Vaccine Suit, State Judicial Races, Trans Protections

Is this lawsuit? For real? Bloomberg Law with June Grasso from Bloomberg Radio. Welcome to the Bloomberg Law Show. I'm Greg Store and I'm Lady Wheeler. We're in for June Grasso. Coming up on the show, we'll talk with Jake Belsheni at the Alliance for Justice Action Fund about state Supreme Court judicial races and why these are courts worth paying attention to. And Jennifer Levi, director of glad's Transgender Rights Project, will join us to talk about a recent federal Appeals

Court decision that gives transgender workers honor legal protections. But first we're joined by Bloomberg News reporter Angelica Peebles to discuss the new lawsuit they're enough filed against Fiser over the technology used to create the COVID nineteen vaccine. Angelica, thanks for joining us. Tell us why Moderna is filing

the suit and what the company is alleging. Maderna says they're filing this lawsuit now because they are trying to protect their MR and a technology platform that they've spent the past decade or so making, and they're saying that they're claiming that Fiser and bion Tech knowingly copied some

of the key elements of Maderna's patented technology. And so they're not trying to actually stop the sale of their COVID vaccine or do anything that would interfere with the vaccination campaign, but they do want some some monetary um, you know, some money from them starting this spring and going forward. So we'll have to see how it plays out,

um in the court. But um, you could see that, um, you know, it's a big deal for for the companies and also you know, just the public at large watching this. Tell us what Maderna is after in this litigation and what's the likelihood that the company is going to be successful here. Yeah, So Maderna is not seeking to stop the sale of Fisor and BioNTech vaccine, but they are seeking what would be essentially a loyalty, so you know, a cut of the money that they make on the

sales of their vaccine. And they're saying that they only want some money UM starting from earlier this spring and going forward and only in high income countries. And it's a little complicated, but it has to do with the fact that Maderna made this pledge UM two years ago saying that it would not enforce its patents during the pandemic, and then this spring they said, never mind, Actually we are only going to in for to not enforce our patents in low income countries. So it's the way that

all of those steps have played out. It seems like they're trying to match up by saying, you know, now we are only seeking money from this period of time. But the real question is whether they can go back on that pledge that they made two years ago. UM. One legal expert we spoke to said that they can't UM. So that's something that will be really interesting to watch. So is that pledge something that Fiser and Biotech can use in their defense against this lawsuit? Yea, so um.

Jorge can Trist, the professor from the University of Utah

who we spoke to. He says that under the law, these patent pledges are considered contracts, so the companies it's a public company, they made a public statement and other companies UM can use that information to make decisions about their own strategies, which obviously Fiser and bion Tech went out and introduced their own COVID vaccine, so they could argue that they were just opera wading under you know, under um the assumption that Maderna was not going to

enforce his patents. So at the least the way he um he sees it, either and BioNTech have a pretty good defense here. It might not even get into all of the details of the patents and you know who used what and what was patented and what wasn't. But that could be that contract, the patent pledge could be a solid defense. Or Fiser and BioNTech didn't this lawsuit have any impact on the company's market shares for either Maderna or Fiser, so they did see a little bit

of a hit the other day. UM. You know these things they're not expecting Analysts are not expecting it to be a big money maker for either um for Maderna, if they even do win. And that's just because according to precedent that we haven't seen a huge impact like these payments haven't been jaw dropping, especially in the context

of the billions of dollars that Maderna has made so far. UM. But of course these things take a long time, they're expensive, so I think you can imagine that investors are a little bit nervous to see what exactly happens and the impact it has on all of the companies involved. So news of this lawsuit comes out just as we're learning we're all going to be eligible for another shot after

labor Day. Well, this lawsuit uh potentially have any effect on the availability of future COVID shots from our understanding, No, because Madernas says they're not trying to stop the production or stop the sale of Fiser and bion text COVID vaccine. So the way at least the complaint was written and the damages they're seeking, it doesn't seem that there will be any any disruption there. And I'm curious if this if there could be any ulterior motives here on Maderna's

behalf as to why they're bringing this lawsuit against Fiser. Yeah, well they're saying that they're trying to protect the technology that they've spent so long trying to develop, so you could see that as well. They're trying to make sure this doesn't happen again. You know, if if Fiser Bronte did even infurage on their patents, which obviously the companies

say they did not. But um Again, the legal expert we spoke to, he said that it's probably it wouldn't be surprising if Maderna has been trying to get Fiser and bion Tech to negotiate some sort of royalty in the background here, and maybe those talks haven't gone well, and so now Maderna is going to doing the lawsuit because of that. He says, it's a classic strategy just to companies um into getting them to license technology that you think that is yours. So that's one possibility for sure.

That's Bloomberg News reporter Angelica Peoples, you're listening to Bloomberg Law. Up next, we talk about state Supreme Court judicial races and which ones are worth paying attention to. I'm Widio Wheeler. And I'm Greg Store. This is Bloomberg. This is Bloombird Law with June Brusso from bloom Bird Radio. I'm Lidia Wheeler and I'm Greg Store. We're in for June Brasso.

State Supreme court races in a number of states are being closely watched this year for their potential to affect a host of issues, including congressional maps and abortion restrictions. We're joined now by Jake Valaskini, legal director at the Progressive Alliance for Justice Action Fund, which has been tracking these races. So, Jake, UM, Michigan, North Carolina, Illinois, and Ohio are or for the states that have been highlighted as having particularly important races. Can you just tell us

generally why those four races are such a big deal. Sure, and thank you much so much for having me on. I really appreciate it. Um. So, all four of those states or states where you have a fairly divided electorate um, and also where you have a divided supreme court ideologically, so generally speaking, in Michigan we have a four three democratic majority on that Supreme Court. In North Carolina we also have a four three democratic majority on that Supreme Court.

And in Illinois, we have a four three Democratic majority on that Supreme Court. In Ohio, however, we have a three three one Supreme Court with three Democrats, three Republicans, and one independent who is a Republican that sometimes sides with the Democrats on issues of democracy and voting rights. Talk about why, UM, party control matters here and um, you know, how these races could impact which party is

in control. Sure, generally speaking, UM, what we've seen, at least over the last ten to fifteen years, a sort of consolidation around issues of democracy, UM in differences between Republicans and Democrats and how they how they approach those

issues of democracy. Republicans have tended to be more restrictive on on voting, on access to the polls, on redistricting, on jerrymanderin, whereas Democrats have tended to be more open on those issues, more liberal on those issues, trying to expand the franchise, expand the right, protect the rights of minorities to vote when they're being restricted. For several of those states going forward, uh, some with with litigation that

is currently pending. Other with litigation that we uh, you know, we can't foresee it might come out of a future election UM, the justices who sits on those courts might matter forward, how those how those different cases are decided. Yeah, so you recently tweeted that the state Supreme Court races in in Wisconsin, which I guess is next April, as well as the ones in Michigan, North Carolina, and Ohio this fall, are about as important to our democracy as

these things get. Can you dive into that a little bit more? Why? Why are these races so important? Sure? I'd be happy to um so. I think Michigan is a perfect example of why these sorts of races are extremely important. UM. In Michigan, after the elections, several lawsuits were brought in front of the state UH state courts UM challenging the results UH in UM at least one four three case, the Democratic majority concluded that the election

results should be certified. Had they not been certified and in a timely matter, UM, that could have allowed even more chicanery to happen in UH in the final determination of the election result nationally UM in UH and in after the current election cycles, who who are in those positions deciding those election case outcomes could be determinative of

how elections are certified UM. Same. I think it's true also in Wisconsin, where currently you have a four three Republican Supreme Court UM, and that court has overwhelmingly decided to restrict voting rights UM in several decisions that have

come down over the past decade UM and UH. In next year's election, Wisconsin voters will have the opportunity to change potentially the partisan makeup of that court, flipping it to a four three Democratic majority UM, in which case I think that you would see that that Supreme Court would be UH much more responsive to concerns over UH over issues of redistricting, voter restriction, UM, limiting ballot boxes,

that sort of things. There seems to be more of a focus on state supreme courts now than there has been in the past, and I was wondering to what extent is the US Supreme Courts abortion decision driving that UM. I think it is definitely driving that. We've seen a huge concern over UM state constitutional rights to an abortion UM and and a renewed focus on this issue. UM. I think that that's a good thing. Generally, UM state

Supreme courts have always determined many of our rights and liberties. UM. State Supreme courts. Here of all of the lawsuits that are filed in America every year, UM, and they've always had an outweighed um uh impact on our rights and liberties. The fact that people are paying more attention now UM

is great. And if people UH start to consider whether or not our state constitutions might afford even greater rights and liberties that are federal uh constitution does, UM, then I think that that can be incredibly positive for the rights of many. Although it isn't a complete band aid for the fact that the you know, the U. S. Supreme Court is stripping away so many important rights nationally. Let's just take a step back and and talk about how state Supreme Court justices get on the court in

the first place. We've been talking about some states where voters go to the polls and vote on state Supreme Court justices. But it does vary a bit from state to state, right, it does. That's correct. UM. Generally speaking, about half of the justices in the United States. State Supreme Court justices in the United States each year are elected and half are appointed. UM. Of those that are elected again about half and half. It's not completely accurate,

but it's a close estimate. Are elected nonpartisan races and about half of those that are elected or elected in partisan races. UM. So, like you said, it varies widely state to state. There are two real anomalies where the legislature picks the justices in those states. That's in South Carolina and Virginia. UM. And even in those states, what they're where justices are elected. Uh, it's a little bit

different when those justices might appear on the ballot. What's in whether it's in an odd year and h or in an even year presidential, congressional um. So, every state does it a little bit different. Um. And so it's it's not surprising that folks around the country might might not know exactly how how the judges and justices and their states are picked. You're listening to Bloomberg Law. Up next, we continue our conversation with Jake Paliskini, legal director at

Alliance for Justice Action Fund. I'm Greg Store and I'm Lydia Wheeler. This is Bloomberg. This is Bloomberg Law with June Grasso from Bloomberg Radio. I'm Greg Store and I'm Lydia Wheeler. We're in for June Grasso. We've been talking with Jake Falskini legal director and Alliance for Justice Action Fund, which has been tracking state Supreme court races. Jake, how common is it for state Supreme Court justices to lose a retention election? And does this happen when there's a

coordinated effort by Republicans to house someone? Um. That's a great question. So it happened, happened that often in history, but there are some reason recent examples of when it's happened, especially when you have coordinated and well funded attacks on current sitting justices. UM. So. A couple of good examples of this that folks normally point you historically are back in the early two thousands when the Illinois State Supreme Court found a constitutional right for lgbt Q folks to

marry UM. After that, Republicans and conservative organizations launched a coordinated uh uh sitting in Supreme Court justices who had ruled in favor of that constitutional right UM and UH, and three of those justices were outsted from the court. UM. Similar instances have happened, say, in Illinois, a siting Supreme Court justice lost the retention election in UM. In Michigan, this happened a few years ago as well. UM and other attacks have been launched against current sitting justices UM.

Ultimately many of those were unsuccessful, but sometimes they do happen. How much does money play a role in all this? Are we seeing just a significant at all amount of money going into state supreme court races and retention battles? Yes,

absolutely it plays a huge role. UM Our friends at the Brennan Center have done a great job tracking the flood of money into judicial elections over time, UM and I would highly suggest that listeners take a look at their great resources on the state supreme courts and and

money that bloods into those races. But generally speaking, over time, we've seen a huge increase in the amount of money that's gone into these judicial elections UM and UH and often not times those are coordinated by groups that have a very particular idea of what results they want out of the election, And often what we also see is that the advertising doesn't necessarily match up with the end

results that they want. So business groups will often, for example, launch attacks on justices where they don't like the outcome of business decisions in their cases. Yet their advertising will often focus on issues of criminal law. UM and focus on UM, you know, advertisements that might impugne the justices around their decisions on criminality and other issues like that. Let's talk a little bit about the particular states, um

with these races that are worth worth watching. UM, can you talk to us about what's happening in Illinois, Like what are the issues that could come before the state Supreme Court there, um where an ideological shift would make a big impact. So, I going back to your earlier question, I think one of the most obvious is going to be abortion. UM. That issue could definitely come back before the Illinois Supreme Court. UM if that court were to

flip from liberal to more conservative majority. If that were to happen, then you know, it becomes a question as to whether or not the right to an abortion could still be deemed legal in Illinois. And that has a huge downstream effect on other Midwestern states because Illinois dipped so deep into the Midwest, UM that the right to an abortion is often protected for other Midwestern people, UM

through Illinois still having that right. There are so many issues and many other issues that are going to be in front of that state state Supreme Court. Issues of business law and issues of UM, you know, criminal rights and UM. All all sorts of other issues would come before that court too. And one one other state we've talked about a little bit is Ohio. Are the issues the same there or are they different from Illinois? In Ohio, the you have many of the same issues. But also

I would just stress the importance of democracy cases there. Um, you have a state legislature in Ohio and a state governor that have done everything that they possibly can really to restrict the right to vote in that state. Hundreds of thousands of voters are stripped from the roles every year in Ohio. Um, they've gerrymandered the state legislature to

an incredible degree. Um, there really is uh. There are many cases there uh to protect the right to vote that I think um would be extremely uh uh under threat with a more conservative court there. That's Jake Falaskini at Alliance for Justice Action Fund. Thanks for joining us, Jake, thank you so much for having me. I really appreciate it.

You're listening to Bloomberg Law. Up next, we're joined by Jennifer Levi, director of Glad's Transgender Rights Project, to talk about a recent appeals court decision that expanded legal protections for transgender workers I'm Lidia Wheeler and I'm egg Store. This is Bloomberg. This is Bloomberg Law with June Brusso from Bloomberg Radio. I'm Lidia Wheeler and I'm gregg Store.

We're in for June Grasso. Earlier this month, the Fourth US Circuit Court of Appeals declared gender dysphoria a disability under the Americans with Disabilities Act. Joining us now is Jennifer Levi, director of glad's transgender Rights Project. GLAD stands for the g l B t Q legal advocates and defenders. Jennifer, thanks for joining us. UM talked a little bit about this ruling, call us how significant it is and what

it means for transgender and gender fluid people. Yeah, so thanks for having me, and yeah, this is a really important decision that makes it clear that there's no exclusion under the a d A for disability claims that are

brought by transgender people. The reality is because of both misunderstandings about gender dysphoria as a health condition and also because of outdated language in the a d A. There have been people and courts that have um in the past said that transgender people can't bring disability claims, and this really clarifies that individuals can which is very important source of federal protections. Can you explain what gender dysphoria is and how someone um with it might benefit from

being covered under the Americans with Disabilities Act? Yeah, absolutely so. Gender dysphoria is the clinically significant distress that a transgender person experiences if they can't live consistent with the gender

identity that they know themselves to be. So, for example, a transgender woman as somebody who has assigned the sex of mail at birth but has the identity and internalized experience of being a female, and of gender dysphoria is the experience that that individual has if they can't live as a woman. How did this ruling by the Fourth Circuit come about? What was the underlying dispute that that

got us here? Yeah, So the underslying dispute in this case was that there is was the transgender woman who was um incarcerated and denied medical treatment and made to reside with men despite having lived as a woman, and so she brought claim under this very important source of federal protections against discrimination because of having a stigmatized medical condition.

And the court decision in this case makes clear that she has to be fairly treated, and that fair treatment has to take into account the medical condition that she experiences. And so basically it means, you know that trans gender women have to be treated UM. In this case, it was UM in a prison, but the A d A applies in other contexts, including in workplaces and public accommodations and other public institutions, and so she has to be

treated like other women would be treated. Can you give us some specific examples about how people transgender people could benefit by being covered under the A D A. I mean, I know that you you mentioned accommodations, um, you mentioned things in the workplace. Can you give us some examples as to how this could be a benefit. Yeah, absolutely so, I mean the workplace provides a lot of uh examples where um, you know, it's really important for a transgender

woman to be treated like other women. It may involve um uh making sure that uh you can you know, if there's a dress code in the workplace conformed with a female dress code. Certainly, if there are accommodations for changing or for restroom access, making sure that she has access to those um for trans for transgender people who might UM, taking you know, a period of time to transition.

Then it's important that they get them accommodations or any kind of medical care that they might need during a particular gap of time. So, I mean, one of the things I want to say is that, you know, the ADA has been such an important source of protection for people who are fully capable of contributing and working but are facing barriers because of the stigma and misunderstandings associated

with some underlying medical condition. And this is such an important decision because it really levels the playing field for transgender people in those um series like the workplays or public institutions where the ad A applies. Let me dig in a little bit to the legal battle here. So the A d A includes some language that says this law excludes people with gender identity disorders now, and that that's a phrase that we don't use anymore, and perhaps

more importantly, psychiatrists don't use anymore, isn't it though? Or the argument, at least from the Descent and the other side in this case was that it is an indication that may be Congress meant to exclude transgender and gender fluid people from the statute. What's the counter to that? Yeah, I mean, so what the majority said is that that language of gender identity disorders is outdated, um and doesn't reflect the current medical understanding of gender dysphoria, which is

the underlying medical condition that this individual experience. And so um, you know, just looking at the plane, the plain text and the plain meaning of what that exclusion reflected, there would be no basis to deny somebody who experiences gender dysphoria, which is a different medical condition than than gender identity disorders, which was excluded under the original law. So just like a straight non textual reading suggests there's no basis for

excluding transgender people. But what the majority also recognized is that to the extent that it were to be read to create that categorical exclusion, that that really violates the most basic guarantees of equal protection, which is that you can't be excluded from a law's protection just because of bias or animus against a particular group. Do you think that the ad A should be amended um at some point, and and and do you think that lawmakers wrote it

in a way, um, in a kind of a bigoted way. Yeah, Look, I mean I think there is very clear um testimony and very clear history, that legislative history that has been on earth. That does reflects the fact that you know, there were some legislators, um who who were speaking you know, out of from a very bias uh and discriminatory perspective. And yeah, I think it creates a stain on that law to have that exclusion written into it, and ultimately it would make sense to update the language and get

rid of the archaic references. But the reason why this case, you know, is so important is that transgender people should not have to wait for that change in order to um be able to secure such important federal protections. But yeah, I mean there's probably a lot of ways in which our laws uh need to be updated, and doing so would be important, but um, those who should be protected

by the laws should not have to wait. And I actually I want to say one other, one other side of that, if if I have a minute, which is this is important not just for transgender people, but also you know, for the workplaces and the public institutions to

which they contribute. I mean, the point of the ADA was to ensure that people who can thrive and make contributions aren't held back um by you know, misunderstanding, by stigma associated with the medical condition, and the point is really so that we can all benefit from the contributions that they can make. So this is obviously just one federal appeals court, important decision, but just one. Where have other courts come down on this? Where does the state

of the law stand nationwide on this issue? Yeah? So no, there has been a number of at this point federal district courts which have are in agreement with what UM the Fourth Circuit recently said, And so, I mean, at this point it is very much the UM prevailing understanding of the idea, which is that it does apply UM. It can be used UM in you know, where somebody faces discrimination or biased because of the medical condition of

gender dysphoria. This is the first circuit court decision, but there are a number of federal district courts which are aligned with the outcome here. How should employers who are trying to comply with this lot respond to this decision? Yeah, so, I mean, I think one of the ways to respond is to just make sure that people's h R policies are taking into account and ensuring equal treatment for UM.

Anyone who speaks an accommodation because of gender dysphoria, or who is trying to ensure that they have full and equal access to UM the workplace or you know, other public accommodations, public including you know, federal UM places, for which not just the Americans with Disabilities Act but also

the Federal Rehab Act applies. And so it's really just making sure that there's that the touchstone is equal treatment, you know, to the extent because its employers have to have you know, um UH policies to address a d A accommodations and probitions against discriminations. So this is just making sure that there's no carve out or no exclusion for transgender people. It's a touchdown of equal equal treatment.

Given the importance of this issue and the fact that there is some disagreement among lower court judges as evidenced by the dissenting judge in this case, does this seem like an issue that inevitably is going to be decided by the Supreme Court? Um? I actually not convinced of that, because you know, I think that UM, you know, the Fourth Circuit got it right here. I think that we are likely to see other favorable decisions. UM. If there

are issues are cases that go up on appeal. As they said, there's a growing number of federal district courts that have also clarified there's no exclusion for gender dysphoria under the A d A. And you know, I think that this is kind of an issue, Whereas they said, just like a you know, straightforward plane reading of the text of the statute um would would support this outcome here. And so I don't think that we're going to see a divide among appeal to courts on this issue, but

we'll see. I'm hopeful. Well, that's Jennifer Levi, director of Glad's Transgender Rights Project. Thanks for joining us, Jennifer, Yeah, thanks for inviting me on. I appreciate the coverage. And that does it for this episode of Bloomberg Law. I'm Lydia Wheeler, I'm Greg Store. This is Bloomberg