July 11, 2025 • 40 mins
June Grasso speaks to Leon Fresco, a partner at Holland & Knight, Harold Krent, a professor at the Chicago-Kent College of Law and Susan Scafidi, a professor at Fordham Law School, about the top legal stories of the week.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
No matter how much the Trump administration may dislike it,
they cannot break it, they cannot ignore it. It is
the right of every child born in this country.
Speaker 3 (00:19):
The legal battle over President Trump's executive order on birthright
citizenship went all the way up to the Supreme Court
and is now back at the district courts where it started.
And on Thursday, a federal judge in New Hampshire placed
a new nationwide block on the order and certified a
class action lawsuit against the administration on behalf of all
(00:43):
children whose automatic citizenship could be jeopardized by the president's order.
Cody Wafsei of the ACLU is the lead attorney on
this class action lawsuit.
Speaker 2 (00:54):
The idea that the president can rewrite who is a
citizen and decide who gets to count as an American
is extremely dangerous and deeply deeply contrary to our national values.
Speaker 3 (01:07):
This case may be on a fast track back to
the Supreme Court. Joining me is Leon Fresco, a partner
at Honda Knight and the former head of the Office
of Immigration Litigation in the Obama administration. Leam at the
end of June. The Supreme Court in the birthright Citizenship
case limited the ability of federal judges to issue nationwide injunctions,
(01:31):
but it left open the path to reach the same
result with a class action lawsuit. Explain how this lawsuit
did just that.
Speaker 4 (01:40):
So this was the first of many cases where basically
litigates raced to the Court House and tried to get
a class certified that would encompass the entire nation. And
the judge here actually did certify a class. The judge
certified a class of all current and future persons who
are born honor after February twenty at twenty twenty five,
(02:04):
where the person's mother was unlawfully present in the United
States and the person's father was not a United States
citizen or lawful permanent residence, and then vice versa, the
same thing on the other side. So the government objected
to this and said, well, the Supreme Court stated that
they didn't want class certification to be used as an
end run around the nationwide injunction issue, to which this
(02:29):
court said, there's nationwide class actions all the time for
all kinds of issues, and the judge wasn't actually ordering
a quote unquote nationwide class action. The judge was just
saying that he was ordering a class action of people
who were born honor after February twenty, twenty twenty five
that were subject to this Birthright Citizenship Executive Order. So
(02:52):
if those people are in one state or another, it's
not his problem. He's just looking at it from the
perspective of is this a common class with typical claims?
And so the judge certified that class. Interestingly, the judge
did not include the parent, even though the litigants wanted
to include the parent in the class, because the judge said, look,
(03:12):
the problem with the parents is each parent is going
to suffer a different kind of harm from their kids
not receiving citizenship, and so that's not going to be
common to a class. So the judge was actually very
precise and thorough there, and the judge said, the only
thing that's common that you can form a class is
you get the passport or not. Essentially, so we're kind
(03:34):
of back to where we were before the Supreme Court's decision,
as the judge has stayed the order for seven days,
allowing for an appeal, is allowing the first Circuit to
be able to weigh in. I'm sure the first circuit
will approve of what this district court judge did, and
then the question will be, what, if anything, does the
Supreme Court do about this?
Speaker 3 (03:54):
In issuing the injunction, Judge Joseph Leplant, who by the way,
is a George W. Point said it wasn't even a
close call. Do you think his preliminary injunction and class
certification will pass muster at the Supreme Court?
Speaker 4 (04:11):
It's going to be a very interesting test from the
standpoint of does the Supreme Court really want to crack
down on anything nationwide? And will simply say, look, you
have to just have class actions that are not nationwide either.
But that's going to be very strange because, for instance,
let's say there's some products that's not working and causing
(04:34):
the same damage to every single person. Is there really
supposed to be eleven different class actions in different circuits
where they say, you know, everybody who's mechanism exploded in
the first circuit and everybody whose mechanism exploded in the
second circuit. That doesn't seem like it would make a
lot of sense. So why a class action with regard
(04:55):
to people affected by birthrights citizenship should be constrained a
particular circuit or a particular state doesn't seem to be
very compatible here. There's that and the fact that the
judge really took pains to not just willy nearly certify
a class, but go through the fact that the parents
didn't have these common and typical claims, but the kids
(05:17):
did have this one typical claim, which is they want
citizen chip and they aren't able to get it. Seems
to me very strong, and I don't know how the
Supreme Court would say that you can't certify a class
that would then operate nationally in a case like this,
But we'll have to wait and see.
Speaker 3 (05:34):
This looks like it's on a fast track to return
to the Supreme Court, and during the oral arguments in
the case, several of the justices indicated that they wanted
to rule quickly on the actual legality of the executive order.
Justice Neil Gorsuch said, how do we get to the
merits fast? Obviously they did not do that, But on
(05:57):
its return to the Supreme Court, do you think the
justices will actually decide the merits of Trump's executive order
on birthright citizenship.
Speaker 4 (06:07):
They could say that we will preserve the injunction and
we will take up very fast the merits of this
first thing in October when we come back, so they
could do that. They could also just issue one of
those stays that's basically a one page order that stays
the District Court's order. And if they do that, then
(06:28):
what that would mean is that the Birthright Citizenship Executive
Order will actually go into effect while the case is
working its way as a matter of the full merit,
through a final judgment in the District Court, through the
first Circuit, and back up to the Supreme Court. Because
there have already been two of these stay orders with
(06:49):
respect to eliminating temporary protected status and parole and being
able to deport people to any country you want to
be able to deport them to other than their home country,
that were decided with these very brief stays and not
really the merit discussions of the ramifications of making those decisions.
(07:10):
And I saw that former Ernie General Alberto Gonzalez said
that he didn't think that there were the votes right
now to say that the Birthright Citizenship Executive Order is unconstitutional,
and that's why the court pumped the issue. So if
he's right, then they might issue this state which would
(07:33):
be quite n upheaval to figure out then what happens
to these individuals during the time period that this case
is working its way up to the Supreme Court.
Speaker 3 (07:42):
That kind of stay would be against Supreme Court precedent,
But they have overturned president before, so we'll see. LeAnn,
I want to turn out of this federal trial in
Boston where several university associations are challenging the Trump administrations
cracked down on non citizen students and faculty who participated
in pro Palestinian demonstrations. They argue it's suppressing free speech
(08:07):
on campuses. The plaintiffs have singled out several activists by name,
including Columbia University graduate student mamou Khalil, who was the
first target of this crackdown and spent one hundred and
four days in federal immigration detention before being released.
Speaker 5 (08:25):
They tried to portray me as a violent person. They
tried to portray me as a terrorist, as some lunatic,
but not presenting any evidence, not presenting any shred of
credibility to their claims.
Speaker 3 (08:44):
This is the first case of its kind to actually
go to trial where the judge isn't just looking at
what happened to specific individuals, but rather as looking at
the policy now. The Trump administration denies that it has
any such policy and says that it's enforcing the immigration
laws to protect national security. The trial judge William Young
(09:05):
has said the trial is likely to center on the
question of whether non citizens legally in the country have
the same free speech rights as citizens. Is there case
law on that?
Speaker 6 (09:16):
Well, there actually is case law on that, and that
case law is pretty bad. There's a case called Haresiatis
versus Shaughnessy from the nineteen fifties, and it dealt with
actual lawful permanent residents of the United States, so not
non immigrant visa holders like student visa or visitor visa holders.
These were actual lawful permanent residents. And the issue was
(09:38):
there was a statute that said not just current Communists,
but even former members of the Communist Party could be deported.
And this was in the height of the Cold War,
and these folks argued, wait a second, I'm not even
in the Communist Party anymore. I've renounced my affiliation with
the Communist Party. And even if I was a Communist,
(09:59):
what differ would it make if I wasn't actually violently
seeking to overthrow the government? Why would I be deported
for my First Amendment values? And that court in nineteen
fifty two said no, in these statutes involving non citizens,
the First Amendment does not overcome the security concerns and
the legitimate security concerns of the government, even if the
(10:22):
person is a lawful permanent residence. So if the Supreme
Court actually upholds that doctrine here again in twenty twenty five,
then it will remain the same, which is that when
you're not a citizen of the United States, your First
Amendment right are not superior to the rights of the
government to be able to deport you for conduct that
(10:43):
they feel is deportable conduct. We shall see.
Speaker 3 (10:46):
Is a judge also going to consider whether the Secretary
of State is revoking these visas in good faith because
of concerns about foreign policy and national security?
Speaker 6 (10:57):
Yes, first, what First Amendment rights do the non sene
than have? But then number two, the judge may say, well, fine,
that's all fined in dandy. But if the adjudications here
are pretextual, and I can find that they're completely pretextual,
meaning there actually is no threat to foreign policy of
any kind, I can still halt these deportations.
Speaker 3 (11:19):
The trive will continue next week. And in yet another lawsuit,
Mamu Khalil has filed a twenty million dollar claim against
the Trump administration for false imprisonment. So many immigration cases.
Thanks so much, Leon. That's Leon Fresco of Holland and
Knight coming up next on the Bloomberg Law Show. The
(11:39):
stats are out on the Supreme Court's recent term. I'm
June Grosso and you're listening to Bloomberg. Justice Katanji Brown
Jackson has been a vocal critic of the Trump administration
this term. She's written strong dissents bemoaning Trump's attempts to
expand presidential authority, raising concerns about a life lack of
(12:00):
willingness to adhere to the rule of law, and accusing
her conservative colleagues of running the risk of a rooting
public trust in the impartiality of judicial decisions. That viewpoint
was apparent as she answered questions at an Indianapolis bar
association on Thursday.
Speaker 4 (12:18):
What keeps you up at night?
Speaker 7 (12:22):
I would say the state of our democracy.
Speaker 1 (12:32):
I would say.
Speaker 7 (12:33):
That I am really very interested in getting people to
focus and to invest and to pay attention to what
is happening in our country and in our government.
Speaker 3 (12:46):
So it comes as no surprise that Jackson was the
justice most often in dissent. This term joining me is
constitutional law scholar Harold Krent, a professor at the Chicago
Kent College of Law, how Scotus blows. Stats of the
term have come out, and forty two percent of the
Supreme Court's decisions were unanimous. And that's something that Chief
(13:08):
Justice John Roberts in particular likes to point to in
order to show how much the justices are in agreement.
But does that agreement really matter when in all the
controversial cases involving hot button issues like LGBTQ rights, religious rights,
those all fall down ideological lines.
Speaker 8 (13:29):
Six to three well be given and me, I think
as a reminder to us that it's still a court.
Yet members of the court can't agree with each other
in questions in terms of you know, air review, in
terms of the courts with appeals making mistake, which is
in terms of reconciling a split in the circuits. And
I think it's a good reminder that the Court is
a court, but that shouldn't obscure the fact that, as
(13:51):
you said, in the socially divisive cases, there's almost inevitably
a six' to three, split with some changes around the.
Speaker 3 (13:59):
Margins roberts was in the majority ninety five percent of the,
time the most of any of the, justices followed By
brett kavanaught eighty six percent And Amy Cony barrett at
eighty one.
Speaker 1 (14:09):
Percent do any.
Speaker 3 (14:11):
Of those numbers surprise, you just to tell you that
the middle of the court.
Speaker 8 (14:14):
Is, Ruling, no it doesn't surprise me at. All, obviously
those three justices do wield a lot of the power
on this current, court and they will do so for
the foreseeable. Future obviously there's some changes around the. MARGIN
i mean Sometimes justice corsicch sides with the, minority same
thing With Justice, barrett AND i think we've even Seen
Justice kagan occasionally trying to side with the more conservative
(14:38):
wing of the court in order TO i, think in her,
view probably try to establish more than middle.
Speaker 3 (14:43):
Ground, yeah what's gotten a lot of tension in the
legal press was That Justice kagan came in. Fourth she
was in the majority of seventy percent of the term's
non unanimous. Outcomes there was a thirteen percent drop in
agreement Between kagan And Justice Sonya, sotomayor and the agreements
Between keig and in conservative justices up twenty two points
(15:06):
With Justice alito and up twenty nine points With Justice.
Thomas some people, say, oh, well she's getting more, conservative
but is that really the case?
Speaker 8 (15:14):
NOW i think she tries to find common ground when she,
can and maybe that can be criticized as bet she's
sort of tempering her own views to that of trying
to help the institution gain a middle. Ground BUT i
think it is perhaps a positive institution, development as she
is least in my, view and some of her decisions
(15:35):
trying to establish that there is common ground amongst the
so called conservatives so called liberal, justices and not in all,
cases but in some ways she. Can't AND i don't
know if that'll have any kind of long lasting impact
or if it will change the trajectory of the, court
BUT i think that's her.
Speaker 3 (15:53):
Goal Justice Katanji Brown jackson had the honor of being
in the majority the least of all the justices at
seventy two, percent and she's written some biting.
Speaker 8 (16:04):
Descents she is carving out her role as being the
most progressive justice and the one least willing to compromise
with the rest of the. Court voices like that are
important to, hear but they're not necessarily positive ways to
galvanize a majority of the.
Speaker 3 (16:19):
Court my favorite part of the stat pack is seeing
which circuits get reversed the, most and this year The
Fourth circuit went from being the best to the, worst
or at least one of the. Worst from two thousand
and seven through twenty twenty, three it had the lowest
rate of being reversed sixty two point one, percent but
this term it jumped to a one hundred percent reversal.
(16:41):
Rate eight out of eight cases. Overturned any idea, WHY.
Speaker 8 (16:45):
I think a little bit is just. Uplip these variances
occur from time to. Time BUT i also think that
given the location Of Fourth, circuit they are centered where
so many federal government employees are, centered where there's a
lot of grants in turn terms OF hhs, Offices Social Security,
administration and so, forth that there's a lot of current
(17:06):
litigation against the tough, administration which is just center geographically
in that. District so it's not surprising that there's a
higher percentage of cases from The Fourth circuit that are
reaching The Supreme, court and of course it's a little
bit of a, blip but it's understandable that there's going
to be more cases that The Supreme court is going
to resolve against The Fourth. Circuit Fourth circuit is relatively ideologically,
(17:28):
balanced so it's not considered to be either a very
liberal or a very conservative. Court but nonetheless there's a
lot of these cases that have arisen, there and so
we're seeing intention between The Fourth circuit and The Supreme.
Speaker 3 (17:41):
Court the reversals of The Fourth circuit included some of
the blockbuster cases of the, term like the birthright citizenship,
case where The court made it harder for judges to
issue nationwide, injunctions the case where The court allowed religious
parents to opt their children out of lessons WHERE lgbtq
friendly books are, read and the case paving the way
(18:04):
For South carolina to exclude a planned parenthood affiliate from
its medicaid.
Speaker 1 (18:09):
Program all of.
Speaker 3 (18:10):
Those cases were six to three with the liberals. Dissenting
So i'm wondering if The Fourth circuit is more in
line with the liberals on The court than the conservatives
on the. Court is there a certain partisanship?
Speaker 8 (18:23):
THERE i would frame it that The Fourth circuit is
aligned with traditional conservative judicial. Principles that This court has
veered from those traditional conservative judicial, principles which is why
we're seeing the. GAP i think that That Fourth circuit
is cautious and it's trying to adhere to the sort
of judicial principles or judicial customs perspectives the way they've
(18:47):
understood them for a, generation and that's running against the
Current Supreme court's, position which seems to be far more
solicitous of both judicial power as well as presidential.
Speaker 3 (19:01):
Power it used to be that The Ninth circuit had
the most cases reviewed by The Supreme, court but now
it's The Fifth, circuit the most conservative. Circuit it had
thirteen cases taken up by The court this, term compared
to four from The Ninth, circuit and The Fifth circuit
was reversed in ten of the thirteen, Cases so has
(19:22):
it taken the place of The Ninth circuit as most.
Speaker 8 (19:25):
Reversed, well The Fifth circuit is known as the most
conservative but an activist conservative. Court The Ninth circuit has
been historically known as the most activist of progressive or liberal,
courts so it's not surprising that decisions from those two
circuits disproportionately go to The Supreme. Court and indeed we've
(19:45):
seen an interesting switch now in The Fifth, circuit because
The Fifth circuit led the charge against The biden administration
in some very surprising, cases including two delegation cases in
which The Supreme court struck them down this. Term and
the question is will they be as anti administration when
it comes time to review that which The trump administration is.
Doing and early records are, mixed so that's something to look.
(20:08):
TO i think that some of the ardor of The
Fifth circuit in terms of being anti administration will be.
Damp and now with the switch politically at the top.
Speaker 3 (20:15):
Of the, helm has The Fifth circuit been trying to
push the, envelope so to, speak and be more aggressive
in terms of conservative policies or.
Speaker 8 (20:26):
Jurisprudence, WELL I fisirka has been at the cusp in
terms of pushing against administrative, power power of the agencies to.
RULE i, mean for, instance in the telecommunications, case they
had sought to curb the power of The Federal Communications
commission to impose attacks on, telecoms and that of course was.
(20:49):
UPHELD i, Mean biden administration pursued that, plan but so
did The trump. Administration and so the question is will
the Fith circuit continue its sort of skepticism about administrative
power given That President trump is now a top of
the executive. Branch so time will tell whether they'll. Continue but,
(21:09):
clearly in case after, case particularly during The biden, administration
they challenged the legitimacy of the administrative, agencies you, know
in terms of the vaccine, policies in terms of the
student loans and.
Speaker 3 (21:22):
More when the justices take, cases they usually take them to,
reverse don't. THEY i, mean forty four out of the
fifty nine cases they took this term were.
Speaker 8 (21:31):
Reversed that's generally the, case but obviously more generally they
take cases when there's a split and the court needs
to resolve is split in the. Circuits so sometimes it's
just the matter which of the two cases they, take
because one case goes one way and one case goes the.
Other so sometimes those figures are a tad.
Speaker 3 (21:48):
MISLEADING a lot of the action this term has been
on the shadow or emergency, docket where The trump administration
has repeatedly been asking The Supreme court to lift lower
court orders while the case is Proceed just this, week
The court Gave trump the okay to move ahead with
mass layoffs of federal. Workers is this just part of
(22:11):
the trend of The court on the emergency docket lifting
lower court orders that blocked The trump. Agenda, Well i'm
of two.
Speaker 8 (22:19):
Minds about the most recent. DECISION i, mean what The
court did is removed as an injunction on the administration
from trying to carry out the, rift but it did
not say that the riff was appropriate or consistent With congressional.
Direction AND i think that was made clear as well
because of the fact That Justice kagan went along with
the majority allowing the administration's action to. Proceed and the
(22:43):
executive order says that the riff or the Reduction force
must proceed according to applicable. Law and the applicable, law of,
course Is congress's very detailed instructions for how agencies should.
Proceed AND i think the reason Why Justice kaikan did
join the majority was because we have yet to see
whether the administration will conform to the congressional blueprint for
(23:06):
hiding out the Reduction force or. Not and so, yes
The court is giving the benefit of the doubt the
administration and the spending would think that administration doesn't deserve
the benefit of the. Doubt BUT i think what the
court's action is, saying, well let's wait until there's a
merit's decision as to whether the applicable congressional rules were
followed before we actually tell the administration they can't move
(23:30):
forward in that. Way the administration they can't move forward
in that.
Speaker 3 (23:34):
Way, well all, along The court has been letting The
trump administration go ahead for. Now but the problem is
that getting to the merits of these cases take so,
long and by that time the damage is.
Speaker 1 (23:47):
Done people have been.
Speaker 8 (23:48):
Fired, yeah the court has been very, cavalier if you,
will in terms of balancing the. HARMS i think the
reduction enforced case is a good illustration of, that, because,
yes the government wants to save money and restructure the federal,
government and there is a loss if they can't do
that to what they consider to be the public. Good
but on the other, hand the dislocation and financial deprivations
(24:11):
that these employees may face should be, counted perhaps even more,
greatly and The court's not doing.
Speaker 3 (24:17):
That thanks for joining. Me how That's Professor Harold krent
of The Chicago Kent college Of law coming up. Next
While lululemon is Suing. Costco I'm June grosso and you're
listening To bloomberg.
Speaker 1 (24:28):
Colors if you go.
Speaker 3 (24:30):
To Hashtag lululemon, dupes you'll find social media influencers promoting
knockoffs or dupes of their, apparel like, hoodies, jackets and
pans At costco that look authentic but sell for a
fraction of the. Price, Well lululemon is making a federal
case out of, it Taking costco to court for copying their.
(24:52):
Designs my guest Is Susan, scaffiti a professor At Fordham
Law school and director of The Fashion Law. Institute susan
a very basic question to start off, with are dupes
what we used to call?
Speaker 1 (25:05):
Knockoffs we have.
Speaker 9 (25:07):
Definitely seen an evolution in, nomenclature, Right so it used
to be counterfeits and, knockoffs and then replicas and then
reps and now. Dupes AND i, think, honestly part of
the story of the public accepting them more is they
sound cute and. Adorable now you know you could have
a pet, dupe you cannot have a pet.
Speaker 3 (25:25):
Counterfeit, well, also social media right is blasting out where
to find these precisely dupes are being sold all. Over
is selling a dupe?
Speaker 9 (25:35):
Illegal, well it, depends. Right dupe like knockoff, before it
is a broad ambigus term when they are very, exact
and in those cases in which THE ip is, protected
yes that is. Illegal but if we're getting a little
further away from the, original or if the original itself
is not protected UNDER us, law then no it is.
(25:56):
Not so we do indeed have a lot of gray area,
here and it's not a chic little chucoal or, dove
something a lot more sinister from the brand's.
Speaker 3 (26:03):
Perspectus Lulu, lemon of, Course pioneered Yoga ware tell us
what it's Accusing costco.
Speaker 9 (26:09):
Of So Lula lemon is claiming that the things that
have been copied and are being sold At costco do
in fact cross the line into. Illegal and what's so
interesting about this, Case, june is that they have gone
through the entire list of POTENTIAL ip claims and are
basically throwing everything except copyright At. Costco they're looking at,
(26:34):
patents as specifically design, patent because they do have a
design patent on their scuba design for. Hoodies they are
looking at trade dress protection that subset of trademark that focuses,
on among other, things product. Design, Right so when a
product design itself is so, iconic like the red souls
On lobaton's or the ermez, berkeens the design is so
(26:57):
iconic that it served as its own sorce indicator that
can be. Protected so they're claiming that kind of protection
in the case of Their define. Jackets then they're claiming
unregistered protection for men's. Trousers they're claiming wordmarks in the
case of, scuba and a wordmark for the colored tidewater
(27:17):
teal that they say is proprietary to, them and then
they're throwing in some state law unfair competition. Claims so
they are really going across the, board looking At costco
in house brands Like, kirkland but also other brands being
sold At costco like Dan skin And jockey in this.
Case so they are really taking a very broad brush
(27:38):
approach to the items That costco is selling that Lu
lemon believes are protected intellectual.
Speaker 3 (27:44):
Property costco is known for That kirkland, brand and people
often say that their products are high quality but sold
for much less than name brand. Products what kind of
a price differential are we talking about with Lou.
Speaker 9 (28:00):
Apparel, well in the case of the men's, trousers they were,
saying you're eight dollars versus one hundred and eighteen, dollars
so quite a bit, less which has actually been consistent
with the prices of knockoffs over the. Years we always
say somewhere between five and twenty percent when we're looking
at knockoffs across the.
Speaker 3 (28:15):
Board that is quite a big price, Difference, Susan what
Would Lulu lemon have to prove if this case went to?
Trial in these, cases.
Speaker 9 (28:23):
The first step is going to have to be convincing
of the jury that the claims That Lula lemon is
making are actually valid with regard to What Lulu lemon.
Owns now they've done their, homework they have warmed, up
stretched and prepared for this particular case by registering some
of those, marks trademarks and design. Patents so in the
case of a, registration there's already an, assumption but it's
(28:45):
an assumption that can be. Overturned So lululemon is going
to have to be able to prove that these particular
marks are indeed source, indicators or in the case of design,
patents that they are indeed new these. Designs with regard
to the things that are not, registered they have a
somewhat higher far to pass in order to convince the
jury that they deserve. Protection but if they can do,
(29:06):
that then they actually have to be able to show
that The costco items are close enough the Lu lemon
items that they actually. Infringe in other, words it's a
two step. Process is THE ip valid and if, so
are The costco items? Infringing and they do need to
persuade a jury this is a jury.
Speaker 3 (29:25):
Claim what about the fact that you, know there's that
Hashtag lululemon dupes and apparently some dupes are being sold On, Amazon,
Walmart target and. Elsewhere so why Is Lula.
Speaker 1 (29:38):
Lemon focusing on Suing?
Speaker 3 (29:40):
Costco and you, know Will costco be able to, say but,
look they're selling these.
Speaker 9 (29:45):
Elsewhere, Well costco will be able to do. That but of,
course when you're engaged in grand, protection you need to make.
Choices no, company not even the very largest wealthiest, ones
have unlimited legal, budgets much to the sadness of their.
Lawyers do they make. Choice AND i think Choosing costco
was smart in some. Ways it's one stop. Shopping they're
suing that Only costco over its house, brand but they're
(30:07):
suing over some of the other brands That costco, carries
and they are suing an entity that is highly recognizable
and trusted by The american. Public so it's going to
get attention when they go After, costco much the way
it got attention When rimes, said, yes we know there
are lots of Counterfeit burgen's out, there but we're going
after the work in The Walmart. Burgen so if that
(30:29):
kind of press release aspect to a complaint is relevant,
here they want the attention on this. Case they may
not win the hearts and minds of. Consumers they may
not change this social tide toward the acceptance of dupes
as something to be celebrated rather than, hidden but they
will be able to convince some people that these dupes
(30:52):
are not a good, thing and they will also be
able to send a warning to vendors across the board
That lululemon is not to be messed. With of, Course
Lulu lemon has a history of bringing other lawsuits in the,
past so this has been a long term strategy for
them to try to become a harder, target if you, Will.
Speaker 1 (31:09):
And what happened with the copy of The Birken.
Speaker 9 (31:11):
Bag, well they're no longer available for sale At. Walmart
so let's assume that one has, settled which IS i
think the likelihood here is that we will get a.
Settlement it would be from a legal, respective wonderful to
see what a jury thinks and then what mappellate court
thinks about how close is too close in these, Cases
but more than likely we will get a. Settlement if
this In, europe of, course this would be a very short.
(31:33):
Complaint we would simply have that other category of design,
protection so we wouldn't be looking separately at trademarks and
patents and asking whether the law applies in these. Cases
we would go straight to design protection and be done with.
Speaker 1 (31:48):
It just suppose it does get to.
Speaker 3 (31:50):
Trial is it an uphill battle For lululemon to convince a.
Speaker 9 (31:54):
JURY i think it's going to vary amongst the different styles.
CLAIMED i think for the registered trade dress and registered design,
patterns that's going to be an easier. Cell for the
claims of unregistered, protection like for the MEN'S abc trousers
and The tidewater teals, color it's going to be a
little more difficult but not, Impossible and Does.
Speaker 3 (32:15):
Lula lemon have to prove that consumers are confused by the.
Speaker 9 (32:19):
Dupes with regard to the trademark related, Claims so the
trade dressed, claim they do have to prove likelihood of consumer,
confusion which is why something like Hashtag lululemon dupe is
maybe not helpful To Lulu. Lemon it certainly fuels the
fire to go after these, dupes but it's also saying
that consumers may not be, confused at least at point of.
(32:43):
Sale now there's always post seal. Confusion there's the concern
that consumers will see others wearing the dupes and think
that They're. Lululemon so there's that form of consumer confusion
that might be easier to prove in the era of
Hashtag lululemon, dupes but it's problematic consumers are not actually.
Confused you. Know it's interesting in that Regard june is
(33:04):
That lululemon it actually has a trademark application pending for
the Phrase lululemon. Dupe in the context of retail, stores
they haven't said exactly how they'll use, it and they
don't have to do that, yet and the trademark has
not yet. Issued they filed the application back In, december
but they're obviously thinking about playing in this field in
(33:25):
another way as.
Speaker 3 (33:26):
Well you, say most of these cases are, settled but
is a lot of money spent just reaching the point of?
Speaker 1 (33:33):
Settlement what are legal fees?
Speaker 9 (33:35):
Like? Oh of, course just developing this complaint with a
dozen different claims has taken a lot of, time and
surely there has been some conversation between the companies in
advance of. This so it has already been an expensive.
Process it may be worthwhile because again it is a
legal process and a public relations. Process you, know if
(33:57):
it's one thing that a company that makes yoga pants
familiar with its, inversions AND i think they would really
like to be able to invert the public's perception of.
Dupes that's really the goal here from a public, perspective
much the way that just as you, know a few years,
Ago lululemon set up a dupe swap in a mall
In Los angeles and, said, look bring us your, dupe any,
(34:19):
Brand we will give you genuine Aligned lululemon. Trousers they
are so great that you'll be able to tell the difference,
immediately and you will Become lululemon. Fans so they are
playing both a legal game and an extra legal game
as part of their brand protection. Strategy and it's something
that they've done for. Years so if they can start
(34:40):
to again invert the perception of, dupes maybe restore them
to their former sub rosa, underground slitely shameful, status or
at the very least convince people that Lu lemon products
are of higher quality so that they can recapture some
of the folks who would have instead gone to cost or.
Elsewhere that's going to be a win without ever getting
(35:03):
as far as a.
Speaker 3 (35:03):
JURY i remember when if you had a, knockoff you
hid the fact that it was a. Knockoff you tried
to pass it off.
Speaker 1 (35:09):
As the real.
Speaker 3 (35:10):
Thing nowadays they don't care.
Speaker 9 (35:13):
Exactly there has been a huge shift in perception over fifteen.
Years it used to be that brands didn't want to
talk about counterfeits or. Knockoffs then they finally acknowledged the.
Problem but CONSUMERS i have also gone from hiding the
fact that their items were knockoffs or trying to pass
them off as the real, thing to bragging about them
on social. Media and that is actually of almost greater.
(35:37):
Concern the law hasn't changed a, lot but consumer perceptions has.
Changed so the law still is not great in THE
us with regard to protecting, fashion but there are these
bits and pieces of law that can protect fashion a little.
Bit but the, perception the social norms have changed, dramatically you, Know.
(35:58):
Jane in my, CLASSES i tell my students that when
we're dealing with, law we're dealing with it at several.
Levels we think about black letter law when we go
to law, school things that come out of legislatures and.
Courts but then there's also, rules things like in the fashion,
context office dress codes or school dress. Codes but at
the most, basic, simple diffuse, level there are social. Norms
(36:18):
sometimes those social norms are subsequently written into law what's
decent or, indecent for, Example but social norms are really
powerful in terms of controlling how we, dressed how we
perceive what we, dress how we perceive what other people.
Dress and we've seen a shift in social norms. Here
we haven't seen a shift into. Law we've seen a
shift in the norms so that it went from being
(36:41):
knockoffs are bad and shameful and cheap and to be
hidden to knock offs there to be, celebrated and that's
part of What Lulu lemon is addressing in this.
Speaker 3 (36:50):
Case In, December benefit lost a lawsuit TO elf over
their last and role, mascara which is six dollars can
To benefits twenty nine dollars.
Speaker 1 (37:02):
Misscara does that have any relevance to this.
Speaker 9 (37:05):
Case it's another trade dress. Lawsuit because the actual WORD
elf was right on, there there was an undermining of
the question of likelihood of consumer. Confusion so here well
to back, up when we're dealing with, counterfeits when we're
dealing with substantially identical copies of trademarks that we can.
Identify so if we were dealing with copies of the Wordmark,
(37:27):
lululemon or if we were dealing with copies of its
little symbol that looks a little bit like an, omega,
right that would be. Easy there's no question of whether
or not consumers are. Confused we just assume that if
we're dealing with those substantially identical. Copies when we move
into the realm of trade, dress and we are talking
about infringement rather than, counterfeitings so we're dealing with things
(37:51):
that are not necessarily quite as identical but merely confuse the.
Consumer then, yes that likelihood of consumer confusion does have
to be proven By lululemon in this, case in other,
words by the. Plaintiff and that's a little bit, tougher
it's a little bit of extra work that has to be.
Done it's why this case is. Interesting it's why Lul
(38:13):
lemon is going for full on four waste threats in this.
Regard they're not going for easy. Things they're not going
for counterfeits that would not probably be sold at costco
the copies of the, signs the symbols that we all
recognize easily as. Trademarks they're going for product configuration trade. Dress,
(38:34):
Right so there are two kinds of trade. Dress there's product,
packaging so the shape of a coke bottle or the
shape of some shampoo. Bottles and then there's the product.
Design and that's where fashion has to live because we
get so little protections on the three dimensional aspects of
a garment. Generally so if we are going to claim
trademark beyond the, label beyond the, logo we're looking at
(38:57):
product configuration trade. Dress we are going to have to show,
that first of, all consumers recognize that trade dress as
a source. Indicator it's not just a great looking warm up,
jacket it's one that looks Like, lululemon one that we
recognize As, lululemon just on the basis of curved. Themes,
Right so we have to be able to prove that
(39:18):
consumers see What lulemon says consumers, see and then we
have to show that those consumers are confused when they
see a. Knockoff and it's not, easy it's not, impossible
but it is definitely going to be a, battle, or.
Speaker 3 (39:32):
As you, say perhaps a. Settlement always great to have you, On,
Susan thanks so. Much That's Professor Susan scaffiti Of Fordham Law.
Speaker 1 (39:40):
School and that's it for this edition Of The Bloomberg Law.
Speaker 3 (39:43):
Show remember you can always get the latest legal news
on Our Bloomberg Law. Podcast you can find them On Apple,
Podcasts spotify and at www Dot bloomberg dot, com slash
Podcast Slash, law and remember to tune Into The Bloomberg
Law show every, weeknight ten Pm Wall Street. Time I'm
June grosso and you're listening To bloomberg
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
No matter how much the Trump administration may dislike it,
they cannot break it, they cannot ignore it. It is
the right of every child born in this country.
Speaker 3 (00:19):
The legal battle over President Trump's executive order on birthright
citizenship went all the way up to the Supreme Court
and is now back at the district courts where it started.
And on Thursday, a federal judge in New Hampshire placed
a new nationwide block on the order and certified a
class action lawsuit against the administration on behalf of all
(00:43):
children whose automatic citizenship could be jeopardized by the president's order.
Cody Wafsei of the ACLU is the lead attorney on
this class action lawsuit.
Speaker 2 (00:54):
The idea that the president can rewrite who is a
citizen and decide who gets to count as an American
is extremely dangerous and deeply deeply contrary to our national values.
Speaker 3 (01:07):
This case may be on a fast track back to
the Supreme Court. Joining me is Leon Fresco, a partner
at Honda Knight and the former head of the Office
of Immigration Litigation in the Obama administration. Leam at the
end of June. The Supreme Court in the birthright Citizenship
case limited the ability of federal judges to issue nationwide injunctions,
(01:31):
but it left open the path to reach the same
result with a class action lawsuit. Explain how this lawsuit
did just that.
Speaker 4 (01:40):
So this was the first of many cases where basically
litigates raced to the Court House and tried to get
a class certified that would encompass the entire nation. And
the judge here actually did certify a class. The judge
certified a class of all current and future persons who
are born honor after February twenty at twenty twenty five,
(02:04):
where the person's mother was unlawfully present in the United
States and the person's father was not a United States
citizen or lawful permanent residence, and then vice versa, the
same thing on the other side. So the government objected
to this and said, well, the Supreme Court stated that
they didn't want class certification to be used as an
end run around the nationwide injunction issue, to which this
(02:29):
court said, there's nationwide class actions all the time for
all kinds of issues, and the judge wasn't actually ordering
a quote unquote nationwide class action. The judge was just
saying that he was ordering a class action of people
who were born honor after February twenty, twenty twenty five
that were subject to this Birthright Citizenship Executive Order. So
(02:52):
if those people are in one state or another, it's
not his problem. He's just looking at it from the
perspective of is this a common class with typical claims?
And so the judge certified that class. Interestingly, the judge
did not include the parent, even though the litigants wanted
to include the parent in the class, because the judge said, look,
(03:12):
the problem with the parents is each parent is going
to suffer a different kind of harm from their kids
not receiving citizenship, and so that's not going to be
common to a class. So the judge was actually very
precise and thorough there, and the judge said, the only
thing that's common that you can form a class is
you get the passport or not. Essentially, so we're kind
(03:34):
of back to where we were before the Supreme Court's decision,
as the judge has stayed the order for seven days,
allowing for an appeal, is allowing the first Circuit to
be able to weigh in. I'm sure the first circuit
will approve of what this district court judge did, and
then the question will be, what, if anything, does the
Supreme Court do about this?
Speaker 3 (03:54):
In issuing the injunction, Judge Joseph Leplant, who by the way,
is a George W. Point said it wasn't even a
close call. Do you think his preliminary injunction and class
certification will pass muster at the Supreme Court?
Speaker 4 (04:11):
It's going to be a very interesting test from the
standpoint of does the Supreme Court really want to crack
down on anything nationwide? And will simply say, look, you
have to just have class actions that are not nationwide either.
But that's going to be very strange because, for instance,
let's say there's some products that's not working and causing
(04:34):
the same damage to every single person. Is there really
supposed to be eleven different class actions in different circuits
where they say, you know, everybody who's mechanism exploded in
the first circuit and everybody whose mechanism exploded in the
second circuit. That doesn't seem like it would make a
lot of sense. So why a class action with regard
(04:55):
to people affected by birthrights citizenship should be constrained a
particular circuit or a particular state doesn't seem to be
very compatible here. There's that and the fact that the
judge really took pains to not just willy nearly certify
a class, but go through the fact that the parents
didn't have these common and typical claims, but the kids
(05:17):
did have this one typical claim, which is they want
citizen chip and they aren't able to get it. Seems
to me very strong, and I don't know how the
Supreme Court would say that you can't certify a class
that would then operate nationally in a case like this,
But we'll have to wait and see.
Speaker 3 (05:34):
This looks like it's on a fast track to return
to the Supreme Court, and during the oral arguments in
the case, several of the justices indicated that they wanted
to rule quickly on the actual legality of the executive order.
Justice Neil Gorsuch said, how do we get to the
merits fast? Obviously they did not do that, But on
(05:57):
its return to the Supreme Court, do you think the
justices will actually decide the merits of Trump's executive order
on birthright citizenship.
Speaker 4 (06:07):
They could say that we will preserve the injunction and
we will take up very fast the merits of this
first thing in October when we come back, so they
could do that. They could also just issue one of
those stays that's basically a one page order that stays
the District Court's order. And if they do that, then
(06:28):
what that would mean is that the Birthright Citizenship Executive
Order will actually go into effect while the case is
working its way as a matter of the full merit,
through a final judgment in the District Court, through the
first Circuit, and back up to the Supreme Court. Because
there have already been two of these stay orders with
(06:49):
respect to eliminating temporary protected status and parole and being
able to deport people to any country you want to
be able to deport them to other than their home country,
that were decided with these very brief stays and not
really the merit discussions of the ramifications of making those decisions.
(07:10):
And I saw that former Ernie General Alberto Gonzalez said
that he didn't think that there were the votes right
now to say that the Birthright Citizenship Executive Order is unconstitutional,
and that's why the court pumped the issue. So if
he's right, then they might issue this state which would
(07:33):
be quite n upheaval to figure out then what happens
to these individuals during the time period that this case
is working its way up to the Supreme Court.
Speaker 3 (07:42):
That kind of stay would be against Supreme Court precedent,
But they have overturned president before, so we'll see. LeAnn,
I want to turn out of this federal trial in
Boston where several university associations are challenging the Trump administrations
cracked down on non citizen students and faculty who participated
in pro Palestinian demonstrations. They argue it's suppressing free speech
(08:07):
on campuses. The plaintiffs have singled out several activists by name,
including Columbia University graduate student mamou Khalil, who was the
first target of this crackdown and spent one hundred and
four days in federal immigration detention before being released.
Speaker 5 (08:25):
They tried to portray me as a violent person. They
tried to portray me as a terrorist, as some lunatic,
but not presenting any evidence, not presenting any shred of
credibility to their claims.
Speaker 3 (08:44):
This is the first case of its kind to actually
go to trial where the judge isn't just looking at
what happened to specific individuals, but rather as looking at
the policy now. The Trump administration denies that it has
any such policy and says that it's enforcing the immigration
laws to protect national security. The trial judge William Young
(09:05):
has said the trial is likely to center on the
question of whether non citizens legally in the country have
the same free speech rights as citizens. Is there case
law on that?
Speaker 6 (09:16):
Well, there actually is case law on that, and that
case law is pretty bad. There's a case called Haresiatis
versus Shaughnessy from the nineteen fifties, and it dealt with
actual lawful permanent residents of the United States, so not
non immigrant visa holders like student visa or visitor visa holders.
These were actual lawful permanent residents. And the issue was
(09:38):
there was a statute that said not just current Communists,
but even former members of the Communist Party could be deported.
And this was in the height of the Cold War,
and these folks argued, wait a second, I'm not even
in the Communist Party anymore. I've renounced my affiliation with
the Communist Party. And even if I was a Communist,
(09:59):
what differ would it make if I wasn't actually violently
seeking to overthrow the government? Why would I be deported
for my First Amendment values? And that court in nineteen
fifty two said no, in these statutes involving non citizens,
the First Amendment does not overcome the security concerns and
the legitimate security concerns of the government, even if the
(10:22):
person is a lawful permanent residence. So if the Supreme
Court actually upholds that doctrine here again in twenty twenty five,
then it will remain the same, which is that when
you're not a citizen of the United States, your First
Amendment right are not superior to the rights of the
government to be able to deport you for conduct that
(10:43):
they feel is deportable conduct. We shall see.
Speaker 3 (10:46):
Is a judge also going to consider whether the Secretary
of State is revoking these visas in good faith because
of concerns about foreign policy and national security?
Speaker 6 (10:57):
Yes, first, what First Amendment rights do the non sene
than have? But then number two, the judge may say, well, fine,
that's all fined in dandy. But if the adjudications here
are pretextual, and I can find that they're completely pretextual,
meaning there actually is no threat to foreign policy of
any kind, I can still halt these deportations.
Speaker 3 (11:19):
The trive will continue next week. And in yet another lawsuit,
Mamu Khalil has filed a twenty million dollar claim against
the Trump administration for false imprisonment. So many immigration cases.
Thanks so much, Leon. That's Leon Fresco of Holland and
Knight coming up next on the Bloomberg Law Show. The
(11:39):
stats are out on the Supreme Court's recent term. I'm
June Grosso and you're listening to Bloomberg. Justice Katanji Brown
Jackson has been a vocal critic of the Trump administration
this term. She's written strong dissents bemoaning Trump's attempts to
expand presidential authority, raising concerns about a life lack of
(12:00):
willingness to adhere to the rule of law, and accusing
her conservative colleagues of running the risk of a rooting
public trust in the impartiality of judicial decisions. That viewpoint
was apparent as she answered questions at an Indianapolis bar
association on Thursday.
Speaker 4 (12:18):
What keeps you up at night?
Speaker 7 (12:22):
I would say the state of our democracy.
Speaker 1 (12:32):
I would say.
Speaker 7 (12:33):
That I am really very interested in getting people to
focus and to invest and to pay attention to what
is happening in our country and in our government.
Speaker 3 (12:46):
So it comes as no surprise that Jackson was the
justice most often in dissent. This term joining me is
constitutional law scholar Harold Krent, a professor at the Chicago
Kent College of Law, how Scotus blows. Stats of the
term have come out, and forty two percent of the
Supreme Court's decisions were unanimous. And that's something that Chief
(13:08):
Justice John Roberts in particular likes to point to in
order to show how much the justices are in agreement.
But does that agreement really matter when in all the
controversial cases involving hot button issues like LGBTQ rights, religious rights,
those all fall down ideological lines.
Speaker 8 (13:29):
Six to three well be given and me, I think
as a reminder to us that it's still a court.
Yet members of the court can't agree with each other
in questions in terms of you know, air review, in
terms of the courts with appeals making mistake, which is
in terms of reconciling a split in the circuits. And
I think it's a good reminder that the Court is
a court, but that shouldn't obscure the fact that, as
(13:51):
you said, in the socially divisive cases, there's almost inevitably
a six' to three, split with some changes around the.
Speaker 3 (13:59):
Margins roberts was in the majority ninety five percent of the,
time the most of any of the, justices followed By
brett kavanaught eighty six percent And Amy Cony barrett at
eighty one.
Speaker 1 (14:09):
Percent do any.
Speaker 3 (14:11):
Of those numbers surprise, you just to tell you that
the middle of the court.
Speaker 8 (14:14):
Is, Ruling, no it doesn't surprise me at. All, obviously
those three justices do wield a lot of the power
on this current, court and they will do so for
the foreseeable. Future obviously there's some changes around the. MARGIN
i mean Sometimes justice corsicch sides with the, minority same
thing With Justice, barrett AND i think we've even Seen
Justice kagan occasionally trying to side with the more conservative
(14:38):
wing of the court in order TO i, think in her,
view probably try to establish more than middle.
Speaker 3 (14:43):
Ground, yeah what's gotten a lot of tension in the
legal press was That Justice kagan came in. Fourth she
was in the majority of seventy percent of the term's
non unanimous. Outcomes there was a thirteen percent drop in
agreement Between kagan And Justice Sonya, sotomayor and the agreements
Between keig and in conservative justices up twenty two points
(15:06):
With Justice alito and up twenty nine points With Justice.
Thomas some people, say, oh, well she's getting more, conservative
but is that really the case?
Speaker 8 (15:14):
NOW i think she tries to find common ground when she,
can and maybe that can be criticized as bet she's
sort of tempering her own views to that of trying
to help the institution gain a middle. Ground BUT i
think it is perhaps a positive institution, development as she
is least in my, view and some of her decisions
(15:35):
trying to establish that there is common ground amongst the
so called conservatives so called liberal, justices and not in all,
cases but in some ways she. Can't AND i don't
know if that'll have any kind of long lasting impact
or if it will change the trajectory of the, court
BUT i think that's her.
Speaker 3 (15:53):
Goal Justice Katanji Brown jackson had the honor of being
in the majority the least of all the justices at
seventy two, percent and she's written some biting.
Speaker 8 (16:04):
Descents she is carving out her role as being the
most progressive justice and the one least willing to compromise
with the rest of the. Court voices like that are
important to, hear but they're not necessarily positive ways to
galvanize a majority of the.
Speaker 3 (16:19):
Court my favorite part of the stat pack is seeing
which circuits get reversed the, most and this year The
Fourth circuit went from being the best to the, worst
or at least one of the. Worst from two thousand
and seven through twenty twenty, three it had the lowest
rate of being reversed sixty two point one, percent but
this term it jumped to a one hundred percent reversal.
(16:41):
Rate eight out of eight cases. Overturned any idea, WHY.
Speaker 8 (16:45):
I think a little bit is just. Uplip these variances
occur from time to. Time BUT i also think that
given the location Of Fourth, circuit they are centered where
so many federal government employees are, centered where there's a
lot of grants in turn terms OF hhs, Offices Social Security,
administration and so, forth that there's a lot of current
(17:06):
litigation against the tough, administration which is just center geographically
in that. District so it's not surprising that there's a
higher percentage of cases from The Fourth circuit that are
reaching The Supreme, court and of course it's a little
bit of a, blip but it's understandable that there's going
to be more cases that The Supreme court is going
to resolve against The Fourth. Circuit Fourth circuit is relatively ideologically,
(17:28):
balanced so it's not considered to be either a very
liberal or a very conservative. Court but nonetheless there's a
lot of these cases that have arisen, there and so
we're seeing intention between The Fourth circuit and The Supreme.
Speaker 3 (17:41):
Court the reversals of The Fourth circuit included some of
the blockbuster cases of the, term like the birthright citizenship,
case where The court made it harder for judges to
issue nationwide, injunctions the case where The court allowed religious
parents to opt their children out of lessons WHERE lgbtq
friendly books are, read and the case paving the way
(18:04):
For South carolina to exclude a planned parenthood affiliate from
its medicaid.
Speaker 1 (18:09):
Program all of.
Speaker 3 (18:10):
Those cases were six to three with the liberals. Dissenting
So i'm wondering if The Fourth circuit is more in
line with the liberals on The court than the conservatives
on the. Court is there a certain partisanship?
Speaker 8 (18:23):
THERE i would frame it that The Fourth circuit is
aligned with traditional conservative judicial. Principles that This court has
veered from those traditional conservative judicial, principles which is why
we're seeing the. GAP i think that That Fourth circuit
is cautious and it's trying to adhere to the sort
of judicial principles or judicial customs perspectives the way they've
(18:47):
understood them for a, generation and that's running against the
Current Supreme court's, position which seems to be far more
solicitous of both judicial power as well as presidential.
Speaker 3 (19:01):
Power it used to be that The Ninth circuit had
the most cases reviewed by The Supreme, court but now
it's The Fifth, circuit the most conservative. Circuit it had
thirteen cases taken up by The court this, term compared
to four from The Ninth, circuit and The Fifth circuit
was reversed in ten of the thirteen, Cases so has
(19:22):
it taken the place of The Ninth circuit as most.
Speaker 8 (19:25):
Reversed, well The Fifth circuit is known as the most
conservative but an activist conservative. Court The Ninth circuit has
been historically known as the most activist of progressive or liberal,
courts so it's not surprising that decisions from those two
circuits disproportionately go to The Supreme. Court and indeed we've
(19:45):
seen an interesting switch now in The Fifth, circuit because
The Fifth circuit led the charge against The biden administration
in some very surprising, cases including two delegation cases in
which The Supreme court struck them down this. Term and
the question is will they be as anti administration when
it comes time to review that which The trump administration is.
Doing and early records are, mixed so that's something to look.
(20:08):
TO i think that some of the ardor of The
Fifth circuit in terms of being anti administration will be.
Damp and now with the switch politically at the top.
Speaker 3 (20:15):
Of the, helm has The Fifth circuit been trying to
push the, envelope so to, speak and be more aggressive
in terms of conservative policies or.
Speaker 8 (20:26):
Jurisprudence, WELL I fisirka has been at the cusp in
terms of pushing against administrative, power power of the agencies to.
RULE i, mean for, instance in the telecommunications, case they
had sought to curb the power of The Federal Communications
commission to impose attacks on, telecoms and that of course was.
(20:49):
UPHELD i, Mean biden administration pursued that, plan but so
did The trump. Administration and so the question is will
the Fith circuit continue its sort of skepticism about administrative
power given That President trump is now a top of
the executive. Branch so time will tell whether they'll. Continue but,
(21:09):
clearly in case after, case particularly during The biden, administration
they challenged the legitimacy of the administrative, agencies you, know
in terms of the vaccine, policies in terms of the
student loans and.
Speaker 3 (21:22):
More when the justices take, cases they usually take them to,
reverse don't. THEY i, mean forty four out of the
fifty nine cases they took this term were.
Speaker 8 (21:31):
Reversed that's generally the, case but obviously more generally they
take cases when there's a split and the court needs
to resolve is split in the. Circuits so sometimes it's
just the matter which of the two cases they, take
because one case goes one way and one case goes the.
Other so sometimes those figures are a tad.
Speaker 3 (21:48):
MISLEADING a lot of the action this term has been
on the shadow or emergency, docket where The trump administration
has repeatedly been asking The Supreme court to lift lower
court orders while the case is Proceed just this, week
The court Gave trump the okay to move ahead with
mass layoffs of federal. Workers is this just part of
(22:11):
the trend of The court on the emergency docket lifting
lower court orders that blocked The trump. Agenda, Well i'm
of two.
Speaker 8 (22:19):
Minds about the most recent. DECISION i, mean what The
court did is removed as an injunction on the administration
from trying to carry out the, rift but it did
not say that the riff was appropriate or consistent With congressional.
Direction AND i think that was made clear as well
because of the fact That Justice kagan went along with
the majority allowing the administration's action to. Proceed and the
(22:43):
executive order says that the riff or the Reduction force
must proceed according to applicable. Law and the applicable, law of,
course Is congress's very detailed instructions for how agencies should.
Proceed AND i think the reason Why Justice kaikan did
join the majority was because we have yet to see
whether the administration will conform to the congressional blueprint for
(23:06):
hiding out the Reduction force or. Not and so, yes
The court is giving the benefit of the doubt the
administration and the spending would think that administration doesn't deserve
the benefit of the. Doubt BUT i think what the
court's action is, saying, well let's wait until there's a
merit's decision as to whether the applicable congressional rules were
followed before we actually tell the administration they can't move
(23:30):
forward in that. Way the administration they can't move forward
in that.
Speaker 3 (23:34):
Way, well all, along The court has been letting The
trump administration go ahead for. Now but the problem is
that getting to the merits of these cases take so,
long and by that time the damage is.
Speaker 1 (23:47):
Done people have been.
Speaker 8 (23:48):
Fired, yeah the court has been very, cavalier if you,
will in terms of balancing the. HARMS i think the
reduction enforced case is a good illustration of, that, because,
yes the government wants to save money and restructure the federal,
government and there is a loss if they can't do
that to what they consider to be the public. Good
but on the other, hand the dislocation and financial deprivations
(24:11):
that these employees may face should be, counted perhaps even more,
greatly and The court's not doing.
Speaker 3 (24:17):
That thanks for joining. Me how That's Professor Harold krent
of The Chicago Kent college Of law coming up. Next
While lululemon is Suing. Costco I'm June grosso and you're
listening To bloomberg.
Speaker 1 (24:28):
Colors if you go.
Speaker 3 (24:30):
To Hashtag lululemon, dupes you'll find social media influencers promoting
knockoffs or dupes of their, apparel like, hoodies, jackets and
pans At costco that look authentic but sell for a
fraction of the. Price, Well lululemon is making a federal
case out of, it Taking costco to court for copying their.
(24:52):
Designs my guest Is Susan, scaffiti a professor At Fordham
Law school and director of The Fashion Law. Institute susan
a very basic question to start off, with are dupes
what we used to call?
Speaker 1 (25:05):
Knockoffs we have.
Speaker 9 (25:07):
Definitely seen an evolution in, nomenclature, Right so it used
to be counterfeits and, knockoffs and then replicas and then
reps and now. Dupes AND i, think, honestly part of
the story of the public accepting them more is they
sound cute and. Adorable now you know you could have
a pet, dupe you cannot have a pet.
Speaker 3 (25:25):
Counterfeit, well, also social media right is blasting out where
to find these precisely dupes are being sold all. Over
is selling a dupe?
Speaker 9 (25:35):
Illegal, well it, depends. Right dupe like knockoff, before it
is a broad ambigus term when they are very, exact
and in those cases in which THE ip is, protected
yes that is. Illegal but if we're getting a little
further away from the, original or if the original itself
is not protected UNDER us, law then no it is.
(25:56):
Not so we do indeed have a lot of gray area,
here and it's not a chic little chucoal or, dove
something a lot more sinister from the brand's.
Speaker 3 (26:03):
Perspectus Lulu, lemon of, Course pioneered Yoga ware tell us
what it's Accusing costco.
Speaker 9 (26:09):
Of So Lula lemon is claiming that the things that
have been copied and are being sold At costco do
in fact cross the line into. Illegal and what's so
interesting about this, Case, june is that they have gone
through the entire list of POTENTIAL ip claims and are
basically throwing everything except copyright At. Costco they're looking at,
(26:34):
patents as specifically design, patent because they do have a
design patent on their scuba design for. Hoodies they are
looking at trade dress protection that subset of trademark that focuses,
on among other, things product. Design, Right so when a
product design itself is so, iconic like the red souls
On lobaton's or the ermez, berkeens the design is so
(26:57):
iconic that it served as its own sorce indicator that
can be. Protected so they're claiming that kind of protection
in the case of Their define. Jackets then they're claiming
unregistered protection for men's. Trousers they're claiming wordmarks in the
case of, scuba and a wordmark for the colored tidewater
(27:17):
teal that they say is proprietary to, them and then
they're throwing in some state law unfair competition. Claims so
they are really going across the, board looking At costco
in house brands Like, kirkland but also other brands being
sold At costco like Dan skin And jockey in this.
Case so they are really taking a very broad brush
(27:38):
approach to the items That costco is selling that Lu
lemon believes are protected intellectual.
Speaker 3 (27:44):
Property costco is known for That kirkland, brand and people
often say that their products are high quality but sold
for much less than name brand. Products what kind of
a price differential are we talking about with Lou.
Speaker 9 (28:00):
Apparel, well in the case of the men's, trousers they were,
saying you're eight dollars versus one hundred and eighteen, dollars
so quite a bit, less which has actually been consistent
with the prices of knockoffs over the. Years we always
say somewhere between five and twenty percent when we're looking
at knockoffs across the.
Speaker 3 (28:15):
Board that is quite a big price, Difference, Susan what
Would Lulu lemon have to prove if this case went to?
Trial in these, cases.
Speaker 9 (28:23):
The first step is going to have to be convincing
of the jury that the claims That Lula lemon is
making are actually valid with regard to What Lulu lemon.
Owns now they've done their, homework they have warmed, up
stretched and prepared for this particular case by registering some
of those, marks trademarks and design. Patents so in the
case of a, registration there's already an, assumption but it's
(28:45):
an assumption that can be. Overturned So lululemon is going
to have to be able to prove that these particular
marks are indeed source, indicators or in the case of design,
patents that they are indeed new these. Designs with regard
to the things that are not, registered they have a
somewhat higher far to pass in order to convince the
jury that they deserve. Protection but if they can do,
(29:06):
that then they actually have to be able to show
that The costco items are close enough the Lu lemon
items that they actually. Infringe in other, words it's a
two step. Process is THE ip valid and if, so
are The costco items? Infringing and they do need to
persuade a jury this is a jury.
Speaker 3 (29:25):
Claim what about the fact that you, know there's that
Hashtag lululemon dupes and apparently some dupes are being sold On, Amazon,
Walmart target and. Elsewhere so why Is Lula.
Speaker 1 (29:38):
Lemon focusing on Suing?
Speaker 3 (29:40):
Costco and you, know Will costco be able to, say but,
look they're selling these.
Speaker 9 (29:45):
Elsewhere, Well costco will be able to do. That but of,
course when you're engaged in grand, protection you need to make.
Choices no, company not even the very largest wealthiest, ones
have unlimited legal, budgets much to the sadness of their.
Lawyers do they make. Choice AND i think Choosing costco
was smart in some. Ways it's one stop. Shopping they're
suing that Only costco over its house, brand but they're
(30:07):
suing over some of the other brands That costco, carries
and they are suing an entity that is highly recognizable
and trusted by The american. Public so it's going to
get attention when they go After, costco much the way
it got attention When rimes, said, yes we know there
are lots of Counterfeit burgen's out, there but we're going
after the work in The Walmart. Burgen so if that
(30:29):
kind of press release aspect to a complaint is relevant,
here they want the attention on this. Case they may
not win the hearts and minds of. Consumers they may
not change this social tide toward the acceptance of dupes
as something to be celebrated rather than, hidden but they
will be able to convince some people that these dupes
(30:52):
are not a good, thing and they will also be
able to send a warning to vendors across the board
That lululemon is not to be messed. With of, Course
Lulu lemon has a history of bringing other lawsuits in the,
past so this has been a long term strategy for
them to try to become a harder, target if you, Will.
Speaker 1 (31:09):
And what happened with the copy of The Birken.
Speaker 9 (31:11):
Bag, well they're no longer available for sale At. Walmart
so let's assume that one has, settled which IS i
think the likelihood here is that we will get a.
Settlement it would be from a legal, respective wonderful to
see what a jury thinks and then what mappellate court
thinks about how close is too close in these, Cases
but more than likely we will get a. Settlement if
this In, europe of, course this would be a very short.
(31:33):
Complaint we would simply have that other category of design,
protection so we wouldn't be looking separately at trademarks and
patents and asking whether the law applies in these. Cases
we would go straight to design protection and be done with.
Speaker 1 (31:48):
It just suppose it does get to.
Speaker 3 (31:50):
Trial is it an uphill battle For lululemon to convince a.
Speaker 9 (31:54):
JURY i think it's going to vary amongst the different styles.
CLAIMED i think for the registered trade dress and registered design,
patterns that's going to be an easier. Cell for the
claims of unregistered, protection like for the MEN'S abc trousers
and The tidewater teals, color it's going to be a
little more difficult but not, Impossible and Does.
Speaker 3 (32:15):
Lula lemon have to prove that consumers are confused by the.
Speaker 9 (32:19):
Dupes with regard to the trademark related, Claims so the
trade dressed, claim they do have to prove likelihood of consumer,
confusion which is why something like Hashtag lululemon dupe is
maybe not helpful To Lulu. Lemon it certainly fuels the
fire to go after these, dupes but it's also saying
that consumers may not be, confused at least at point of.
(32:43):
Sale now there's always post seal. Confusion there's the concern
that consumers will see others wearing the dupes and think
that They're. Lululemon so there's that form of consumer confusion
that might be easier to prove in the era of
Hashtag lululemon, dupes but it's problematic consumers are not actually.
Confused you. Know it's interesting in that Regard june is
(33:04):
That lululemon it actually has a trademark application pending for
the Phrase lululemon. Dupe in the context of retail, stores
they haven't said exactly how they'll use, it and they
don't have to do that, yet and the trademark has
not yet. Issued they filed the application back In, december
but they're obviously thinking about playing in this field in
(33:25):
another way as.
Speaker 3 (33:26):
Well you, say most of these cases are, settled but
is a lot of money spent just reaching the point of?
Speaker 1 (33:33):
Settlement what are legal fees?
Speaker 9 (33:35):
Like? Oh of, course just developing this complaint with a
dozen different claims has taken a lot of, time and
surely there has been some conversation between the companies in
advance of. This so it has already been an expensive.
Process it may be worthwhile because again it is a
legal process and a public relations. Process you, know if
(33:57):
it's one thing that a company that makes yoga pants
familiar with its, inversions AND i think they would really
like to be able to invert the public's perception of.
Dupes that's really the goal here from a public, perspective
much the way that just as you, know a few years,
Ago lululemon set up a dupe swap in a mall
In Los angeles and, said, look bring us your, dupe any,
(34:19):
Brand we will give you genuine Aligned lululemon. Trousers they
are so great that you'll be able to tell the difference,
immediately and you will Become lululemon. Fans so they are
playing both a legal game and an extra legal game
as part of their brand protection. Strategy and it's something
that they've done for. Years so if they can start
(34:40):
to again invert the perception of, dupes maybe restore them
to their former sub rosa, underground slitely shameful, status or
at the very least convince people that Lu lemon products
are of higher quality so that they can recapture some
of the folks who would have instead gone to cost or.
Elsewhere that's going to be a win without ever getting
(35:03):
as far as a.
Speaker 3 (35:03):
JURY i remember when if you had a, knockoff you
hid the fact that it was a. Knockoff you tried
to pass it off.
Speaker 1 (35:09):
As the real.
Speaker 3 (35:10):
Thing nowadays they don't care.
Speaker 9 (35:13):
Exactly there has been a huge shift in perception over fifteen.
Years it used to be that brands didn't want to
talk about counterfeits or. Knockoffs then they finally acknowledged the.
Problem but CONSUMERS i have also gone from hiding the
fact that their items were knockoffs or trying to pass
them off as the real, thing to bragging about them
on social. Media and that is actually of almost greater.
(35:37):
Concern the law hasn't changed a, lot but consumer perceptions has.
Changed so the law still is not great in THE
us with regard to protecting, fashion but there are these
bits and pieces of law that can protect fashion a little.
Bit but the, perception the social norms have changed, dramatically you, Know.
(35:58):
Jane in my, CLASSES i tell my students that when
we're dealing with, law we're dealing with it at several.
Levels we think about black letter law when we go
to law, school things that come out of legislatures and.
Courts but then there's also, rules things like in the fashion,
context office dress codes or school dress. Codes but at
the most, basic, simple diffuse, level there are social. Norms
(36:18):
sometimes those social norms are subsequently written into law what's
decent or, indecent for, Example but social norms are really
powerful in terms of controlling how we, dressed how we
perceive what we, dress how we perceive what other people.
Dress and we've seen a shift in social norms. Here
we haven't seen a shift into. Law we've seen a
shift in the norms so that it went from being
(36:41):
knockoffs are bad and shameful and cheap and to be
hidden to knock offs there to be, celebrated and that's
part of What Lulu lemon is addressing in this.
Speaker 3 (36:50):
Case In, December benefit lost a lawsuit TO elf over
their last and role, mascara which is six dollars can
To benefits twenty nine dollars.
Speaker 1 (37:02):
Misscara does that have any relevance to this.
Speaker 9 (37:05):
Case it's another trade dress. Lawsuit because the actual WORD
elf was right on, there there was an undermining of
the question of likelihood of consumer. Confusion so here well
to back, up when we're dealing with, counterfeits when we're
dealing with substantially identical copies of trademarks that we can.
Identify so if we were dealing with copies of the Wordmark,
(37:27):
lululemon or if we were dealing with copies of its
little symbol that looks a little bit like an, omega,
right that would be. Easy there's no question of whether
or not consumers are. Confused we just assume that if
we're dealing with those substantially identical. Copies when we move
into the realm of trade, dress and we are talking
about infringement rather than, counterfeitings so we're dealing with things
(37:51):
that are not necessarily quite as identical but merely confuse the.
Consumer then, yes that likelihood of consumer confusion does have
to be proven By lululemon in this, case in other,
words by the. Plaintiff and that's a little bit, tougher
it's a little bit of extra work that has to be.
Done it's why this case is. Interesting it's why Lul
(38:13):
lemon is going for full on four waste threats in this.
Regard they're not going for easy. Things they're not going
for counterfeits that would not probably be sold at costco
the copies of the, signs the symbols that we all
recognize easily as. Trademarks they're going for product configuration trade. Dress,
(38:34):
Right so there are two kinds of trade. Dress there's product,
packaging so the shape of a coke bottle or the
shape of some shampoo. Bottles and then there's the product.
Design and that's where fashion has to live because we
get so little protections on the three dimensional aspects of
a garment. Generally so if we are going to claim
trademark beyond the, label beyond the, logo we're looking at
(38:57):
product configuration trade. Dress we are going to have to show,
that first of, all consumers recognize that trade dress as
a source. Indicator it's not just a great looking warm up,
jacket it's one that looks Like, lululemon one that we
recognize As, lululemon just on the basis of curved. Themes,
Right so we have to be able to prove that
(39:18):
consumers see What lulemon says consumers, see and then we
have to show that those consumers are confused when they
see a. Knockoff and it's not, easy it's not, impossible
but it is definitely going to be a, battle, or.
Speaker 3 (39:32):
As you, say perhaps a. Settlement always great to have you, On,
Susan thanks so. Much That's Professor Susan scaffiti Of Fordham Law.
Speaker 1 (39:40):
School and that's it for this edition Of The Bloomberg Law.
Speaker 3 (39:43):
Show remember you can always get the latest legal news
on Our Bloomberg Law. Podcast you can find them On Apple,
Podcasts spotify and at www Dot bloomberg dot, com slash
Podcast Slash, law and remember to tune Into The Bloomberg
Law show every, weeknight ten Pm Wall Street. Time I'm
June grosso and you're listening To bloomberg
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