Speaker 1: This is Bloomberg Law. Some complicated international law issues here.
Speaker 1: What kind of docket is Chief Justice Roberts facing interviews
Speaker 1: with prominent attorneys and Bloomberg legal experts. Joining me is
Speaker 1: Bloomberg New Supreme Court reporter Greg Store, Neil Devon's a
Speaker 1: professor at William and Mary Law School, and analysis of
Speaker 1: important legal issues cases and headlock. Is this essentially the
Speaker 1: fifth circuit haunting he has presided over a so called
Speaker 1: hot bench at the Supreme Court. Bloomberg Law with June
Speaker 1: Grosso from Bloomberg Radio. Welcome to Bloomberg Law on Bloomberg Radio.
Speaker 1: I'm Joe Shorts, lived in for June Brosso. We begin
Speaker 1: with privacy and Google. What exactly is Google tracking? And
Speaker 1: when a lawsuit filed in claims incognito mode on the
Speaker 1: popular Google Chrome browser potentially is misleading users. The company
Speaker 1: says privacy disclosures make clear that private browsing mode doesn't
Speaker 1: make activities invisible online. Now Alphabet Ceodchai will have to
Speaker 1: face hours of questioning in a California court. Joining us
Speaker 1: now is Bloomberg Industry Group reporter Andrea Vittorio. Her story
Speaker 1: in the terminal headline. Google's Sundarachai ordered to answer questions
Speaker 1: about incognito mode. This is a California federal court correct
Speaker 1: tell us what's going on here, Andrew yes, m consumers
Speaker 1: have to Google over incognito mode, which is m a
Speaker 1: setting on their web browser Chrome where um people can
Speaker 1: turn it on to try and make their activity private.
Speaker 1: The lawsuit claims that it's not as private as people
Speaker 1: think it is. Google describes it as you know, when
Speaker 1: you're incognito, you're not quite invisible online. But the idea
Speaker 1: is that other people who use your who share your device,
Speaker 1: wouldn't see your activity, but your activity online could still
Speaker 1: be visible to the websites that you visit. So there
Speaker 1: has been some consumer confusion about what this kind of
Speaker 1: private browsing actually means. When I'm on this particular well
Speaker 1: bred web browsing mode, I can just select this. And
Speaker 1: you're saying that the assumption is that most consumers as well.
Speaker 1: Incognito means well, nobody knows I'm there, right yeah, that
Speaker 1: I can search whatever I want and it will be
Speaker 1: tracking me. But there is a sort of a splash
Speaker 1: stream that comes up when you turn on incovenati mode.
Speaker 1: And Google says that's where they just close to users that, um,
Speaker 1: this is what it actually means, and so they shouldn't
Speaker 1: be surprised that it's not quite as private as they
Speaker 1: think it is. But what the lawsuit is debating correct, Okay,
Speaker 1: so what's the problem here? Now? This lawsuit was filed
Speaker 1: in June of what are they arguing? Basically that Google
Speaker 1: is breaking its privacy promises to consumers by tracking them
Speaker 1: more than they think they were. So there's some claims
Speaker 1: brought if they under like California law and like contract law. Um,
Speaker 1: just sort of challenging this practice. Talking with ANDREWA. Vittorio,
Speaker 1: reporter with the Bloomberg Industry Group, her story on the
Speaker 1: terminal Google's of Touch, I ordered to answer questions about
Speaker 1: incognito mode. What type of information, uh, you know, is
Speaker 1: Google retaining here when folks are using this this Chrome browser.
Speaker 1: It seems like it would be anything that you type
Speaker 1: into your browser, basically like what you're searching, what websites
Speaker 1: are visiting. I think websites that are that have Google
Speaker 1: Analytics uh imbedded into them could also be collecting information
Speaker 1: um about like your shopping habits or whatever it is
Speaker 1: you're doing online. Google obviously didn't want to put up
Speaker 1: their CEO. However, this federal court obviously disagreed UH speak
Speaker 1: to us about that controversy. There has been some back
Speaker 1: and force lately over the evidence gathering stage of this lawsuit.
Speaker 1: There's been a lot of internal Google documents that were
Speaker 1: shared with the lawyers for the Consumers, and they've been
Speaker 1: UM wanting to ask questions of some of the people
Speaker 1: who UM are mentioned in the documents. And I think
Speaker 1: they've talked to some UH lower level Google employees already,
Speaker 1: but now they've started asking to move up the perfect hierarchy.
Speaker 1: And recently the Consumers lawyers got permission to question Google's
Speaker 1: chief marketing officer about Incongnito's branding and now UM just
Speaker 1: this week they got permission from the court to question
Speaker 1: the CEO. M So, tell me what does that mean,
Speaker 1: what happens next, and how significant a legal victory is
Speaker 1: this Next the Consumers lawyers will get to sit down
Speaker 1: with the UM executives that they want to question and
Speaker 1: just have UM an opportunity to go beyond what they've
Speaker 1: learned from the documents so far, and this will create
Speaker 1: a written testimony that could then become part of the lawsuits.
Speaker 1: Mhm uh and basically, where do you see this going?
Speaker 1: I mean, this is it feels like we've been debating
Speaker 1: this topic about you know, um privacy with with the
Speaker 1: you know these companies for a while. Now, UM, what
Speaker 1: is this latest turn tell us about what's going on here?
Speaker 1: I think it's another example of consumers who are having
Speaker 1: a hard time understanding privacy disclosures UM and trying to
Speaker 1: figure out what it means them practically. So there have
Speaker 1: been a lot of lawsuits in this vein lately. They
Speaker 1: seem to end up in settlements if they may get
Speaker 1: past the early efforts by the company's to get rid
Speaker 1: of the lawsuits. So it seems like maybe we would
Speaker 1: be headed in that direction here. Yeah, okay, So do
Speaker 1: we know when the CEO will be subject to this questioning?
Speaker 1: And I guess in the same the same idea here,
Speaker 1: um legally, what happens next? I'm not sure if there's
Speaker 1: a schedule for the questioning of the CEO, but they're
Speaker 1: still sort of in that phase of getting more information
Speaker 1: um for the lawsuit, and then I guess that will
Speaker 1: see into the judges next decision on where this case goes.
Speaker 1: Andrea Vittorio. She's a reporter with the Bloomberg Industry Group.
Speaker 1: We appreciate you taking time to join us today on
Speaker 1: the Bloomberg law Thank you for having me a headline
Speaker 1: on the Bloomberg terminal. Activist Starboard discloses Go Daddy steak
Speaker 1: push us for changes. Story written by Bloomberg reporter Scott
Speaker 1: de Vot. Activists vestor Starboard Value disclosed a stake in
Speaker 1: a website services company, Go Daddy, Inc. And said it
Speaker 1: may push for changes to improve the stocks performance. The
Speaker 1: New York based hedge Funds had a regulatory filing that
Speaker 1: had held a six point five percent stake in the
Speaker 1: technology company, which it believes is undervalued. Now. Starboard uh
Speaker 1: said in the filing that it may meet with management
Speaker 1: and the board is part of the investment to discuss
Speaker 1: ways to improve shareholder value, including potential board and operational changes,
Speaker 1: as well as business combinations. Representative for Go Daddy didn't
Speaker 1: immediately respond to a quest for comment. Now shares and
Speaker 1: Go Daddy had fallen eight point two percent a year
Speaker 1: to date, giving the company's market valuation of roughly twelve
Speaker 1: point seven billion. It shares rows seven percent to eighty
Speaker 1: one dollars a share on Monday. Starboard has a history
Speaker 1: of pushing for changes at companies in the technology sector.
Speaker 1: To explore this a little bit further, we want to
Speaker 1: bring in an expert in the field. UH. This is
Speaker 1: Kai leaka Fette. He is a partner in the law
Speaker 1: firm Siddeley Austin UH and he co chairs Sidley's shareholder
Speaker 1: activism practice. Thank you Kai for joining us. Uh. Let's
Speaker 1: start a little bit with what happened. Starboards a thirteen
Speaker 1: D filing, which means they're basically buying more than five
Speaker 1: percent of the equity here is noteworthy because the activist
Speaker 1: eight hundred million dollars is one of the largest stakes
Speaker 1: that's ever taken. Are there any regulatory hurdles for an
Speaker 1: activist to clear when they take such a large position.
Speaker 1: That's a great question, and thanks for having me on
Speaker 1: your program, Joe. Yes, there are a number of regulatory
Speaker 1: hurdles for one activist to address when they take such
Speaker 1: a big stake. UH. The one one fighting regime is
Speaker 1: with the SEC and they're already cleared it by fighting
Speaker 1: a so called ski or thirt D. But you're required
Speaker 1: to file when you have a five percent or larger
Speaker 1: stay in the public company. But they are also anti
Speaker 1: trust considerations. When an activist acquired a stake that is
Speaker 1: worth more than ninety two million dollars in the public company,
Speaker 1: they also need to make a filing. This um, this
Speaker 1: the FTC and the d o J commentator trust perspective
Speaker 1: to get cleared. M HM talking with kai Lecafette. He
Speaker 1: is a partner with Sidley Austin law firm in New York,
Speaker 1: fifth largest in the country. All right, um, Now, one
Speaker 1: of the interesting things is that Starboard apparently gave the
Speaker 1: scoop to the media before filing U that d form.
Speaker 1: Are there any legal issues with that maneuver? It is.
Speaker 1: It is a little bit of a gray area of
Speaker 1: the law, but that is something that activists do frequently,
Speaker 1: that they give a scoop to one media outlet, very
Speaker 1: often actually your very own Scott Devote from bloom Book,
Speaker 1: and only afterwards an hour later, thirty minutes later, or
Speaker 1: sometimes even five minutes later, they issued their press release
Speaker 1: or makes the as you see filing. The SEC has
Speaker 1: not taken any any action against this kind of maneuver
Speaker 1: in the past, and I doubt that the SEC is
Speaker 1: focused on this, but it is interesting that activists like
Speaker 1: to do that. M Now, the stock traded up significantly
Speaker 1: following the news. What is the significance of this stock
Speaker 1: price increase legally or otherwise, Well, it shows me that
Speaker 1: the activists probably did not give a hatch up to
Speaker 1: other arts and hatch funds investors, because if you have
Speaker 1: such a large right in the stock price following following
Speaker 1: the news, it means that no one else or few
Speaker 1: outside the activists knew beforehand that this would would would
Speaker 1: what happened. So from a legal perspective, it probably clears
Speaker 1: the activists from any wrongdoing. Um. It is also interesting
Speaker 1: though that a lot of a lot of outside advisors
Speaker 1: wead more into the stock price increase when when an
Speaker 1: activists go public, a lot of a lot of outside
Speaker 1: observers fear that it's a stock price increases significantly that
Speaker 1: this is a core di validation of the activist thesis.
Speaker 1: Un a little bit skeptical of that argument. For me,
Speaker 1: it just means that there are a lot of ups
Speaker 1: and hetch funds preing into the stock and they oftentimes
Speaker 1: just follow the name without any any larger investigation as
Speaker 1: to whether or not the activist thesis, which is not
Speaker 1: even publicly disclosed in our case, has any validity or not?
Speaker 1: And what are the typical next legal steps for were
Speaker 1: the activists after filing this schedule d well. Typically activists
Speaker 1: start engaging with the public with the company privately, not
Speaker 1: in public, after they file a schedule thirt in d
Speaker 1: But at some point or another they have to make
Speaker 1: a decision whether they put up or shot up. That
Speaker 1: is um meaning whether or not they run a proxy
Speaker 1: contest to replace all or a portion of the board
Speaker 1: of the target company. And at most companies, there are
Speaker 1: certain deadlines to observe when making a step of running
Speaker 1: a proxy contest. It's called the nomination deadline. The nomination
Speaker 1: deadline at most companies is somewhere between February and March,
Speaker 1: So that would be the next legal step in this
Speaker 1: kind of situation for an activist. H Ki Leakafet is
Speaker 1: our guest. He's a partner at Siddeley Austin in New York.
Speaker 1: He also court or Siddley's Shareholder Activism a practice. Are
Speaker 1: there any illegal defenses a company can use against an
Speaker 1: activist after the filing of a schedule thirteen day that's
Speaker 1: a question I always get from clients, and many of
Speaker 1: my clients would like to take the activists to court,
Speaker 1: send them to jail, get them, beat them up. But
Speaker 1: the unfortunate trous is that they are a few legal
Speaker 1: defenses that have an immediate effect against an activist. One
Speaker 1: of the defenses that a lot of companies explore is
Speaker 1: whether or not to adopt a so called poison pill.
Speaker 1: A poison pill, it's a legal instrument that allows a
Speaker 1: company to limit the maximum amount of shares any investor
Speaker 1: can buy. Typically that it's a ten or fifteen percent
Speaker 1: threshold of the outstanding shares. So that's something a company
Speaker 1: can do. However, the poison piler, just as many other pills,
Speaker 1: has certain side effects, and the side effect of a
Speaker 1: poison pail as while the board can do that without
Speaker 1: share old or approval, a lot of shareholders view poison
Speaker 1: pods relatively negatively and tend to vote against the incumbent
Speaker 1: board unless the board can demonstrate a very good justification
Speaker 1: for the adoption of the poison fill. So it is
Speaker 1: a legal maneuver that is sometimes used. Sometimes it makes
Speaker 1: sense to use it, but in a lot of cases,
Speaker 1: the the the disadvantages at weigh outweigh the advantages of
Speaker 1: the mm hmmm. A final question for me, so, how
Speaker 1: do you size up this activist investor, Starboard value and
Speaker 1: the actions they took as it relates to Go Daddy. Well,
Speaker 1: I cannot speak to Go Daddy, but generally speaking, uh,
Speaker 1: Starboard is one of the most well known activist investors,
Speaker 1: either the number one of the number two activist investors
Speaker 1: in the world. They have a lot of credibility in
Speaker 1: the market. They a a lot of capital at the disposal.
Speaker 1: They have very sophisticated advisers, so when they decide to
Speaker 1: go public against the company, it's typically it's typically a
Speaker 1: sign of confidence on their end that they got it right.
Speaker 1: K Kaylee Kaffett, he is a partner, said Lee Austin
Speaker 1: there in New York City. Appreciate you taking time and
Speaker 1: joining us on Bloomberg Law. Thank you for having me.
Speaker 1: That's it for this edition of The Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
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Speaker 1: produced by Eric Mallow for Bloomberg Radio. I'm Joe Shortsley.
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