1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,560 --> 00:00:14,440 Speaker 1: It's official. A federal judge has ruled that Google is 3 00:00:14,480 --> 00:00:18,279 Speaker 1: a monopolist, a stunning defeat for the search giant and 4 00:00:18,360 --> 00:00:21,680 Speaker 1: a huge win for the government in its biggest antitrust 5 00:00:21,720 --> 00:00:25,200 Speaker 1: showdown against a tech giant in a quarter century. And 6 00:00:25,320 --> 00:00:29,240 Speaker 1: make no mistake, the Biden administration and Attorney General Merrick 7 00:00:29,280 --> 00:00:33,080 Speaker 1: Garland have made taking on the tech giants a priority. 8 00:00:33,520 --> 00:00:37,600 Speaker 2: Monopolies threaten the free and fair markets upon which our 9 00:00:37,680 --> 00:00:43,279 Speaker 2: economy is based. They stifle innovation, They hurt producers and workers, 10 00:00:43,960 --> 00:00:46,200 Speaker 2: and they increase costs for consumers. 11 00:00:46,640 --> 00:00:49,720 Speaker 1: DC judge on mit Meta found that Google broke the 12 00:00:49,800 --> 00:00:54,680 Speaker 1: law by exploiting its dominance to squash competition and stifle innovation. 13 00:00:55,160 --> 00:00:57,800 Speaker 1: The sanctions could be anything from a breakup of the 14 00:00:57,880 --> 00:01:01,680 Speaker 1: company to unwinding its excluded deals, but that won't be 15 00:01:01,800 --> 00:01:06,240 Speaker 1: decided until after yet another trial. Of course, Google says 16 00:01:06,319 --> 00:01:10,199 Speaker 1: it will appeal. Joining me is anti trust Expert William Kavasik, 17 00:01:10,360 --> 00:01:13,640 Speaker 1: a professor at GW Law School and the former chair 18 00:01:13,680 --> 00:01:17,880 Speaker 1: of the Federal Trade Commission, will this decision stand as 19 00:01:17,920 --> 00:01:22,120 Speaker 1: a landmark, along with say the at and t Standard 20 00:01:22,160 --> 00:01:24,679 Speaker 1: Oil and Microsoft cases. 21 00:01:25,360 --> 00:01:28,919 Speaker 3: It's the beginning of a process that could become a landmark, 22 00:01:28,959 --> 00:01:32,039 Speaker 3: but there's still many rivers to cross before this specific 23 00:01:32,080 --> 00:01:34,960 Speaker 3: contest is over. We have a proceeding coming up this 24 00:01:35,080 --> 00:01:38,240 Speaker 3: fall on the remedy to be issued. Judge Meta will 25 00:01:38,280 --> 00:01:40,600 Speaker 3: be writing an opinion on what that remedy should be, 26 00:01:40,680 --> 00:01:42,959 Speaker 3: probably issues that by the end of the year. But 27 00:01:43,040 --> 00:01:45,959 Speaker 3: then we go through the inevitable process of appeals where 28 00:01:46,160 --> 00:01:49,440 Speaker 3: Google and maybe the government point is, decide to appeal. 29 00:01:49,480 --> 00:01:53,120 Speaker 3: Different issues raise different points about Judge Meta's decisions on 30 00:01:53,200 --> 00:01:56,440 Speaker 3: liability and remedy. So this promising first step for the 31 00:01:56,480 --> 00:01:59,600 Speaker 3: government is only the first step in the process that 32 00:01:59,640 --> 00:02:03,040 Speaker 3: will lead through a fairly difficult gauntlet of appeals. And 33 00:02:03,080 --> 00:02:05,160 Speaker 3: I think ultimately this is a case that gets to 34 00:02:05,160 --> 00:02:08,240 Speaker 3: the US Supreme Court. The Supreme Court hasn't informed me 35 00:02:08,320 --> 00:02:11,720 Speaker 3: about whether that's the case, So this is speculation that 36 00:02:11,800 --> 00:02:15,240 Speaker 3: I can't defend in any scientific way. But it's a 37 00:02:15,280 --> 00:02:18,520 Speaker 3: case of such significance both were with respect to doctrine 38 00:02:18,520 --> 00:02:21,720 Speaker 3: and commerce, that it's a natural candidate to be reviewed 39 00:02:21,720 --> 00:02:24,440 Speaker 3: by the Supreme Court, and that process could take us 40 00:02:24,480 --> 00:02:28,080 Speaker 3: well into twenty twenty six. So your crucial question about 41 00:02:28,120 --> 00:02:30,720 Speaker 3: what kind of landmarks this is, I will answer with 42 00:02:30,880 --> 00:02:36,400 Speaker 3: the typical academics evasion. It depends on the final resolution 43 00:02:36,560 --> 00:02:39,400 Speaker 3: of the matter through the appeals, an answer that won't 44 00:02:39,440 --> 00:02:41,560 Speaker 3: come to us probably for two more years. 45 00:02:41,840 --> 00:02:45,120 Speaker 1: Judge Meta found the Google is a monopolist and has 46 00:02:45,240 --> 00:02:48,520 Speaker 1: acted as one to maintain its monopoly. Can you explain 47 00:02:48,760 --> 00:02:51,920 Speaker 1: broadly how he came to that conclusion? 48 00:02:52,360 --> 00:02:55,760 Speaker 3: On the crucial question of monopoly, the government has to 49 00:02:56,120 --> 00:03:00,280 Speaker 3: show that the company exercises tremendous power within an area 50 00:03:00,320 --> 00:03:02,960 Speaker 3: of commerce and in any trust language, that's usually called 51 00:03:02,960 --> 00:03:05,800 Speaker 3: a relevant market. It's a technical term that refers to 52 00:03:06,080 --> 00:03:09,720 Speaker 3: products that people regard as good substitutes for each other, 53 00:03:10,000 --> 00:03:13,919 Speaker 3: and the government, to Judge Meta's satisfaction, proved that in 54 00:03:13,960 --> 00:03:18,480 Speaker 3: a market consisting of general search services, that Google indeed 55 00:03:18,560 --> 00:03:21,680 Speaker 3: is a monopolist, It does not have effective competitors, that 56 00:03:21,720 --> 00:03:25,200 Speaker 3: it accounts for an overwhelming share of activity of searches 57 00:03:25,200 --> 00:03:27,959 Speaker 3: that are carried out, and as a consequence, its power 58 00:03:28,200 --> 00:03:30,959 Speaker 3: is not only significant today, but the court concluded it's 59 00:03:31,000 --> 00:03:33,640 Speaker 3: going to be durable. But any trust law, it's not 60 00:03:33,800 --> 00:03:36,320 Speaker 3: enough to simply be big. There are lots of expressions 61 00:03:36,320 --> 00:03:38,920 Speaker 3: by courts over time. That's saying achieving a position of 62 00:03:38,960 --> 00:03:41,680 Speaker 3: preeminence is the market of distinction. It's not a badge 63 00:03:41,720 --> 00:03:43,920 Speaker 3: of shame. So you have to do something more. You 64 00:03:43,920 --> 00:03:47,320 Speaker 3: have to show that that power was achieved to means 65 00:03:47,320 --> 00:03:50,800 Speaker 3: that are improper, that you achieved it through improper means, 66 00:03:50,840 --> 00:03:53,920 Speaker 3: you protected it through improper means. A colleague once told 67 00:03:53,960 --> 00:03:56,280 Speaker 3: me that it means in US law that you need 68 00:03:56,360 --> 00:03:59,000 Speaker 3: not only be big, you have to be bad as well. 69 00:03:59,160 --> 00:04:02,120 Speaker 3: And on that point, Judge Meta found that Google's behavior 70 00:04:02,160 --> 00:04:05,320 Speaker 3: in a number of instances was improper. That it excluded 71 00:04:05,440 --> 00:04:09,360 Speaker 3: rivals from having access to business opportunities that they needed 72 00:04:09,360 --> 00:04:12,200 Speaker 3: to compete, and it did it through a variety of 73 00:04:12,200 --> 00:04:15,800 Speaker 3: different forms of exclusivity agreements that gave it the sole 74 00:04:16,320 --> 00:04:19,520 Speaker 3: access to a crucial asset in dealing with third parties 75 00:04:19,560 --> 00:04:22,080 Speaker 3: such as Apple and the Menta. Competitors didn't have the 76 00:04:22,080 --> 00:04:26,200 Speaker 3: opportunity to use that valuable asset to compete effectively with Google. 77 00:04:26,440 --> 00:04:30,440 Speaker 3: So for those two core elements of the monopolization case, 78 00:04:30,600 --> 00:04:34,120 Speaker 3: Judge Meta validated the heart of the government's seriod. The 79 00:04:34,120 --> 00:04:36,400 Speaker 3: government did not get everything it wanted here, but it 80 00:04:36,520 --> 00:04:41,440 Speaker 3: got validation of its core interpretation of this crucial principle 81 00:04:41,480 --> 00:04:45,400 Speaker 3: of monopolization law that the firm in question must indeed 82 00:04:45,440 --> 00:04:49,360 Speaker 3: have tremendous power within a specific part of the marketplace, 83 00:04:49,640 --> 00:04:53,720 Speaker 3: and must have achieved or protected that position through improper means. 84 00:04:53,800 --> 00:04:57,159 Speaker 3: On those larger themes, Judge Meta concluded that the government 85 00:04:57,200 --> 00:04:59,520 Speaker 3: had proven its case. Google has some things in this 86 00:04:59,600 --> 00:05:04,720 Speaker 3: opinion that I'm sure likes. Disappointed with the larger outcome, I imagine. 87 00:05:04,240 --> 00:05:08,240 Speaker 1: Google plans to appeal no surprise, and in a statement 88 00:05:08,360 --> 00:05:11,200 Speaker 1: said that this goes to your point that Meta's opinion 89 00:05:11,360 --> 00:05:15,800 Speaker 1: recognize Google as the Internet's best search engine quote, but 90 00:05:16,160 --> 00:05:19,839 Speaker 1: concludes that we shouldn't be allowed to make it easily available. 91 00:05:20,080 --> 00:05:24,240 Speaker 1: Do you think Google has a lot of ammunition for appeal? 92 00:05:24,839 --> 00:05:28,240 Speaker 3: It enjoys a couple of potential advantages on appeal, and 93 00:05:28,320 --> 00:05:31,279 Speaker 3: a couple of that aren't merely potential, they're real. The law, 94 00:05:31,440 --> 00:05:35,680 Speaker 3: the jurisprudence of US antitrust law since the late seventies 95 00:05:35,720 --> 00:05:38,279 Speaker 3: has tended to error on the side of dominant terms 96 00:05:38,279 --> 00:05:40,640 Speaker 3: in evaluating their behavior. It has not told them they 97 00:05:40,680 --> 00:05:43,640 Speaker 3: can do anything they want, but it's imposed fairly severe 98 00:05:43,680 --> 00:05:46,840 Speaker 3: burdens on government and private planets. Trying to attack the 99 00:05:46,839 --> 00:05:49,840 Speaker 3: behavior of dominant firms, so that the arena in which 100 00:05:49,839 --> 00:05:52,440 Speaker 3: the appeals will take place is one in which the 101 00:05:52,520 --> 00:05:56,560 Speaker 3: doctrine is generally sympathetic to the kinds of arguments that 102 00:05:56,720 --> 00:05:59,960 Speaker 3: Google has offered about its own work and developed or 103 00:06:00,080 --> 00:06:03,159 Speaker 3: in the trial. Another advantage is that they'll point to 104 00:06:03,200 --> 00:06:06,160 Speaker 3: the evidence in the record that suggests that people turn 105 00:06:06,279 --> 00:06:08,760 Speaker 3: back to Google when they have a choice, When the 106 00:06:08,800 --> 00:06:12,359 Speaker 3: starting point of their experience is another product, they switch 107 00:06:12,400 --> 00:06:14,800 Speaker 3: to the default, they abandon that product and turn back 108 00:06:14,800 --> 00:06:17,080 Speaker 3: to Google. So Google's going to stay. There's evidence in 109 00:06:17,120 --> 00:06:19,360 Speaker 3: the case that says people come back to us because 110 00:06:19,400 --> 00:06:23,080 Speaker 3: we're offering them the better experience. Those aren't so many arguments. 111 00:06:23,080 --> 00:06:27,039 Speaker 3: Those are arguments that enjoy some philosophical and doctrinal support 112 00:06:27,160 --> 00:06:29,719 Speaker 3: and what courts have done in the past. So Google 113 00:06:29,760 --> 00:06:32,479 Speaker 3: would be standing before the Court of Appeals saying that 114 00:06:32,600 --> 00:06:36,880 Speaker 3: the practices that the government complains about cannot appropriately be 115 00:06:36,960 --> 00:06:40,679 Speaker 3: deemed to be improper, and the remedial hearings will focus 116 00:06:40,720 --> 00:06:42,800 Speaker 3: a lot on what Google should be allowed to do 117 00:06:42,880 --> 00:06:44,800 Speaker 3: in the future, how much should it be able to 118 00:06:44,880 --> 00:06:47,919 Speaker 3: bid for, say, the placement on the iPhone. When it 119 00:06:47,920 --> 00:06:50,560 Speaker 3: comes to the famous rect angle on the iPhone. Should 120 00:06:50,600 --> 00:06:52,599 Speaker 3: it be more cautious and how it bids, should it 121 00:06:52,600 --> 00:06:56,400 Speaker 3: bid less aggressively? What exactly should its position be? Those 122 00:06:56,400 --> 00:06:59,160 Speaker 3: are hard issues to be resolved in the remedial proceeding. 123 00:06:59,440 --> 00:07:01,440 Speaker 3: And then jed Ji Metta in a couple of places 124 00:07:01,600 --> 00:07:04,960 Speaker 3: expressed a concern that has appeared in earlier Supreme Court 125 00:07:05,000 --> 00:07:09,520 Speaker 3: decisions about the difficulty judges face in trying to tell 126 00:07:09,560 --> 00:07:12,400 Speaker 3: companies whom they must deal with and on what terms 127 00:07:12,400 --> 00:07:15,800 Speaker 3: they must deal with them. It express concern about mandating 128 00:07:15,840 --> 00:07:18,680 Speaker 3: a general obligation on the part of dominant firms to 129 00:07:18,760 --> 00:07:21,800 Speaker 3: deal with other companies, anxiety about the role that courts 130 00:07:21,840 --> 00:07:25,840 Speaker 3: would undertake, and becoming a referee that examines and evaluates 131 00:07:25,840 --> 00:07:28,800 Speaker 3: each of these interactions between the dominant firm and the 132 00:07:28,840 --> 00:07:31,720 Speaker 3: third party. Court said, we're not wealth suited to do that. 133 00:07:32,200 --> 00:07:34,400 Speaker 3: The intervention that we have to undertake has to be 134 00:07:34,480 --> 00:07:38,400 Speaker 3: much cleaner and not involve such long term, ongoing entanglements. 135 00:07:38,480 --> 00:07:41,360 Speaker 3: We can't do that. You know, during the remedy proceedings 136 00:07:41,440 --> 00:07:45,360 Speaker 3: and probably in the appellate process, Google will be saying, well, 137 00:07:45,640 --> 00:07:48,840 Speaker 3: in light of that express concern, how do you write 138 00:07:48,960 --> 00:07:51,520 Speaker 3: an order or an injunction that tells us what we 139 00:07:51,560 --> 00:07:54,320 Speaker 3: can and can't do without in some crucial ways just 140 00:07:54,360 --> 00:07:57,160 Speaker 3: disabling us. How do you do that? So those would 141 00:07:57,160 --> 00:08:00,720 Speaker 3: be very live and important issues for debate during the It. 142 00:08:00,720 --> 00:08:02,840 Speaker 1: Sounds as if, and I could be wrong here, you 143 00:08:02,880 --> 00:08:05,640 Speaker 1: think that Google has the better arguments on appeal. 144 00:08:06,840 --> 00:08:09,080 Speaker 3: I don't know in substance that they have the better 145 00:08:09,160 --> 00:08:12,920 Speaker 3: arguments on appeal. I just think a caution to keep 146 00:08:12,960 --> 00:08:16,960 Speaker 3: in mind. In some ways, amid the euphoria that many 147 00:08:17,080 --> 00:08:20,080 Speaker 3: felt about the outcome, those who wanted the judge to 148 00:08:20,120 --> 00:08:23,440 Speaker 3: find liability, the caution is that there's a lot of 149 00:08:23,480 --> 00:08:25,680 Speaker 3: hard work to be done in defining what it is 150 00:08:25,720 --> 00:08:29,120 Speaker 3: Google can't do in the future, and Google's operating in 151 00:08:29,160 --> 00:08:33,400 Speaker 3: the judicial environment, a doct final environment built up, especially 152 00:08:33,720 --> 00:08:36,760 Speaker 3: since the late nineteen seventies that tends to be sympathetic 153 00:08:37,000 --> 00:08:39,400 Speaker 3: to some of the kinds of arguments that Google has 154 00:08:39,400 --> 00:08:43,880 Speaker 3: been making. So it's really a caution that, notwithstanding the 155 00:08:44,080 --> 00:08:47,600 Speaker 3: exceptional result that the government achieved, that there are many 156 00:08:47,679 --> 00:08:51,000 Speaker 3: rivers to cross before the final outcome validates the approach 157 00:08:51,040 --> 00:08:53,640 Speaker 3: that they've been taken, and Google is not yet defeated 158 00:08:53,720 --> 00:08:56,680 Speaker 3: in its efforts to persuade the appellate judges that it 159 00:08:56,720 --> 00:08:57,920 Speaker 3: didn't behave improperly. 160 00:08:58,160 --> 00:09:01,839 Speaker 1: So you mentioned the remedy and judgment US scheduled to 161 00:09:01,920 --> 00:09:04,880 Speaker 1: hearing for next month to decide the timing for the 162 00:09:04,920 --> 00:09:08,120 Speaker 1: separate trial. And the remedies and potential remedies mentioned have 163 00:09:08,160 --> 00:09:12,120 Speaker 1: been everything from ordering a breakup of Google to unwinding 164 00:09:12,240 --> 00:09:15,760 Speaker 1: exclusive search deals everything in between. What do you see 165 00:09:15,760 --> 00:09:19,280 Speaker 1: as the most likely potential remedy or remedies. 166 00:09:19,640 --> 00:09:22,200 Speaker 3: A starting point is like to be controls on conduct, 167 00:09:22,360 --> 00:09:25,120 Speaker 3: that is, to define the types of agreements that Google 168 00:09:25,160 --> 00:09:28,480 Speaker 3: cannot enter into in the future, to indicate that certain 169 00:09:28,559 --> 00:09:32,400 Speaker 3: types of existing agreements or practices are no longer permissible 170 00:09:32,600 --> 00:09:36,280 Speaker 3: with the caveat that writing, the injunction that prohibits those 171 00:09:36,320 --> 00:09:39,760 Speaker 3: practices will require a lot of further attention and thought 172 00:09:40,040 --> 00:09:41,800 Speaker 3: in light of some of the concerns that we've just 173 00:09:41,880 --> 00:09:44,640 Speaker 3: been talking about. In some sense, the boulder, the more 174 00:09:44,880 --> 00:09:49,000 Speaker 3: visually striking solution is to force the company to divest assets. 175 00:09:49,000 --> 00:09:52,240 Speaker 3: That's the breakup solution. Theoretically, it's in the solution set. 176 00:09:52,400 --> 00:09:56,000 Speaker 3: It's a well established anti trust remedy from anopilization going 177 00:09:56,040 --> 00:09:58,640 Speaker 3: back to the earliest phase of enforcement of the Sherman 178 00:09:58,720 --> 00:10:01,880 Speaker 3: Act in the late nineteen in early twentieth centuries. It's 179 00:10:01,920 --> 00:10:04,880 Speaker 3: also been a remedy the courts have applied with some reluctant, 180 00:10:05,080 --> 00:10:08,400 Speaker 3: some anxiety on the part of individual federal judges about 181 00:10:08,600 --> 00:10:12,000 Speaker 3: whether they are performing surgery of a sort that's going 182 00:10:12,040 --> 00:10:15,080 Speaker 3: to make the commercial system better or worse off. So 183 00:10:15,160 --> 00:10:18,800 Speaker 3: I would say there's an implicit additional burden that government 184 00:10:18,840 --> 00:10:23,520 Speaker 3: plaintiffs carry when they're trying to argue for divestiture remedies 185 00:10:23,679 --> 00:10:27,880 Speaker 3: in monopolization cases. It's not impossible to bear that burden. 186 00:10:28,160 --> 00:10:32,200 Speaker 3: And the famous DOJ prosecution of Microsoft, DOJ succeeded in 187 00:10:32,280 --> 00:10:35,720 Speaker 3: persuading the trial judge to mandate to the separation of 188 00:10:35,960 --> 00:10:39,400 Speaker 3: Microsoft into two parts, an operating systems company and an 189 00:10:39,440 --> 00:10:42,760 Speaker 3: applications company. To the Court of Appeals rejected that remedy 190 00:10:42,840 --> 00:10:45,000 Speaker 3: for a variety of reasons, but one of them was 191 00:10:45,040 --> 00:10:47,600 Speaker 3: that Judge Jackson, the trial judge in the case, held 192 00:10:47,720 --> 00:10:50,440 Speaker 3: an adequate set of hearings on the remedy. He basically 193 00:10:50,480 --> 00:10:52,800 Speaker 3: had a two hour conversation with the parties in the 194 00:10:52,840 --> 00:10:57,240 Speaker 3: courtroom and that was it. So conceptually, legally, theoretically, it's 195 00:10:57,360 --> 00:11:01,199 Speaker 3: part of the solution set in practice. It challenging remedy 196 00:11:01,360 --> 00:11:04,160 Speaker 3: in some instances. For the government to obtain I'd say 197 00:11:04,240 --> 00:11:07,000 Speaker 3: to get the remedy, the government has to do two things. 198 00:11:07,040 --> 00:11:10,959 Speaker 3: Want us to say that the misconduct created serious competitive 199 00:11:11,240 --> 00:11:15,760 Speaker 3: clause in the relevant line of commerce, seriously retarded competition, 200 00:11:16,120 --> 00:11:19,960 Speaker 3: and that the structural solution is vital to restoring competition 201 00:11:20,280 --> 00:11:23,160 Speaker 3: and making it effective in the future. That impossible, but 202 00:11:23,440 --> 00:11:26,320 Speaker 3: very challenging, which tends to mean that a more likely 203 00:11:26,400 --> 00:11:29,800 Speaker 3: outcome perhaps is some set of controls on conduct rather 204 00:11:29,840 --> 00:11:31,400 Speaker 3: than mandated divestitures. 205 00:11:31,800 --> 00:11:33,920 Speaker 1: And at this point we don't even know what the 206 00:11:34,000 --> 00:11:37,920 Speaker 1: government will be asking for as remedies. So, as you say, 207 00:11:38,200 --> 00:11:40,680 Speaker 1: a long way to go. Thanks so much for sharing 208 00:11:40,720 --> 00:11:44,840 Speaker 1: your insights with us. That's Professor William Kavasik of GW 209 00:11:44,960 --> 00:11:48,359 Speaker 1: Law School. I'm June Grosso and you're listening to Bloomberg. 210 00:11:49,960 --> 00:11:54,680 Speaker 3: Look for me, youngs in on the West Side Way. 211 00:11:55,440 --> 00:11:56,360 Speaker 3: What we like to do? 212 00:11:56,520 --> 00:12:03,640 Speaker 1: That way from Beyonce and jay Z fum Cedy crazy 213 00:12:04,800 --> 00:12:11,719 Speaker 1: to do a lip up the Pitbull and Cardi b. 214 00:12:12,720 --> 00:12:18,600 Speaker 3: Alex Dallas, Alec Dumms, Alex Sunn, Alex Shun, Alec Million, Dalis. 215 00:12:18,080 --> 00:12:22,040 Speaker 1: Your favorite NBA team may have been using copyrighted music 216 00:12:22,120 --> 00:12:26,080 Speaker 1: from your favorite artists in promotional videos on social media 217 00:12:26,440 --> 00:12:29,600 Speaker 1: without getting permission. Nearly half of the teams in the 218 00:12:29,640 --> 00:12:33,520 Speaker 1: league are being sued for using copyrighted songs without consent 219 00:12:33,760 --> 00:12:38,400 Speaker 1: in videos on TikTok, Facebook, Instagram, YouTube, and x meaning 220 00:12:38,400 --> 00:12:42,440 Speaker 1: they didn't pay a fee to get the required synchronization license. 221 00:12:43,000 --> 00:12:45,960 Speaker 1: The New York Knicks, the Philadelphia seventy six ers, and 222 00:12:46,000 --> 00:12:49,240 Speaker 1: the Atlanta Hawks are among the fourteen teams being sued 223 00:12:49,280 --> 00:12:53,319 Speaker 1: by music companies for knowingly and wilfully infringing on their 224 00:12:53,360 --> 00:12:58,439 Speaker 1: intellectual property rights. Joining me is intellectual property litigator Terrence Ross, 225 00:12:58,600 --> 00:13:02,400 Speaker 1: a partner at Katinyuchen Terry, explain the issue here. 226 00:13:02,880 --> 00:13:06,080 Speaker 4: Here's the problem that they face. Each of these social 227 00:13:06,120 --> 00:13:10,360 Speaker 4: media sites has a license with the major music publishing 228 00:13:10,440 --> 00:13:13,600 Speaker 4: houses and recording studios, and they have available to their 229 00:13:13,760 --> 00:13:18,480 Speaker 4: users hundreds of thousands pieces of music. The problem is 230 00:13:18,920 --> 00:13:23,480 Speaker 4: that that license is limited to non commercial use, and 231 00:13:23,640 --> 00:13:27,720 Speaker 4: this is where companies make mistakes all the time on 232 00:13:27,760 --> 00:13:30,840 Speaker 4: social media platforms. And this is truly these lawsuits are 233 00:13:30,840 --> 00:13:34,199 Speaker 4: truly a cautionary tale for every business that should wake 234 00:13:34,280 --> 00:13:36,760 Speaker 4: up and pay attention here. When a business goes on 235 00:13:36,800 --> 00:13:40,360 Speaker 4: a social media platform, it's simply assumed that you're doing 236 00:13:40,360 --> 00:13:43,440 Speaker 4: that for commercial purposes your business. What other purpose could 237 00:13:43,440 --> 00:13:46,120 Speaker 4: there be other than for commercial purpose? And therefore that 238 00:13:46,280 --> 00:13:51,439 Speaker 4: license that individual users teenagers for example, can take advantage 239 00:13:51,440 --> 00:13:54,760 Speaker 4: of cannot be taken advantage of by a business because 240 00:13:54,760 --> 00:13:59,160 Speaker 4: it expressly excludes commercial use on these websites, whether it 241 00:13:59,240 --> 00:14:03,000 Speaker 4: be TikTok or Instagram. And that's the problem here is 242 00:14:03,040 --> 00:14:06,280 Speaker 4: that these NBA teams did not seem to be cognizant 243 00:14:06,480 --> 00:14:10,360 Speaker 4: of that limitation on the general available license and simply 244 00:14:10,400 --> 00:14:12,800 Speaker 4: assumed that they could do this, and nobody really thought 245 00:14:12,800 --> 00:14:13,760 Speaker 4: twice and. 246 00:14:14,120 --> 00:14:15,520 Speaker 1: I assumed isn't a defense. 247 00:14:16,520 --> 00:14:20,000 Speaker 4: I assume it's not a defense like that famous Steve 248 00:14:20,040 --> 00:14:23,720 Speaker 4: Martin vitt. Sorry here, Hunter, I didn't know that armed 249 00:14:23,760 --> 00:14:26,280 Speaker 4: robbery was against the law. That doesn't work in a 250 00:14:26,320 --> 00:14:29,280 Speaker 4: court of law. Fair use is a legitimate defense, But 251 00:14:29,440 --> 00:14:32,080 Speaker 4: in light of the fact that they were trying to 252 00:14:32,080 --> 00:14:36,080 Speaker 4: take advantage of a license to the site for music 253 00:14:36,560 --> 00:14:39,280 Speaker 4: and simply didn't comply the right way, it makes it 254 00:14:39,360 --> 00:14:42,800 Speaker 4: really hard to then succeed with the fair use defense, 255 00:14:42,800 --> 00:14:43,560 Speaker 4: in my opinion. 256 00:14:43,840 --> 00:14:47,200 Speaker 1: And when drinkmaker Bang Energy was sued for using hundreds 257 00:14:47,240 --> 00:14:51,280 Speaker 1: of copyrighted songs in TikTok videos. It said it believed 258 00:14:51,320 --> 00:14:55,160 Speaker 1: that the TikTok licenses gave it permission, but the judge 259 00:14:55,200 --> 00:14:58,440 Speaker 1: said it really didn't matter what Bang thought. Going back 260 00:14:58,480 --> 00:15:01,160 Speaker 1: to the Steve Martin defense, it seems like a lot 261 00:15:01,160 --> 00:15:02,840 Speaker 1: of similar suits are being. 262 00:15:02,720 --> 00:15:06,240 Speaker 4: Filed, so there's a large number of these that have 263 00:15:06,280 --> 00:15:10,040 Speaker 4: been percolating over the last year. The Beastie Boys sued 264 00:15:10,440 --> 00:15:14,360 Speaker 4: Chile's the restaurant chain for using their song sabotage in 265 00:15:14,480 --> 00:15:19,640 Speaker 4: social media clips. Sony sued Marriott just this last May 266 00:15:20,200 --> 00:15:22,880 Speaker 4: for using some of its songs. Sony has a very 267 00:15:22,960 --> 00:15:26,320 Speaker 4: large music catalog, and Mary apparently used some of those 268 00:15:26,440 --> 00:15:30,440 Speaker 4: in its social media platform campaigns. So you're seeing this 269 00:15:30,560 --> 00:15:33,280 Speaker 4: happen all the time. It's part of a broader trend 270 00:15:33,320 --> 00:15:36,920 Speaker 4: within the music business. The music industry and performers in 271 00:15:37,000 --> 00:15:40,920 Speaker 4: general believe that they're being undercompensated, and so they have 272 00:15:41,080 --> 00:15:45,120 Speaker 4: become very aggressive on the litigation front. There have been 273 00:15:45,440 --> 00:15:50,240 Speaker 4: a number of lawsuits against streaming platforms, mostly recently Verizon 274 00:15:50,320 --> 00:15:54,480 Speaker 4: ut suit alleging that they are willfully allowing this to 275 00:15:54,640 --> 00:15:59,120 Speaker 4: happen that people share songs notwithstanding getting copious numbers of 276 00:15:59,280 --> 00:16:02,600 Speaker 4: copyright down notices from the music companies. And so this 277 00:16:02,720 --> 00:16:06,320 Speaker 4: is just part of a larger trend of pushing back 278 00:16:06,560 --> 00:16:11,720 Speaker 4: by music companies, recording studios, performers to try to capture 279 00:16:12,120 --> 00:16:14,680 Speaker 4: more monetary compensation for their work. 280 00:16:15,200 --> 00:16:17,880 Speaker 1: To me, this seems like an open and shutcase. 281 00:16:18,520 --> 00:16:20,960 Speaker 4: Look, if I got hired to represent one of the teams, 282 00:16:21,000 --> 00:16:23,600 Speaker 4: I'd be calling and trying to answer real quick what 283 00:16:23,680 --> 00:16:26,200 Speaker 4: they want. You know, litigating a lawsuit like this can 284 00:16:26,360 --> 00:16:31,360 Speaker 4: only be embarrassing at best, and at worst can really 285 00:16:31,400 --> 00:16:34,400 Speaker 4: be a black eye for a team, particularly since the 286 00:16:34,880 --> 00:16:37,680 Speaker 4: music ledged to be used here is by some of 287 00:16:37,720 --> 00:16:41,520 Speaker 4: the most popular performers on the contemporary music scene. The 288 00:16:41,640 --> 00:16:47,720 Speaker 4: allegations are that the songs used came from hit Bull, Doja, Cat, Dualipa, 289 00:16:48,200 --> 00:16:51,720 Speaker 4: Miley Cyrus, jay Z, Cardi B, just to name a few. 290 00:16:51,920 --> 00:16:56,680 Speaker 4: I mean, these are really popular performers and their fans 291 00:16:56,800 --> 00:17:00,280 Speaker 4: tend to resent it when their music is being used 292 00:17:00,320 --> 00:17:04,040 Speaker 4: improperly like this, and so this can only be a 293 00:17:04,080 --> 00:17:07,359 Speaker 4: black eye for these NBA teams. There's that old saying, 294 00:17:07,359 --> 00:17:10,040 Speaker 4: you know, the first rule of holes h O. L. 295 00:17:10,119 --> 00:17:13,840 Speaker 4: Ees is when you're in a hole, stop thinking. And 296 00:17:14,000 --> 00:17:16,760 Speaker 4: so my view is, you know, I didn't vote meacopa 297 00:17:16,840 --> 00:17:20,520 Speaker 4: meticopa man maxima culpa, and do my five hail Mary's 298 00:17:20,520 --> 00:17:23,080 Speaker 4: and pennants and and move on. You know, just what 299 00:17:23,280 --> 00:17:24,879 Speaker 4: is it that you want to make this go away? 300 00:17:25,040 --> 00:17:27,320 Speaker 4: And do it and we'll promise never to do it again, 301 00:17:27,440 --> 00:17:29,800 Speaker 4: and then I put in place some sort of training 302 00:17:29,960 --> 00:17:33,119 Speaker 4: for the people who are actually doing my social media 303 00:17:33,280 --> 00:17:36,040 Speaker 4: platform so that this never happens again. Now, part of 304 00:17:36,040 --> 00:17:40,400 Speaker 4: the problem here is that sometimes corporations farm that workout 305 00:17:40,600 --> 00:17:43,120 Speaker 4: to third parties. I mean, there are lots of companies 306 00:17:43,160 --> 00:17:47,040 Speaker 4: who for a price, will do your social media postings 307 00:17:47,119 --> 00:17:50,040 Speaker 4: for you. That's what most celebrities have. You know, you 308 00:17:50,119 --> 00:17:53,080 Speaker 4: don't see people like Kevin Durant sitting down and doing 309 00:17:53,119 --> 00:17:56,399 Speaker 4: his own posting on TikTok. What you see is, you know, 310 00:17:56,520 --> 00:17:59,760 Speaker 4: wealthy people in big corporation pushing that out, outsourcing it 311 00:17:59,840 --> 00:18:01,720 Speaker 4: to third party you will do it for them. And 312 00:18:02,040 --> 00:18:04,760 Speaker 4: that's a different problem to the except the NBA teams 313 00:18:04,800 --> 00:18:06,840 Speaker 4: are doing that, not doing it in house. They've got 314 00:18:06,920 --> 00:18:09,200 Speaker 4: to crack down on that and make sure that their 315 00:18:09,400 --> 00:18:12,720 Speaker 4: third party vendors who are providing these services are doing 316 00:18:12,760 --> 00:18:13,600 Speaker 4: it in a lawful way. 317 00:18:13,960 --> 00:18:16,760 Speaker 1: Maybe the Knicks thought that since jay Z is such 318 00:18:16,800 --> 00:18:19,439 Speaker 1: a fan and since courtside all the time, he wouldn't 319 00:18:19,480 --> 00:18:21,760 Speaker 1: mind if they used his song, that could well be 320 00:18:21,920 --> 00:18:22,359 Speaker 1: the case. 321 00:18:22,440 --> 00:18:25,479 Speaker 4: I don't know, so I suspect me honestly to I mean, 322 00:18:25,640 --> 00:18:27,879 Speaker 4: we can laugh about this, and it is comical in 323 00:18:28,000 --> 00:18:30,800 Speaker 4: some ways, but I suspect that none of these teams 324 00:18:30,960 --> 00:18:34,000 Speaker 4: realized what was going on. None of these teams would 325 00:18:34,119 --> 00:18:37,520 Speaker 4: have willfully set out to break the copyright laws because 326 00:18:37,520 --> 00:18:40,280 Speaker 4: they don't have their own copyrights and don't want them infringe. 327 00:18:40,480 --> 00:18:43,880 Speaker 4: This is a mistake that the team's made, and it's 328 00:18:44,080 --> 00:18:47,280 Speaker 4: what we would call in the business innocent infringement, and 329 00:18:47,640 --> 00:18:50,000 Speaker 4: they should just do their penance, figure out what it 330 00:18:50,080 --> 00:18:51,840 Speaker 4: needs to make this go away, and make sure it 331 00:18:51,880 --> 00:18:52,360 Speaker 4: doesn't happen. 332 00:18:52,480 --> 00:18:58,080 Speaker 1: Yet, So none of these fourteen teams, sophisticated corporate players 333 00:18:58,640 --> 00:19:01,600 Speaker 1: realized that they had to get to use an artist 334 00:19:01,760 --> 00:19:05,960 Speaker 1: copyrighted music and a promotional video. Don't they have teams 335 00:19:06,040 --> 00:19:09,240 Speaker 1: of in house lawyers advising them on things like this. 336 00:19:10,200 --> 00:19:15,960 Speaker 4: Fundamentally, the NBA is an entertainment business, and as with 337 00:19:16,160 --> 00:19:21,080 Speaker 4: any entertainment business, they have to have copyrights on their broadcast, trademarks, 338 00:19:21,160 --> 00:19:24,159 Speaker 4: on their logos, on the team names, et cetera. So 339 00:19:24,400 --> 00:19:27,840 Speaker 4: they are aware of intellectual property laws. There's no question 340 00:19:28,000 --> 00:19:31,760 Speaker 4: about that. The question that he poses, how did this happen? 341 00:19:32,080 --> 00:19:35,879 Speaker 4: Each of these NBA teams have in house legal staff. 342 00:19:36,160 --> 00:19:39,399 Speaker 4: The league has a fairly large in house legal staff 343 00:19:39,560 --> 00:19:42,920 Speaker 4: that can be accessed by the teams as necessary. I mean, 344 00:19:43,040 --> 00:19:46,520 Speaker 4: most of the trademark registration process goes through the League, 345 00:19:46,680 --> 00:19:49,000 Speaker 4: not through the individual teams. And so the question is 346 00:19:49,040 --> 00:19:51,120 Speaker 4: a very good one. He asked you how could this happen? 347 00:19:51,680 --> 00:19:55,760 Speaker 4: And the simple answer is that, as with many corporations, 348 00:19:56,000 --> 00:19:58,320 Speaker 4: the mere fact that you're big and that you have 349 00:19:58,480 --> 00:20:01,159 Speaker 4: knowledge of the intellectual proper it doesn't mean that you 350 00:20:01,320 --> 00:20:04,040 Speaker 4: have a large enough legal staff or legal staff that 351 00:20:04,280 --> 00:20:08,040 Speaker 4: is experienced in intellectual property to be able to deal 352 00:20:08,119 --> 00:20:11,639 Speaker 4: with every problem that comes up. The biggest problem that 353 00:20:12,160 --> 00:20:16,520 Speaker 4: NBA teams face are labor and employment issue, so they 354 00:20:16,600 --> 00:20:19,600 Speaker 4: obviously have people who are very familiar with employment issues 355 00:20:19,640 --> 00:20:22,959 Speaker 4: and with the collective bargaining agreement. They also have basic 356 00:20:23,040 --> 00:20:26,320 Speaker 4: contract problems, contracts with the venue that they play in, 357 00:20:26,720 --> 00:20:29,720 Speaker 4: contracts with sponsors, and so they obviously have people on 358 00:20:29,760 --> 00:20:32,639 Speaker 4: their legal staff who are very familiar contracts. That doesn't 359 00:20:32,760 --> 00:20:35,480 Speaker 4: mean that they're going to have a copyright specialist because 360 00:20:35,520 --> 00:20:38,480 Speaker 4: that doesn't come up as often, and they probably when 361 00:20:38,480 --> 00:20:41,440 Speaker 4: they have a problem refer to outside council in that field. 362 00:20:41,560 --> 00:20:43,960 Speaker 4: And so the simple answer is, yeah, their big corporation, 363 00:20:44,720 --> 00:20:47,760 Speaker 4: but when it comes to social media platforms, they're often 364 00:20:47,880 --> 00:20:51,400 Speaker 4: no more cognizant of what the rules are than any 365 00:20:51,560 --> 00:20:53,280 Speaker 4: late person like your kid or my kid. 366 00:20:53,880 --> 00:20:56,439 Speaker 1: So the plaintiffs are seeking damages of up to one 367 00:20:56,520 --> 00:21:00,280 Speaker 1: hundred and fifty thousand per song infringed, So it's not 368 00:21:00,320 --> 00:21:02,359 Speaker 1: about how many times the videos were viewed. 369 00:21:03,119 --> 00:21:05,959 Speaker 4: It's an interesting aspect of the Copyright Act. You can 370 00:21:06,200 --> 00:21:09,359 Speaker 4: seek actual damages whatever the harm to you was. And 371 00:21:09,680 --> 00:21:13,119 Speaker 4: perhaps one of these videos was viewed a million times, 372 00:21:13,160 --> 00:21:15,639 Speaker 4: and you can make some sort of argument that that 373 00:21:15,680 --> 00:21:18,040 Speaker 4: would be worth two cents for each viewing to you. 374 00:21:18,359 --> 00:21:20,600 Speaker 4: So that's one way you can go the actual loss. 375 00:21:21,119 --> 00:21:24,520 Speaker 4: That's often really hard to prove in copyright cases like this, 376 00:21:25,000 --> 00:21:29,160 Speaker 4: and so the Copyright Act includes as a core part 377 00:21:29,400 --> 00:21:33,760 Speaker 4: of the damage's provision the remedy of statutory damages. Congress 378 00:21:33,880 --> 00:21:36,520 Speaker 4: knowing that it was hard to prove up actual loss, 379 00:21:36,560 --> 00:21:40,920 Speaker 4: and copyright cases allowed for a plaintiff, a copyright owner 380 00:21:40,960 --> 00:21:42,359 Speaker 4: to come in to court and say, look, I had 381 00:21:42,440 --> 00:21:45,240 Speaker 4: these three works, they were each infringed, and for each 382 00:21:45,480 --> 00:21:48,639 Speaker 4: work you can get up to up to one hundred 383 00:21:48,640 --> 00:21:51,880 Speaker 4: and fifty thousand dollars in what they're called statutory damages. Now, 384 00:21:52,280 --> 00:21:54,680 Speaker 4: that's not an automatic one hundred and fifty thousand and 385 00:21:54,720 --> 00:21:58,480 Speaker 4: one hundred and fifty thousand knowledge is for willful copyright infringement. 386 00:21:58,760 --> 00:22:02,680 Speaker 4: For innocent infringement, it's much less. For ordinary infringements the 387 00:22:02,720 --> 00:22:04,760 Speaker 4: cap of thirty thousand, and for wolf one infringements the 388 00:22:04,840 --> 00:22:07,360 Speaker 4: cap of the one hundred and fifty thousand. So it's 389 00:22:07,400 --> 00:22:09,960 Speaker 4: not simply well, you infringe three songs times one hundred 390 00:22:09,960 --> 00:22:11,840 Speaker 4: and fifty thousand. Doesn't work that way. There has to 391 00:22:11,880 --> 00:22:14,440 Speaker 4: be a determination made as to the mental state of 392 00:22:14,560 --> 00:22:17,080 Speaker 4: the defendant when it went about this infringement. And as 393 00:22:17,119 --> 00:22:20,280 Speaker 4: I said, I don't think any of these teams set 394 00:22:20,320 --> 00:22:23,240 Speaker 4: out to willfully infringe, as that term is used in 395 00:22:23,320 --> 00:22:25,560 Speaker 4: the copyright laws. They made a mistake, and so I 396 00:22:25,600 --> 00:22:27,960 Speaker 4: think the damages, if this were to go to Troup, 397 00:22:28,040 --> 00:22:30,040 Speaker 4: should be set at much lower than one hundred and 398 00:22:30,040 --> 00:22:32,520 Speaker 4: fifty thousand dollars per work. But there's some teams who 399 00:22:32,680 --> 00:22:36,200 Speaker 4: used a lot of different songs. The Knicks had twenty 400 00:22:36,320 --> 00:22:41,320 Speaker 4: three different songs allegedly used. The Orlando Magic had thirty 401 00:22:41,440 --> 00:22:44,760 Speaker 4: seven different songs allegedly used by them. So I mean 402 00:22:44,840 --> 00:22:47,120 Speaker 4: there's a lot of potential damages on the line. 403 00:22:47,160 --> 00:22:49,720 Speaker 1: Yeah, and Terry, let's say the Knicks had tried to 404 00:22:49,720 --> 00:22:52,000 Speaker 1: get a license, how much would it have cost? 405 00:22:52,520 --> 00:22:55,480 Speaker 4: What should have happened here is the Knicks would have 406 00:22:55,640 --> 00:22:58,560 Speaker 4: had to go to the license or of the music 407 00:22:58,720 --> 00:23:01,720 Speaker 4: and got what's known as a thing nchronization license. A 408 00:23:01,800 --> 00:23:06,280 Speaker 4: synchronization license is required whenever you want to use a 409 00:23:06,680 --> 00:23:10,199 Speaker 4: song that is copyrighted in a video format. So keep 410 00:23:10,240 --> 00:23:14,080 Speaker 4: in mind we're dealing here with social media platforms that use, 411 00:23:14,160 --> 00:23:17,600 Speaker 4: for example, a video of a Knicks player dunking on 412 00:23:17,680 --> 00:23:21,320 Speaker 4: an opposing player, and you know there'll be some written 413 00:23:21,400 --> 00:23:24,800 Speaker 4: commentary like oh another great dunk, And then to make 414 00:23:24,840 --> 00:23:28,720 Speaker 4: it interesting, the video clip will have music playing the background. Well, 415 00:23:29,080 --> 00:23:31,879 Speaker 4: that requires a sync license in order to show the 416 00:23:31,960 --> 00:23:35,000 Speaker 4: music in a video format. And that's fundamentally what they 417 00:23:35,040 --> 00:23:37,440 Speaker 4: did wrong here, not going getting that. How much would 418 00:23:37,480 --> 00:23:41,040 Speaker 4: it cost it's an individualized negotiation. It's not a set price. 419 00:23:41,280 --> 00:23:41,440 Speaker 2: You know. 420 00:23:41,560 --> 00:23:45,479 Speaker 4: It's different than internet streaming. These satellite radio stations, for example, 421 00:23:45,800 --> 00:23:48,639 Speaker 4: there is a set price per song. I don't remember 422 00:23:48,680 --> 00:23:50,400 Speaker 4: what it is, like nine point six cents or something 423 00:23:50,480 --> 00:23:53,200 Speaker 4: like that, that's revised every couple of years. That's not 424 00:23:53,320 --> 00:23:56,320 Speaker 4: true with a sink license. It's individually negotiated and they'd 425 00:23:56,359 --> 00:23:59,160 Speaker 4: have to go and see what they could get. Usually, 426 00:23:59,520 --> 00:24:01,840 Speaker 4: the license and companies are very eager to do that, 427 00:24:02,119 --> 00:24:04,120 Speaker 4: and you certainly would get it for a lot less 428 00:24:04,160 --> 00:24:06,040 Speaker 4: than one hundred and fifty thousand dollars per song. 429 00:24:06,400 --> 00:24:09,000 Speaker 1: So it seems like these suits will be settled, although 430 00:24:09,080 --> 00:24:12,040 Speaker 1: I don't know why Chili's hasn't settled with the Beastie Boys. 431 00:24:12,400 --> 00:24:15,200 Speaker 4: I don't understand why an eighties or religated. Usually the 432 00:24:15,320 --> 00:24:20,359 Speaker 4: answer is that the plaintiff is asking for an exorbitant amount, 433 00:24:20,480 --> 00:24:23,359 Speaker 4: not being reasonable in the settlement negotiation, and so you 434 00:24:23,480 --> 00:24:26,040 Speaker 4: have to wait and push it down the road a 435 00:24:26,040 --> 00:24:29,360 Speaker 4: little bit until it gets to what happens in most 436 00:24:29,440 --> 00:24:32,880 Speaker 4: courts nowadays, a court ordered mediation, usually with a magistrate 437 00:24:32,960 --> 00:24:35,679 Speaker 4: judge who sort of beats up on the plaintiff to settle, 438 00:24:36,440 --> 00:24:39,399 Speaker 4: but you would think that this would settle relatively quickly. 439 00:24:39,960 --> 00:24:42,560 Speaker 4: I mean one team here, the Indiana Pacers, who have 440 00:24:42,680 --> 00:24:46,399 Speaker 4: been accused of only infringing one or two songs, and 441 00:24:46,720 --> 00:24:49,399 Speaker 4: you would think that would get settled real quick. But 442 00:24:49,800 --> 00:24:53,000 Speaker 4: some of these others, where the thirty seven songs, there's 443 00:24:53,040 --> 00:24:55,720 Speaker 4: a lot of infringement and a lot of potential damages, 444 00:24:55,920 --> 00:24:59,000 Speaker 4: so that might be harder to settle in the short term. 445 00:24:59,160 --> 00:25:01,200 Speaker 4: But I doubt it any of these we'll go to trial. 446 00:25:01,680 --> 00:25:03,879 Speaker 1: Thanks so much, Terry, and I have to say, I 447 00:25:04,000 --> 00:25:07,480 Speaker 1: think the rule of holes is something that every lawyer 448 00:25:07,520 --> 00:25:10,880 Speaker 1: should follow. That's Terrence Ross of Catain. Euchen Rosenman. 449 00:25:12,560 --> 00:25:15,159 Speaker 4: With NFL Sunday Ticket on YouTube, you can watch your 450 00:25:15,160 --> 00:25:15,960 Speaker 4: favorite teams. 451 00:25:15,760 --> 00:25:18,960 Speaker 3: Out of market Sunday games, so no matter where you live, 452 00:25:19,560 --> 00:25:23,120 Speaker 3: it'll feel a little more like home at least on Sundays. 453 00:25:23,680 --> 00:25:26,400 Speaker 4: NFL Sunday Ticket only on YouTube and YouTube TV. 454 00:25:26,880 --> 00:25:30,960 Speaker 1: Anti Truss litigation over the NFL's Sunday Ticket has been 455 00:25:31,040 --> 00:25:33,920 Speaker 1: going on for more than a decade, but now in 456 00:25:34,119 --> 00:25:37,920 Speaker 1: just a five week span, the NFL's biggest financial threat 457 00:25:38,000 --> 00:25:41,840 Speaker 1: in years has been erased in court almost like magic, 458 00:25:42,119 --> 00:25:45,200 Speaker 1: well legal magic. At the end of June, a jury 459 00:25:45,280 --> 00:25:48,840 Speaker 1: had sided with football fans and awarded four point seven 460 00:25:48,960 --> 00:25:52,920 Speaker 1: billion dollars in damages to subscribers, finding that the NFL 461 00:25:53,040 --> 00:25:56,840 Speaker 1: had violated anti trust laws in distributing out of market 462 00:25:56,960 --> 00:26:02,240 Speaker 1: Sunday afternoon games on a premium subscription service. Because damages 463 00:26:02,320 --> 00:26:05,879 Speaker 1: can be tripled under federal antitrust laws, the NFL was 464 00:26:05,960 --> 00:26:09,280 Speaker 1: facing a more than fourteen billion dollar reward, but then 465 00:26:09,440 --> 00:26:13,240 Speaker 1: last week, a California federal judge tossed out the verdict 466 00:26:13,480 --> 00:26:17,879 Speaker 1: after striking the testimony of two expert witnesses and concluding 467 00:26:17,960 --> 00:26:21,960 Speaker 1: that the jury had improperly calculated the damages. Joining me 468 00:26:22,040 --> 00:26:26,680 Speaker 1: is Bloomberg Intelligence senior litigation analyst Jenniferree, the jury found 469 00:26:26,800 --> 00:26:31,240 Speaker 1: anti competitive behavior, did the judge find any anti competitive behavior? 470 00:26:31,840 --> 00:26:35,560 Speaker 5: So the judge didn't necessarily find anti competitive behavior. What 471 00:26:35,680 --> 00:26:38,520 Speaker 5: he said was that it wasn't unreasonable based on the 472 00:26:38,600 --> 00:26:41,800 Speaker 5: evidence presented at trial for the jury to reach that conclusion. 473 00:26:42,160 --> 00:26:46,200 Speaker 5: So essentially he supported the jury reaching the conclusion that 474 00:26:46,720 --> 00:26:49,840 Speaker 5: the agreements between the NFL teams and the NFL, and 475 00:26:50,000 --> 00:26:53,280 Speaker 5: possibly also with DirecTV were anti competitive restraints. 476 00:26:53,640 --> 00:26:57,080 Speaker 1: The NFL had argued that the jury had made up 477 00:26:57,200 --> 00:27:00,800 Speaker 1: methodology to calculate the damages, and that was one of 478 00:27:00,880 --> 00:27:03,879 Speaker 1: the points that the judge really focused on. Tell us 479 00:27:03,960 --> 00:27:05,080 Speaker 1: why he went off on that. 480 00:27:05,920 --> 00:27:08,240 Speaker 5: I have to tell you it was really kind of 481 00:27:08,440 --> 00:27:11,240 Speaker 5: a strange way for a jury to calculate damages. So 482 00:27:11,760 --> 00:27:14,200 Speaker 5: what happens in trial is there are experts, and the 483 00:27:14,320 --> 00:27:17,119 Speaker 5: experts are there to assist the jury to explain to 484 00:27:17,200 --> 00:27:20,119 Speaker 5: them how damages can be calculated, what they think the 485 00:27:20,200 --> 00:27:23,399 Speaker 5: world would have looked like but for these restraints that 486 00:27:23,560 --> 00:27:26,360 Speaker 5: were deemed to be anti competitive, and what the prices 487 00:27:26,400 --> 00:27:28,760 Speaker 5: would have been. So what a jury is meant to 488 00:27:28,840 --> 00:27:31,920 Speaker 5: do is say, okay, in that butt for world where 489 00:27:31,960 --> 00:27:34,320 Speaker 5: we didn't have these restraints, what would people have paid? 490 00:27:34,440 --> 00:27:37,000 Speaker 5: But what did they actually pay and what's the difference. 491 00:27:37,080 --> 00:27:39,359 Speaker 5: And the judge actually instructed them that way. You have 492 00:27:39,520 --> 00:27:42,440 Speaker 5: to say how much were people overcharged because of this 493 00:27:42,560 --> 00:27:45,040 Speaker 5: bad behavior? What they need to get back is what 494 00:27:45,160 --> 00:27:48,600 Speaker 5: they overpaid essentially, But instead the jury just kind of 495 00:27:48,680 --> 00:27:52,639 Speaker 5: projected all of that and they took the list price. 496 00:27:52,800 --> 00:27:54,919 Speaker 5: This is Sunday ticket is what we're talking about, right. 497 00:27:55,119 --> 00:27:57,000 Speaker 5: It's something you can buy from the NFL to get 498 00:27:57,040 --> 00:27:59,199 Speaker 5: out of market games. And that's what the issue is here, 499 00:27:59,480 --> 00:28:02,080 Speaker 5: what did people pay for Sunday ticket. They took the 500 00:28:02,200 --> 00:28:04,680 Speaker 5: list price for Sunday ticket, and then they took the 501 00:28:04,760 --> 00:28:08,000 Speaker 5: testimony about what the actual average price paid for Sunday 502 00:28:08,040 --> 00:28:11,000 Speaker 5: ticket was. Because you know, people get coupons, they get discounts, 503 00:28:11,000 --> 00:28:13,440 Speaker 5: they get specials, whatever, so there was, you know, a 504 00:28:13,440 --> 00:28:15,800 Speaker 5: little more than I think one hundred dollars difference between 505 00:28:15,840 --> 00:28:18,760 Speaker 5: the list price and the average price actually paid. They 506 00:28:18,800 --> 00:28:21,119 Speaker 5: took that difference. So in other words, they took what 507 00:28:21,480 --> 00:28:23,800 Speaker 5: was the discount and then they multiplied that by the 508 00:28:23,880 --> 00:28:27,479 Speaker 5: number of subscribers. So that really doesn't bear any relation 509 00:28:27,840 --> 00:28:32,600 Speaker 5: to what the experts testified as to the overcharges. So 510 00:28:32,760 --> 00:28:34,920 Speaker 5: the judge said, look, you can do the math. You 511 00:28:35,000 --> 00:28:37,720 Speaker 5: can see how they calculated this. It's to the penny 512 00:28:38,160 --> 00:28:39,520 Speaker 5: and it doesn't make sense. 513 00:28:40,160 --> 00:28:42,800 Speaker 1: So that's part of it. The jury calculation was wrong, 514 00:28:42,840 --> 00:28:47,280 Speaker 1: according to the judge. He also struck two economic experts 515 00:28:47,320 --> 00:28:49,520 Speaker 1: who had testified for the subscribers. 516 00:28:50,040 --> 00:28:52,200 Speaker 5: Right, you know, I just talked about the butt four world. 517 00:28:52,320 --> 00:28:55,600 Speaker 5: So one of those experts described what the butt four 518 00:28:55,680 --> 00:28:58,320 Speaker 5: world might have looked like if they hadn't had the restraints, 519 00:28:58,360 --> 00:29:00,040 Speaker 5: and the other one sort of talked about that and 520 00:29:00,480 --> 00:29:02,479 Speaker 5: what people would have paid, how things would have been, 521 00:29:02,560 --> 00:29:04,959 Speaker 5: and what would have been paid to be a subscriber 522 00:29:05,360 --> 00:29:08,480 Speaker 5: to these out of market telecasts of NFL games, And 523 00:29:08,960 --> 00:29:12,920 Speaker 5: an expert's conclusions and testimony really have to be based 524 00:29:13,000 --> 00:29:16,400 Speaker 5: on some sort of a methodology and economic methodology that 525 00:29:16,560 --> 00:29:20,040 Speaker 5: makes sense. And here he basically said it really wasn't. 526 00:29:20,440 --> 00:29:25,160 Speaker 5: It wasn't reliable. Neither expert were reliable one because really 527 00:29:25,280 --> 00:29:29,760 Speaker 5: their testimony wasn't based on a methodology that made sense. 528 00:29:30,160 --> 00:29:33,239 Speaker 5: In one case, the first expert basically said, Hey, if 529 00:29:33,280 --> 00:29:35,000 Speaker 5: you didn't have these restraints, it would be just like 530 00:29:35,080 --> 00:29:37,600 Speaker 5: college football. We have a bunch of college football games 531 00:29:37,760 --> 00:29:40,120 Speaker 5: all over the place on some cable channels, on some 532 00:29:40,440 --> 00:29:43,680 Speaker 5: over the air channels like ABC on cable channels, and 533 00:29:43,840 --> 00:29:45,960 Speaker 5: you see, you know, loads of games every weekend, and 534 00:29:46,040 --> 00:29:48,240 Speaker 5: this would be just like that. But he didn't really 535 00:29:48,280 --> 00:29:51,480 Speaker 5: explain how it would. NFL has differences. It's different from 536 00:29:51,520 --> 00:29:54,360 Speaker 5: college football. It isn't the same. And CBS and Box 537 00:29:54,480 --> 00:29:57,600 Speaker 5: have some contracts with the NFL which aren't necessarily illegal, 538 00:29:57,880 --> 00:30:00,160 Speaker 5: and those probably would have stayed in place. But he 539 00:30:00,240 --> 00:30:02,920 Speaker 5: didn't do is say how this would have happened and 540 00:30:03,040 --> 00:30:05,760 Speaker 5: when asked, how would this have all worked out? He said, 541 00:30:05,800 --> 00:30:08,200 Speaker 5: these are sophisticated entities. They would have made it work. 542 00:30:08,400 --> 00:30:10,720 Speaker 5: That isn't good enough. You know, it needs to be 543 00:30:10,800 --> 00:30:15,440 Speaker 5: based on some economic analysis that backs up, explaining exactly 544 00:30:15,560 --> 00:30:19,080 Speaker 5: how everything would have panned out, what would have been shown, 545 00:30:19,320 --> 00:30:21,400 Speaker 5: how it would have been shown, how much it would 546 00:30:21,400 --> 00:30:24,400 Speaker 5: have been had the restraints not been in place. And 547 00:30:24,600 --> 00:30:27,360 Speaker 5: so the judge said, this is really just speculation that 548 00:30:27,480 --> 00:30:30,160 Speaker 5: things would have been like college football, without explaining why 549 00:30:30,240 --> 00:30:32,320 Speaker 5: or how it would be like college football. 550 00:30:32,520 --> 00:30:35,200 Speaker 1: It's surprising to me that the plaintiffs, after all these 551 00:30:35,280 --> 00:30:38,720 Speaker 1: years of litigation, didn't get an expert who could do that. 552 00:30:38,840 --> 00:30:41,320 Speaker 1: It doesn't sound like it's something that's so impossible to 553 00:30:41,400 --> 00:30:41,920 Speaker 1: figure out. 554 00:30:42,240 --> 00:30:44,840 Speaker 5: I think they thought it would be sufficient because there 555 00:30:45,040 --> 00:30:48,120 Speaker 5: was some effort by the defendants earlier in the litigation 556 00:30:48,320 --> 00:30:51,760 Speaker 5: it's called a dobear motion to try to exclude the experts, 557 00:30:51,760 --> 00:30:53,640 Speaker 5: and they weren't able to do that. The judge said, no, 558 00:30:53,680 --> 00:30:55,680 Speaker 5: I'm going to go ahead and let them testify. And 559 00:30:55,760 --> 00:30:58,320 Speaker 5: I think the plaintiffs thought that this testimony might be 560 00:30:58,400 --> 00:31:02,240 Speaker 5: good enough. College football did face years ago a case 561 00:31:02,280 --> 00:31:04,760 Speaker 5: that was similar to this one, and as a result 562 00:31:04,800 --> 00:31:07,320 Speaker 5: of that litigation, we got what we got out of 563 00:31:07,400 --> 00:31:10,120 Speaker 5: the NCAA. We got a lot of college games on 564 00:31:10,200 --> 00:31:12,800 Speaker 5: a lot of different cable stations and over the air stations, 565 00:31:12,920 --> 00:31:14,520 Speaker 5: and I think they thought it would be good enough 566 00:31:14,800 --> 00:31:17,680 Speaker 5: to basically say, look, it's very similar, and it would 567 00:31:17,720 --> 00:31:21,040 Speaker 5: be similar. But again, from the perspective of what an 568 00:31:21,080 --> 00:31:24,040 Speaker 5: expert supposed to provide, the judge just deemed that to 569 00:31:24,120 --> 00:31:25,040 Speaker 5: be too speculative. 570 00:31:25,440 --> 00:31:27,920 Speaker 1: Was this a shocking decision to toss out the verdict? 571 00:31:28,120 --> 00:31:30,520 Speaker 5: I think not, because first, all the way through trial, 572 00:31:30,600 --> 00:31:33,440 Speaker 5: the judge seemed a really skeptical of plaintiff's evidence. He 573 00:31:33,560 --> 00:31:36,240 Speaker 5: made comments like, I don't really think the evidence that 574 00:31:36,320 --> 00:31:39,160 Speaker 5: you're presenting here supports your theory or supports your case. 575 00:31:39,440 --> 00:31:41,280 Speaker 5: I don't really think you're making your case. So he 576 00:31:41,480 --> 00:31:43,880 Speaker 5: was skeptical the whole way. So that's one thing. And 577 00:31:43,960 --> 00:31:45,720 Speaker 5: the second thing is when you did look at the 578 00:31:45,840 --> 00:31:49,040 Speaker 5: damages that the jury awarded, they did look odd. They 579 00:31:49,120 --> 00:31:51,560 Speaker 5: weren't the damages that the experts predicted would be the 580 00:31:51,600 --> 00:31:54,720 Speaker 5: appropriate damages, and you saw that it was kind of 581 00:31:54,800 --> 00:31:56,760 Speaker 5: clear the way they calculated them in a way that 582 00:31:56,840 --> 00:31:59,960 Speaker 5: didn't make sense, right, So I think that wasn't surprise. 583 00:32:00,720 --> 00:32:03,840 Speaker 5: And then June also, this has a long history, right, 584 00:32:03,920 --> 00:32:06,160 Speaker 5: This litigation has been going for ten years, and it 585 00:32:06,320 --> 00:32:09,200 Speaker 5: already went before the Supreme Court at one point, I 586 00:32:09,240 --> 00:32:11,960 Speaker 5: should say that the NFL tried to get Supreme Court review. 587 00:32:12,200 --> 00:32:14,160 Speaker 5: The Supreme Court didn't pick up the case because it 588 00:32:14,280 --> 00:32:16,320 Speaker 5: was just on emotion to dismiss, and that's kind of 589 00:32:16,400 --> 00:32:19,400 Speaker 5: early on in the matter and sort of procedural. But 590 00:32:19,840 --> 00:32:23,360 Speaker 5: in saying we won't review the case, Justice Kavanaugh released 591 00:32:23,360 --> 00:32:26,160 Speaker 5: a statement and in the statement, he basically said he 592 00:32:26,280 --> 00:32:28,520 Speaker 5: doesn't think that the plaintiff's case is good here that 593 00:32:28,600 --> 00:32:31,680 Speaker 5: he agrees with the NFL's position, and they didn't take 594 00:32:31,760 --> 00:32:33,760 Speaker 5: the case because it's just on emotion to dismiss. 595 00:32:33,880 --> 00:32:34,440 Speaker 2: It's early on. 596 00:32:34,600 --> 00:32:37,719 Speaker 5: But by the way, NFL, if you lose, practically invited 597 00:32:37,760 --> 00:32:39,240 Speaker 5: them to come back to the Supreme Court. 598 00:32:39,720 --> 00:32:42,760 Speaker 1: That's some invitation to get. What surprised me here is 599 00:32:43,160 --> 00:32:46,400 Speaker 1: the jury didn't follow the judge's instructions and the judge 600 00:32:46,440 --> 00:32:50,200 Speaker 1: said they calculated the damages incorrectly. So then you order 601 00:32:50,240 --> 00:32:52,720 Speaker 1: a new trial and you give another jury a chance, 602 00:32:53,240 --> 00:32:55,080 Speaker 1: especially after ten years of litigation. 603 00:32:55,960 --> 00:32:57,680 Speaker 5: So I think a new trial could be where we 604 00:32:57,840 --> 00:32:59,920 Speaker 5: end up here. But the reason he did that is 605 00:33:00,080 --> 00:33:01,640 Speaker 5: because there were sort of three issues. 606 00:33:01,760 --> 00:33:01,880 Speaker 2: Right. 607 00:33:02,280 --> 00:33:05,240 Speaker 5: He didn't just say that the jury's damages made no sense. 608 00:33:05,320 --> 00:33:08,400 Speaker 5: That was one thing, But he also discounted and discluded 609 00:33:08,440 --> 00:33:11,440 Speaker 5: the evidence of two experts. And because he did that, 610 00:33:11,920 --> 00:33:15,480 Speaker 5: he granted judgment notwithstanding the verdict. Because without those two 611 00:33:15,600 --> 00:33:19,320 Speaker 5: experts testimony, there was no evidence presented at all to 612 00:33:19,560 --> 00:33:22,680 Speaker 5: establish that there was injury or what the damages would 613 00:33:22,680 --> 00:33:25,120 Speaker 5: have been for that injury. And because of that, it 614 00:33:25,280 --> 00:33:28,400 Speaker 5: was judgment notwithstanding the verdict. Now here's the thing. What 615 00:33:28,600 --> 00:33:31,760 Speaker 5: happens now. I would think that the plaintiffs will probably appeal, 616 00:33:32,000 --> 00:33:33,880 Speaker 5: based on what we talked about right at the beginning 617 00:33:33,920 --> 00:33:36,800 Speaker 5: of this segment, that the judge didn't find it unreasonable 618 00:33:36,920 --> 00:33:40,280 Speaker 5: for the jury to decide that there'd been anti competitive conduct. Right, 619 00:33:40,360 --> 00:33:42,960 Speaker 5: So the judge agreed with that. So on that basis, 620 00:33:43,200 --> 00:33:47,120 Speaker 5: consumers and commercial entities, they're do something right, There was 621 00:33:47,200 --> 00:33:50,160 Speaker 5: anti competitive conduct according to this jury. I would think 622 00:33:50,200 --> 00:33:52,760 Speaker 5: the plaintiffs would appeal, and I would believe that the 623 00:33:53,080 --> 00:33:56,040 Speaker 5: upshot of that appeal, if they're successful, would be to 624 00:33:56,120 --> 00:33:57,920 Speaker 5: send it back for a new trial on damages. 625 00:33:58,200 --> 00:34:01,080 Speaker 1: This has been going on so long that in twenty 626 00:34:01,200 --> 00:34:04,760 Speaker 1: seventeen a judge dismissed the lawsuit right at that point, 627 00:34:04,880 --> 00:34:09,000 Speaker 1: too right, And the Ninth Circuit two years later reversed 628 00:34:09,120 --> 00:34:10,360 Speaker 1: and revived the litigation. 629 00:34:11,000 --> 00:34:13,600 Speaker 5: That was really early on. So it was first dismissed, 630 00:34:13,920 --> 00:34:16,400 Speaker 5: it went to the Ninth Circuit. The Ninth Circuit resurrected it, 631 00:34:16,520 --> 00:34:18,400 Speaker 5: and that's when the NFL tried to get before the 632 00:34:18,440 --> 00:34:21,400 Speaker 5: Supreme Court. It was on that Ninth Circuit's decision to 633 00:34:21,480 --> 00:34:24,480 Speaker 5: send it back to the trial court on remand well 634 00:34:24,520 --> 00:34:27,360 Speaker 5: it was a reversal, so you know, no motion to dismiss, 635 00:34:27,520 --> 00:34:30,440 Speaker 5: keep litigating, and that's when the Supreme Court refused to 636 00:34:30,480 --> 00:34:32,600 Speaker 5: take the case. And then we went through the litigation 637 00:34:32,800 --> 00:34:33,360 Speaker 5: and the trial. 638 00:34:33,600 --> 00:34:38,440 Speaker 1: And does the Sports Broadcasting Act from the nineteen sixties 639 00:34:39,160 --> 00:34:39,839 Speaker 1: play in here. 640 00:34:40,520 --> 00:34:45,600 Speaker 5: What it does is it exempts professional football from antitrust laws, 641 00:34:45,880 --> 00:34:49,399 Speaker 5: the conspiracy laws for the purpose of organizing a league, 642 00:34:49,719 --> 00:34:51,680 Speaker 5: right and for the purpose of having all these teams 643 00:34:51,719 --> 00:34:54,800 Speaker 5: that must come together to present professional football, the game's 644 00:34:55,000 --> 00:34:57,880 Speaker 5: the Super Bowl, et cetera. And what it did at 645 00:34:57,920 --> 00:35:00,480 Speaker 5: the time is it exempted it for the purpose of 646 00:35:00,640 --> 00:35:04,319 Speaker 5: pooling their licensing for free TV. But there was nothing 647 00:35:04,400 --> 00:35:06,520 Speaker 5: but free TV. Then there was no cable. It was 648 00:35:06,600 --> 00:35:09,160 Speaker 5: just ad supported television is what we got, and we 649 00:35:09,280 --> 00:35:12,200 Speaker 5: didn't pay for it. Things are different today. So one 650 00:35:12,280 --> 00:35:14,359 Speaker 5: of the arguments here by the NFL was that, well, 651 00:35:14,360 --> 00:35:16,640 Speaker 5: we're exempt from the antitrust laws because of the Sports 652 00:35:16,719 --> 00:35:17,520 Speaker 5: Broadcasting Act. 653 00:35:17,600 --> 00:35:18,160 Speaker 2: We can do this. 654 00:35:18,800 --> 00:35:21,520 Speaker 5: We can go ahead and license pull the rights to 655 00:35:21,600 --> 00:35:23,960 Speaker 5: the telecasts of all the games and then sell them 656 00:35:23,960 --> 00:35:26,120 Speaker 5: as a package to Direct TV and let Direct TV 657 00:35:26,280 --> 00:35:29,040 Speaker 5: charge subscribers whatever they want to, right, because this was 658 00:35:29,120 --> 00:35:32,239 Speaker 5: the issue. So the question is does the Sports Broadcasting 659 00:35:32,320 --> 00:35:34,800 Speaker 5: Act apply or not? And I think that if the 660 00:35:34,960 --> 00:35:37,879 Speaker 5: NFL was planning ahead and looking at their conduct, their 661 00:35:37,960 --> 00:35:40,120 Speaker 5: position would have been, well, we're exempt, so we can 662 00:35:40,200 --> 00:35:40,360 Speaker 5: do this. 663 00:35:40,920 --> 00:35:43,600 Speaker 1: And another surprise to me in this case is that 664 00:35:43,800 --> 00:35:47,160 Speaker 1: we haven't heard from the plaintiffs saying we're going to 665 00:35:47,239 --> 00:35:52,120 Speaker 1: appeal this. Usually that's the refrain right after a losing verdict, 666 00:35:52,560 --> 00:35:56,480 Speaker 1: especially because they've been successful at the Ninth Circuit before. 667 00:35:56,600 --> 00:35:56,719 Speaker 2: You know. 668 00:35:56,920 --> 00:36:00,480 Speaker 5: I think it's such an interesting situation because I would 669 00:36:00,520 --> 00:36:02,960 Speaker 5: think the plaintiffs would want to appeal just because they 670 00:36:03,040 --> 00:36:05,840 Speaker 5: did get the jury verdict that there was anti competitive conduct. 671 00:36:06,080 --> 00:36:08,480 Speaker 5: But on the other hand, this litigation has been going 672 00:36:08,560 --> 00:36:11,480 Speaker 5: for ten years now. If they appeal, we're tacking on 673 00:36:11,600 --> 00:36:13,800 Speaker 5: years and years and years because the Ninth Circuit is 674 00:36:13,880 --> 00:36:16,000 Speaker 5: pretty backed up. They've got a lot of cases. They're 675 00:36:16,040 --> 00:36:19,000 Speaker 5: taking a long time to decide on these appellate matters 676 00:36:19,280 --> 00:36:21,480 Speaker 5: you're looking at. It could be another two years before 677 00:36:21,520 --> 00:36:24,160 Speaker 5: they get that decision. It's been ten years. And if 678 00:36:24,200 --> 00:36:26,160 Speaker 5: the decision is to send it back to a new trial, 679 00:36:26,440 --> 00:36:28,200 Speaker 5: I mean, I think at this point they may just 680 00:36:28,280 --> 00:36:31,319 Speaker 5: want to get paid. So what I think this could 681 00:36:31,480 --> 00:36:33,480 Speaker 5: lead to is some sort of a settlement here. 682 00:36:33,800 --> 00:36:35,759 Speaker 1: Not much of a settlement though, I don't think so. 683 00:36:36,080 --> 00:36:38,359 Speaker 5: I mean, you know, that's the thing their issues here. 684 00:36:38,480 --> 00:36:40,960 Speaker 5: On both sides. The NFL probably feels like they have 685 00:36:41,040 --> 00:36:44,040 Speaker 5: a strong case, But on the other hand, everybody's probably 686 00:36:44,120 --> 00:36:46,279 Speaker 5: tired of this litigation and it may be worth their 687 00:36:46,320 --> 00:36:48,560 Speaker 5: while just to pay these plaintiffs and make it all 688 00:36:48,640 --> 00:36:51,080 Speaker 5: go away, because the litigation itself is costing them a 689 00:36:51,120 --> 00:36:53,160 Speaker 5: lot of money and as I said, could drag on 690 00:36:53,280 --> 00:36:55,160 Speaker 5: for years. So we'll have to see what happens. I 691 00:36:55,280 --> 00:36:57,360 Speaker 5: suspect at least there will be an appeal and it 692 00:36:57,440 --> 00:36:58,879 Speaker 5: might get to the Ninth Circuit. 693 00:36:58,840 --> 00:37:02,160 Speaker 1: So we'll see whether the peel comes first or the settlement. 694 00:37:02,520 --> 00:37:06,360 Speaker 1: Thanks so much, Jen. That's Jennifer Reed, Bloomberg Intelligence Senior 695 00:37:06,400 --> 00:37:09,520 Speaker 1: litigation Analyst. And that's it for this edition of the 696 00:37:09,520 --> 00:37:12,840 Speaker 1: Bloomberg Law Podcast. Remember you can always get the latest 697 00:37:12,920 --> 00:37:15,719 Speaker 1: legal news by subscribing and listening to the show on 698 00:37:15,880 --> 00:37:20,160 Speaker 1: Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, 699 00:37:20,280 --> 00:37:24,120 Speaker 1: slash Law. I'm June Grosso and this is Bloomberg