WEBVTT - Will Twitter Sue Meta Over Threads?

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>All right, everyone, big news today, we are launching Threads,

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<v Speaker 1>an open and friendly public space for conversations. But friendly

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<v Speaker 1>conversation wasn't exactly what Twitter had in mind. It took

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<v Speaker 1>just hours after the launch of Threads for Twitter to

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<v Speaker 1>threaten to sue Meta over its quote copycat, app raising

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<v Speaker 1>the specter of costly trade secrets litigation in a sometimes

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<v Speaker 1>nebulous area of the law. Twitter sent a letter to

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<v Speaker 1>Meta CEO Mark Zuckerberg accusing the company of hiring former

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<v Speaker 1>Twitter employees to use trade secrets to speed up the

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<v Speaker 1>development of Threads. Joining me is IP litigator Fabio Marino,

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<v Speaker 1>a partner at Womble Bond Dickinson who has litigated Silicon

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<v Speaker 1>Valley software trade secrets disputes. Tell us how common is

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<v Speaker 1>trade secret litigation?

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<v Speaker 2>It's actually pretty common, particularly in Silicon Valley, particularly between

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<v Speaker 2>I tech companies, and specifically when there is a group

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<v Speaker 2>of engineers that move from one company to the other.

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<v Speaker 1>How would you define what exactly constitutes a trade secret?

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<v Speaker 2>Trade secret at least under California law, and it's similarly

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<v Speaker 2>defined under federal law. Is any information that has value

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<v Speaker 2>because it's kept secret, kept confidential.

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<v Speaker 1>That's pretty broad, it is.

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<v Speaker 2>And you know, usually when we teach this in law school,

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<v Speaker 2>we give an example such as the formula for coke.

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<v Speaker 2>Now that's probably an outdated example because nowadays you can't

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<v Speaker 2>do chemical analysis and reverse engineers a formula for coke.

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<v Speaker 2>But it's basically what most people would describe as the

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<v Speaker 2>secret sauce behind the product, and it's not really apparent

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<v Speaker 2>from the out outside, but it actually makes it work.

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<v Speaker 1>Well, tell me about this letter from Twitter to Meta.

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<v Speaker 1>Is this a typical demand letter or something else?

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<v Speaker 2>So I wouldn't call it a demand letter. This is

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<v Speaker 2>probably more what we would call it notice letter, and

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<v Speaker 2>it's very common. So when a company begins to investigate

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<v Speaker 2>or suspect that some trade secret misappropriation might have taken place,

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<v Speaker 2>they will typically send a letter such as this to

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<v Speaker 2>the new employer to put them on notice that there

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<v Speaker 2>is a potential trade secret misappropriation and they should investigate.

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<v Speaker 1>And what can you tell about the information that Twitter

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<v Speaker 1>already has from this letter? I mean, what can you

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<v Speaker 1>read into this letter?

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<v Speaker 2>The letter is fairly dad. It's obviously triggered by the

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<v Speaker 2>launch of Threads from the Meta platform, which is somewhat

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<v Speaker 2>similar to Twitter. It doesn't specify any number of employees

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<v Speaker 2>that have transitioned from Twitter to Meta, and if they

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<v Speaker 2>had specific information about specific employees, I would have expected

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<v Speaker 2>them to be named in the letter, and you would

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<v Speaker 2>actually typically send a letter to that employee specifically reminding

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<v Speaker 2>them of their confidentiality obligation that extends beyond their termination

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<v Speaker 2>from the prior employer.

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<v Speaker 1>So this could just be Twitter trying to flex its

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<v Speaker 1>muscles and saying your product is so similar there must

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<v Speaker 1>be some kind of a trade secret violation.

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<v Speaker 2>That's not an unreasonable interpretation. Fact, it was my gap

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<v Speaker 2>reaction when I read it.

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<v Speaker 1>In response to this, a metaspokesperson, Andy Stone posted quote

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<v Speaker 1>to be clear, no one on the Threads engineering team

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<v Speaker 1>is a former Twitter employee. That's just not a thing.

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<v Speaker 1>If that is true, would that be enough to stop

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<v Speaker 1>the litigation or at least make any litigation more difficult.

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<v Speaker 2>Certainly it would make a claim of trade secret misappropriation

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<v Speaker 2>based on hiring former employees difficult. As you said, if

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<v Speaker 2>it's in fact true, I suspect it's true in the

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<v Speaker 2>sense that no Matter is a sophisticated company and so

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<v Speaker 2>they have probably already taken steps to verify if in

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<v Speaker 2>fact they have anybody on the team that is a

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<v Speaker 2>former Twitter employee, and the fact that they put out

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<v Speaker 2>a statement quickly to that effect suggests that they've done

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<v Speaker 2>something in that sense.

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<v Speaker 1>Well, let's say Twitter does bring a trade secrets case

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<v Speaker 1>against Meta. What would it have to show.

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<v Speaker 2>I would have to show that Meta actually acquired trade

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<v Speaker 2>secrets from Twitter, either through hiring former employees or some

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<v Speaker 2>other kind of appropriation of the trade secret. The one

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<v Speaker 2>important safeguard, at least in California, is that if they

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<v Speaker 2>file laws, Twitter is going to have to identify the

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<v Speaker 2>trade secrets before it can obtain discovery from Meta. So

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<v Speaker 2>that's important because you cannot just sue somebody ask them

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<v Speaker 2>to turn over their confidential information say oh, that's my

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<v Speaker 2>So the policy, there's a statute that regulates in California,

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<v Speaker 2>requires the sewing party to actually identify the trade secrets

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<v Speaker 2>before obtaining information from the defendant.

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<v Speaker 1>So suppose the two products are just very similar.

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<v Speaker 2>Yeah, that's not a trade secret misappropriation in and of itself.

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<v Speaker 2>Now I saw some reference to data scraping, so it

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<v Speaker 2>sounds like at least Twitter believes there might be something

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<v Speaker 2>related to data scraping.

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<v Speaker 1>And it's a letter said that Meta isn't allowed to

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<v Speaker 1>crawl or scrape Twitter's data.

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<v Speaker 2>So data scraping means collecting information of somebody else's website.

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<v Speaker 2>So there's some data that is obvious to everybody. Right,

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<v Speaker 2>if you're reading Twitter a set of tweets, you know

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<v Speaker 2>there's data in the twitts themselves, but there is additional data,

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<v Speaker 2>often referred to as metadata. Metadata simply means data about

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<v Speaker 2>other data that somebody familiar with the Twitter algorithms, for example,

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<v Speaker 2>would be able to collect, taking advantage of inside knowledge

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<v Speaker 2>about that metadata is organized on a Twitter service. So

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<v Speaker 2>the implication here is that if there are former employees

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<v Speaker 2>of Twitter and Meta, they might have viewed some of

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<v Speaker 2>that knowledge to enable Meta to scrape data from Twitter

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<v Speaker 2>that others that lacks that knowledge would be able to extract.

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<v Speaker 1>In a case like this, do you almost need a

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<v Speaker 1>smoking gone like evidence that code was copied or documents

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<v Speaker 1>were stolen?

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<v Speaker 2>Certainly helps a lot, but we typically first as smoking gun.

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<v Speaker 2>You know, I do these types of investigations all the time.

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<v Speaker 2>When I find evidence like that, now I know whatever real, Okay, Obviously,

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<v Speaker 2>You don't have to have a smoking gun before you

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<v Speaker 2>file stood. You need to conduct a diligent investigation. You

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<v Speaker 2>have to obtain information that leads you to form a

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<v Speaker 2>reasonable belief that a trade secret misappropriation has occurred. The

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<v Speaker 2>fact that there is an allegation some employees might have

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<v Speaker 2>transferred over it by itself is probably in opposition. So

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<v Speaker 2>they need to find something, but it doesn't have to

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<v Speaker 2>rise to the level of smoking gun.

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<v Speaker 1>As you said, Let's say it does go to trial.

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<v Speaker 1>Could it end up that it comes down to experts

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<v Speaker 1>testifying about what they see in the code or the algorithm.

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<v Speaker 2>If she went to trial, obviously a lot of the

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<v Speaker 2>technical evidence would come in in the form of expert testimony.

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<v Speaker 2>I will say, though, that one unique feature of trade

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<v Speaker 2>secret cases, particularly between you know, close competitors in the marketplace,

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<v Speaker 2>is that a lot of bad evidence gets presented a

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<v Speaker 2>very early in the case in the form of a

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<v Speaker 2>tro or a primer injunction motion.

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<v Speaker 1>It sounds like these cases are tough. What would Twitter

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<v Speaker 1>have to show to get by a motion to dismiss.

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<v Speaker 2>So they show some evidence that some level of misappropriations

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<v Speaker 2>taken play. But typically what happens in these cases very

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<v Speaker 2>early on, and I would suspect that's happening right now

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<v Speaker 2>as we speak. You know, Twitter is going through all

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<v Speaker 2>of the electronic evidence they have or the departed employees

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<v Speaker 2>that they believe went to Mata to find any indication

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<v Speaker 2>that they were in communications with Meta before they left.

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<v Speaker 2>For example, they might be looking at social media postings

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<v Speaker 2>by former Twitter employees to see if they find any

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<v Speaker 2>evidence that anybody was communicating with Matter. They need to

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<v Speaker 2>find something, even if it's not direct evidence, but indirect evidence,

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<v Speaker 2>circumstantial evidence as we often say, to suggest that there's

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<v Speaker 2>been some misappropriation. Without that, it's going to be hard

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<v Speaker 2>for them to push forward on a case.

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<v Speaker 1>Does Twitter have to move fast here?

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<v Speaker 2>Yes? So there's two major reasons. One is obviously every

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<v Speaker 2>day that goes by, so that becomes more successful in

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<v Speaker 2>the marketplace. And two, one of the important characteristics and

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<v Speaker 2>secrets is the strade secret loses value the moment it's

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<v Speaker 2>just closed, right, so you have to act quickly to

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<v Speaker 2>protect the secrets of the trade secret to the extent

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<v Speaker 2>you can demonstrate that one exists.

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<v Speaker 1>As far as an incentive to settle, is there more

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<v Speaker 1>incentive to settle cases like these? Where trade secrets.

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<v Speaker 2>Are involved, there is an incentive, you know, to litigate

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<v Speaker 2>the case just quickly. As I said, you're the one.

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<v Speaker 2>Majority of trade secret cases are in cases that are

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<v Speaker 2>going to go to trials or monetary damagers. They usually

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<v Speaker 2>get resolved at a preliminary injunctive relief stage. So the

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<v Speaker 2>incentive here is for Twitter to find out what it

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<v Speaker 2>can if it hasn't us, and they will move for

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<v Speaker 2>a premiery in junction and through that they'll be able

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<v Speaker 2>to get some level of expedita discovery from Meta from

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<v Speaker 2>which they can sustain whether there is enough evidence to

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<v Speaker 2>go forward or not. Settlement, of course, is always possible.

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<v Speaker 2>One of the reasons to send an notice letter is

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<v Speaker 2>to force the other side to do an investigation and

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<v Speaker 2>if they find something, they may come back to you

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<v Speaker 2>and make it an offward to make it go away.

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<v Speaker 2>That actually happens more often than you would think. Here.

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<v Speaker 2>I'm not sure because obviously there is a public rivalry

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<v Speaker 2>between the two CEOs. They might be playing into this,

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<v Speaker 2>and so maybe in a settlement is not the direction

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<v Speaker 2>at least the top level of both companies want to

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<v Speaker 2>go into. Certainly for Matta, you know, get making it

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<v Speaker 2>go away is a good thing.

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<v Speaker 1>Thanks for being on the show. Fabio. That's Fabio Marino,

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<v Speaker 1>a partner at Womble Bond Dickinson, Candy Crush, Call of Duty,

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<v Speaker 1>and World of Warcraft are now one step closer to

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<v Speaker 1>becoming Microsoft properties. A federal judge has denied the Federal

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<v Speaker 1>Trade Commission's requests for a preliminary injunction to stop Microsoft's

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<v Speaker 1>sixty nine billion dollar acquisition of video game company Activision.

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<v Speaker 1>Blizzard regulators sought to ax the deal, saying it will

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<v Speaker 1>hurt competition. The merger could be the largest in the

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<v Speaker 1>history of the tech industry, but Federal Judge Jacqueline Scott

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<v Speaker 1>Corley said the FDC hasn't raised serious questions regarding whether

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<v Speaker 1>the proposed merger is likely to substantially lessen competition between

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<v Speaker 1>video game consoles or in the growing markets for monthly

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<v Speaker 1>game subscriptions or cloud based gaming. Joining me is Bloomberg

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<v Speaker 1>Intelligence Senior litigation analyst Jenniferree. How big a defeat is

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<v Speaker 1>this for the FTC, Not only as far as this

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<v Speaker 1>deal is concerned, but as far as the FTC's aggressive

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<v Speaker 1>moves to police mergers.

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<v Speaker 3>You know, I think it's fairly big now. I'll start

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<v Speaker 3>by saying, these things move slowly, right, Challenging mergers is

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<v Speaker 3>its low process, and I think it's still sort of

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<v Speaker 3>too early to say whether the FTC really is in

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<v Speaker 3>kind of a failing streak. But this was pretty big

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<v Speaker 3>because they really really wanted to challenge a vertical deal,

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<v Speaker 3>a deal in which there was vertical integration by virtue

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<v Speaker 3>of the merger, and they thought this would be a

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<v Speaker 3>good one to do so, especially because it involves Microsoft,

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<v Speaker 3>their large, large, powerful company, and so I think that

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<v Speaker 3>it was a real disappointment for them, and obviously it

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<v Speaker 3>paved the way for the deal to close, and they

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<v Speaker 3>don't think the deal should close. So this was a

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<v Speaker 3>big deal.

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<v Speaker 1>Tell us about why the judge found that this deal

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<v Speaker 1>you didn't have antitrust problems and could go forward.

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<v Speaker 3>Well's technically what she found is that if there was

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<v Speaker 3>a full blown trial on the merits. This was sort

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<v Speaker 3>of a short abbreviated trial right just to determine whether

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<v Speaker 3>there should be a short term block. But what she

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<v Speaker 3>found is that if there were a full blown trial

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<v Speaker 3>on the merits, fleshing out all the evidence, that it

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<v Speaker 3>was unlikely that the FDC would succeed. This is what

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<v Speaker 3>the FTC had to show a likelihood of success on

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<v Speaker 3>the merits. The merits would have been fleshed out in

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<v Speaker 3>an internal FTC trial before an administrative law judge. And

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<v Speaker 3>so what this judge looked at is whether there was

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<v Speaker 3>evidence that supported Microsoft having the ability and the incentive

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<v Speaker 3>to foreclose activision games from its rivals in a way

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<v Speaker 3>that would lessen competition and harm consumers. And at least

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<v Speaker 3>on the very first piece, do they have the ability

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<v Speaker 3>to foreclose? The judge said, well, yes they do, they

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<v Speaker 3>have it. But what she found is that the FTC's

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<v Speaker 3>evidence didn't support the idea that they had an incentive

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<v Speaker 3>to keep these activision games, particularly Call of Duty, exclusive

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<v Speaker 3>and not allow access to the games to their rivals.

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<v Speaker 3>The evidence just simply didn't support that.

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<v Speaker 1>Tell me if you agree with this. Robert Land, who

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<v Speaker 1>was a professor of the University of Baltimore Law School,

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<v Speaker 1>said the judge relied on an erroneous legal standard. She

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<v Speaker 1>was too strict, and that the law only requires the

0:14:28.040 --> 0:14:32.720
<v Speaker 1>agency show a deal may substantially lessen competition, not that

0:14:32.840 --> 0:14:35.040
<v Speaker 1>it will or as likely to. I mean, do you

0:14:35.080 --> 0:14:35.720
<v Speaker 1>agree with him?

0:14:36.000 --> 0:14:38.640
<v Speaker 3>You know, I actually do agree with that. But given

0:14:38.680 --> 0:14:41.920
<v Speaker 3>this judge's opinion, I don't really think that slight lessening

0:14:41.960 --> 0:14:44.160
<v Speaker 3>of the standard would make much of a difference. She

0:14:44.280 --> 0:14:46.840
<v Speaker 3>said there was not one single document out of the

0:14:47.040 --> 0:14:50.080
<v Speaker 3>millions of documents that the FTC had obtained through their

0:14:50.120 --> 0:14:54.040
<v Speaker 3>long investigation and discovery that showed that Microsoft had this

0:14:54.320 --> 0:14:57.160
<v Speaker 3>plan or this incentive. And also she didn't buy the

0:14:57.200 --> 0:15:02.280
<v Speaker 3>economics experts evaluation of Microsoft's incentive. She just basically said

0:15:02.280 --> 0:15:04.240
<v Speaker 3>that the model was faulty. And these are the two

0:15:04.280 --> 0:15:06.600
<v Speaker 3>things they have. They have documents, they have testimony, and

0:15:06.640 --> 0:15:08.760
<v Speaker 3>they have the economists, and she said none of these

0:15:08.800 --> 0:15:11.600
<v Speaker 3>supported it. So even if you sort of corrected that

0:15:11.640 --> 0:15:14.160
<v Speaker 3>little error in the law and the standard were lessened,

0:15:14.200 --> 0:15:15.920
<v Speaker 3>I think the judge would have still come out the

0:15:15.920 --> 0:15:16.440
<v Speaker 3>same way.

0:15:16.840 --> 0:15:21.400
<v Speaker 1>According to Bloomberg's sources, the FTC is leaning toward appealing

0:15:21.560 --> 0:15:24.360
<v Speaker 1>the judges ruling. What do you think their chances are

0:15:24.360 --> 0:15:27.240
<v Speaker 1>and appeal and you know what about the timing.

0:15:27.440 --> 0:15:30.880
<v Speaker 3>So on timing. If they appeal, the only way they

0:15:30.920 --> 0:15:33.360
<v Speaker 3>can stop this deal from closing. Now, putting aside that

0:15:33.400 --> 0:15:35.480
<v Speaker 3>there's still issues in the UK the companies have to

0:15:35.480 --> 0:15:37.960
<v Speaker 3>deal with. But let's say they resolve those and they close.

0:15:38.400 --> 0:15:41.440
<v Speaker 3>The only way the FTC can keep them from closing

0:15:41.880 --> 0:15:44.080
<v Speaker 3>during the pendency of an appeal would be right now

0:15:44.080 --> 0:15:46.640
<v Speaker 3>to get an emergency order. They'd seek it first from

0:15:46.640 --> 0:15:49.400
<v Speaker 3>the District Court, which would probably deny it given her opinion,

0:15:49.440 --> 0:15:51.840
<v Speaker 3>and then they go to the Ninth Circuit. As of late,

0:15:51.920 --> 0:15:54.640
<v Speaker 3>those emergency order requests haven't worked, so I don't think

0:15:54.640 --> 0:15:57.080
<v Speaker 3>that would work. Now. They can still appeal, they can

0:15:57.120 --> 0:16:00.400
<v Speaker 3>still go after a closed deal. It would probably about

0:16:00.440 --> 0:16:03.120
<v Speaker 3>another six months, and I'll be perfectly honest, I just

0:16:03.160 --> 0:16:06.560
<v Speaker 3>don't see a likelihood of success there because even if

0:16:06.560 --> 0:16:10.040
<v Speaker 3>an appellate court agreed with what Robert Land said and said, well,

0:16:10.040 --> 0:16:12.880
<v Speaker 3>the interpretation of the law was incorrect, what they would

0:16:12.920 --> 0:16:14.800
<v Speaker 3>do is send it back to the district Court. And

0:16:14.840 --> 0:16:17.160
<v Speaker 3>I think what would happen is exactly what I said,

0:16:17.200 --> 0:16:19.560
<v Speaker 3>that the district court would say, okay, even if it's

0:16:19.560 --> 0:16:22.280
<v Speaker 3>a lesser standard, based on the evidence that was presented

0:16:22.320 --> 0:16:24.840
<v Speaker 3>to me, I still don't think they meet that standard.

0:16:24.880 --> 0:16:27.120
<v Speaker 3>So I see it as being a real uphill climb

0:16:27.160 --> 0:16:29.640
<v Speaker 3>to try to win that, and I really doubt that

0:16:29.640 --> 0:16:31.600
<v Speaker 3>they'd be able to get the emergency order to keep

0:16:31.640 --> 0:16:34.160
<v Speaker 3>them from closing. It doesn't mean they can't go after

0:16:34.200 --> 0:16:36.240
<v Speaker 3>the deal after it's closed. They can do that.

0:16:36.960 --> 0:16:39.640
<v Speaker 1>If they did that, would they do it in house

0:16:39.720 --> 0:16:42.120
<v Speaker 1>or would they have to go back to federal court.

0:16:43.040 --> 0:16:45.120
<v Speaker 3>They can do both, or they can do either. So

0:16:45.240 --> 0:16:47.600
<v Speaker 3>they can bring this appeal to the Ninth Circuit and

0:16:47.640 --> 0:16:50.360
<v Speaker 3>they can go through the appeal. They can continue the

0:16:50.360 --> 0:16:53.480
<v Speaker 3>internal litigation it's called a Part three before their owned

0:16:53.480 --> 0:16:57.440
<v Speaker 3>administrative law judge. It was up until now, scheduled to

0:16:57.480 --> 0:17:00.240
<v Speaker 3>start Trialogust two. I don't know if that'll get push

0:17:00.320 --> 0:17:02.640
<v Speaker 3>back or if that'll get stayed. At this point, they

0:17:02.640 --> 0:17:05.320
<v Speaker 3>can continue that, and like I said, they can continue

0:17:05.359 --> 0:17:07.919
<v Speaker 3>that even if the deal's closed. It's just that what

0:17:08.000 --> 0:17:10.240
<v Speaker 3>they have to seek then is an unwinding of the deal.

0:17:10.520 --> 0:17:14.359
<v Speaker 1>So now you refer to this, this deal still has

0:17:14.480 --> 0:17:20.160
<v Speaker 1>to get approval from European Markets Authority and they're tougher, right.

0:17:20.640 --> 0:17:24.119
<v Speaker 3>Well, they're definitely tougher at this point because of the

0:17:24.160 --> 0:17:28.720
<v Speaker 3>forty plus global antitrust authorities that needed to approve this deal.

0:17:28.840 --> 0:17:33.199
<v Speaker 3>Everyone at this point has except the UK. Now, FTC

0:17:33.320 --> 0:17:34.840
<v Speaker 3>and the US didn't approve it, but at least the

0:17:34.840 --> 0:17:37.199
<v Speaker 3>court did, right, So there is clearance everywhere except the

0:17:37.280 --> 0:17:41.080
<v Speaker 3>UK so they're a lonely standout right now, and so

0:17:41.880 --> 0:17:44.040
<v Speaker 3>Microsoft has to sort of figure that out. I think

0:17:44.040 --> 0:17:46.400
<v Speaker 3>there are some options. I mean news is reporting that

0:17:46.440 --> 0:17:49.280
<v Speaker 3>they're negotiating a new settlement. They had offered up a

0:17:49.320 --> 0:17:52.640
<v Speaker 3>settlement that was originally rejected by the CMA, the Competition

0:17:52.720 --> 0:17:55.680
<v Speaker 3>Markets Authority, and that they're negotiating something new. So that's

0:17:55.680 --> 0:17:58.720
<v Speaker 3>one possibility. They have appealed and they are set to

0:17:58.760 --> 0:18:02.000
<v Speaker 3>have an appellate hearing on July twenty eighth, So another

0:18:02.080 --> 0:18:04.760
<v Speaker 3>thing they could try is to negotiate with the CMA

0:18:04.800 --> 0:18:07.479
<v Speaker 3>to allow them to close the deal pending that appeal,

0:18:07.480 --> 0:18:10.879
<v Speaker 3>but hold separate, so in other words, hold activision completely separate,

0:18:10.960 --> 0:18:13.879
<v Speaker 3>no integration, no changes, just let them continue to operate

0:18:13.920 --> 0:18:15.920
<v Speaker 3>the way they are, but let us close the deal.

0:18:16.200 --> 0:18:18.800
<v Speaker 3>So that's one other option, and then they could pursue

0:18:18.840 --> 0:18:21.159
<v Speaker 3>their appeal. And then the third option would be to

0:18:21.200 --> 0:18:24.800
<v Speaker 3>close over UK objections, and that's really really risky. You know,

0:18:24.840 --> 0:18:26.600
<v Speaker 3>they have to win or they could face a lot

0:18:26.680 --> 0:18:28.920
<v Speaker 3>of fines and a lot of consequences down the road.

0:18:29.040 --> 0:18:30.800
<v Speaker 3>But it's another option a.

0:18:30.760 --> 0:18:34.320
<v Speaker 1>Lot of legal analysts are calling is yet another legal

0:18:34.359 --> 0:18:40.480
<v Speaker 1>defeat for the FTC and is Lenikon's strategy of aggressively

0:18:40.640 --> 0:18:46.160
<v Speaker 1>fighting mergers backfiring and actually encouraging more deal making from

0:18:46.240 --> 0:18:48.879
<v Speaker 1>companies that are willing to sort of roll the dice

0:18:49.000 --> 0:18:50.240
<v Speaker 1>and go to court.

0:18:51.040 --> 0:18:54.159
<v Speaker 3>You know, I tend to think yes. And the reason

0:18:54.240 --> 0:18:57.160
<v Speaker 3>is because between both the DOJ and the FTC, we're

0:18:57.160 --> 0:18:59.479
<v Speaker 3>seeing a little bit of a pattern in court. And

0:18:59.560 --> 0:19:02.360
<v Speaker 3>what we're seeing is that companies that have a deal

0:19:02.400 --> 0:19:05.119
<v Speaker 3>that has some problems are offering up a remedy and

0:19:05.160 --> 0:19:08.840
<v Speaker 3>the remedies getting rejected by either the DOJ or the FTC.

0:19:09.000 --> 0:19:11.760
<v Speaker 3>That's what happened with Microsoft Activision. But when they go

0:19:11.840 --> 0:19:13.920
<v Speaker 3>to court and they present that remedy to the judge,

0:19:13.960 --> 0:19:15.919
<v Speaker 3>the judges are open to it, and so they end

0:19:16.000 --> 0:19:19.880
<v Speaker 3>up winning and companies have learned that they figured it out.

0:19:19.960 --> 0:19:22.240
<v Speaker 3>That's the route. It might take us a little longer.

0:19:22.480 --> 0:19:24.920
<v Speaker 3>It might be more expensive for us because it takes

0:19:24.960 --> 0:19:27.240
<v Speaker 3>longer and costs more money to actually have to litigate

0:19:27.240 --> 0:19:29.919
<v Speaker 3>a deal. But if we have a very reasonable fix,

0:19:30.040 --> 0:19:31.560
<v Speaker 3>and we go to the judge and say, look, we

0:19:31.600 --> 0:19:34.160
<v Speaker 3>have this reasonable fix and it resolves all the issues

0:19:34.160 --> 0:19:36.800
<v Speaker 3>that the FTC or dojsay they have, you should let

0:19:36.880 --> 0:19:38.919
<v Speaker 3>us close, and the judges are doing that, and so

0:19:39.000 --> 0:19:41.720
<v Speaker 3>they have a strategy, a new strategy, and I think

0:19:42.320 --> 0:19:44.800
<v Speaker 3>are more confident about going forward with that.

0:19:45.240 --> 0:19:49.960
<v Speaker 1>Are these losses also, are they strengthening the boundaries of

0:19:50.040 --> 0:19:55.520
<v Speaker 1>existing antitrust law rather than perhaps expanding as Lena Khan

0:19:55.640 --> 0:19:56.160
<v Speaker 1>might want.

0:19:56.840 --> 0:19:59.320
<v Speaker 3>I wouldn't say they're strengthening. I think in my mind

0:19:59.320 --> 0:20:02.919
<v Speaker 3>it's just kind of status quo. They're certainly not expanding

0:20:02.960 --> 0:20:05.400
<v Speaker 3>out the bounds of antitrust law the way Lena Khan

0:20:05.480 --> 0:20:09.040
<v Speaker 3>would like. There arguably the decision by the judge and

0:20:09.080 --> 0:20:12.760
<v Speaker 3>the challenge to metas acquisition within a small virtual reality

0:20:12.800 --> 0:20:15.840
<v Speaker 3>app that the FDC lost, there was some language in

0:20:15.920 --> 0:20:18.840
<v Speaker 3>that decision that was somewhat helpful to the Federal Trade

0:20:18.880 --> 0:20:21.560
<v Speaker 3>Commission in terms of going after what we call a

0:20:21.680 --> 0:20:25.320
<v Speaker 3>nascent competitor, a company that buys another company that doesn't

0:20:25.320 --> 0:20:27.560
<v Speaker 3>compete with today but could compete within the future. So

0:20:27.680 --> 0:20:30.400
<v Speaker 3>maybe just a little incremental inch and a little move

0:20:30.520 --> 0:20:33.080
<v Speaker 3>toward toward the direction Lenacon would like to go. But

0:20:33.160 --> 0:20:35.080
<v Speaker 3>for the most part, what I see so far with

0:20:35.119 --> 0:20:36.960
<v Speaker 3>the judge's decisions is status quo.

0:20:37.359 --> 0:20:39.680
<v Speaker 1>Thanks so much, Jen for being on the show. That's

0:20:39.720 --> 0:20:43.760
<v Speaker 1>Bloomberg Intelligence see your litigation analyst, Jenniferree. For more of

0:20:43.800 --> 0:20:47.040
<v Speaker 1>Jen's analysis, you can go to Bigo on the Bloomberg terminal.

0:20:47.640 --> 0:20:49.960
<v Speaker 1>And that's it for this edition of The Bloomberg Law Show.

0:20:50.280 --> 0:20:52.639
<v Speaker 1>Remember you can always get the latest legal news on

0:20:52.680 --> 0:20:56.959
<v Speaker 1>our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

0:20:57.160 --> 0:21:02.200
<v Speaker 1>and at www dot bloomberg dot com slash podcast Slash Law,

0:21:02.600 --> 0:21:05.200
<v Speaker 1>and remember to tune into The Bloomberg Law Show every

0:21:05.240 --> 0:21:09.160
<v Speaker 1>weeknight at ten pm Wall Street Time. I'm June Grosso

0:21:09.280 --> 0:21:10.879
<v Speaker 1>and you're listening to Bloomberg