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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com. Slash Podcasts has special counsel

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Speaker 1: Robert Mueller across the line President Trump set out early

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Speaker 1: in the Russia investigation with his latest move a reported

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Speaker 1: subpoena of the Trump Organization. The New York Times is

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Speaker 1: reporting that Mueller subpoena the Trump Organization for documents in

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Speaker 1: the first known instance of the Special Council demanding records

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Speaker 1: directly related to President Trump's businesses. Joining me as William Banks,

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Speaker 1: professor at Syracuse University Law School, Bill, how does the

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Speaker 1: subpoena fit in with the news that Mueller began examining

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Speaker 1: a broad range of transactions involving Trump's businesses as well

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Speaker 1: as those of his associates back in July. Well, I

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Speaker 1: think that you know, this is is an expansion of

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Speaker 1: the investigation, but it really shouldn't be regarded as a

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Speaker 1: as a surprise. I think because the the extent to

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Speaker 1: which the financial world from the Russian side has influenced

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Speaker 1: the activities of those who are trying to affect the

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Speaker 1: election has long been a subject of Mueller's staff's concerns,

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Speaker 1: and now going after these records will provide more details

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Speaker 1: about the relationship of any Russian financial interest in any

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Speaker 1: Trump business ties. Mueller's mandate is pretty broad as the

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Speaker 1: Russia question in any matters that arose or may arise

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Speaker 1: directly from the investigation. Isn't that pretty broad? It's incredibly broad,

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Speaker 1: and I think, you know, there was written that way

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Speaker 1: on purpose. You can't tell that the outset where an

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Speaker 1: investigation like this may lead. This is not unusual, I think.

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Speaker 1: And now we're seeing that financial crimes could potentially be

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Speaker 1: beyond you know, in addition to those that we've already

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Speaker 1: been focusing on, obstruction, uh aligned to members of the

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Speaker 1: of the prosecutorial team, failure to comply with the requirements

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Speaker 1: of foreign agent registration, and like this is just another chapter.

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Speaker 1: Could it also be possible charge of conspiracy now that

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Speaker 1: there is the indictment of the Russians and there's evidence

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Speaker 1: of a push in to build a Trump tower in Moscow,

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Speaker 1: Trump's involvement in controversial SOHO develop in New York with

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Speaker 1: Russian associates and more. What are the possibilities of conspiracy charges? Yeah,

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Speaker 1: the conspiracy is is a better legal descriptor of what

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Speaker 1: we've euphemistically referred to as collusion. And the conspiracy laws

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Speaker 1: are complex and they're not all the same aim, but

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Speaker 1: in general, there has to be some sort of an

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Speaker 1: overt agreement understanding on the part of the conspiring officials

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Speaker 1: that they were up to something, that it was in

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Speaker 1: violation of the law. Some mere tolerance or awareness that, say,

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Speaker 1: a Russian was going to use their financial resources to

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Speaker 1: try to affect the election outcome may not be sufficient,

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Speaker 1: but you know, awareness of it, and then sort of

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Speaker 1: a tacit agreement or steering of those activities, as may

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Speaker 1: have been the case with with Donald Trump Jr. At

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Speaker 1: that July sixteen meeting that we've talked about so many times,

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Speaker 1: the Trump organization says it's been cooperating with Mueller's investigation,

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Speaker 1: and it's unclear what prompted Muller to actually issue with subpoena.

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Speaker 1: Are there reasons he might do that besides the Trump

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Speaker 1: organization refusing to cooperate, I mean, might he want to

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Speaker 1: sure that he has everything. Yes, I mean it's that's

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Speaker 1: a good point. And indeed, up till now anyway, that

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Speaker 1: Trump organization has been very cooperative and responsive by all

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Speaker 1: accounts in producing records that are sought for. But the

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Speaker 1: subpoena does, as you say, provide some insurance that that

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Speaker 1: everything is coming as forthcoming. That might be relevant to

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Speaker 1: the question that's asked in the subpoena. Obviously, as subpoena

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Speaker 1: is enforceable, and if for some reason things are not

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Speaker 1: fully uh sought are not fully provided, then the then

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Speaker 1: the prosecutors can try to enforce it. Bill. Let's let's

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Speaker 1: talk about Trump and the possibility of his trying to

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Speaker 1: fire Muller. He's never said explicitly that he would fire

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Speaker 1: Mueller if the prosecutor went after his finances, but he

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Speaker 1: did suggest to The New York Times last July that

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Speaker 1: his finances would be a red line where Mueller's investigation

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Speaker 1: shouldn't go beyond um. Trump is in the middle of

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Speaker 1: this high level staff shake up, which could include a G.

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Speaker 1: Jeff Sessions. What would happen if Trump tried to have

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Speaker 1: Moller fired. Well, we you know, we've talked about this before,

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Speaker 1: and it's hard to know for sure, But if he

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Speaker 1: did replace Sessions, uh say, with Mike Pompeo or someone

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Speaker 1: who's closely uh aligned with Trump and Trump's use, we

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Speaker 1: could have to revisit the firing questions all over again. Certainly,

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Speaker 1: the Attorney General could do it on the on the

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Speaker 1: order of the president, but in then indeed we have

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Speaker 1: I think a lot of fuel for the fire. That

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Speaker 1: Congress would need to restart an investigation on its own,

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Speaker 1: appoint an independent council of its own, or even begin

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Speaker 1: impeachment proceedings. If Nolan gets so far as to indicting

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Speaker 1: members of the Trump family and would begin to see pardons,

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Speaker 1: I think we'll have a similar kind of impasse. It

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Speaker 1: could get very ugly, even uglier than we've been witnessed too.

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Speaker 1: So far. The Republican Congress has so far seemed unwilling

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Speaker 1: to make any moves in that area. In fact, we

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Speaker 1: know that the House committee investigating the Russia connection came

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Speaker 1: out with the Republicans on it, came out with a

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Speaker 1: whitewash without finishing really the investigation, without having you know,

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Speaker 1: subpoenaed a lot of people that they that are that

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Speaker 1: Mueller is is subpoena ng or getting a lot of documents.

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Speaker 1: So I mean, is there any indication that that if

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Speaker 1: the House remains and Republicans hands that that it would

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Speaker 1: actually go towards hiring a special counsel and impeachment well

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Speaker 1: these you know, it would take the developments that we

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Speaker 1: just speculated about, I think, attempting either to fire Mueller

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Speaker 1: or the President beginning to issue pardons that would push

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Speaker 1: us in that way. I think by now the Republican

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Speaker 1: committee that released that white as you call it, a whitewash,

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Speaker 1: should be embarrassed by what they've released, imply on the

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Speaker 1: basis of the Mueller revelations in the last couple of

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Speaker 1: weeks or so far from there being nothing to uh

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Speaker 1: to complain about in terms of Russian interference and Trump

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Speaker 1: associates involvement, the Mueller team has already issued of what

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Speaker 1: nineteen indictments all count in, and there's no indication that

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Speaker 1: the end is anywhere near. I called it a whitewash.

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Speaker 1: I should have said that it was more like an

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Speaker 1: incomplete investigation and in uh seemingly incomplete conclusion, at least

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Speaker 1: according to the Democrats on that committee, where there was

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Speaker 1: certainly no cooperation towards the end between the Democrats and

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Speaker 1: the Republicans on that House committee. Well, Bill, well, we'll

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Speaker 1: keep talking about this, and because the same question seemed

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Speaker 1: to keep coming up over and over again. Though obviously

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Speaker 1: President Trump knows that Mueller has been investigating his finances

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Speaker 1: because he knows the Trump organization has been cooperating with him.

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Speaker 1: So we'll see what happens, Bill, and we will call

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Speaker 1: on you again. Thank you so much for being with

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Speaker 1: us here. That's William Banks. He's a professor at Syracuse

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Speaker 1: University Law School. Buyer's plan to win anti trust approval

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Speaker 1: for its takeover of Monsanto has hit some serious bumps.

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Speaker 1: The company has not satisfied US officials, who are worried

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Speaker 1: this sixty six billion dollar merger could heart competition. According

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Speaker 1: to two people familiar with the matter, joining me as

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Speaker 1: Jennifer Reese and your litigation and Liss for Bloomberg Intelligence, Jen,

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Speaker 1: this is part of a wave of consolidation of seed

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Speaker 1: and crop chemical firms, and Buyer did win anti trust

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Speaker 1: approval for two prior deals. What are anti trust officials

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Speaker 1: concerned about with this deal? Well, it's apparent that they

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Speaker 1: have what we call both horizontal concerns and vertical concerns.

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Speaker 1: So they have concerns about areas seeds, for instance, and

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Speaker 1: pesticides where the companies directly compete selling the same product

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Speaker 1: to buyers, and they're also concerned with where they operate

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Speaker 1: in two different levels of a chain of distribution, like

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Speaker 1: maybe they have I P or technology that they licensed

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Speaker 1: to a competitor. Um. We think here, given the news

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Speaker 1: that the dj might not be happy with what's been

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Speaker 1: offered so far, that the issues that they're concerned about

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Speaker 1: might be vertical. And the reason is because Buyer has

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Speaker 1: already committed to selling almost all their seeds as well

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Speaker 1: as that overlap with Monsanto, as well as a pesticide

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Speaker 1: that competes with them mon Santo Pesticide, And it seems

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Speaker 1: like most of the horizontal overlaps are sort of taken

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Speaker 1: care of by what they've offered. But what we understand

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Speaker 1: from Bloomberg News is that they've had talks with the

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Speaker 1: Department of Justice who have said we need more. So

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Speaker 1: it seems like perhaps with the Department of Justice is

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Speaker 1: worried about are are these vertical overlaps, What kind of

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Speaker 1: companies or what kind of assets are we talking about?

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Speaker 1: Buyer having to divest. Well, it's really hard to say

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Speaker 1: because these these industries are so complex, and I think

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Speaker 1: a lot of people are a little bit baffled. But

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Speaker 1: you know, I've talked a lot to the v I

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Speaker 1: industry analysts in this area, Chris Perella specifically about what

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Speaker 1: could be going on here and what else it could be.

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Speaker 1: And so one suggestion he made is that it could

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Speaker 1: be now this would be a horizontal overlap, but it

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Speaker 1: could be an overlap in research and development that they're

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Speaker 1: both doing to get into digital farming. So we're providing

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Speaker 1: collections of data tailored to farmers to give them information

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Speaker 1: that would help them with their farming. That would be horizontal,

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Speaker 1: and perhaps it might take divestiture of R and D.

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Speaker 1: Another option is that it is about one of these

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Speaker 1: situations where there's I p that their concern might be

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Speaker 1: withheld from competitors, and in that case, it might be

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Speaker 1: that they have to provide a license outlicensed the product

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Speaker 1: so that there's another competitor that that is able to

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Speaker 1: market that product. Jury selection starts on Monday in the

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Speaker 1: Justice Department suit to stop the A T and T

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Speaker 1: time Warner merger, which we've talked about many times. Do

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Speaker 1: you see similarities in the remedies the antitrust of arment

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Speaker 1: wants there and in the buyer Monsanto merger. You know,

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Speaker 1: it's it's possible in a broad sense. And now, first

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Speaker 1: I should say there's no jury selection because that's just

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Speaker 1: a judge trial. So that's all right, How could I

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Speaker 1: forget that? But has a lot of personality. Yes, right,

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Speaker 1: they are starting on Monday. Um, I think opening arguments

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Speaker 1: aren't til Wednesday, but they'll they'll start with some preliminary

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Speaker 1: matters on Monday. The what I see here as similar

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Speaker 1: is that in the past, the Department of Justice has

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Speaker 1: been willing to accept conduct commitments from companies to fix

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Speaker 1: vertical problems, and we'll promise to license our technology, will

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Speaker 1: promise not to discriminate post merger things like that. That's

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Speaker 1: been pretty typical for a lot of vertical deals that

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Speaker 1: raise issues. But in a T and T, which is

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Speaker 1: purely a vertical deal, the Department of Justice said, no,

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Speaker 1: we don't like that kind of a commitment. We need structural,

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Speaker 1: we need assets divested. We have a number of reasons

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Speaker 1: we don't like a behavioral commitment. And it could be

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Speaker 1: that the same thing is happening with Buyer, that they

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Speaker 1: had vertical issues they thought they could resolve with the

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Speaker 1: behavioral commitment, and the Department of Justice is saying, no,

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Speaker 1: we needed a Let's just talk for just a little

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Speaker 1: bit about why the antitrust chief doesn't like the behavioral commitments,

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Speaker 1: why he doesn't like having to have someone monitor what's

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Speaker 1: going on. I think he has a couple of reasons.

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Speaker 1: That's one of them. He thinks the Department of Justice

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Speaker 1: then has to have oversight for many years over this

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Speaker 1: merged company, and that that isn't their role, that they're not,

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Speaker 1: that it doesn't work, that they aren't it's not their role,

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Speaker 1: and it's not the right thing for them to be doing,

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Speaker 1: and they shouldn't be regulating companies. So I think that's

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Speaker 1: one thing he sees there an enforcer rather than a regulator.

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Speaker 1: And I think the other thing he has said, although

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Speaker 1: I'm not sure if if the evidence bears this out,

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Speaker 1: is that they don't work that in the past, if

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Speaker 1: you look at behavioral commitments that have been made, that

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Speaker 1: they have hampered competition in some of these markets. Now

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Speaker 1: the deal has been the Now let's go back to

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Speaker 1: BUYERMN Santo merger has been before regulators for eighteen months.

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Speaker 1: How far is it from closing or is there a

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Speaker 1: possibility the Justice Department may file lawsuit to block this deal?

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Speaker 1: They certainly could, you know, if the companies cannot agree

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Speaker 1: to commitments, if what's being demanded is just too much

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Speaker 1: for them, it kills the economics of the deal, or

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Speaker 1: just unacceptable, then certainly they could abandon or they could

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Speaker 1: face the suit if they want to pursue it. Um.

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Speaker 1: It seems to me there still is a place for

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Speaker 1: an agreement to be reached, because the DJ is asking

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Speaker 1: for more and buyer has said it's willing to divest more.

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Speaker 1: So I feel like they may still be able to

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Speaker 1: reach an agreement here and it won't come to that.

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Speaker 1: They do have an end date in their agreement of

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Speaker 1: June four, and it looks like they're going to push

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Speaker 1: right up against that. But however, it's an agreement, so

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Speaker 1: the parties can agree to extend that if they need to.

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Speaker 1: If they're having constructive talks with the d o J,

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Speaker 1: they think they're going to resolve this, but it's gonna

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Speaker 1: go a little bit past that. I think they probably

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Speaker 1: extend it does the fact that buyer is based in Germany,

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Speaker 1: have any impact on this at this stage, I would

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Speaker 1: say not. Now. They did have to get through um

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Speaker 1: uh investigation by Syphius, the Committee for Foreign Investment in

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Speaker 1: the US that we've heard quite a lot of lately

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Speaker 1: in context of broad coming qualcom um. They also were

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Speaker 1: investigated by Syphia's actually for quite a long time, that

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Speaker 1: might have even been over a year, and I think

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Speaker 1: there was some pressure from some senators for Sifias to

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Speaker 1: put the you put some mitigation measures or stop this deal.

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Speaker 1: But they did clear Syphias, so the fact that it's

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Speaker 1: a foreign buyer doesn't plan anymore. Whoever thought we would

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Speaker 1: all know what Ciffius stands for about a minute here?

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Speaker 1: How long do you expect the time Warner trial to

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Speaker 1: go on? You know, it's funny because the judge had

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Speaker 1: anticipated three weeks, but he's now saying six to eight weeks.

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Speaker 1: And I'm not really sure what happened to double his

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Speaker 1: prediction on timing, But I think there are a lot

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Speaker 1: of witnesses and a lot of exhibits that are expected,

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Speaker 1: and it's complex, and there are a lot of star

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Speaker 1: lawyers on that case. So well, we'll look forward to

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Speaker 1: hearing more about that case, because it certainly is going

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Speaker 1: to be probably a standard for things to come. We'll

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Speaker 1: get an inkling of what the Antitrust Department is really

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Speaker 1: looking into, as you always help us to jin. That's

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Speaker 1: Jennifer Reachey's senior litigation analyst for Bloomberg Intelligence, and for

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Speaker 1: more of her analysis, you can go to be I

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Speaker 1: go on the Bloomberg Terminal. Thanks for listening to the

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Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

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Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

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Speaker 1: slash podcast. I'm June Brasso. This is Bloomberg