WEBVTT - Are Trump Tariffs Legal & Google's Antitrust Appeal 0:00:02.759 --> 0:00:07.480 This is Bloomberg Law with June Grosseo from Bloomberg Radio. 0:00:08.880 --> 0:00:13.320 President Donald Trump has taken executive action to threaten or 0:00:13.360 --> 0:00:17.919 impose new tariffs on imports from Canada, Mexico, and China, 0:00:18.480 --> 0:00:22.079 rattling stock markets and supply chains in the process of 0:00:22.239 --> 0:00:27.200 the tariff whiplash. On Saturday, Trump declared a national emergency 0:00:27.360 --> 0:00:32.159 under the International Emergency Economic Powers Act, saying the tariffs 0:00:32.159 --> 0:00:35.640 are necessary to deal with the threat from fentanyl and 0:00:35.880 --> 0:00:38.000 illegal immigration at the borders. 0:00:38.400 --> 0:00:41.280 And in one case, they're sending massive amounts of fentanyl, 0:00:41.360 --> 0:00:44.440 killing hundreds of thousands of people a year with the fentanyl, 0:00:45.200 --> 0:00:47.959 and in the other two cases, they're making it possible 0:00:48.000 --> 0:00:50.240 for this poison to get in. 0:00:50.560 --> 0:00:55.280 But Canadian Prime Minister Justin Trudeau disputed Trump's contentions. 0:00:55.640 --> 0:00:59.760 Let me reiterate it. Our border is safe and secure, 0:01:00.240 --> 0:01:03.560 and less than one percent of fentanyl and illegal crossings 0:01:03.560 --> 0:01:07.640 into the United States come from Canada. We're committed to 0:01:07.720 --> 0:01:11.360 keeping it that way by addressing current challenges and strengthening 0:01:11.360 --> 0:01:12.039 our capacity. 0:01:12.600 --> 0:01:15.720 It's the first time a president has ever used the 0:01:15.840 --> 0:01:20.720 nineteen seventy seven law to impose tariffs, although other presidents 0:01:20.720 --> 0:01:24.759 have used it to implement embargoes and sanctions. So far, 0:01:24.920 --> 0:01:29.280 Trump has implemented ten percent levies on China, delayed plans 0:01:29.280 --> 0:01:32.200 to hit Mexico and Canada with a twenty five percent 0:01:32.280 --> 0:01:35.960 duty tax, and suggested that he's coming for the European 0:01:36.080 --> 0:01:39.720 Union next. My guest is Timothy Brightbill, a partner at 0:01:39.800 --> 0:01:43.920 Riley Wine and co chair of the firm's international trade practice. 0:01:44.319 --> 0:01:47.240 This is a novel use of AIPA. Tell us about 0:01:47.280 --> 0:01:48.120 what Trump did. 0:01:49.080 --> 0:01:54.680 The executive orders cited the International Emergency Economic Powers Act, 0:01:54.880 --> 0:02:00.280 which does give broad authority to the president to claire 0:02:00.960 --> 0:02:05.320 and international emergency and then to take whatever action is 0:02:05.440 --> 0:02:11.560 necessary to address that emergency. AIPA authorizes the president to 0:02:11.800 --> 0:02:16.560 regulate imports when the president declarees a national emergency, and 0:02:16.639 --> 0:02:21.519 it's most often used to impose economic sanctions on foreign actors. 0:02:22.080 --> 0:02:26.440 So when the President cited the illegal immigration at the 0:02:26.440 --> 0:02:30.280 border and the situation with respect to Sentinel, he was 0:02:30.720 --> 0:02:33.520 couching the emergency in those terms. 0:02:34.040 --> 0:02:38.359 So does there have to be a causal connection between 0:02:38.400 --> 0:02:42.680 the emergency and the tariffs? I mean, do the tariffs 0:02:42.760 --> 0:02:46.160 have to be targeted to combat the emergency? 0:02:46.440 --> 0:02:51.480 The courts have generally deferred to the president's ability to 0:02:51.560 --> 0:02:57.960 declare an emergency and to respond accordingly. So it's a 0:02:57.960 --> 0:03:02.680 bit unclear, and this is someone untested waters. But we 0:03:02.760 --> 0:03:08.520 saw during the first administration the president's declaration of imports 0:03:08.600 --> 0:03:12.160 of steel and aluminum under a different law, section two 0:03:12.240 --> 0:03:17.200 thirty two, were a threat to US national security, and 0:03:17.280 --> 0:03:20.000 the courts that reviewed that decision largely upheld it. 0:03:20.360 --> 0:03:22.800 Why didn't he use that law this time? 0:03:23.480 --> 0:03:27.400 Well, for one thing, Section two thirty two, which was 0:03:27.400 --> 0:03:30.440 the basis for the steel and aluminum tariffs, requires an 0:03:30.520 --> 0:03:34.800 investigation by the Commerce Department, also in close coordination with 0:03:34.920 --> 0:03:37.880 the Defense Department, and in the first Trump administration that 0:03:38.000 --> 0:03:43.520 took almost a year before the investigation was completed and 0:03:43.600 --> 0:03:47.360 the tariffs announced. Similarly, Section three ZHO one of the 0:03:47.400 --> 0:03:51.080 Trade Laws, which was the basis for the tariffs on 0:03:51.200 --> 0:03:55.520 China of twenty five percent on hundreds of billions of 0:03:55.560 --> 0:04:00.680 dollars worth of goods, also requires a lengthy investigation by 0:04:00.680 --> 0:04:03.960 the US Trade Representative's office. So the use of AEPA 0:04:04.560 --> 0:04:07.560 was to allow the President to act very quickly and 0:04:07.680 --> 0:04:13.080 without an investigation by the Commerce Department, the US Trade Representative, 0:04:13.280 --> 0:04:15.200 or any other US government agency. 0:04:15.600 --> 0:04:18.640 I mean, it seems like. In this case, as with 0:04:18.720 --> 0:04:22.279 many of his other executive orders, president Trump is trying 0:04:22.320 --> 0:04:25.880 to jump start his agenda by using the law in 0:04:26.000 --> 0:04:27.039 novel ways. 0:04:27.360 --> 0:04:31.240 Yes, I think this administration came in very prepared to 0:04:31.560 --> 0:04:35.800 test all the various legal tools in the toolbox, and 0:04:36.160 --> 0:04:38.440 in fact, there may be more than a half a 0:04:38.520 --> 0:04:43.400 dozen different trade related laws that the administration might use 0:04:43.560 --> 0:04:46.920 during the next four years. Of those, AIPA is one 0:04:47.000 --> 0:04:49.919 of the two laws that can allow the president to 0:04:49.960 --> 0:04:54.320 take almost immediate action. The other is there's another provision 0:04:54.400 --> 0:04:57.320 called Section one twenty two of the Trade Act, which 0:04:57.360 --> 0:05:01.719 relates to Balance of Payments Authority, and that also would 0:05:01.720 --> 0:05:06.719 allow the president emergency powers to address large and serious 0:05:06.920 --> 0:05:12.200 US balance of payments deficits and temporary import surcharges of 0:05:12.320 --> 0:05:16.640 up to fifteen percent. That authority, however, only lasts for 0:05:16.680 --> 0:05:20.200 one hundred and fifty days unless Congress approves an extension. 0:05:20.440 --> 0:05:23.840 So again, AIPA made sense in terms of something fast 0:05:24.000 --> 0:05:28.279 acting but also not requiring further intervention by Congress. 0:05:28.640 --> 0:05:31.440 I mean, here you have a Congress that's seemingly not 0:05:31.560 --> 0:05:35.719 going to object to almost anything that Trump does, but 0:05:35.920 --> 0:05:40.320 doesn't the Constitution give Congress the sole authority to regulate 0:05:41.040 --> 0:05:43.280 US trade, not the president. 0:05:44.240 --> 0:05:48.760 Well, that's true. The Constitution does give Congress the power 0:05:48.800 --> 0:05:52.760 to regulate foreign trade, but then Congress has over time 0:05:53.000 --> 0:05:57.159 delegated much of that authority to the President and to 0:05:57.240 --> 0:06:02.000 the executive branch. To the point, now, the US Trade 0:06:02.040 --> 0:06:06.400 Representative has the lead role in negotiating treaties, and other 0:06:06.480 --> 0:06:11.360 agencies have lead roles on international trade as well. So yes, 0:06:11.440 --> 0:06:14.359 there's a constitutional issue, but at the same time, Congress 0:06:14.440 --> 0:06:17.520 has delegated a good deal of that power to the 0:06:17.600 --> 0:06:22.200 executive branch. Interestingly, eight years ago, when the steel and 0:06:22.240 --> 0:06:25.960 aluminum tariffs were put in place, many of members of 0:06:26.000 --> 0:06:31.000 Congress were concerned that the President had exceeded his authority, 0:06:31.040 --> 0:06:34.120 and there were proposals to change Section two thirty two 0:06:34.400 --> 0:06:37.120 to take away some of that authority. None of those 0:06:37.160 --> 0:06:41.159 proposals ever moved forward, and so today the situation is 0:06:41.200 --> 0:06:43.240 the same as it was four to eight years ago, 0:06:43.440 --> 0:06:47.719 with the President still having sweeping powers to determine whether 0:06:47.880 --> 0:06:51.680 imports are a threat to national security. 0:06:51.839 --> 0:06:57.000 Well, he's considering steel triffs coming up, so maybe there'll 0:06:57.040 --> 0:07:00.960 be another chance to litigate that issue. So the US 0:07:01.000 --> 0:07:07.279 Supreme Court has established this major questions doctrine, and it 0:07:07.400 --> 0:07:11.000 directs courts, as you know, to reject an agency's interpretation 0:07:11.120 --> 0:07:13.480 of a statute when it presents an issue of great 0:07:13.480 --> 0:07:17.880 political or economic significance. It was used to strike down 0:07:18.000 --> 0:07:21.520 several Biden administration policies, some that were said to be 0:07:21.640 --> 0:07:27.000 based on emergencies, his eviction moratorium and vaccine mandate during COVID, 0:07:27.720 --> 0:07:30.800 his rules on greenhouse gases in twenty twenty two, and 0:07:30.880 --> 0:07:34.560 his planned to cancel student loan debt in twenty twenty three. 0:07:34.680 --> 0:07:38.360 So could the courts use that doctrine to invalidate this 0:07:38.560 --> 0:07:39.239 teriff action. 0:07:40.040 --> 0:07:42.920 I think it's important to note that these types of 0:07:43.080 --> 0:07:48.440 international trade issues almost never reach the US Supreme Court, 0:07:49.200 --> 0:07:54.200 and all of the recent questions about the president's ability 0:07:54.360 --> 0:07:58.160 to use tariffs have been upheld by the Court of 0:07:58.200 --> 0:08:01.840 International Trade in New York, three judge panels of that court, 0:08:02.560 --> 0:08:05.480 as well as the Court of Appeals for the Federal Circuit. 0:08:05.840 --> 0:08:11.200 So it is very unlikely that a question relating to 0:08:11.360 --> 0:08:16.840 tariffs or the president's authority to declare an emergency or 0:08:16.880 --> 0:08:21.200 a national security situation would be ruled on by the 0:08:21.200 --> 0:08:21.880 Supreme Court. 0:08:22.600 --> 0:08:25.800 You said, and that judges are not likely to second 0:08:25.840 --> 0:08:29.840 guess a president on what constitutes an emergency. Do courts 0:08:29.920 --> 0:08:32.880 ever go beyond what the president says is a is 0:08:32.920 --> 0:08:36.960 an emergency to look at whether it really is well. 0:08:37.080 --> 0:08:40.400 It was notable that during the Section two thirty two 0:08:41.320 --> 0:08:45.280 appeals relating to steel and aluminum, there were three judge 0:08:45.280 --> 0:08:48.280 panels of the court, and although the court did uphold 0:08:48.280 --> 0:08:52.840 the president's action, at least one of the judges filed 0:08:53.400 --> 0:08:59.120 a separate opinion to note the concern that perhaps the 0:08:59.200 --> 0:09:04.160 actions were not taken with respect to national security, but 0:09:04.440 --> 0:09:08.800 solely to address unfair trade practices, which would normally be 0:09:08.880 --> 0:09:12.160 done under different laws anti dumping and countervailing duty laws. 0:09:12.200 --> 0:09:15.360 So there was some doubt at least among some of 0:09:15.400 --> 0:09:19.720 the judges, even as they upheld President Trump's decision in 0:09:19.760 --> 0:09:21.400 the prior administration. 0:09:21.480 --> 0:09:25.559 Because Trump, when he was announcing these tariffs was also 0:09:25.679 --> 0:09:29.720 talking about trade deficits and putting tariffs on chips and 0:09:29.800 --> 0:09:33.240 oil and gas and steel, and that sounds more like 0:09:33.360 --> 0:09:34.559 economic reasons. 0:09:35.400 --> 0:09:38.360 Well true, and of course I think the announcements were 0:09:38.600 --> 0:09:43.560 very careful to mention items that are important under AIPA. 0:09:43.960 --> 0:09:50.000 That the president in announcing these tariffs on Mexico, Canada, 0:09:50.040 --> 0:09:58.840 and China specifically mentioned sentinel trafficking, specifically eliminated small volume 0:09:58.920 --> 0:10:04.760 shipments and those subjects to tariffs, and took steps to 0:10:04.840 --> 0:10:09.880 cite the extraordinary threat posed by illegal aliens and drugs, 0:10:09.920 --> 0:10:14.520 including pentanol, as the basis for the tariffs that were announced. 0:10:15.120 --> 0:10:18.240 As we've said, this is a novel use of this law. 0:10:18.800 --> 0:10:24.720 Was President Nixon's use of the predecessor law to AEPA 0:10:25.000 --> 0:10:29.280 in nineteen seventy one to impose ten percent tariff on 0:10:29.960 --> 0:10:33.920 all imports to deal with a monetary crisis. Was that 0:10:33.960 --> 0:10:37.120 the closest any president has come to this action. 0:10:37.640 --> 0:10:42.360 That's right. The law that preceded AEBA did result in 0:10:43.360 --> 0:10:47.880 tariffs imposed by President Nixon, but AEPA has not yet 0:10:47.920 --> 0:10:49.599 been used for that purpose. 0:10:49.920 --> 0:10:53.720 And a court did uphold that this seems to change 0:10:54.120 --> 0:10:56.280 almost from moment to moment. But tell us what the 0:10:56.280 --> 0:10:58.079 status of the tariffs is right now. 0:10:58.880 --> 0:11:03.679 As of today, the tariffs on Canada and Mexico were 0:11:03.880 --> 0:11:08.360 paused or suspended for thirty days while the situation at 0:11:08.400 --> 0:11:12.960 the border is addressed. The ten additional tariffs on China 0:11:13.040 --> 0:11:17.600 are still in place, and China has announced retaliatory tariffs. 0:11:17.960 --> 0:11:21.360 Now again, the two countries are talking and negotiating, and 0:11:21.400 --> 0:11:23.240 it is at least possible that there will be a 0:11:23.280 --> 0:11:27.920 similar pause after those negotiations, but we just don't know 0:11:27.960 --> 0:11:28.520 at this point. 0:11:28.679 --> 0:11:31.120 President Trump talked about, you know, there may be some 0:11:31.240 --> 0:11:35.360 pain for the American people. Do tariffs normally help or 0:11:35.440 --> 0:11:38.200 hurt the situation for consumers? 0:11:39.679 --> 0:11:45.800 Well, I think targeted tariffs do not necessarily result in inflation. 0:11:46.880 --> 0:11:49.480 You know, we bring trade cases against China all the 0:11:49.520 --> 0:11:54.559 time on solar panels, on golf carts, on wood products, 0:11:54.559 --> 0:12:00.559 on steel, and the International Trade Commission has found heatedly 0:12:00.920 --> 0:12:07.280 that that has not resulted in harm or increasing consumer prices, 0:12:07.360 --> 0:12:10.920 a very very modest effect. Enny, But of course, broad 0:12:10.960 --> 0:12:16.040 based tariffs across all three countries are a different story. 0:12:16.200 --> 0:12:22.400 And you saw the stock markets react very negatively on Monday. 0:12:23.320 --> 0:12:28.400 And President Trump, I think is sensitive to wanting to 0:12:28.480 --> 0:12:32.760 maintain economic strength and not wanting to harm the stock market, 0:12:33.360 --> 0:12:37.000 and so even those tariffs are a centerpiece of his 0:12:37.160 --> 0:12:41.800 economic plan and he's likely to continue to pursue them, 0:12:42.240 --> 0:12:44.400 but he also will always have an eye on the 0:12:44.440 --> 0:12:46.560 economy in the stock market. At the same time, I 0:12:46.640 --> 0:12:47.400 believe it. 0:12:47.360 --> 0:12:50.560 Looks like he's using the tariffs to negotiate with Canada 0:12:50.559 --> 0:12:52.000 and Mexico and China. 0:12:52.120 --> 0:12:55.600 There's some degree of that, but we're also telling clients 0:12:55.720 --> 0:12:58.840 don't assume that the tariffs are just to get a 0:12:58.840 --> 0:13:04.040 better deal, for example, in the US Mexico Canada agreement negotiations, 0:13:04.080 --> 0:13:08.319 which are scheduled to start next year. Again, tariffs are 0:13:08.520 --> 0:13:12.000 valuable to this administration as a part of the overall 0:13:12.120 --> 0:13:17.040 economic plan, not just as a negotiating tool. So both 0:13:17.080 --> 0:13:21.880 are involved. But it's a mistake, I think, to underestimate 0:13:22.360 --> 0:13:26.200 the president's actual willingness to use tariffs, not just to 0:13:26.280 --> 0:13:26.880 threaten them. 0:13:27.400 --> 0:13:30.480 So we mention what a court might do or not do. 0:13:31.200 --> 0:13:35.280 Is it likely that any group that's affected would even 0:13:35.320 --> 0:13:36.880 bring a lawsuit. 0:13:36.559 --> 0:13:40.040 In this case, I think it's entirely possible. I don't 0:13:40.040 --> 0:13:43.439 have any knowledge of that, but I could see certain 0:13:43.559 --> 0:13:48.839 industry trade associations or broader business groups perhaps filing a challenge, 0:13:49.120 --> 0:13:53.240 or perhaps specific companies and industries as well. So it 0:13:53.240 --> 0:13:56.320 wouldn't surprise me if there is a legal challenge and 0:13:56.480 --> 0:13:59.720 even possibly an attempt to get an injunction on any 0:13:59.760 --> 0:14:03.679 terra that are put into effect. But at the same time, 0:14:03.960 --> 0:14:06.319 for the reasons I've mentioned, I think it is an 0:14:06.400 --> 0:14:10.640 uphill battle. Given the deference that courts usually give to 0:14:10.679 --> 0:14:16.679 the president in areas of economic emergencies or national security issues, it. 0:14:16.640 --> 0:14:18.760 Seems like it would have to be a brave judge 0:14:18.800 --> 0:14:20.920 to issue an injunction in this case. 0:14:21.640 --> 0:14:24.560 Well, there are a lot of judges in the country, 0:14:24.680 --> 0:14:27.400 so I can see some that might be willing to 0:14:27.400 --> 0:14:27.880 take that on. 0:14:28.200 --> 0:14:30.920 That is true, So what's your take on this? 0:14:31.320 --> 0:14:32.080 Long term? 0:14:32.520 --> 0:14:37.080 We're advising our clients to stay vigilant. I think if 0:14:37.120 --> 0:14:40.520 the first two weeks or any indication, trade is going 0:14:40.560 --> 0:14:44.760 to be an extremely important issue for this administration. And 0:14:44.920 --> 0:14:49.400 President Trump already laid out his priorities in his America 0:14:49.480 --> 0:14:54.280 First Trade Policy Memo, issued really very early in his administration. 0:14:54.880 --> 0:14:57.280 There's going to be a great deal of activity between 0:14:57.280 --> 0:15:01.360 now in April as the administration works on a series 0:15:01.440 --> 0:15:07.560 of reports to outline and highlight their priorities, whether it 0:15:07.600 --> 0:15:13.000 relates to trade deficits, to unfair trade practices, currency manipulation, 0:15:13.880 --> 0:15:17.360 current and future trade agreements. The list goes on and on. 0:15:17.480 --> 0:15:20.720 So trade is going to be a critically important issue, 0:15:21.240 --> 0:15:24.640 and so we're advising our clients on all sides of 0:15:24.680 --> 0:15:28.720 this to be vigilant and ready to react at a 0:15:28.720 --> 0:15:30.360 moment's notice. 0:15:30.040 --> 0:15:33.120 Because that's how fast things change in the Trump administration. 0:15:33.680 --> 0:15:37.040 Thanks so much for being on the show. That's Timothy Brightbill, 0:15:37.200 --> 0:15:40.240 co chair of the International Trade practice at Wiley Rhin. 0:15:41.040 --> 0:15:44.520 Google went to a San Francisco federal appeals court to 0:15:44.640 --> 0:15:47.400 try to get it to overturn a jury verdict that 0:15:47.440 --> 0:15:51.480 had declared its app store for Android smartphones was an 0:15:51.560 --> 0:15:56.600 illegal monopoly, but the three judges appeared skeptical. Joining me 0:15:56.680 --> 0:16:02.240 is Jennifer Ree, Bloomberg Intelligence Senior litigation analyst. EPIC filed 0:16:02.360 --> 0:16:05.800 separate antitrust cases against Apple and Google on the same 0:16:05.880 --> 0:16:10.800 day in August twenty twenty, and they resulted in dramatically 0:16:10.840 --> 0:16:12.120 different outcomes. 0:16:12.160 --> 0:16:14.880 So tell us about that, yes, right, And that's one 0:16:14.880 --> 0:16:17.920 of the issues in the appeal that Google just argued yesterday. 0:16:18.320 --> 0:16:21.080 So what EPIC is really going after with both of 0:16:21.120 --> 0:16:23.600 these companies is the fact that each one of them, 0:16:23.680 --> 0:16:27.600 on their mobile devices, their phones only allow people users 0:16:27.640 --> 0:16:30.280 to download apps. On Apple, it's through the App Store, 0:16:30.320 --> 0:16:32.480 and on Google it's through the Playstore. And what EPIC 0:16:32.520 --> 0:16:35.080 really wants is to be able to be a distributor 0:16:35.120 --> 0:16:37.480 on those devices and have its own app store, so 0:16:37.520 --> 0:16:39.400 if people want to download an app, they could go 0:16:39.440 --> 0:16:42.080 to Epic store. And the other thing that Epic objected 0:16:42.120 --> 0:16:45.280 to that both of them do is force users when 0:16:45.320 --> 0:16:47.240 they buy an app or make an in app purchase 0:16:47.440 --> 0:16:49.640 in the Playstore or app store to use Google's or 0:16:49.640 --> 0:16:54.240 Apples billing payment systems. Right, so Epic challenge both of them. 0:16:54.400 --> 0:16:56.720 Now they operate their businesses when it comes to the 0:16:56.720 --> 0:17:00.720 app store in the Playstore very differently. And the Epic 0:17:00.760 --> 0:17:03.480 lawsuit against Apple went to trial at bench trial before 0:17:03.520 --> 0:17:06.760 a judge only, and the Epic versus Google went before 0:17:06.760 --> 0:17:10.440 a jury. And yes, they came out with very different results. 0:17:10.560 --> 0:17:13.240 And part of the reason is because they did something 0:17:13.320 --> 0:17:16.760 in anti trust that's called define the relevant market differently. Now, 0:17:16.760 --> 0:17:19.560 in anti trust cases, the relevant market can make or 0:17:19.600 --> 0:17:22.200 break a case, and in these cases it actually did 0:17:22.520 --> 0:17:25.920 because what the relevant market is is a threshold determination 0:17:26.359 --> 0:17:29.760 of the sphere of competition. How do these companies that 0:17:29.960 --> 0:17:33.480 compete that are alleged to be harming competition, well, what 0:17:33.640 --> 0:17:35.879 is the sphere of competition that they're harming? And the 0:17:35.960 --> 0:17:39.080 Apple case, what Epic tried to say is that it's 0:17:39.240 --> 0:17:42.520 just the distribution of apps on iOS devices. And in 0:17:42.560 --> 0:17:45.159 the Google case, they said, well, it's the distribution of 0:17:45.200 --> 0:17:49.080 apps on Android devices. The judge decided that they had 0:17:49.160 --> 0:17:52.520 not defined the market properly. In the Epic versus Apple case, 0:17:52.800 --> 0:17:55.639 she said, no, no, no, Epic, you have games, you 0:17:55.680 --> 0:17:58.879 distribute games, you create games, and you want to sell games. 0:17:59.400 --> 0:18:03.400 This is about about mobile digital gaming transactions. Where can 0:18:03.440 --> 0:18:07.639 a consumer play a mobile digital game. So what she 0:18:07.760 --> 0:18:10.720 said was it's broader than just Apple, and because you 0:18:10.840 --> 0:18:14.000 failed to define the market properly, kind of everything else 0:18:14.040 --> 0:18:17.360 that followed with respect to the evidence that Epic presented 0:18:17.359 --> 0:18:20.680 in that trial didn't really work because they presented evidence 0:18:20.720 --> 0:18:24.000 of market power in just an iOS market and evidence 0:18:24.040 --> 0:18:26.919 of anti competitive effects in just an iOS market. And 0:18:26.960 --> 0:18:29.439 so what the judge said is, well, this market was wrong. 0:18:29.760 --> 0:18:32.159 It's a broader market than that, and so you failed 0:18:32.200 --> 0:18:35.359 to prove that these things happened in this broader market. Apple, 0:18:35.440 --> 0:18:38.160 you win. That's basically what happened. Now, she did find 0:18:38.200 --> 0:18:41.960 that Apple violated one California state law against unfair competition, 0:18:42.000 --> 0:18:44.600 but that was really separate from all of this. In 0:18:44.640 --> 0:18:48.480 the Google case, the jury found pretty much exactly the opposite. 0:18:48.560 --> 0:18:50.520 They said, oh no, no, no, the market is the 0:18:50.600 --> 0:18:54.960 relevant market for antitrust purposes is app distribution and Android 0:18:54.960 --> 0:18:59.000 devices and billing systems, billing payment systems in the play store. 0:18:59.240 --> 0:19:03.080 Those are the relevant markets focused on just Google, which 0:19:03.119 --> 0:19:05.280 is a narrower market than what was found by the 0:19:05.359 --> 0:19:08.680 judge and Epic Versus Apple. And what that resulted in 0:19:09.160 --> 0:19:11.080 is the jury finding that Google has they have a 0:19:11.119 --> 0:19:13.720 monopoly if it's just them, and that's it. Of course 0:19:13.720 --> 0:19:16.560 they have a monopoly, and everything else followed from there. 0:19:16.600 --> 0:19:19.480 And in that monopoly they illegally maintain the monopoly through 0:19:19.560 --> 0:19:22.800 various agreements, they have various conduct that they undertook, and 0:19:22.840 --> 0:19:25.199 so you had these very opposite outcomes. And this is 0:19:25.240 --> 0:19:27.840 one of the things that Google argues that the judges 0:19:27.880 --> 0:19:32.160 should have viewed this as issue preclusion, meaning you never 0:19:32.240 --> 0:19:34.560 ever should have let the jury decide in the Epic 0:19:34.640 --> 0:19:37.200 versus Google case about the relevant market because it had 0:19:37.240 --> 0:19:39.160 previously been decided by a judge. 0:19:39.280 --> 0:19:42.480 Were the judges receptive to Google's arguments. 0:19:42.840 --> 0:19:45.679 I'll be honest, after listening to the arguments yesterday, I 0:19:45.720 --> 0:19:48.199 do think Google's going to lose on that. And I 0:19:48.200 --> 0:19:51.040 think it's because what the judges said is, look your 0:19:51.080 --> 0:19:53.919 ecosystems and the way you operate in the business. Apple 0:19:54.000 --> 0:19:57.520 versus Google is quite different. Apple's a walled garden. They're 0:19:57.600 --> 0:20:00.920 vertically integrated. They do everything themselves. They have their own 0:20:00.960 --> 0:20:04.040 operating system, they build their own phones. They operate as 0:20:04.080 --> 0:20:07.560 a walled garden. They don't license their technology Google. You 0:20:07.640 --> 0:20:11.720 do not. You have an operating system that you own Android, 0:20:11.800 --> 0:20:14.280 and you license it to a whole bunch of makers 0:20:14.760 --> 0:20:18.080 Android phones, and consumers buy those phones from those makers. 0:20:18.440 --> 0:20:21.119 You have agreements with those makers of phones that the 0:20:21.200 --> 0:20:25.119 jury saw as anti competitive. And I think where the judges, 0:20:25.160 --> 0:20:26.920 at least two of them were going is that they 0:20:27.000 --> 0:20:29.920 saw the sort of the factual differences in the way 0:20:29.960 --> 0:20:32.840 the two companies operate in the market as different enough 0:20:33.240 --> 0:20:36.480 that it wasn't an issue precluding matter that it was 0:20:36.600 --> 0:20:39.439 okay in this instance. I think this is how the 0:20:39.440 --> 0:20:41.720 panel will come out it was okay in this instance 0:20:41.760 --> 0:20:44.959 to allow the jury to evaluate again what the market 0:20:45.000 --> 0:20:48.159 was that Google competed in. From a logical perspective, it 0:20:48.160 --> 0:20:49.520 doesn't seem to make much sense. 0:20:49.840 --> 0:20:52.720 Often in anti trust cases, it's a judge who makes 0:20:52.720 --> 0:20:56.160 the market definition. Leaving that to a jury will lead 0:20:56.160 --> 0:20:58.600 to inconsistent results. They're not looking at what Apple did, 0:20:58.640 --> 0:21:01.080 They're just looking at what Google did, and so it 0:21:01.119 --> 0:21:05.000 does seem like Google is being given an unfair shake here, 0:21:05.400 --> 0:21:08.960 But the judges didn't seem to think that. Judge Gabriel 0:21:09.080 --> 0:21:13.400 Sanchez said, even if Google does vigorously compete with Apple, 0:21:13.760 --> 0:21:17.480 that doesn't mean Google can create its own ecosystem where 0:21:17.480 --> 0:21:20.920 it acts as a monopolist through the Google play Store, 0:21:21.640 --> 0:21:25.800 and Judge Danielle Farrest said, there are clear factual differences 0:21:25.880 --> 0:21:29.680 between the Android world and the Apple world, and all 0:21:29.760 --> 0:21:33.120 of your arguments sort of brushed that aside, But there 0:21:33.160 --> 0:21:35.920 isn't a case where they're comparing both of them. Something 0:21:35.960 --> 0:21:37.639 seems off here. I don't know what it is, but 0:21:37.680 --> 0:21:38.480 something seems off. 0:21:38.680 --> 0:21:40.800 So I would agree with you that something seems off 0:21:40.840 --> 0:21:44.040 because from a logical if you're just thinking about this logically, 0:21:44.200 --> 0:21:47.879 in one case, you say Apple competes against Google, it 0:21:47.880 --> 0:21:51.280 competes broadly, and you're saying Google does not, and that 0:21:51.359 --> 0:21:53.880 doesn't make much sense. But at the end of the day, 0:21:53.880 --> 0:21:56.840 if you look at what the legal requirements are for 0:21:56.960 --> 0:22:00.000 issue preclusion, to say this has already been a side, 0:22:00.320 --> 0:22:03.240 it can't be decided again. I think that the judges 0:22:03.320 --> 0:22:05.840 felt that this didn't quite meet those requirements, that there 0:22:05.920 --> 0:22:09.480 was enough differences in the factual matter that we're behind 0:22:09.520 --> 0:22:12.439 these allegations and the way the companies do business that 0:22:12.440 --> 0:22:14.680 they don't see it that way. So it could be 0:22:15.240 --> 0:22:17.520 a very odd situation where we come out with these 0:22:17.760 --> 0:22:21.399 kind of competing decisions. And it's strange because in a way, 0:22:21.440 --> 0:22:25.280 with Apple's walled garden, it's actually more restrictive than Google 0:22:25.560 --> 0:22:29.439 because Google does license out this Android. Other OEMs make 0:22:29.480 --> 0:22:32.160 the phone, and some of them do put Samsung's own 0:22:32.240 --> 0:22:34.960 app store on Google's phone, and Google does allow that. 0:22:35.280 --> 0:22:37.760 Now it does pay some of these OEMs incentives to 0:22:37.800 --> 0:22:40.560 not do that or to at least favor the play store. 0:22:40.600 --> 0:22:42.439 That was one of the issues that came up. But 0:22:42.520 --> 0:22:45.000 it is a more open system than Apple's system, and 0:22:45.040 --> 0:22:48.320 so where Apples is competing less essentially, and here we're 0:22:48.320 --> 0:22:50.760 saying Apple's competing more. So it is a strange outcome. 0:22:51.480 --> 0:22:55.120 So Google also argued that they should have been entitled 0:22:55.160 --> 0:22:58.480 to a trial by the judge rather than the jury, 0:22:58.600 --> 0:23:01.480 so they made a set up before this and that 0:23:01.600 --> 0:23:03.119 sort of changed things. 0:23:03.560 --> 0:23:06.200 Yeah, it is very confusing, and it really comes out 0:23:06.200 --> 0:23:10.480 of having a complicated procedural background. There is a constitutional 0:23:10.560 --> 0:23:12.480 right for a plaintiff to have a trial by jury 0:23:12.520 --> 0:23:15.560 if they want to. Where they're asking for monetary damages, 0:23:15.600 --> 0:23:18.399 they're asking to pay me for my losses. And in 0:23:18.400 --> 0:23:22.880 this case, you had many plaintiffs that sued Google over 0:23:23.040 --> 0:23:25.320 the same thing, the same conduct, and all of those 0:23:25.359 --> 0:23:28.080 cases got combined, they got consolidated. It was really common, 0:23:28.280 --> 0:23:30.320 you know, if you bring the same claim different plaintiffs, 0:23:30.359 --> 0:23:34.359 you get consolidated in one case. It's judicial economy. Most 0:23:34.359 --> 0:23:38.040 of those plaintiffs, except Epic, asked for monetary damages, that's 0:23:38.080 --> 0:23:41.359 what they were seeking. Epic was only seeking an injunction. Google, 0:23:41.400 --> 0:23:43.800 you have to change your conduct. We're not looking for money. 0:23:43.880 --> 0:23:46.640 We want you to change your conduct. Where are plaintiffs 0:23:46.680 --> 0:23:49.080 only seeking an injunction? They don't necessarily have the right 0:23:49.119 --> 0:23:51.200 to a jury trial. But there were so many plaintiffs 0:23:51.200 --> 0:23:53.120 in the beginning, it was a given that it would 0:23:53.119 --> 0:23:55.119 be a jury trial because they had asked for one. 0:23:55.280 --> 0:23:58.080 So Google did not object. As a matter of fact, 0:23:58.200 --> 0:24:00.320 there were a number of filings along the way. This 0:24:00.400 --> 0:24:02.920 is as you said, been going since twenty twenty, where 0:24:02.960 --> 0:24:05.840 it sort of maybe could be interpreted as Google consenting 0:24:05.840 --> 0:24:08.879 to the jury. But over time, one by one, Google 0:24:08.960 --> 0:24:11.240 settled with all of these other plaintiffs. There were states, 0:24:11.280 --> 0:24:14.000 there were developers that were consumers, and Match dot Com 0:24:14.600 --> 0:24:17.520