Litigation Nation

Welcome back to Litigation Nation. I'm your host, Jack Sanger. I know it's been a while, but I took a hiatus with my first kid being born, so cut me some slack, but we're back with big news. Uh, I finally got a co-host, uh, my friend at the firm here, Luke Benke, out of the Milwaukee office, is joining me as co-host of the show going forward.

Luke, welcome to the show. Why don't you, uh, explain who you are and tell us about yourself. Hey,

thanks for the introduction, Jack. I'm really looking forward to co-hosting a Litigation Nation podcast with you. Uh, I serve as outside general counsel to my clients, which means that I coordinate legal needs across a variety of different disciplines.

And a big part of that is litigation. From business disputes to product liability matters to professional liability. To your simple insurance coverage, lawsuits, slip and fall, uh, auto accident cases. It's a wide ranging practice, but I tell you, I enjoy all the different things I get to do day to day for my corporate and insurance clients.

And I think with that we can go ahead and, and get right into it, uh, for the first time in a couple of weeks. Now, I'll go ahead and start with today's stories First, uh, musicians with legal trouble are increasingly having their song lyrics used against them by federal prosecutors. This is kind of a fun one.
After that trouble in the court's for President Biden, a student loan forgiveness program. And Luke, what do you.

German auto supplier, Bosch agreed to pay 25 million to settle California's probe into the company's role in the diesel mission scandals at Volkswagen and Fiat Chrysler. And evident evidently, even Harvard makes mistakes.

Harvard University must pay its own defense costs in the ongoing legal challenges to its affirmative action program. After losing a battle, uh, with its insurance carrier over its failure to timely notify of the lawsuit,

All of that and more. Here's what you need to know.

All right. Our first story back after this long break, it's about the indictment of two rappers, young Thug and Gunner, specifically the circumstances of their indictment and charges. Both are currently behind bars in Atlanta on gang related charges. After prosecutors use their own lyrics as evidence in the in.

both when denied bail and our awaiting trial according to the Wall Street Journal argue article that I'm relying on for the story. So Young Thug and Gunna were indicted for racketeering charges and the indictment cites lyrics and social media posts and alleges members of the rappers YSL Collective, which is really a street gang.

Were engaged in murder, armed robbery, drug dealing, et cetera, and quoting from the. Jeff DeSantis, the spokesman for Fulton County District Attorney Fannie Willis, who's overseeing the case. Said the only time we've used lyrics in any indictment is as it related to specific crimes in the indictment. If you decide to OIT your crimes over a beat, I'm gonna use it.

Ms. Willis said in an August press conference, I have some legal advice. She said, don't confess to crimes on rap lyrics if you don't want them used, or at least get outta my county. So this strategy of using rap lyrics as a confession is being criticized by IND C groups and other artists. According to the New York Times Warner Music Group, the record label headed up a big coalition of music industry groups and individuals, including Sony Music, universal, the concert company, live Nation, and then also Spotify and TikTok, as well as Drake.

And, uh, Coldplay, interestingly, signed a. An open letter to the New York Times and to the Atlanta Journal Constitution, which urges prosecutors and state regulators to limit the use of lyrics in court as evidence. Now their argument seems to be that the lyrics aren't really, you know, quote unquote statements or autobiographical in such a way that would make them admissible as a party statement.

Later in the piece, quote, music executives argue that by treating rap lyrics as def facto confessions, Or Pure autobiography. Prosecutors misunderstand how art works. In many cases, the legal strategy plays especially for jurors and judges unfamiliar with rap on stereotypes of criminality among black people, interjecting implicit racial bias into proceedings.

According to Eric Nelson, professor in Liberal Arts at the University of Richmond and co-author of the book, rap on Trial Race Lyrics and Guilt in America, Mr. Nielsen says he has counted roughly 500 incidents of rap lyrics being used as evidence. 2017, but he says that's almost certainly an underestimate since his data is based on available information from a small percentage of cases that actually went to trial.

Meanwhile, non rap lyrics have been used as evidence only a handful of times he said unquote. . So I guess, how have these efforts gone? Well, in September of 2022, the state of California passed a law requiring courts to evaluate whether lyrics are risk of being more prejudicial to a jury than probative.

New Jersey and New York are considering more restrictive laws that would create rebuttable presumptions of inadmissibility of lyrics that prosecutors would somehow have to overcome to introduce them as evidence. . I see both sides of this one. Frankly, I understand that artists, when they writing songs, shouldn't be assumed to be speaking literally.

I mean, after all, I don't remember anyone investigating the man in Reno that Johnny Cash shot just to watch him die, for example. I mean, cash sang that song from inside a prison once, and no one took it literally. . Uh, however, I guess on the flip side, I think whatever arguments you might have against using song lyrics as admissions are probably equally applicable to statements on social media and as litigator in my own practice.

And Luke, you could tell me if you agree, we use so social media statements all the time against witnesses,

right? I mean, there are two separate questions, right? Whether evidence itself is admissible and then whether a jury or if a decision maker will find it persua. On the admissibility side, I don't think there's any question.

It's admissible unless you can show there's some sort of prejudice, but you know, how much value that piece of evidence is assigned is something entirely

different. Yeah, I think there's probably gonna be an argument about whether the, uh, you know, whether in this case, um, the author or in this case a rapper is playing a character when they.

And performed, uh, the lyrics, um, which, you know, is to say like, I, I didn't say this. The character Young Thug said this. Right. And those are different things. Um, I'd be interested to see, yeah, I'd be interested with like the pretrial motions and, and stuff on that are Yeah, absolutely.

I don't see it as any different than, um, you know, a written witness statement, for example, following an auto accident.

Uh, now it may be that these lyrics are, are done in such a way that they're, uh, entertainment, uh, but that's what cross-examination is for. And so if that statement or admission, uh, you know, is, is under the guise of, um, you know, entertainment, then that's something that can be brought on a cross-examination and thrown before a jury.

At the end of the day, uh, that's something that you, that you said, uh, that's admissible.

I tend to think so, I think the context is probably gonna matter a lot. I, I think, you know, it's the old law school example of, um, you know, someone says, uh, I, you know, I am the queen of England. Um, that's not admissible for purposes of proving that that person is the queen of England.

That's admissible for purposes of proving that person is insane. Um, I think that that's gonna be, you know, I don't know how useful these things are going to be, you know, unless a lyric or a post is, like I said, literally hey, Last week at five o'clock I committed a crime at said location and, and said time.

Um, I, I, I don't know how useful it's going to be in that regard, but I, I agree. I mean, I don't see why it'd be inadmissible, um, under any other context. On the other hand, I think you should. Be able to lie or embellish or joke around or tell fake stories, uh, online and I generally see the value of allowing for people to freely play around with ideas and concepts as long as nobody gets hurt openly.

And with all the talk about censorship lately with like, for example, the Musk acquisition of Twitter, which I, we've talked about in the past. Um, turning artistic. Expression into admissions against the declarant. Could, I think if widespread enough, maybe impose a form of self-censorship on artists could lead to a lot of boring, predictable, and I would call safe art, whether that's in the form of LA rap lyrics or fiction books.

I don't know. It'd be interesting to see how this, uh, especially with the new laws in New Jersey and California seeking to prevent this. Um, what kind of rulings do you get there? All right. On to the next.

Next. Uh, according to a Reuters report, German auto supplier Bosch agreed to pay 25 million to settle California's probe into the company's role in the diesel emissions scandals at Volkswagen and Fiat Chrysler. A little background on the diesel emission scandals. In 2015 Volkswagen admitted to using the legal software to cheat US pollution tests pleaded guilty as part of a 4.3 billion settlement reached with the Justice Department that overall cost the German automaker more than 30 billion in fines, penalties, and vehicle buyback costs.

For its part, Fiat Chrysler pleaded guilty to criminal conspiracy and agreed to pay 300 million to resolve a Justice Department emissions fraud investigation. This is after previously paying a 311 million civil penalty and 183 million in compensation to more than 63,000 people as part of a class action diesel lawsuit.

So where does Bosch come in? Diesel car owner suing Bosch. Claiming the company helped uh, design these secret defeat device software that allowed car makers to evade emissions rules and allege that Bosch was a knowing and active participant in the decade long scheme to chief pollution tests. Now, according to Reuters legal, California Attorney General, Rob Banas said open quote, Bosch's actions facilitated one of the biggest environmental crimes of our.

And today they are paying the price close. Bosch confirmed the settlement, but of course denies any liability. Bosch previously agreed to pay more than 400 million to US Diesel Volkswagen and Fiat Chrysler owners, and resolve claims from State Attorneys General over diesel s. What makes this particular settlement interesting is that under the proposed a.

Bosch must disclose to the state of California if it concludes that a manufacturer will use or has used software to evade emissions rules. Doesn't Bosch know that? Snitches get stitches? . So Jack, two things about this story. Number one, uh, the California Attorney General's quote about this being one of the biggest environmental crimes of our time.

You think that's overblowing it a little bit? And the other thing, what about this, uh, settlement? That requires Bosch to essentially tattle on its

clients. Yeah. I mean, is it one of the biggest environmental crimes of all time? I don't know. I don't know how you'd measure that. Maybe by like cubic units of CO2 emissions, or, I don't know if it is.

You know, in terms of dollars, the thing that jumps out to me, there would've been the. , uh, Chevron verdict in the, uh, Ecuadorian case that got Steven Dinger arrested and everything, which we covered in a prior episode. Um, but, uh, I, I mean I think it probably the biggest environmental crime of all time is probably, we don't know about it yet, so I don't, this might, you know, I don't, we wouldn't know either way.

Um, the settle, that settlement provision though, is requiring Bosch to report to snitch on its. Clients. I think it's interesting because, I mean, wouldn't that then open Bosch up to further liability from its own customers, um, for, you know, I guess exposing its clients to potential regulatory actions? Well, no

question.

And on top of that, I mean, how do you contract with your manufacturer? I mean, there's all sorts of IP issues, confidentiality issues, um, you know, breach of a fiduciary duty, uh, A whole, whole smorgasboard if things sort of comes to mind. How do you, how do you contract with a manufacturer? Now if you're Bosch, um, and saying, look, if we think that you're doing something wrong, uh, in terms of evading these emission standards, we are required to report

you.

Yeah. And I mean, if you're in California, why would you do business with Bo? Correct. Uh, you know, if, if you're gonna, Hey, we wanna buy a product from you, um, but it comes with this implicit risk that we're going to report you. To the state for buying our product? Um, would, I mean, as a consumer, I mean, wouldn't you be like, uh, no, I'm gonna look

elsewhere.

Yeah, that's 100% right. I don't know if Bosch, uh, you know, given its size, you know, what it, what it has in terms of, you know, competitors. But, uh, yeah, if I'm choosing between a company that has to report me, uh, to the feds and one that doesn't, you know, guess which one I'm going?

Right. I mean, and, and, and this is certainly, these people aren't, you know, waking up and deciding I'd like to commit a crime today.

Um, that's not what they're trying to do. I'm sure that they're just, they're, you know, if, if whatever this product is, this software allows them to score better on their emissions tests, I mean, I'm sure they're thinking, oh, well, great. I'll use it. You know, it's not like I'm trying to cheat these tests. I'm sure that most of these people don't realize that that's even what's happening.

It's just the product is allowing them to score better on their emissions test. So it sounds good to. Um, yeah, I don't know. It'd be interesting to see what.

Up next. This is kind of a quick one, but this is really just a fun one for me cause I like this kind of thing. It's an interesting dissent from Supreme Court Justice Gorsuch that I wanna hit on briefly. And the Supreme Court recently declined to review Arizona's use of eight person juries in criminal trials after criminal defendant named Ram.

Komi, uh, appealed the issue calling in into question the Williams versus Florida case from the seventies that allowed Florida to hold felony trials to only six jurors. And according to a law 360 report, I'm reading from scotus, declined to take the case on review and the challenge was specifically that the eight person criminal jury in that case was unconstitutional, but Justice Gorsuch filed a spicy diss.

He pointed out that the use of a 12 person criminal jury was a 400 year old tradition under English common law, and that the drafter the of the Constitution would've considered the need for a 12 person jury. So obvious and welle established by tradition and history that they didn't even need to specify for it in the document.

And apparently the Williams decision of the seventies was based in some part on research that supported the idea that six person groups deliberate the same way as 12 person. An idea of which has been called into questions since in which newer research controverts explicitly now gors, it's argued that the practice of using six person juries violates the Fifth Amendment jury trial requirements.

In part because a six person jury is not really big enough to encapsulate a variety of viewpoints and perspectives. Anyways, I just like when the justices are diving into centuries old English tos for precedent. I know that's where it comes from, obviously, but it's nice to be reminded of certain things people figured them out centuries ago, and there's just some wisdom in those types of traditions.

All right, from my last story, uh, Joe Biden's student Loan forgiveness program was struck down by Federal Court, Texas this week. The Political Action Group, job Creators Network found. , which is a long job Creator's network foundation. Okay. Filed a suit on behalf of two borrowers who do not qualify for the debt relief.

Judge Mark Pittman, who's a recent appointee, wrote the program is thus an unconstitutional exercise of Congress's legislative power and must be vacated and later wrote In this country, we are not ruled by an all powerful executive with a pen and a phone in a ruling that I'm sure he wasn't hoping the media outlets would pick up as a refresher on this, the Biden justification for the debt relief was actually a.

Nine 11 Bill called the Heroes Act, which was passed in 2003, um, and it was originally passed to provide relief to people who couldn't pay on their student debts as a result of various fallouts and secondary aspects of nine 11. And then also the war in Iraq. If I, if my memory serves, um, the Biden administration.

Has kind of stretched that law and a Secretary of Education is interpreted to apply to any scenario, whereas there is a quote unquote national emergency. So the national emergency, that was justification for the student Le Debt Relief in this case was of course the COVID 19 pandemic. Now, the Washington Post reports that about 26 million people have already applied for debt forgiveness thus far.

But as a result of the challenge, applications are. As of today, November 11th, when I'm recording the show, I've gotta say that's a bit curious timing. With the midterm elections having just been this past Tuesday. In any event, there has been a few lawsuits now that have addressed this mixed bags on the ruling.

Some are finding that there's no standing, some are taking the opposite position. So while Supreme Court hasn't moved yet, there are two separate issues that it could take up. The question of standing of the plaintiffs and the delegation of legislative power. to the executive via the executive order.

Look, I know that's kinda a a lot to download and digest, but I was wondering if you had any thoughts on the standing issue. Typically, there's no such thing as, you know, quote unquote taxpayer standing. Right? You know, a taxpayer can't sue the government because it doesn't like how its tax money is being spent.

In this case, it's not quite that. Different borrowers who are being either excluded or otherwise are having different tax liabilities because of the debt relief. Um, I don't know if you have any thoughts on what do you think the Supreme Court is gonna do with this type of challenge?

Yeah. I think what the Supreme Court is gonna do is defer to, um, is defer to, uh, these rulemaking bodies.

So IRS or whoever, you know, is overseeing those tax issues. Um, I mean, isn't that your sense Jack?

I don't know. I mean, we covered in an episode not long ago, um, recent rulings regarding, uh, IRS rulemaking, which have, which the Supreme Court has, you know, substantially. Uh, rolled back in certain cases. So it seems like there is sort of a shift towards rolling back the administrative state, um, and their ability to promulgate rules without explicit congressional guidance.

Um, and, and I think in a situation like this, I mean, you could see similar thinking being applied. I don't know.

Do you think that sort of, uh, I mean, is that politically motivated or is that grounded in, um, you know, ? Is that grounded in a solid legal. .

Well, it depends on whether you think the Supreme Court is political or not.

right, right, right. Um, and you know, your mileage may vary on that.

I mean, I know, and you've probably had a similar experience as me, I, you know, going through law school, right. I mean, the taking administrative law, I mean, that stuff is drilled into your head that, um, you know, courts are supposed to defer to these rule making bodies as opposed.

Um, you know, tell them what they ought to do, of course, because they are, these rulemaking bodies are the experts. Um, so the fact that, uh, the Supreme Court has, uh, felt comfortable, you know, sort of peeling away some of that authority, I think is really interesting and, and obviously is gonna be. Um, something that we need to keep an eye on

here.

I'm sure that we're gonna be covering this going forward.

Next up, for those of you who find insurance coverage issues fascinating. Oh, just me. A federal judge ruled that Harvard waited too long to demand that Zurich cover up to $15 million. Offenses from defending its race conscious admissions policies. In a high profile case now before the US Supreme Court, Harvard sought coverage from its primary insurer soon after a lawsuit was filed in 2014, which alleged that its adoption of race conscious admissions policies helped black and Hispanic applicants discriminate against Asian Americans.

In the lawsuit Zurich filed last year, Harvard said the cost of defending the student group's challenge and the related government investigation had already exceeded the 25 million policy limit, which had a 2.5 million deductible. Harvard said that defense costs exceeding those limits should have been covered by its secondary insurer, which was Zurich, but Zurich refused saying the policy required Harvard to give notice of a claim no later than January 30th, 2016.

Yet the university waited until May 23rd, 2017 to do so. Now, on the one hand, I get it, this is a black and white issue. Harvard has an obligation to provide notice in full compliance with the terms of its policy. On the other, I think it necessarily calls into question the purpose of notice altogether.

Presumably that's to guarantee that the carrier is aware of the. Indeed, Harvard's lawyers in this case, uh, said that Zurich surely knew about the high profile case and technical non-compliance with the notice requirement shouldn't provide Zurich with an escape hatch. However you come down on that, it represents a stark reminder for policy holders in claims made and reported policies.

Deadlines clearly matter. Policy holders must timely notify their carriers within the deadlines provide. Reliance on concepts such as constructive notice maybe won't be enough. Certainly you rely on that at your own peril. Um, Whatever the case may be. Uh, we know that even Harvard makes mistakes. Yeah. So I mean, in terms of, you know, what should Harvard have done?

I mean, it's, it's obvious the, the answer to that question is it should have timely given notice within the terms of set forth in its policy. Like that's, that's the right answer to this question. Now, whether that is. Whether notice, quote unquote, notice for, for purposes of that policy can be in the form of, you know, constructive notice.

Like the fact that this thing was in the news for months and was in front of the Supreme Court, like you mentioned, you know, did, did the excess carrier have constructive notice? I'm not licensed in Massachusetts obviously, but I, I would say that they have an argument for, uh, having put their carrier on constructing notice or that they knew or should have known of the, that this case was coming down the pipeline.

So I, I don't know what the ruling's gonna be, frankly, but I, I. to the extent that, um, if anyone's listening out there and, and wants to learn anything from this, it is, uh, read your policy and make sure that you're giving your, your, uh, your carrier notice or else you know, you could have potentially been wasting all that money you're paying for premiums.

All right. Thanks everyone. Uh, that's the show. Like I said, we're back. Uh, happy to be. For those of you that are returning after my long time away, uh, I appreciate that. I appreciate your patience. Like you said, I was on hiatus after, um, my, uh, my first kid was born. And, uh, for those of you that are new, welcome, uh, and you're here for the best part because the show is now dual hosted. So we have Luke Banky who's gonna be with us going forward, playing with the format a bit. Uh, the show's gonna be biweekly, but you know, you have two hosts now, so you only need half as many episodes. And, uh, beyond that, Luke, thank you for joining me. This is gonna be great. Um, for those of you that are listening, we'll talk to you in two weeks.

Excited to ride Sidecar with you, Jack .