HBO's John Oliver hit with defamation lawsuit from healthcare executive over 'Last Week Tonight' episode - Ep. 64 - Litigation Nation

Episode Transcript
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Jack Sanker (00:05):
Welcome to litigation nation. I'm your
host, Jack Sanker, here with mycohost, Danessa Watkins. This is
the show where we talk aboutsome of the most important and
interesting legal stories of thepast couple of weeks. Danessa,
what do you have today?

Danessa Watkins (00:17):
Today, I'm going to cover a newly filed
defamation lawsuit against JohnOliver for an episode of Last
Week Tonight on HBO that touchedon the state of Medicaid in our
country. And then I wannaquickly discuss the recent
presidential executive ordersthat have been issued against
law firms and the amicus curiabrief that was filed in support

(00:42):
of some of those law firms.

Oh, boy. I'm gonna be talking a bit about tariffs
and specifically how at thestate level, some of the
governors are trying to workwith and or work around, the new
tariffs that are are nowinfamous at this point. We're
gonna be talking about thecharter of Rhode Island from

(01:04):
1663. We'll be talking aboutunilateral free trade deals
between California and China.And then in Illinois here, maybe
some attempts at sneaking someimported goods through the duty
free zones at the airport.

Sounds very Illinois.

Yeah. All that and more, here's what you need to
know.

John Oliver, the host of Last Week Tonight,
which is a show on HBO, wasrecently sued for defamation in
federal court in the SouthernDistrict Of New York. Now this
lawsuit relates to a show thataired on 04/14/2024, so almost
exactly a year ago, whichfocused on Medicaid, including
health care companies' costcutting measures and the toll

(01:50):
that that was taking on patientsacross various states. So more
specifically, according to thelawsuit, Oliver represented to
his audience, quote, there was anearly 900% increase in members
being illegally denied servicesor care, and some of the cost
cutting was absolutely enraging,end quote. Oliver then went on

(02:12):
to explain the role of managedcare organizations, or MCOs,
within the healthcare system andstated, but the most infuriating
thing about MCOs is that, aswith so many players in our for
profit healthcare system, theyare incentivized to cut costs at
the expense of necessary care.Because MCOs get paid a set

(02:33):
monthly amount per person,meaning they get a fixed rate.
So their profit is whatever theydon't spend on patients, and you
can probably see where this isgoing, end quote. In the show,
John Oliver then shared a newssegment from a 2018 broadcast
that featured a cerebral palsypatient in Iowa whose care was
specifically impacted by the MCOinvolvement in the state. And

(02:58):
one of the effects was that hisdaily nursing care visits were
cut. So as his mom explained,for six weeks, this poor man
went through, or went withoutthe in home bathing and diaper
changing that he had receivedfor years. And she simply
couldn't afford to pay for thenursing care anymore.
So now comes the defamatory,alleged defamatory portion of

(03:20):
the show. After showing thatnews clip, John Oliver states,
quote, look, that's Lewis'situation. Obviously, it's
maddening. And it doesn't getany better when you hear a
doctor at AmeriHealth, the CMOthat took over in Iowa, explain
in a hearing about a similarpatient just what the corporate
thinking was about the necessityof keeping people clean, end

(03:43):
quote. And then he plays thissnip of Doctor.
Morley, who is the plaintiff inthis case. Now Doctor. Morley at
the time in 2017, he was thehead of the Emera Health, which
was the CMO that had taken overin Iowa. So his role was
essentially to oversee Medicaid,make sure that they were

(04:06):
following regulations, notproviding services or care that
didn't fall within, I guess, theparameters that were being set.
So he was a high rankingposition.
He was the decision maker. Sohe, as part of his duties, often
had to testify at thesehearings. So this was taken from

(04:26):
one of those administrativehearings. And this is the clip
that was played on, last weektonight. Quote, people have
bowel movements every day wherethey don't completely clean
themselves, and we don't fussover them too much.
People are allowed to be dirty.I would allow him to be a little
dirty for a couple of days, endquote.

Okay.

So this is they played the audio clip and then
showed the words printed on thescreen. But they do show on the
screen that there is a partwhere it says people are allowed
to be dirty, dot dot dot, soit's an ellipses. So you
understand that it's, you know,there there was something else
there before the next comment,which is I would allow him to be

(05:12):
a little dirty for a couple ofdays. So I guess the argument
that John Oliver would make inthis case is the viewer
understands this is not, youknow, a verbatim, or it is a
verbatim quote, but there's somemissing pieces in there. Sure.
So John Eller goes on to tellhis audience that he, when he

(05:33):
first heard this testimony fromDoctor. Morley, he thought this
has to be taken out of context.But then he conveys to his
audience that he reviewed thefull testimony at the hearing
and this was in fact what DoctorMorley said and what he meant.

NY Judge (05:50):
So the That's his opinion though.

It's his opinion but he, this is where
fact versus opinion anddefamation gets a little I'm

learning so much from that.

Because he's saying I actually reviewed this
hearing in full. So while he'sproviding his opinion, he's
providing the facts for whichthe opinion is based, which then
can cross the line into thiscould be potentially defamatory.
So the issues that Doctor.Morley takes with this are that

(06:25):
he claims his his words wereboth manipulated and
misrepresented. So he made thisbowel movement comment in
regards to a hypotheticalaverage person who is
independently mobile and cantransfer to the toilet by
themselves.
He was not referring to someonelike, the individual with

(06:49):
cerebral palsy that was shown inthe news clip who is in a
wheelchair, you know, unable tocare for his his basic ADLs,
basic needs.

Mhmm. Basic ADLs, by the way, what is that?

Activities of daily living. There we go. So,
yeah.

Classic lawyer.

I know, sorry. Washing, brushing your teeth,
you know, just basic caring foryourself.

I asked for the sake of the audience, yeah.

Yeah, yeah, sorry. So apparently, well
according to the complaintanyways, last week tonight or
John Oliver did not inform theaudience of the context of
Morley's comments. So the waythat they placed them, like I
said, was after this this imageand this, you know, very

(07:37):
emotionally driven, you know,statements by this mother of
this child who, wasn't gettingthe care he needed. And then not
only that, but John Oliverannounced Morley's clip as
testimony referring to quote asimilar patient. So he kind of
set this stage for whereMorley's testimony should fit in

(08:00):
that, according to Doctor.
Morley, was completelyinaccurate. I did read the full
quote, and yeah, it'smisleading, the way that they
portray it for sure.

I mean, I don't wanna jump ahead, but but I
mean, like, taking things out ofcontext and putting them on, you
know, news shows or, like, latenight shows, I mean, that's, you
know, as American as apple pie,right? Yeah. It goes back
forever.

Yeah. I mean, so you you saw exactly where I
was going with this. Okay. Sothere are obviously first
amendment protections for satireand parody and, you know,
comedians in our country,probably more than anywhere else
in the world, have a lot offreedom to pursue their craft.
So I will say when I saw thenews headlines for this one, my
initial thought was, oh, that'san easy motion to dismiss.

Sure.

But having reviewed the complaint, having
watched the clip, I do thinkthat John Oliver could have some
problems here. Like I said, youknow, he's representing to the
audience that he reviewed thefull hearing. So he's he's
essentially saying, everything Itold you and how I portrayed

(09:06):
this statement is absolutely theway it was portrayed at the
hearing.

Yeah.

And that's not accurate. There's also some
allegations in the complaintthat, I guess someone from the
show at some point reached outto Doctor. Morley. I don't know
who reached out first to oneanother, but it was prior to the
show airing. And Doctor.
Morley's representativespecifically asked, you know,

(09:33):
did you review this hearing inits entirety? And the response
from the show was, yes, we did.Well, the testimony is over
three hours long. So I thinkright off the bat, they were a
little bit like, okay, did JohnOliver really sit and read this?
Probably not.
But, you know, we can trust thateditors of an HBO show are gonna

(09:54):
do their due diligence. Like,and

I mean, the comedy writers though, you know?

True. True. But either way, that's what they
represented. Mhmm. And then wentahead and broadcast the show
anyways.
So, there is also a claimagainst the show's producers
saying that based on their,representations, they reviewed
the full hearing. Had theyactually done that, they would

(10:20):
have understood that this wasnot Doctor. Morley's intent, and
yet they portrayed it that wayanyways. So that's the
intentional And I'd say the waythat they portrayed this is, you
know, per se defamatory. It'sit's a want of integrity against

(10:41):
Doctor.
Morley in performing hisemployment duties, and it also
certainly prejudices him and hisprofession.

He's not a public figure, at least not till now.

So that's an interesting question because he
there could be an argument thathe's a limited purpose public
figure. Mhmm. He's testifyingpublicly hearing voluntarily
thrusting himself into thisdebate about a very public
issue.

That's very interesting.

So

Well, voluntarily

Mhmm.

He was was not employed or I'm sorry, I missed
it.

No, was. He was at the time that he testified at
this hearing.

Okay.

But

Well, might have been compelled to testify then
or required to.

Per his duties, yeah. That's interesting. But
either way, he was definitelyparticipating in a hearing about
an issue of public concern. Sothat could, yeah, that would be
an interesting argument for thedefense to say that he has to
prove actual malice.

Oh, and also if he was testifying as like a
corporate rep rather than hispersonal capacity, is he
speaking or is the companyspeaking?

True.

I wonder if you could I don't know how that
plays with First Amendmentstuff, but Yeah. I wonder if
that's

That's it. That's an interesting, yeah,
argument too. But maybe he didanticipate that defense, which
is why he included those factsabout the the network saying,
yes, we reviewed the fullhearing. Because that would
show, like, well, if you didreview the full hearing, then
you would know that you'reportraying him poorly, or not

(12:14):
even poorly, but incorrectly.

Yeah. And it's also, I mean, I don't know, it's
this, I mean, I'm not gonna addanything helpful here that from
a legal perspective other thanlike to care, like to take
someone's testimony and twist itaround and characterize it
however you want is also anAmerican tradition, know, that's
what we do as litigators. So, Imean, is not happening in a

(12:38):
courtroom, so that's different.But I I I think, I don't know, I
I I'd be interested. This one isis is particularly interesting
because it's courtroomtestimony.
It's not a quote from anewspaper, you know?

Yeah. I think it's an administrative hearing
but, yeah, mean, quasi judicialsort of situation but,

because that happens all the time, you know,
trial, right, someone gets up inan argument and says, well, so
and so witness said this. No,they didn't. They didn't. Right.
You know, they literally didn'tsay that.
Like, that's not what thetranscript says. That's not a
fair reading of the transcript,whatever. And then, you know,
it's

But that's privilege because you're within
a judicial setting. Yeah, Idon't know. And I mean, the
question is, right, what doesthe reasonable viewer think? And
so if you're watching JohnOliver, you understand, you
know, the the nature of the typeof show it is. You're gonna, you
know, take some take everythingwith a grain of salt to some
extent.

(13:33):
I just I to me, the the factthat works most against him is
is him saying, look, guys, I'mnot gonna show you the full
clip. I reviewed the fullhearing, and I'm telling you
right now, this is what he said.This is what he meant. So he
would kinda want that extrastep, you know? And they the
plaintiff did include in hiscomplaint snips of comments on

(13:55):
YouTube where you can view thisepisode.
The episode itself garnerednearly 3,500,000 views, and the
comments do show that peoplegenerally believe that Doctor.
Morley thinks it's okay for animmobile patient to sit in a
dirty diaper for a few days.

I mean, that's also not flattering even under his
facts, by the way. Like, even,he's like, no, in context, like,
I would let someone, like,that's not a flattering thing
for him to talk about, like,even in his context, by the way.
So I don't know.

It's we yeah. It's it's a weird statement in
general. He's kind of justsaying, like, oh, some people
don't have good bathroom habitsand and they survive, you know?
But, yeah.

And and we have no duty to help them, you know?

But he did, I will say, having read the full
statement that, you know, waswas snipped and clipped in
certain ways, he does make clearthat he in no way was applying
that logic to someone who'sobviously unable to care for
themselves.

Right.

So, so I do think it was kind of a gross
misrepresentation.

I mean, the intent element here is like seems to be
based on Oliver's statementthat, you know, I read the
transcript so you can trust me,right?

Yeah.

To what extent could he just say, oh, sorry, I
misread it then?

Do you

know what mean?

Isn't this sort of like a ignorance of the law
is no excuse or anything? Imean, that

would negate intent though if he was like, I I
literally did read thetranscript and I'm just too
stupid to understand it and thenI went and talked about it.

I feel like that would go to a reasonable
person standard. Like, anyreasonable person reading this
would have understood that thatis not what he meant to say.

I suppose. I I mean reasonable people aren't reading
court transcripts though, whichcan be like difficult to follow.

True.

You know?

So okay, well to give you specifically what he
says, so right before thatquote, he says, this is Doctor.
Morley during his hearingtestimony. In certain cases,
yes, with the patient withsignificant comorbidities. Yeah,
right? Yeah.
Comorbidities, there we go. Youwould want to have someone

(15:58):
wiping them and getting thefeces off.

Well, that's good.

Yeah. So he does say, like when we're
talking about, for example,someone with cerebral palsy,
yes, of course, you need to givethat type of care.

Of course. In case you're But

yeah, but then goes on. Yeah. We don't fuss
about, you know, people who cantake care of themselves and
don't wipe well. Like, it's it'sjust I don't know. The whole
thing is a weird thing to say.
But, yeah. I don't know. He alsobrings up that the response from
people on YouTube or the there'san increased likelihood that

(16:36):
viewers would have believed thatthis was actually doctor
Morley's position on this isbecause of how John Oliver
allegedly feigned this outrageover the testimony. Mhmm. And he
actually goes so far to say,quote, fuck that doctor with a
rusty canoe.
I hope he gets tetanus of theballs, end quote. So he

(16:57):
definitely like goes off onDoctor. Morley.

I mean, I've seen the show. He like he does that
whole thing. He's like the typeof person that like loves to
abuse the word literally, youknow? Mhmm. Which everyone does,
but he totally, you know, thisis literally figuratively, you
know?

Okay, so yeah, I don't know. So maybe there
would be that argument that hisreasonable viewer understands
him.

I mean, I don't know that either.

I don't know either.

That's credit you wanna give to John Oliver
viewers.

I don't wanna sorry, John. I don't watch your
show, so I can't comment onthat. But, yeah, I don't know.
Well, this just got filed, so, Iwould imagine there's gonna be
motions to dismiss coming, but,yeah, kind of stay tuned and and
find out.

Well, and also those comments about, I hope you
get tetanus everything alsospeaks to, like, malicious
intent. Right? Like, definitely,like, you know, not being super
nice about this.

He's not being nice. However, I don't know that
that's a basis for liability. Somalice in this context would be
that he knew what he was sayingwas false. It's not the, like, I
intended to harm you. That typeof malice would go to punitive
damages.

Okay.

So, yeah, I don't know. But this is one of
those too where like this thisshow, in order to survive, kind
of has to take a strong stanceon this and not fold. Yeah. You
know, they can't if otherwise,like, they're gonna get sued
every show. Yeah.
So

Yeah. Yeah. I mean, or or just settle with an NDA,
right. I mean, that's the otheranticlimactic outcome.

I don't know. I feel like ever since George
Stephanopoulos' settlement Mhmm.With Trump, I feel like there's
a lot of pressure theentertainment industry to not
settle because that's just setsuch a crappy precedent.

Yeah. And and and there seems like to be more more
claimants willing to test those,you know? Mhmm. Like, I
remember, like, way back in thefirst Trump administration,
like, every now and then he'll,like, he would say say something
and I'm like, who told him aboutthat? Like, he was talking
about, Oh god, what was thecase?
It's is it USP Sullivan or am Igetting that right?

Is a case. I don't know what you're talking
about.

Oh, it's it's like it's like the like kind of
quintessential like, like, libelMhmm. Case for like newspapers,
like publishers' liability andthings like that. Do I have
right?

New York Times? Yeah. For Sullivan?

New York

Times for Sullivan.

And like like I remember Trump like very vividly
being like, we should repealthat case and

NY Judge (19:40):
I'm like,

do you know about that case?

Yeah.

That's such a weird thing for you to know about. But
I kind of ever since that I feellike there's, like for a while
he was on this thing where hewas like, we were gonna roll
back the libel laws and allthis. So that's like kind of
been a, you know, like item like100 on the list of things that's
gotten weird. But like that'sone of them for sure.

Yeah. It's it's interesting too because Trump's
been on both sides of defamationcases, right? Like so with
Stephanopoulos, like it workedthe the law worked in his favor
on defamation law, you know?Yeah. But then he's obviously
lost big on the other side too,so.
Gosh, why is it like we'realways three steps away from
bringing up Trump at all times?I I didn't even think we were

(20:22):
gonna go there, but

No, I'm sorry.

That's okay. What are we gonna do?

He's like, he's like bizarro Forrest Gump where
he's just in everything, you

know? Yes.

Just he was there for everything.

Just shows up and not.

Yeah, he was like, yeah, he met the president. He
won the ping pong contest. Hewas like, yeah. It's yes.
Anyways.

Okay. Well, that's that. Alright. So we'll
see what happens there.

So in that same vein of, we don't wanna keep
talking about Trump, but, like,what are you gonna do? We've
mentioned tariffs on the showquite a bit. We've talked about,
from the legal perspective,like, what's their basis, which
is a statutory delegation ofpower from Congress to the
president, and then which has tobe invoked via, like, a
declaration of nationalemergency, etcetera, etcetera.

(21:12):
You can check back to some ofour most recent episodes if you
wanna hear more about that. WhatI wanted to talk about today is,
how some of the, differentstates are are are are trying to
address this and and if theyeven can, because by and large a
lot of like local politics, Iwould say, does not like tariffs

(21:35):
like at the local level because,you know, you are a politician
like in your district or in yourtown or whatever and it's like
some guy approaches you and islike, hey, my thing that I
import that I either, you know,attach to my final product or
that I buy or the thing that Isell is subject to retaliatory
tariffs now.

(21:55):
Mhmm. What the heck, man? Like,you know, to the extent that
like like tariffs good or bad,right or wrong, like whatever
side you are on thatpolitically, like the good part
that, you know, proponents ofthis policy are saying will
happen, we can all agree hasn'thappened yet. Mhmm. So like
Right.
As it stands, we're in the,we're in the, you know, you need
to sacrifice for the long termgood. We're definitely in the

(22:16):
sacrifice phase. The

early stages.

Yeah. So so like locally, you know, it's not a
popular thing. I'll put it likethat's I've seen that in deep
red districts and deep redpoliticians and obviously, you
know, other places. It's justit's it's not. And, you know, to
the extent that people arewilling to put up with it, it's
like, you know, it's kind of agreater good argument or

(22:40):
whatever.
Anyways, politics aside, thereason I bring that up is
because, like, at local levels,but at the state level, which
we're gonna talk about now,there are people that are just
like, can we do something to getaround this? And and the answer
for the most part is no. ButI've got a couple of examples of
some interesting ways thatpeople are at least thinking
about this. So in Rhode Island,there is a Rhode Island lawmaker

(23:00):
which is proposing to create afree trade zone, in the coastal
state based on the powers thatwas granted to it, the state of
Rhode Island, by King Charlesthe second in 1663, which is
that's the colonial charter thatwas that was signed, by King
Charles which apparentlydelegates some amount of

(23:21):
authority to the local colonialgovernor to, like, levy and
minister taxation. Yeah.
So, Delaware lawmaker JosephMcNamara wrote this week that,
quote, our state has a longhistory of resisting unfair,
authoritative trade mandates andtaxes. One has to only has to
reflect on our 252 history to bereminded of the action that our

(23:45):
early colonists took in 1772when faced with an unlawful
British vessel, unquote. And Ilove arcane legal stuff. Like, I
love old law that doesn't, youknow, isn't applicable but,
like, people bring it up. That'swhy I love sovereign citizen
stuff.
Yep. Like, I love this stuff.

But, I just I'm, like, waiting for New
Hampshire to come forward again.

Oh my god. They're they're probably chomping at the
bit. Here, dog. I I can't I lovethat stuff. Yeah.
And they're like, well,actually, we never ratified that
amendment. And there's, like,every now and then you'll hear
about, like, some states like,well, finally ratified, like,
the fourteenth amendment. You'relike, what? Yep. But I love that
stuff.
Anyways, there's, by the way,he's The census that he's

(24:27):
talking about is he's talkingabout in 1772, a bunch of
American colonists attacked aBritish, ship which was at the
time, kind of ironically,assigned to, patrol the waters
around Delaware and make surethat import and tax, rules for,
trade was being followed. Andthis boat got mobbed by a bunch

(24:49):
of, Rhode Islanders and, it waslike one of the first instances
of open hostility between thecolonists and the, British crown
leading up to the, AmericanRevolution. Anyways, so the
question is, you know, can RhodeIsland invoke a neutral tariff
free trade zone? One. And two,can it invoke its royal charter

(25:14):
which is from like three seventyyears ago at this point?

So interesting.

Well, the answer is no to both.

Yeah. I mean, but what a what a unique
argument.

Yeah. I mean, I, well, it's
unique in that it's not good,
but it's fun and that's why we're covering it.
And, and it's worth cutting.

Sorry, McNamara.

Yeah. No. I I'm sorry. But what's fun is that it
does you know, I got I had anexcuse to, like, look this up,
which is great. And,technically, Rhode Island didn't
have a state constitution until1842.

Oh,

And up until that point, they were more or less
using the royal charter as theirstate constitution. Interesting.
So the charter, which was, whichwas by a king, you know, in a,
country that we very famouslybroke ties with. Mhmm. And, you
know, you you I don't know,folks, you heard about this, the
American Revolution?

(26:08):
But the, and that was, like, oldat the time. I mean, this so the
last time that I think that itwas being, like, used in Rhode
Island was up until the eighteenforties.

Wow. Okay.

And which they finally passed their own state
constitution. So but even atthat point in time, it was,
like, February years old, youknow?

Right.

So, again, I just love when these, like, old
arcane things get gets, youknow, they stick around and then
you have to go back and try toreframe them from modern times
or whatever. Mhmm. So, like, youknow, it was actually, I don't
know that this specific taxationprovision would have worked out
in their favor even if they hadtried to create a free trade
zone in the eighteen forties, Idon't know. But the point is is,

(26:47):
like, the charter was kind ofaround for longer than you
think.

Mhmm.

And, anyways, the answer to the question is Rhode
Island can't just opt out of theUS constitution, and establish
its own international and traderegulations. Those powers are
specifically reserved for USCongress and, like, not to get
into the weeds on this, but if astate were to pass their own law
regarding international tariffs,it would be, you know,

(27:12):
unconstitutional, one. And two,federally preempted by all of
the federal tariff regulationsthat have been passed by
Congress since then. So, sorryRhode Island.

For effort though.

Yeah. I mean, I I love again, get creative. Get
weird, you know? Get weird. Youknow?
Like, let's see it. Let's seeYeah. Let's see your your royal
charters.

Put it out there.

Let's see, you know, like some secret
federalist paper that never gotpublished,

like Mhmm.

Why not? We are we are in we are trying new things
in this country right now.

Seriously, if there was ever a time.

Yeah. Do it. We're all sovereign citizens now.
California is, they're doingtheir own thing. Last week,
governor Gavin Newsom, said,quote, California leads the
nation as the number one statefor agriculture and
manufacturing.
It's our workers, families, andfarmers who stand to lose the
most from the Trump tax hike andtrade war to our international
partners as as the fifth largesteconomy in the world. The Golden

(28:08):
State will remain a steady,reliable partner for generations
to come no matter the turbulencecoming out California is not
Washington DC, unquote. Andthere was a statement that was
put up by the governor's officewhich said, quote, with this
announcement, governor Newsom isdirecting his administration to
identify collaborativeopportunities with trading
partners that protectCalifornia's economic interests,
workers, manufacturers, andbusinesses, and the broader

(28:30):
supply chains linked to thestate's economy. The
administration will explore waysto support job creation, and
innovate it innovation inindustries reliant on cross
border trade, promote economicstability for businesses and
workers impacted by federaltrade disruptions, safeguard
access to critical supplies suchas construction materials needed
for recovery efforts followingthe devastating Los Angeles

(28:51):
firestorms, unquote. And duringthe Newsom administration,
California apparently assignedon to 38 international
agreements with 28 differentforeign partners.
I wasn't able to dig into thatbecause I think, like, the the
source that I got, that was thatbit of information was also from

(29:14):
the state website but, like, Idon't it's my understanding that
the state that the governorcan't sign a a binding agreement
with a foreign country.

Yeah.

With respect to trade. I think Now, we'll talk,
a bit about what Illinois hasdone, which is, sign memorandums
of understanding with othercountries where they basically
say, like, this this isn't law,this can't be enforced, but,
like, here's how we're gonna dothis.

Yeah.

So I think that maybe will be what they're
referring to, like, we're gonna,kind of, like, you know, try to
help each other out here. SoCalifornia can't enter into
trade agreements with foreigncountries but what I think that
Newsom is getting at is, again,one of the creative ways that
people are trying to, you know,get some relief at the local and
state levels is it could, forexample, like, offer tax
incentives or, like, othergoodies to companies, to foreign

(30:02):
companies or to, foreign held,you know, assets or companies
that do business California,like, in exchange for
concessions on retaliatorytariffs, for example. So, like,
I'm making this up, but, like, II think that California could
give a state could give a statecorporate income tax break or

(30:24):
all sorts of state tax breaksto, for example, Chinese
companies in exchange for maybeChina not targeting California
industries that are so exposedto tariffs.

Oh, wow.

So, like, know, for example, that China has One of
their retaliatory tariffs is on,like, agricultural exports for
The United States, andCalifornia is, like, is the
largest agricultural exporter,so that's gonna hit California
hard. So, like, maybe that's abargaining chip that they have
with, you know, Chinese heldassets or Chinese companies or

(30:58):
is they can do something at thestate level so that maybe China
says, you know, we're gonna easeoff agricultural tariffs as a
whole because it hurts, youknow, California the most and,
you know, we're trying to playnice with California. Right?

Wow. So interesting.

Yeah. I mean, it encourages, like, you know, some
pretty incoherent behavior from

I I know, like I'm just waiting for the federal
government to respond to thattype of thing.

I mean, I think, like, if it's within these
sovereign powers of the state tosay, we are not going to tax x y
z or, you know, you wanna buildthis thing here, we're going to,
like, remove regulations on thispermit or, you know, like,
whatever business interest youhave in the state, like, if the
governor can tweak those things,which happen all the time, like,

(31:45):
governors do this all the timeto get to to solicit business
investments, you know, like,they'll they'll, like, a classic
example is, you know, an NFLfootball stadium where they're
like, well, you know, like, fundit via, you know, tax breaks for
the next fifty years Mhmm. Orwhatever. So, like, something
like that maybe and then say, ifyou do that, please don't tax

(32:06):
our almonds at 300%. Sure. Andthen, you know, that's something
but you're gonna see governorsand representatives like try to
broker these little side deals.
Mhmm. Which is, I don't know.

I'm just, I'm already like foreseeing the
federal government being like,you are, I don't know, this this
is gonna affect our nationalsecurity.

Like For sure.

So especially with China.

Yeah.

So, yeah.

No. We want retaliatory tariffs on elements.

Like Right.

We we want those. So I don't know. But, again,
people, like I said, we'retrying new things here, folks.
We're Mhmm. We're this is thetime.
Our governor in in Illinois, JBPritzker, he's kind of openly
saying that our ouragricultural, sector here is

(32:59):
gonna just get crushed by this.Illinois is also a big
agricultural producer. We have900,000 people that work in the
agriculture sector. He, just theother day, he was talking with
reporters outside the StateHouse, in Springfield and he's
kicking around some interestingideas too. Like, he mentioned
that he they're looking intoutilizing international, foreign

(33:23):
trade zones that already existin the state to get around
tariffs.
And these, I looked up, exist ina couple of cities in Illinois,
Chicago, Rockford, Savannah,Quad Cities, Decatur, Granite
City, and Lawrenceville. And,you know, what is a foreign
trade zone? Great question.Can't explain it super well, not
my area of law. But, what I Alittle bit I I know is that it's

(33:48):
a kind of the, they existoutside US customs territory and
to some extent outside of UScustoms jurisdiction

Mhmm.

And, allow for a more free flow of goods in and
out. I basically think it's alittle carve out in a in a and I
guess it's I mean, I wouldassume it has to be designated
by the federal government Right.Previously to allow for, I would
assume, certain specific andmaybe local trade relations to

(34:20):
to to get around like thebroader framework of federal,
tariffs. So like so like, okay,Chicago, a has an international
port for example, people don'tknow that. But we we have an
international port which does dosome amount of international,
shipping.
By international, I mean Canada.Yeah. But like, that's not the

(34:42):
Yeah. So, and that is part ofone of these foreign trade
zones. And I I don't exactlyknow if that means that goods
that come through there are nottariffed.
I don't exactly know that. But,and I've done a little bit of
research on this and I've putout some notes to some of the,

(35:05):
the trade attorneys at our firmthat do this type of thing and
and, you know, kinda pending aresponse for that. But as I
understand it, there's likethese international entry points
into the state, some of whichare designated within some of
our airports like O'Hare. It'snot the duty free zone, is what
I thought originally. Was like,oh, the duty free zone, we

(35:25):
should just bring everythingthrough there.

Right. Like,

it doesn't work that way at all. But I was like,
yeah, just bring it rightthrough the liquor store that
they don't tax Easy fix. Yeah,no, it's

Grab some cigarettes on

NY Judge (35:35):
the road.

Exactly. Buy some perfume. But no, that's not it.
And I was like, wow, this issuch a good idea and it's not
that.

Okay.

But there are international, free trade zones
within the airports and there'sobviously a commercial, like,
shipping of items into the stateof Illinois, like, through our
airports, our internationalairports in particular. So, you
know, I I don't know. I thinkthat, and I think that Pritzker
is, like, probably gonna look toleverage those points of entry
as much as he can. I think itwould be, like, hilarious if if,

(36:06):
you know, we just started, like,exporting, like, you know,
millions of pounds of raw beefthrough Midway. I don't know if
that's, like, quite feasible,but, at every turn, it seems
like everyone's just looking toundermine these tariffs.

Mhmm.

And and there's, like, if and if you skim the
headlines too, it's like otherstates are lobbying for
exemptions for their, like,hardest hit industries. I mean,
every state is doing this, is issending a a governor or a
senator or someone to talk tothe White House and say, like,
great job, sir, we love yourtariffs but if you could maybe
ease up on, you know, wheat,like that would be great for my

(36:42):
constituents. Lobbyists forprivate companies doing the same
thing, you know, it's it's it'sall those things. I mean, it's
created this weird environmentwhere like, I think you're gonna
talk about this maybe in thenext segment a little bit, but
where, people are, you know, arethat are gonna benefit the most
are ones that have something tooffer Yeah. In exchange for, you

(37:05):
know, getting big government offtheir back.

Right.

And, the states that, you know, can do that will
try to, I mean, I think theyhave that responsibility to
their constituents to try to.And obviously, you know,
lobbyists, I mean, halfcorporations, they they they're
you know, they have that aswell. So we'll see. But the
point is all this stuff ismalleable and it's all kind of
in flux and there's multiplechoke points, each of which is

(37:32):
controlled by different people.I I like have thought more about
international trade in the last,you know, two weeks than I have
the entire sum of my life upuntil that point.

Mhmm.

So, but it will be interesting. And it's I I have
to think about this stuffbecause it's what my clients
keep asking me about. So, untilfurther notice, I'm gonna
interested in trade regulation.

For those those kinda like free zones Mhmm. I
was wondering if you came acrossanything regarding, like Native
American, territories becauseThat's

a great idea too.

That's what I would that's what came to mind
for me first.

That's like I feel like that's a plot of a movie.

I'm We're

gonna launder stuff through the Native American
reservations. That's like TaylorSheridan plot arc, if anyone
watches like Yellowstone orwhatever. Like it's

Yeah.

Yeah. And I wanna say that was like a thing in the
eighties in California wherethere was a a Indian
reservation, Native Americanreservation that was like
someone had set up shop there,obviously casinos, but then like
was was I think likemanufacturing firearms and
trying to like get them around.

Yeah. No, I mean it it definitely has
happened in our lifetime. I haveno sense of whether it's still
happening. But grew up with agirl who was a % Mohawk, grew up
on the reservation. And, yeah,she told me some real stories
about

Cool.

Yeah, how their rivers were abused. I mean,

it would be so cool if the Native American
reservations were like, hey,we're duty free. So, like, we're
gonna just become the centraltrade hub of North America. Like
Yeah.

Let's let's talk about reparations. Let's

Maybe Trump did reparations by accident.

Right. Okay. Alright. We just figured it out.

There we go.

Alright. I am decidedly keeping this short,
because I could probably spendthree episodes going over this.
But, you know, this is one ofthose things we need to tread
lightly on. And I thoughcouldn't give up this platform
and not use it to at leastmention what's going on

(39:51):
currently in our profession. SoI think it's pretty well known
now that the president has putout, I believe to date, five
executive orders attacking lawfirms.
Mhmm. Some of the most prominentlaw firms in our country, to be
exact. And when you read theseexecutive orders, they're short.

(40:15):
So I would actually highlysuggest that you take a minute
to just look them over. It isbrash.
It is undisguised retaliationfor law firms that have
represented interests that areopposed to the president. He
puts it in plain black andwhite. You know, you represented

(40:37):
this person. I they actedagainst me, and that is part of
this order and part of thereason why this order's coming
down. No doubt the firms thatare targeted are methodical.
Not only have some of thesefirms represented Trump's
enemies, but in attacking thesehighly profitable prominent

(40:57):
nationally and internationallyprominent institutions, the
message is clear. To the middlesized firms, the smaller firms,
it's fall in line or you'renext. And guess what? You
probably can't afford to fightthe federal government. We've
unfortunately seen some lawfirms fold and give in to the

(41:21):
will of of the president.
Most notably, a firm agreed togive $40,000,000 in free legal
work.

And I believe that the number is now, and we could
put a pin in this because I dowanna talk about this with you
towards the end here, but, Ibelieve the number now is that
the administration has, like,collected a pledge of
$240,000,000 worth of freelegal, counsel from these law
firms.

In exchange for them not, I guess, following
through on these executiveorders, which include, in some
cases, you know, doing fullblown investigations into these
firms, requiring them to producerecords, personnel records,
client lists, DEI initiative andstats that come from that,

(42:13):
revoking security clearance.

Also wasn't the, like wasn't it floated like
banning from federal buildings?Yep. Does that include federal
courthouses?

Oh, good question.

Because that's like, okay, I just can't
practice law anymore.

Yeah, I can't imagine but, I don't know. I
mean, perhaps. Yeah. I mean,these these are so broadly
worded that I think it's up forinterpretation.

And a lot of federal office buildings, by the
way, do house federal, likeadministrative courts. Right.
Like, like a random federaloffice building will also
include a floor that has, ALJhearing rooms, you know, and
things like that. Like, so,like, to say you're you're

(43:01):
banned from all federalbuildings might mean you can't
go into the place where youpractice law or where you
represent your clients, youknow?

Mhmm.

Mhmm. Physically. And on top of that, as I
understand, there's a shotacross the bow of the clients of
these firms.

Yes, that as well. Yeah, absolutely. I mean,
look, my point was notnecessarily in bringing this up
to come down on those firms thathave folded. It was more so to
applaud my colleagues that havestood up and had have said
definitively, no. This isabsolutely against our first

(43:40):
amendment rights, sixthamendment rights, fifth
amendment rights.
You know, you are attackingevery aspect of the separation
of powers. Yeah. I I mean, thankyou to all of the firms,
attorneys, the deans of lawschools, and just everyday
people who are actually taking astand very publicly and saying

(44:01):
we cannot, in any way, shape,form allow this to to continue.
Just recently, so one of thefirms that has stood up against
this and actually filed thelawsuit and they got a
preliminary injunction. They arenow seeking a permanent
injunction against the executiveorder.
That's Perkins Coy. And on Aprilfour of twenty twenty five, '5

(44:27):
hundred and '4 law firms fromacross the country filed and
signed on to an amicus brief tosupport Perkins Coy's motion for
summary judgment where they'reseeking a permanent injunction.
And this is certainly the mostorganized pushback that we've
seen to date. I just wanna readone part of the argument that
they filed. It says, the loomingthreat posed by executive order

(44:52):
at issue in this case and theothers like it is not lost on
anyone practicing law in thiscountry today.
Any controversialrepresentation, challenging
actions of the currentadministration, or even causes
it disfavors, now brings with itthe risk of devastating
retaliation. Whatever short termadvantage an administration may
gain from exercising power inthis way, the rule of law cannot

(45:15):
endure in the climate of fearthat such actions create. Our
adversarial system depends onzealous advocates litigating
each side of a case with equalvigor. That is how impartial
judges arrive at just, informeddecisions that vindicate the
rule of law. In the same vein,it is a deeply held principle of
the legal profession thateveryone, no matter their

(45:37):
actions or beliefs, is entitledto zealous advocacy on their
behalf.
The principle is so deeplyingrained that lawyers, going
back to John Adams' defense ofeight British soldiers who
perpetrated the Boston Massacreof seventeen seventy, consider
it a core part of theirprofessional obligation to take
on representation of clientswith whom they disagree even

(45:59):
vehemently. John Adams. JohnAdams. There you go. Mhmm.
Indeed, the courage of attorneyswho take on unpopular clients
has long made lawyerdom proud.End quote. Yeah. I don't know.
I, like I said, it's it's almostlike I'm at a loss of words and
I have too many words at thesame time, because it's just
such an unbelievable attack onour profession and our judicial

(46:22):
system that

it's I mean, if I can say something without saying
something, please. It's the waythat we wanted to cover cover
this is not the way that we are.Agreed. Because of what that
could mean in terms ofrepercussions.

Right. It's

it's So like if you think, if you're like the listen
to this debating whether likeit's affecting how people talk
and think about this issue, I'mtelling you it does. It's
happening, you're listening toit.

I was gonna say we probably started discussing
whether whether and how we wouldaddress this issue, what, three,
four weeks ago? Yeah. And we'vegone back and forth on it. And
that, I I will say for mepersonally, well, mean, luckily,
never have I had a point in mylife or career where I've taken

(47:10):
second to second guess whether Ishould use my First Amendment
right. Because therepercussions, not just on us,
but on our institution, on ourcolleagues, on our, you know,
it's it's real on our clients.
So I the power of what'shappening, I guess, can't be

(47:30):
denied. And that's why I say I'mnot coming down or I don't wanna
I don't want to come down onthese law firms who have folded.
Yeah. I don't agree with theirdecisions, but, you know.

I I I mean, I don't I don't either but, like, I I
hope that people understand,like, I I could tell some
anecdotes without givinganything away here. I I've spoke
to some people that are, let'sjust say, affected by this. And
when the administration's, youknow, targets, were set on them,

(48:04):
they got nonstop calls fromclients saying, sorry, you know,
we're not we can't we can't useyou anymore. We can't be near
this, because the

Which was the intent.

Correct. Yeah. It's it's meant to just threaten so
the the choice is like, youknow, do you take a stand on
principle or you do you maybebankrupt your company which
employs, you know, thousands ofpeople and and whatever and
like, I don't know, say what youwant about big law firms, I
mean, they're I mean, they're,you know, they they do pro bono

(48:36):
and everything else but likeit's not a it's not a charity
for puppies, like it's it's a

They make real money.

Yeah, yeah and, and I understand people don't like
lawyers, so also that, you know,like, I'm it's not this isn't
you know, feel bad for us typeof thing. It's I'm what I'm
really, you know, people willfigure it out. It's there's a
lot of things going on. What I'ma little what's really really
bothering me

Really grinding my gears.

I Why? What's up with these pro bono pledges?
Yeah. And what are they for?

Right.

Because I understand it. When
administration, anyadministration does something,
you know, politically not niceand, you know, they the DOJ,
right, they have their lawyersand they have all those things
but then there's also unrelatedthings you can't use the DOJ for
like campaign things.

Sure, sure.

Your private campaign, DOJ is not gonna
represent you. Yeah. You know,your individual lawsuits, DOJ's,
you know, all those things.

Yeah.

And, lawyer fees are expensive and the people,
you know, in the White House andconnected to the campaign have
there's been, you know, godknows we've talked about it
before but there's like, they'revery litigious and on the
subject of many lawsuits Andthen there is, you know, what
the administration wants to dowhich often uses outside counsel

(49:58):
for all sorts of things. That's,I mean, that's what a lot times
what, you know, these people aredoing. And I think like, you
know, you have the ability toturn away a case if you don't
want it for, you know, forreally any reason other than
like non discriminatory reasonsbut like you could just say I
don't want to be involved inthis project because I don't,
you know, care for the positionthat you're taking or whatever.

(50:18):
You could turn down work. And Ithink often that, particularly
unpopular things are turned downby, by certain firms.
There are niche areas and thereare highly specialized areas in
places where like a lot of thesefirms like have a monopoly on
like a skill set. Yeah. And, andso like they just wouldn't take
the case, right? Yep. And so nowwhen those like policies have to

(50:46):
be, you know, fought before thecourts, right, they're they're
being represented by like lessoptimal representation which
Mhmm.
Because it's not just like wewant you to stop doing like your
DEI because that's likeostensibly what's happening,
right?

We want

you to like stop

That's a whole other, yeah.

Yeah. But is the the deal is also that each of
these firms that has like signeda deal or whatever is going to
provide over the next four yearspro bono work totaling an amount
that is, you know, in the likewhatever agreement. And that
amount is, for two of the firms,a hundred million dollars.

NY Judge (51:18):
Just $240,000,000

worth of free work. Yeah. For what is my question.
And, like, why does theadministration wanna bank this
stuff?

Right.

What's it gonna spend it on? It's like, what's
really worrying me?

Good question.

And by the way, they could always go back to the
well and be like

I was just that's when you started down
this path, that's exactly what Iwas thinking is so when these
bills get submitted and they getto 99,800, whatever. You know
what I mean? Like, who in theWhite House is gonna be, like

Stop canceling something.

Hold no. Hold on a minute. Let's nope. You
overcharge me on this. Blah blahblah.
You know what I mean?

Well, they just go back and say it's $150,000,000

Exactly. That's what I'm saying.

What do mean by this?

This is such a

And it's and it's it's, by the way, the pro bono,
like, so each of the firms hassaid and, like, to to their
credit and and I will, you know,I'll take them with their word
on this that, like, their dealdid not involve them, like,
giving away their ability oftheir individual pro bono
committees to exercisediscretion over what matters
they take. But if you don'tthink that the pressure of this

(52:26):
thing, which each of these firmshas described as fatal Yeah. Is
going to weigh on them when,maybe a very ugly or nasty pro
bono matter is, thrust upon themby the administration or the
campaign or personal individualsconnected with, that's a
possibility that is exist nowthat didn't exist before this.

(52:47):
And none of this is like, youcan't sue to enforce this if
you're the if you're the lawfirm and there's nothing
stopping the government fromrenegotiating anytime they want.
Right.
So it's like, what it ends upbeing is a blanket like do not
represent interests that areadverse to those of the
administration, and you willalso give us a hundred million

(53:08):
dollars worth of free work overfour years

Mhmm.

For things that we're gonna tell you to work on.
Right. And like that's justInsane. Weird.

Insane.

And like, I don't know and I'm I'm sure everyone
involved is saying, no, no, no,We have our own independence.
Like, that's not the deal thatwe made. That is just what it
looks like, though.

Mhmm. And on the I guess on the other side of
that to take away from the,like, you know, woe is Us law
firms side of it is that realpeople who oppose the government
or who the president sees as athreat, if they get wrapped up
in a lawsuit that involves thegovernment in some way, shape,

(53:45):
or form, suddenly these big lawfirms are no longer available to
them.

Yeah. And that seems to be and not to be
cynical here, but that seems tobe the split among these firms
is, like, the kind of the natureof the work that they're exposed
to. Like, if your clients are alot of federal contractors, for
example, and the governmentcomes telling you, like, we're
gonna yank every one of thosecontracts if you don't do what
we say. I mean Mhmm. That's agun to your head from a business
standpoint.
And and then you gotta makewhatever choice you're gonna
make in that scenario.

Yeah. It is Pandora's box. Like, thank you
to the firms that are fightingthis because there has to be
some precedents that, I mean,this is insane. Insane.

Yeah. It's pretty crazy, man. And by the way, if
they were super concerned withthese things, the administration
would not be settling. LikeRight. If that's you know what I
mean?
Like

Right. Yeah, so you're

Also, you're allowed to be unethical now.
It's like

As long as you Yeah. Trust free. Yeah. Oh my
gosh, I hadn't even thought ofthat.

Yeah. So it's like, it's protectual, you know? Yeah.
It's that's how you know.

I was like, let's just touch on this real
quick at the end And it's like,you can't touch on it quick.
It's too important. I just wantyeah. I think my point in
bringing it up was not only tojust show support and and, you
know, to the extent we're able,like, make our opinions known,
but also, like, to kind of bringa little bit more awareness that

(55:03):
this isn't a woe is me lawyerissue. This is a much broader
issue.
And to the extent people don'trealize that, you need to read
up on this a little bit andunderstand the effects this has
on everyday people and theirability to get legal
representation. That is thescary part. All right. Well,
there's, I guess, no good way toend this conversation. It

(55:25):
probably is not it it's notgonna end.
It's gonna continue. But, yeah,we had to touch on it, and
that's our position. And just,you know, keep educating
yourself on these things, and,we'll end on a happier note.

Yeah. Alright. A little palate cleanser before we
get off here. This is like Ifound this hysterical, and,
we're just gonna play it here atthe end here. There was an
individual, in in a he had anemployment case.
The case. The the facts of thecase are not super important.
What's important is, he was prose and, was representing

(56:03):
himself, in the, first judicialdepartment of the Supreme Court
of the State of New York and NewYork's courts are organized so
weird.

I think that's a trial court level.

Yeah, right.

Supreme Court is trial.

Yeah, it's I that's what I mean. So Yep. Don't yeah.
But anyways, he's pro se, so hedoesn't have a lawyer and and I
and then he starts playing avideo of a, an AI, attorney, and
gets we'll we'll listen to itfirst because I just think,
like, just listening to it ishilarious to me.

NY Judge (56:37):
The Walled versus MassMutual MassMutual is being
called out of turn, and, theappellant has submitted a video
for his argument. Okay. We willhear that video now.

A.i. Defendant (56:57):
May it please the court. I come here today a
humble proceed Alright. For apanel of five distinguished
justices.

NY Judge (57:03):
Is this hold on. Is that counsel for the case?

Actual Defendant (57:09):
That I generated that.

NY Judge (57:12):
I'm sorry?

Actual Defendant (57:13):
I generated that. That that is not a real
person.

NY Judge (57:19):
Okay. It would have been nice to know that when you
made your application.

I think we can cut it there.
So that's like that's basicallyit. This is, we've covered the
attempts at AI lawyers andeverything and here's a good one
and it's within about sixseconds the judge is just like
absolutely not. This is I lovethe may it please the court, I

(57:45):
am a humble pro se and it's likefake AI. This is not how anyone
talks. And then in in the theclaimant goes, no, I generated
that.
I'm I'm sorry. That's mine.Yeah. And the judge is like,
never mind then. We're thatwe're not gonna do that.
I I just So anytime you seepeople that are that have a like

(58:05):
quote unquote AI lawyer service,so they're talking about how
attorneys are gonna be automatedor whatever, there's exhibit a
for you.

Good attempt.

Good good try.

Shut it down.

Yep.

Alright. That's our show. As a reminder, we come
out with new episodes every twoweeks, pending our litigation
schedules, but we do our best.You can find Litigation Nation
wherever you get your podcast,Apple Spotify, YouTube,
etcetera. So please tune in,leave comments, anything you

(58:38):
want us to cover that we haven'tyet.
That's it. We'll see you nexttime.

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HBO's John Oliver hit with defamation lawsuit from healthcare executive over 'Last Week Tonight' episode - Ep. 64

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}HBO's John Oliver hit with defamation lawsuit from healthcare executive over 'Last Week Tonight' episode - Ep. 64