to my final product or that I buy or the thing that I sell is subject to retaliatory tariffs now.
Jack Sanker:Mhmm. What the heck, man? Like, you know, to the extent that like like tariffs good or bad, right or wrong, like whatever side you are on that politically, like the good part that, you know, proponents of this policy are saying will happen, we can all agree hasn't happened yet. Mhmm. So like Right.
Jack Sanker:As it stands, we're in the, we're in the, you know, you need to sacrifice for the long term good. We're definitely in the sacrifice phase. The
Danessa Watkins:early stages.
Jack Sanker:Yeah. So so like locally, you know, it's not a popular thing. I'll put it like that's I've seen that in deep red districts and deep red politicians and obviously, you know, other places. It's just it's it's not. And, you know, to the extent that people are willing to put up with it, it's like, you know, it's kind of a greater good argument or whatever.
Jack Sanker:Anyways, politics aside, the reason I bring that up is because, like, at local levels, but at the state level, which we're gonna talk about now, there are people that are just like, can we do something to get around this? And and the answer for the most part is no. But I've got a couple of examples of some interesting ways that people are at least thinking about this. So in Rhode Island, there is a Rhode Island lawmaker which is proposing to create a free trade zone, in the coastal state based on the powers that was granted to it, the state of Rhode Island, by King Charles the second in 1663, which is that's the colonial charter that was that was signed, by King Charles which apparently delegates some amount of authority to the local colonial governor to, like, levy and minister taxation. Yeah.
Jack Sanker:So, Delaware lawmaker Joseph McNamara wrote this week that, quote, our state has a long history of resisting unfair, authoritative trade mandates and taxes. One has to only has to reflect on our 252 history to be reminded of the action that our early colonists took in 1772 when faced with an unlawful British vessel, unquote. And I love arcane legal stuff. Like, I love old law that doesn't, you know, isn't applicable but, like, people bring it up. That's why I love sovereign citizen stuff.
Jack Sanker:Yep. Like, I love this stuff.
Danessa Watkins:But, I just I'm, like, waiting for New Hampshire to come forward again.
Jack Sanker:Oh my god. They're they're probably chomping at the bit. Here, dog. I I can't I love that stuff. Yeah.
Jack Sanker:And they're like, well, actually, we never ratified that amendment. And there's, like, every now and then you'll hear about, like, some states like, well, finally ratified, like, the fourteenth amendment. You're like, what? Yep. But I love that stuff.
Jack Sanker:Anyways, there's, by the way, he's The census that he's talking about is he's talking about in 1772, a bunch of American colonists attacked a British, ship which was at the time, kind of ironically, assigned to, patrol the waters around Delaware and make sure that import and tax, rules for, trade was being followed. And this boat got mobbed by a bunch of, Rhode Islanders and, it was like one of the first instances of open hostility between the colonists and the, British crown leading up to the, American Revolution. Anyways, so the question is, you know, can Rhode Island invoke a neutral tariff free trade zone? One. And two, can it invoke its royal charter which is from like three seventy years ago at this point?
Danessa Watkins:So interesting.
Jack Sanker:Well, the answer is no to both.
Danessa Watkins:Yeah. I mean, but what a what a unique argument.
Jack Sanker:Yeah. I mean, I, well, it's
Jack Sanker:unique in that it's not good,
Jack Sanker:but it's fun and that's why we're covering it. And, and it's worth cutting.
Danessa Watkins:Sorry, McNamara.
Jack Sanker:Yeah. No. I I'm sorry. But what's fun is that it does you know, I got I had an excuse to, like, look this up, which is great. And, technically, Rhode Island didn't have a state constitution until 1842.
Danessa Watkins:Oh,
Jack Sanker:And up until that point, they were more or less using the royal charter as their state constitution. Interesting. So the charter, which was, which was by a king, you know, in a, country that we very famously broke ties with. Mhmm. And, you know, you you I don't know, folks, you heard about this, the American Revolution?
Jack Sanker:But the, and that was, like, old at the time. I mean, this so the last time that I think that it was being, like, used in Rhode Island was up until the eighteen forties.
Danessa Watkins:Wow. Okay.
Jack Sanker:And which they finally passed their own state constitution. So but even at that point in time, it was, like, February years old, you know?
Danessa Watkins:Right.
Jack Sanker:So, again, I just love when these, like, old arcane things get gets, you know, they stick around and then you have to go back and try to reframe them from modern times or whatever. Mhmm. So, like, you know, it was actually, I don't know that this specific taxation provision would have worked out in their favor even if they had tried to create a free trade zone in the eighteen forties, I don't know. But the point is is, like, the charter was kind of around for longer than you think.
Danessa Watkins:Mhmm.
Jack Sanker:And, anyways, the answer to the question is Rhode Island can't just opt out of the US constitution, and establish its own international and trade regulations. Those powers are specifically reserved for US Congress and, like, not to get into the weeds on this, but if a state were to pass their own law regarding international tariffs, it would be, you know, unconstitutional, one. And two, federally preempted by all of the federal tariff regulations that have been passed by Congress since then. So, sorry Rhode Island.
Danessa Watkins:For effort though.
Jack Sanker:Yeah. I mean, I I love again, get creative. Get weird, you know? Get weird. You know?
Jack Sanker:Like, let's see it. Let's see Yeah. Let's see your your royal charters.
Danessa Watkins:Put it out there.
Jack Sanker:Let's see, you know, like some secret federalist paper that never got published,
Danessa Watkins:like Mhmm.
Jack Sanker:Why not? We are we are in we are trying new things in this country right now.
Danessa Watkins:Seriously, if there was ever a time.
Jack Sanker:Yeah. Do it. We're all sovereign citizens now. California is, they're doing their own thing. Last week, governor Gavin Newsom, said, quote, California leads the nation as the number one state for agriculture and manufacturing.
Jack Sanker:It's our workers, families, and farmers who stand to lose the most from the Trump tax hike and trade war to our international partners as as the fifth largest economy in the world. The Golden State will remain a steady, reliable partner for generations to come no matter the turbulence coming out California is not Washington DC, unquote. And there was a statement that was put up by the governor's office which said, quote, with this announcement, governor Newsom is directing his administration to identify collaborative opportunities with trading partners that protect California's economic interests, workers, manufacturers, and businesses, and the broader supply chains linked to the state's economy. The administration will explore ways to support job creation, and innovate it innovation in industries reliant on cross border trade, promote economic stability for businesses and workers impacted by federal trade disruptions, safeguard access to critical supplies such as construction materials needed for recovery efforts following the devastating Los Angeles firestorms, unquote. And during the Newsom administration, California apparently assigned on to 38 international agreements with 28 different foreign partners.
Jack Sanker:I wasn't able to dig into that because I think, like, the the source that I got, that was that bit of information was also from the state website but, like, I don't it's my understanding that the state that the governor can't sign a a binding agreement with a foreign country.
Danessa Watkins:Yeah.
Jack Sanker:With respect to trade. I think Now, we'll talk, a bit about what Illinois has done, which is, sign memorandums of understanding with other countries where they basically say, like, this this isn't law, this can't be enforced, but, like, here's how we're gonna do this.
Danessa Watkins:Yeah.
Jack Sanker:So I think that maybe will be what they're referring to, like, we're gonna, kind of, like, you know, try to help each other out here. So California can't enter into trade agreements with foreign countries but what I think that Newsom is getting at is, again, one of the creative ways that people are trying to, you know, get some relief at the local and state levels is it could, for example, like, offer tax incentives or, like, other goodies to companies, to foreign companies or to, foreign held, you know, assets or companies that do business California, like, in exchange for concessions on retaliatory tariffs, for example. So, like, I'm making this up, but, like, I I think that California could give a state could give a state corporate income tax break or all sorts of state tax breaks to, for example, Chinese companies in exchange for maybe China not targeting California industries that are so exposed to tariffs.
Danessa Watkins:Oh, wow.
Jack Sanker:So, like, know, for example, that China has One of their retaliatory tariffs is on, like, agricultural exports for The United States, and California is, like, is the largest agricultural exporter, so that's gonna hit California hard. So, like, maybe that's a bargaining chip that they have with, you know, Chinese held assets or Chinese companies or is they can do something at the state level so that maybe China says, you know, we're gonna ease off agricultural tariffs as a whole because it hurts, you know, California the most and, you know, we're trying to play nice with California. Right?
Danessa Watkins:Wow. So interesting.
Jack Sanker:Yeah. I mean, it encourages, like, you know, some pretty incoherent behavior from
Danessa Watkins:I I know, like I'm just waiting for the federal government to respond to that type of thing.
Jack Sanker:I mean, I think, like, if it's within these sovereign powers of the state to say, we are not going to tax x y z or, you know, you wanna build this thing here, we're going to, like, remove regulations on this permit or, you know, like, whatever business interest you have in the state, like, if the governor can tweak those things, which happen all the time, like, governors do this all the time to get to to solicit business investments, you know, like, they'll they'll, like, a classic example is, you know, an NFL football stadium where they're like, well, you know, like, fund it via, you know, tax breaks for the next fifty years Mhmm. Or whatever. So, like, something like that maybe and then say, if you do that, please don't tax our almonds at 300%. Sure. And then, you know, that's something but you're gonna see governors and representatives like try to broker these little side deals.
Jack Sanker:Mhmm. Which is, I don't know.
Danessa Watkins:I'm just, I'm already like foreseeing the federal government being like, you are, I don't know, this this is gonna affect our national security.
Jack Sanker:Like For sure.
Danessa Watkins:So especially with China.
Jack Sanker:Yeah.
Danessa Watkins:So, yeah.
Jack Sanker:No. We want retaliatory tariffs on elements.
Danessa Watkins:Like Right.
Jack Sanker:We we want those. So I don't know. But, again, people, like I said, we're trying new things here, folks. We're Mhmm. We're this is the time.
Jack Sanker:Our governor in in Illinois, JB Pritzker, he's kind of openly saying that our our agricultural, sector here is gonna just get crushed by this. Illinois is also a big agricultural producer. We have 900,000 people that work in the agriculture sector. He, just the other day, he was talking with reporters outside the State House, in Springfield and he's kicking around some interesting ideas too. Like, he mentioned that he they're looking into utilizing international, foreign trade zones that already exist in the state to get around tariffs.
Jack Sanker:And these, I looked up, exist in a couple of cities in Illinois, Chicago, Rockford, Savannah, Quad Cities, Decatur, Granite City, and Lawrenceville. And, you know, what is a foreign trade zone? Great question. Can't explain it super well, not my area of law. But, what I A little bit I I know is that it's a kind of the, they exist outside US customs territory and to some extent outside of US customs jurisdiction
Danessa Watkins:Mhmm.
Jack Sanker:And, allow for a more free flow of goods in and out. I basically think it's a little carve out in a in a and I guess it's I mean, I would assume it has to be designated by the federal government Right. Previously to allow for, I would assume, certain specific and maybe local trade relations to to to get around like the broader framework of federal, tariffs. So like so like, okay, Chicago, a has an international port for example, people don't know that. But we we have an international port which does do some amount of international, shipping.
Jack Sanker:By international, I mean Canada. Yeah. But like, that's not the Yeah. So, and that is part of one of these foreign trade zones. And I I don't exactly know if that means that goods that come through there are not tariffed.
Jack Sanker:I don't exactly know that. But, and I've done a little bit of research on this and I've put out some notes to some of the, the trade attorneys at our firm that do this type of thing and and, you know, kinda pending a response for that. But as I understand it, there's like these international entry points into the state, some of which are designated within some of our airports like O'Hare. It's not the duty free zone, is what I thought originally. Was like, oh, the duty free zone, we should just bring everything through there.
Danessa Watkins:Right. Like,
Jack Sanker:it doesn't work that way at all. But I was like, yeah, just bring it right through the liquor store that they don't tax Easy fix. Yeah, no, it's
Danessa Watkins:Grab some cigarettes on
NY Judge:the road.
Jack Sanker:Exactly. Buy some perfume. But no, that's not it. And I was like, wow, this is such a good idea and it's not that.
Danessa Watkins:Okay.
Jack Sanker:But there are international, free trade zones within the airports and there's obviously a commercial, like, shipping of items into the state of Illinois, like, through our airports, our international airports in particular. So, you know, I I don't know. I think that, and I think that Pritzker is, like, probably gonna look to leverage those points of entry as much as he can. I think it would be, like, hilarious if if, you know, we just started, like, exporting, like, you know, millions of pounds of raw beef through Midway. I don't know if that's, like, quite feasible, but, at every turn, it seems like everyone's just looking to undermine these tariffs.
Danessa Watkins:Mhmm.
Jack Sanker:And and there's, like, if and if you skim the headlines too, it's like other states are lobbying for exemptions for their, like, hardest hit industries. I mean, every state is doing this, is is sending a a governor or a senator or someone to talk to the White House and say, like, great job, sir, we love your tariffs but if you could maybe ease up on, you know, wheat, like that would be great for my constituents. Lobbyists for private companies doing the same thing, you know, it's it's it's all those things. I mean, it's created this weird environment where like, I think you're gonna talk about this maybe in the next segment a little bit, but where, people are, you know, are that are gonna benefit the most are ones that have something to offer Yeah. In exchange for, you know, getting big government off their back.
Danessa Watkins:Right.
Jack Sanker:And, the states that, you know, can do that will try to, I mean, I think they have that responsibility to their constituents to try to. And obviously, you know, lobbyists, I mean, half corporations, they they they're you know, they have that as well. So we'll see. But the point is all this stuff is malleable and it's all kind of in flux and there's multiple choke points, each of which is controlled by different people. I I like have thought more about international trade in the last, you know, two weeks than I have the entire sum of my life up until that point.
Danessa Watkins:Mhmm.
Jack Sanker:So, but it will be interesting. And it's I I have to think about this stuff because it's what my clients keep asking me about. So, until further notice, I'm gonna interested in trade regulation.
Danessa Watkins:For those those kinda like free zones Mhmm. I was wondering if you came across anything regarding, like Native American, territories because That's
Jack Sanker:a great idea too.
Danessa Watkins:That's what I would that's what came to mind for me first.
Jack Sanker:That's like I feel like that's a plot of a movie.
Danessa Watkins:I'm We're
Jack Sanker:gonna launder stuff through the Native American reservations. That's like Taylor Sheridan plot arc, if anyone watches like Yellowstone or whatever. Like it's
Danessa Watkins:Yeah.
Jack Sanker:Yeah. And I wanna say that was like a thing in the eighties in California where there was a a Indian reservation, Native American reservation that was like someone had set up shop there, obviously casinos, but then like was was I think like manufacturing firearms and trying to like get them around.
Danessa Watkins:Yeah. No, I mean it it definitely has happened in our lifetime. I have no sense of whether it's still happening. But grew up with a girl who was a % Mohawk, grew up on the reservation. And, yeah, she told me some real stories about
Jack Sanker:Cool.
Danessa Watkins:Yeah, how their rivers were abused. I mean,
Jack Sanker:it would be so cool if the Native American reservations were like, hey, we're duty free. So, like, we're gonna just become the central trade hub of North America. Like Yeah.
Danessa Watkins:Let's let's talk about reparations. Let's
Jack Sanker:Maybe Trump did reparations by accident.
Danessa Watkins:Right. Okay. Alright. We just figured it out.
Jack Sanker:There we go.
Danessa Watkins:Alright. I am decidedly keeping this short, because I could probably spend three episodes going over this. But, you know, this is one of those things we need to tread lightly on. And I though couldn't give up this platform and not use it to at least mention what's going on currently in our profession. So I think it's pretty well known now that the president has put out, I believe to date, five executive orders attacking law firms.
Danessa Watkins:Mhmm. Some of the most prominent law firms in our country, to be exact. And when you read these executive orders, they're short. So I would actually highly suggest that you take a minute to just look them over. It is brash.
Danessa Watkins:It is undisguised retaliation for law firms that have represented interests that are opposed to the president. He puts it in plain black and white. You know, you represented this person. I they acted against me, and that is part of this order and part of the reason why this order's coming down. No doubt the firms that are targeted are methodical.
Danessa Watkins:Not only have some of these firms represented Trump's enemies, but in attacking these highly profitable prominent nationally and internationally prominent institutions, the message is clear. To the middle sized firms, the smaller firms, it's fall in line or you're next. And guess what? You probably can't afford to fight the federal government. We've unfortunately seen some law firms fold and give in to the will of of the president.
Danessa Watkins:Most notably, a firm agreed to give $40,000,000 in free legal work.
Jack Sanker:And I believe that the number is now, and we could put a pin in this because I do wanna talk about this with you towards the end here, but, I believe the number now is that the administration has, like, collected a pledge of $240,000,000 worth of free legal, counsel from these law firms.
Danessa Watkins:In exchange for them not, I guess, following through on these executive orders, which include, in some cases, you know, doing full blown investigations into these firms, requiring them to produce records, personnel records, client lists, DEI initiative and stats that come from that, revoking security clearance.
Jack Sanker:Also wasn't the, like wasn't it floated like banning from federal buildings? Yep. Does that include federal courthouses?
Danessa Watkins:Oh, good question.
Jack Sanker:Because that's like, okay, I just can't practice law anymore.
Danessa Watkins:Yeah, I can't imagine but, I don't know. I mean, perhaps. Yeah. I mean, these these are so broadly worded that I think it's up for interpretation.
Jack Sanker:And a lot of federal office buildings, by the way, do house federal, like administrative courts. Right. Like, like a random federal office building will also include a floor that has, ALJ hearing rooms, you know, and things like that. Like, so, like, to say you're you're banned from all federal buildings might mean you can't go into the place where you practice law or where you represent your clients, you know?
Danessa Watkins:Mhmm.
Jack Sanker:Mhmm. Physically. And on top of that, as I understand, there's a shot across the bow of the clients of these firms.
Danessa Watkins:Yes, that as well. Yeah, absolutely. I mean, look, my point was not necessarily in bringing this up to come down on those firms that have folded. It was more so to applaud my colleagues that have stood up and had have said definitively, no. This is absolutely against our first amendment rights, sixth amendment rights, fifth amendment rights.
Danessa Watkins:You know, you are attacking every aspect of the separation of powers. Yeah. I I mean, thank you to all of the firms, attorneys, the deans of law schools, and just everyday people who are actually taking a stand very publicly and saying we cannot, in any way, shape, form allow this to to continue. Just recently, so one of the firms that has stood up against this and actually filed the lawsuit and they got a preliminary injunction. They are now seeking a permanent injunction against the executive order.
Danessa Watkins:That's Perkins Coy. And on April four of twenty twenty five, '5 hundred and '4 law firms from across the country filed and signed on to an amicus brief to support Perkins Coy's motion for summary judgment where they're seeking a permanent injunction. And this is certainly the most organized pushback that we've seen to date. I just wanna read one part of the argument that they filed. It says, the looming threat posed by executive order at issue in this case and the others like it is not lost on anyone practicing law in this country today.
Danessa Watkins:Any controversial representation, challenging actions of the current administration, or even causes it disfavors, now brings with it the risk of devastating retaliation. Whatever short term advantage an administration may gain from exercising power in this way, the rule of law cannot endure in the climate of fear that such actions create. Our adversarial system depends on zealous advocates litigating each side of a case with equal vigor. That is how impartial judges arrive at just, informed decisions that vindicate the rule of law. In the same vein, it is a deeply held principle of the legal profession that everyone, no matter their actions or beliefs, is entitled to zealous advocacy on their behalf.
Danessa Watkins:The principle is so deeply ingrained that lawyers, going back to John Adams' defense of eight British soldiers who perpetrated the Boston Massacre of seventeen seventy, consider it a core part of their professional obligation to take on representation of clients with whom they disagree even vehemently. John Adams. John Adams. There you go. Mhmm.
Danessa Watkins:Indeed, the courage of attorneys who take on unpopular clients has long made lawyerdom proud. End quote. Yeah. I don't know. I, like I said, it's it's almost like I'm at a loss of words and I have too many words at the same time, because it's just such an unbelievable attack on our profession and our judicial system that
Jack Sanker:it's I mean, if I can say something without saying something, please. It's the way that we wanted to cover cover this is not the way that we are. Agreed. Because of what that could mean in terms of repercussions.
Danessa Watkins:Right. It's
Jack Sanker:it's So like if you think, if you're like the listen to this debating whether like it's affecting how people talk and think about this issue, I'm telling you it does. It's happening, you're listening to it.
Danessa Watkins:I was gonna say we probably started discussing whether whether and how we would address this issue, what, three, four weeks ago? Yeah. And we've gone back and forth on it. And that, I I will say for me personally, well, mean, luckily, never have I had a point in my life or career where I've taken second to second guess whether I should use my First Amendment right. Because the repercussions, not just on us, but on our institution, on our colleagues, on our, you know, it's it's real on our clients.
Danessa Watkins:So I the power of what's happening, I guess, can't be denied. And that's why I say I'm not coming down or I don't wanna I don't want to come down on these law firms who have folded. Yeah. I don't agree with their decisions, but, you know.
Jack Sanker:I I I mean, I don't I don't either but, like, I I hope that people understand, like, I I could tell some anecdotes without giving anything away here. I I've spoke to some people that are, let's just say, affected by this. And when the administration's, you know, targets, were set on them, they got nonstop calls from clients saying, sorry, you know, we're not we can't we can't use you anymore. We can't be near this, because the
Danessa Watkins:Which was the intent.
Jack Sanker:Correct. Yeah. It's it's meant to just threaten so the the choice is like, you know, do you take a stand on principle or you do you maybe bankrupt your company which employs, you know, thousands of people and and whatever and like, I don't know, say what you want about big law firms, I mean, they're I mean, they're, you know, they they do pro bono and everything else but like it's not a it's not a charity for puppies, like it's it's a
Danessa Watkins:They make real money.
Jack Sanker:Yeah, yeah and, and I understand people don't like lawyers, so also that, you know, like, I'm it's not this isn't you know, feel bad for us type of thing. It's I'm what I'm really, you know, people will figure it out. It's there's a lot of things going on. What I'm a little what's really really bothering me
Danessa Watkins:Really grinding my gears.
Jack Sanker:I Why? What's up with these pro bono pledges? Yeah. And what are they for?
Danessa Watkins:Right.
Jack Sanker:Because I understand it. When administration, any administration does something, you know, politically not nice and, you know, they the DOJ, right, they have their lawyers and they have all those things but then there's also unrelated things you can't use the DOJ for like campaign things.
Danessa Watkins:Sure, sure.
Jack Sanker:Your private campaign, DOJ is not gonna represent you. Yeah. You know, your individual lawsuits, DOJ's, you know, all those things.
Danessa Watkins:Yeah.
Jack Sanker:And, lawyer fees are expensive and the people, you know, in the White House and connected to the campaign have there's been, you know, god knows we've talked about it before but there's like, they're very litigious and on the subject of many lawsuits And then there is, you know, what the administration wants to do which often uses outside counsel for all sorts of things. That's, I mean, that's what a lot times what, you know, these people are doing. And I think like, you know, you have the ability to turn away a case if you don't want it for, you know, for really any reason other than like non discriminatory reasons but like you could just say I don't want to be involved in this project because I don't, you know, care for the position that you're taking or whatever. You could turn down work. And I think often that, particularly unpopular things are turned down by, by certain firms.
Jack Sanker:There are niche areas and there are highly specialized areas in places where like a lot of these firms like have a monopoly on like a skill set. Yeah. And, and so like they just wouldn't take the case, right? Yep. And so now when those like policies have to be, you know, fought before the courts, right, they're they're being represented by like less optimal representation which Mhmm.
Jack Sanker:Because it's not just like we want you to stop doing like your DEI because that's like ostensibly what's happening, right?
Danessa Watkins:We want
Jack Sanker:you to like stop
Danessa Watkins:That's a whole other, yeah.
Jack Sanker:Yeah. But is the the deal is also that each of these firms that has like signed a deal or whatever is going to provide over the next four years pro bono work totaling an amount that is, you know, in the like whatever agreement. And that amount is, for two of the firms, a hundred million dollars.
NY Judge:Just $240,000,000
Jack Sanker:worth of free work. Yeah. For what is my question. And, like, why does the administration wanna bank this stuff?
Danessa Watkins:Right.
Jack Sanker:What's it gonna spend it on? It's like, what's really worrying me?
Danessa Watkins:Good question.
Jack Sanker:And by the way, they could always go back to the well and be like
Danessa Watkins:I was just that's when you started down this path, that's exactly what I was thinking is so when these bills get submitted and they get to 99,800, whatever. You know what I mean? Like, who in the White House is gonna be, like
Jack Sanker:Stop canceling something.
Danessa Watkins:Hold no. Hold on a minute. Let's nope. You overcharge me on this. Blah blah blah.
Danessa Watkins:You know what I mean?
Jack Sanker:Well, they just go back and say it's $150,000,000
Danessa Watkins:Exactly. That's what I'm saying.
Jack Sanker:What do mean by this?
Danessa Watkins:This is such a
Jack Sanker:And it's and it's it's, by the way, the pro bono, like, so each of the firms has said and, like, to to their credit and and I will, you know, I'll take them with their word on this that, like, their deal did not involve them, like, giving away their ability of their individual pro bono committees to exercise discretion over what matters they take. But if you don't think that the pressure of this thing, which each of these firms has described as fatal Yeah. Is going to weigh on them when, maybe a very ugly or nasty pro bono matter is, thrust upon them by the administration or the campaign or personal individuals connected with, that's a possibility that is exist now that didn't exist before this. And none of this is like, you can't sue to enforce this if you're the if you're the law firm and there's nothing stopping the government from renegotiating anytime they want. Right.
Jack Sanker:So it's like, what it ends up being is a blanket like do not represent interests that are adverse to those of the administration, and you will also give us a hundred million dollars worth of free work over four years
Danessa Watkins:Mhmm.
Jack Sanker:For things that we're gonna tell you to work on. Right. And like that's just Insane. Weird.
Danessa Watkins:Insane.
Jack Sanker:And like, I don't know and I'm I'm sure everyone involved is saying, no, no, no, We have our own independence. Like, that's not the deal that we made. That is just what it looks like, though.
Danessa Watkins:Mhmm. And on the I guess on the other side of that to take away from the, like, you know, woe is Us law firms side of it is that real people who oppose the government or who the president sees as a threat, if they get wrapped up in a lawsuit that involves the government in some way, shape, or form, suddenly these big law firms are no longer available to them.
Jack Sanker:Yeah. And that seems to be and not to be cynical here, but that seems to be the split among these firms is, like, the kind of the nature of the work that they're exposed to. Like, if your clients are a lot of federal contractors, for example, and the government comes telling you, like, we're gonna yank every one of those contracts if you don't do what we say. I mean Mhmm. That's a gun to your head from a business standpoint.
Jack Sanker:And and then you gotta make whatever choice you're gonna make in that scenario.
Danessa Watkins:Yeah. It is Pandora's box. Like, thank you to the firms that are fighting this because there has to be some precedents that, I mean, this is insane. Insane.
Jack Sanker:Yeah. It's pretty crazy, man. And by the way, if they were super concerned with these things, the administration would not be settling. Like Right. If that's you know what I mean?
Jack Sanker:Like
Danessa Watkins:Right. Yeah, so you're
Jack Sanker:Also, you're allowed to be unethical now. It's like
Danessa Watkins:As long as you Yeah. Trust free. Yeah. Oh my gosh, I hadn't even thought of that.
Jack Sanker:Yeah. So it's like, it's protectual, you know? Yeah. It's that's how you know.
Danessa Watkins:I was like, let's just touch on this real quick at the end And it's like, you can't touch on it quick. It's too important. I just want yeah. I think my point in bringing it up was not only to just show support and and, you know, to the extent we're able, like, make our opinions known, but also, like, to kind of bring a little bit more awareness that this isn't a woe is me lawyer issue. This is a much broader issue.
Danessa Watkins:And to the extent people don't realize that, you need to read up on this a little bit and understand the effects this has on everyday people and their ability to get legal representation. That is the scary part. All right. Well, there's, I guess, no good way to end this conversation. It probably is not it it's not gonna end.
Danessa Watkins:It's gonna continue. But, yeah, we had to touch on it, and that's our position. And just, you know, keep educating yourself on these things, and, we'll end on a happier note.
Jack Sanker:Yeah. Alright. A little palate cleanser before we get off here. This is like I found this hysterical, and, we're just gonna play it here at the end here. There was an individual, in in a he had an employment case.
Jack Sanker:The case. The the facts of the case are not super important. What's important is, he was pro se and, was representing himself, in the, first judicial department of the Supreme Court of the State of New York and New York's courts are organized so weird.
Danessa Watkins:I think that's a trial court level.
Jack Sanker:Yeah, right.
Danessa Watkins:Supreme Court is trial.
Jack Sanker:Yeah, it's I that's what I mean. So Yep. Don't yeah. But anyways, he's pro se, so he doesn't have a lawyer and and I and then he starts playing a video of a, an AI, attorney, and gets we'll we'll listen to it first because I just think, like, just listening to it is hilarious to me.
NY Judge:The Walled versus MassMutual MassMutual is being called out of turn, and, the appellant has submitted a video for his argument. Okay. We will hear that video now.
A.i. Defendant:May it please the court. I come here today a humble proceed Alright. For a panel of five distinguished justices.
NY Judge:Is this hold on. Is that counsel for the case?
Actual Defendant:That I generated that.
NY Judge:I'm sorry?
Actual Defendant:I generated that. That that is not a real person.
NY Judge:Okay. It would have been nice to know that when you made your application.
Jack Sanker:I think we can cut it there.
Jack Sanker:So that's like that's basically it. This is, we've covered the attempts at AI lawyers and everything and here's a good one and it's within about six seconds the judge is just like absolutely not. This is I love the may it please the court, I am a humble pro se and it's like fake AI. This is not how anyone talks. And then in in the the claimant goes, no, I generated that.
Jack Sanker:I'm I'm sorry. That's mine. Yeah. And the judge is like, never mind then. We're that we're not gonna do that.
Jack Sanker:I I just So anytime you see people that are that have a like quote unquote AI lawyer service, so they're talking about how attorneys are gonna be automated or whatever, there's exhibit a for you.
Danessa Watkins:Good attempt.
Jack Sanker:Good good try.
Danessa Watkins:Shut it down.
Jack Sanker:Yep.
Danessa Watkins:Alright. That's our show. As a reminder, we come out with new episodes every two weeks, pending our litigation schedules, but we do our best. You can find Litigation Nation wherever you get your podcast, Apple Spotify, YouTube, etcetera. So please tune in, leave comments, anything you want us to cover that we haven't yet.
Danessa Watkins:That's it. We'll see you next time.
