WEBVTT - FTC Chair Andrew Ferguson Talks Acquihires

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<v Speaker 1>Bloomberg Audio Studios, podcasts, radio news.

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<v Speaker 2>Welcome to our Bloomberg TV and radio audiences around the world.

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<v Speaker 2>A recurring theme of recent tech m and a has

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<v Speaker 2>been deals to bring in talent in so called aquahiers.

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<v Speaker 2>The Federal Trade Commission is taking notice. One member of

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<v Speaker 2>the FTC worn Thursday that these quote creative deal structures

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<v Speaker 2>could raise antitrust concerns. Let's discuss and delighted to welcome

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<v Speaker 2>Andrew Ferguson, Chairman of the FTC, to the program. We

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<v Speaker 2>cover the topic of aquahiers on Bloomberg Tech regularly. It

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<v Speaker 2>was a mainstay story in twenty twenty five. When does

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<v Speaker 2>a talent deal stop being a talent deal and become

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<v Speaker 2>more than that, become a merger? What are the rules

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<v Speaker 2>based approach that the FTC would take chairmen to look

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<v Speaker 2>at that.

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<v Speaker 1>Yeah, so we are examining.

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<v Speaker 3>Looks have been around, especially in the sort of startup

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<v Speaker 3>founder space, for a long time, and they've gotten bigger

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<v Speaker 3>basically in the last ADMIN and a lot of people

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<v Speaker 3>were of the view that these things were sort of

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<v Speaker 3>being constructed in these big deals to try to escape

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<v Speaker 3>you know, Hart Scott Rodino Review, which is pre merger

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<v Speaker 3>anti trust review in the United States because the Biden

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<v Speaker 3>administration was trying to block all deals, and I think

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<v Speaker 3>generally they were that isn't you know, necessary anymore.

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<v Speaker 1>We don't need.

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<v Speaker 3>Clever workarounds for around anti trust review anymore because at

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<v Speaker 3>the FTC under the Trump administration, you get a fair shake.

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<v Speaker 1>I'm not saying your deal will go through.

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<v Speaker 3>I've sued to block several deals this year, and I've

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<v Speaker 3>won those cases. But if your deal's not illegal, we

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<v Speaker 3>get out of the way and sort of let the

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<v Speaker 3>market take care of things. So we are beginning to

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<v Speaker 3>examine that the HSR Act has a provision that says

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<v Speaker 3>you're not allowed to structure deals in order to escape

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<v Speaker 3>pre merger review, and so we are beginning to examine

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<v Speaker 3>the exactly to make sure that they aren't an attempt to.

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<v Speaker 1>Get around HSR review.

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<v Speaker 3>But the message I want to send sort of Silicon

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<v Speaker 3>Valley and to the M and A infrastructure generally is

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<v Speaker 3>you don't need to structure deals as a clever, you know,

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<v Speaker 3>attempt to get around pre merger review. You'll get a

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<v Speaker 3>fair shake at the FTC. Deal may not go through,

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<v Speaker 3>but if your deal is legal, I will get out

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<v Speaker 3>of your way very quickly, and if it's not, I'll

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<v Speaker 3>take you to court and I'll fight to win there.

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<v Speaker 3>We're not going to let the process be the punishment anymore.

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<v Speaker 1>But Jem, you know it is important to us to

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<v Speaker 1>us to.

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<v Speaker 3>Make sure that people aren't going to use clever deal

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<v Speaker 3>structures to get around pre merger review.

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<v Speaker 2>The language of clever or creative deal structures that I

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<v Speaker 2>cited at the beginning of our conversation was from your

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<v Speaker 2>colleague and fellow Commissioner Mark made Or Right, who is

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<v Speaker 2>speaking at a conference in California yesterday. I think what

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<v Speaker 2>the industry hopes to understand from you is what the

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<v Speaker 2>threshold is, or what the set of rules.

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<v Speaker 1>Would be where a hiring.

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<v Speaker 2>Proposal situation should be reported to antitrust authorities. It should

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<v Speaker 2>be Yeah, as simple as that. It should be by

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<v Speaker 2>right reported.

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<v Speaker 1>Yeah.

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<v Speaker 3>And you know, we are beginning to examine how these

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<v Speaker 3>deals work. Aqu higher deal structures vary from deal to deal,

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<v Speaker 3>and so there wouldn't necessarily be sort of a one

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<v Speaker 3>size fits all rule. But we are beginning to examine

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<v Speaker 3>these big aqui higher deals that raise a lot of

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<v Speaker 3>attention so that we can understand when an aqui higher

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<v Speaker 3>is in fact an acquisition that might be covered by

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<v Speaker 3>the pre merger review laws and when it's not, and

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<v Speaker 3>we need to understand them before we're sort of out

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<v Speaker 3>there telling people what the rules are. But this is

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<v Speaker 3>you're right, this has become a big enough deal that

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<v Speaker 3>we are beginning to look very closely at how these

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<v Speaker 3>things work, including you know, determining whether we need to

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<v Speaker 3>promulgate additional guidance here in the coming months about how

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<v Speaker 3>we understand these acquires.

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<v Speaker 2>Is there a fact that that matters is more to you,

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<v Speaker 2>you know, the number of employees hired, or putting a

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<v Speaker 2>value on the intellectual capital or the competitive advantage that

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<v Speaker 2>such a transaction would give the aquira.

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<v Speaker 3>So the value that matters for HSR is set by

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<v Speaker 3>the statute.

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<v Speaker 1>That's not really here or there.

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<v Speaker 3>But the HSR Act applies to deals where assets or

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<v Speaker 3>stock are being purchased, and that's what triggers HSR review.

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<v Speaker 3>And so what we need to understand, which is why

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<v Speaker 3>we're beginning to examine this question now, is when does

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<v Speaker 3>an acqui hier you know, involve the sale of the

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<v Speaker 3>acquisition of assets or stock in a way that would

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<v Speaker 3>trigger the statute. Look at the end of the day,

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<v Speaker 3>I'm a lawyer and a law enforcer, and I enforced statutes,

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<v Speaker 3>and those statutes have texts, and so it's my job

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<v Speaker 3>to understand whether things happening in the marketplace trigger the

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<v Speaker 3>text that Congress has actually passed for us.

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<v Speaker 1>But that's what we're looking at.

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<v Speaker 3>We're not trying to set sort of we wouldn't be

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<v Speaker 3>setting like aqui hier rules. Generally, we would be looking

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<v Speaker 3>at deals and trying to understand, you know, does this

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<v Speaker 3>in fact involve the acquisition or sale of assets or

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<v Speaker 3>stock and are is anything being structured as an attempt

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<v Speaker 3>to circumvent review. But you know, I'm not here to

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<v Speaker 3>say this is what the rules are. There will be

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<v Speaker 3>you know, hard and fast, clear rules. There aren't even

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<v Speaker 3>for the ordinary deals. We've got the you know, the

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<v Speaker 3>HSR Act and the HSR rules. But deal structure is

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<v Speaker 3>even an ordinary in then a very widely, and so

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<v Speaker 3>we have to apply the text that Congress actually wrote

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<v Speaker 3>to specific deals. But aqui hiers have become frequent enough

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<v Speaker 3>and large enough that we are beginning to look at

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<v Speaker 3>the appropriate way to apply the law that Congress actually

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<v Speaker 3>adopted to aqui hires.

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<v Speaker 1>I don't It's not my job.

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<v Speaker 3>As an enforcer to sort of fit square pegs into

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<v Speaker 3>round holes. But it is my job to make sure

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<v Speaker 3>that the will of Congress, which is the will of

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<v Speaker 3>the people at the end of the day, is being followed.

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<v Speaker 3>And that's what we're here to try to do. We're

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<v Speaker 3>trying to figure out how that applies in the case

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<v Speaker 3>of acquay hires.

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<v Speaker 2>CHAM and how common is this in the field of

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<v Speaker 2>oftficial intelligence or how often is this particular scenario arising

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<v Speaker 2>and crossing your desk from the AI industry.

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<v Speaker 1>We've seen a couple in the last twelve months.

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<v Speaker 3>My understanding is that the act we hire sort of structure,

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<v Speaker 3>if you want to call it that, where you know,

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<v Speaker 3>a firm acquires a lot of the talent and another

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<v Speaker 3>firm is pretty old. Has been going on for a

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<v Speaker 3>long time, but it often involves very small firms, and

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<v Speaker 3>I think the reason that a lot of people are

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<v Speaker 3>starting to notice it is because now it involves much

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<v Speaker 3>larger firms and the sort of price being attached to

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<v Speaker 3>obtaining the talent into licensing IP is in the billions.

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<v Speaker 3>So I've definitely seen a couple in the AI space

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<v Speaker 3>this year, which is why has attracted a lot of

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<v Speaker 3>the attention, and it's why we're beginning to try to

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<v Speaker 3>examine how are these working and how does the law

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<v Speaker 3>that Congress passed governing pre merger review actually apply here

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<v Speaker 3>as well as the provision in the pre merger review

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<v Speaker 3>law that says you can't structure a deal in order

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<v Speaker 3>to try to escape HSR review. So that is what

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<v Speaker 3>we are trying to understand now. But certainly, I mean

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<v Speaker 3>you are reported on them. You can read them about

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<v Speaker 3>them on the Wall Street Journal. It's definitely true that

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<v Speaker 3>there have been a couple of these big ones in

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<v Speaker 3>the AI area.

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<v Speaker 2>You're alive with us on Bloomberg Television, Bloomberg Radar around

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<v Speaker 2>the world. Were speaking to Andrew Ferguson, Chairman of the FTC.

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<v Speaker 2>I think the biggest case study of late which just

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<v Speaker 2>to give an example of the structure, is Nvidio and

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<v Speaker 2>GROC Because you know what in Vidia CEO Jen Mung

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<v Speaker 2>told me a couple of weeks ago is they hired

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<v Speaker 2>about four hundred engineers, but it also included the licensing

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<v Speaker 2>of the core technology at a twenty billion dollar value.

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<v Speaker 2>But over a set time horizon, Grock exists as a

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<v Speaker 2>company still but with a focus on one of its

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<v Speaker 2>business lines, that hiring and licensing technology fullmats. Is there

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<v Speaker 2>anything specific that Shaman?

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<v Speaker 3>Yeah, so I can't talk about specific deals or specific

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<v Speaker 3>potential investigations. As a law enforcer, you know, I have

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<v Speaker 3>to maintain a lot of confidentiality about the work of

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<v Speaker 3>the commission. But I mean, you know that particular structure

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<v Speaker 3>of the aquahier was different from example, from the one

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<v Speaker 3>that Meta conducted earlier in the year. These things vary

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<v Speaker 3>pretty wildly. The terms of the aile I'm sorry of

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<v Speaker 3>the software and IP licensing can vary, the number of

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<v Speaker 3>employees obtained in the transaction can vary. So we're trying

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<v Speaker 3>to understand these things, first of all, because the last

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<v Speaker 3>thing I want to do is sort of blindly charge

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<v Speaker 3>ahead with a bunch of you know, sort of pre

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<v Speaker 3>determined assumptions and start trying to apply the law to

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<v Speaker 3>something we don't understand. But it is very important to me,

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<v Speaker 3>because it's very important to Congress that people not try

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<v Speaker 3>to come up with ways to attempt to get around

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<v Speaker 3>pre merger review.

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<v Speaker 1>And that's what we're looking at. And again, it's just

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<v Speaker 1>not necessary.

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<v Speaker 3>I get why people wanted to do this in the

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<v Speaker 3>previous administration, where the anti trust enforcers tended to use

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<v Speaker 3>the process as a way to block deals rather than

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<v Speaker 3>you know, sort of being a lot more honest about

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<v Speaker 3>it than taking people to court. But under the Trump administration,

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<v Speaker 3>we are either going to get out of your way

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<v Speaker 3>very quickly or we are going to take you to court.

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<v Speaker 3>We're not letting the process be the punishment, and so

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<v Speaker 3>people don't need to try to come up with ways

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<v Speaker 3>to get around HSR.

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<v Speaker 1>You will get a fair shake at the FTC.

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<v Speaker 2>Chevan, there's a lot of interest in the FTC and

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<v Speaker 2>consumer protection and what the FTC's remit is in the

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<v Speaker 2>domain of AI.

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<v Speaker 1>It's an example.

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<v Speaker 2>I know you won't comment on specific cases, but x

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<v Speaker 2>and Elon musk s XAI and Grock have been in

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<v Speaker 2>the news because of the use of the tool to

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<v Speaker 2>generate non consen sensual sexualized images. Does the FTC have

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<v Speaker 2>a role in regulating from a consumer protection standpoint that domain?

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<v Speaker 1>Yeah, I mean the president.

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<v Speaker 3>Congress passed and the President signed in spring of last

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<v Speaker 3>year that Take It Down Act, which is seminal groundbreaking

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<v Speaker 3>legislation to protect people from artificially generated non consensual intimate images.

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<v Speaker 3>The criminal component of that law that the Department of

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<v Speaker 3>Justice enforces is already in effect. The part that we enforce,

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<v Speaker 3>where we have to compel platforms to take down these

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<v Speaker 3>images and then bring enforcement actions that they fail, will

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<v Speaker 3>take effect in the spring.

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<v Speaker 1>We are getting ready for that.

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<v Speaker 3>I have been meeting with the elite child protection prosecutors

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<v Speaker 3>and investigators at the Department of Homeland Security to make

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<v Speaker 3>sure that we're synced up on that mission. This is

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<v Speaker 3>relatively new to the FTC, and I want to make

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<v Speaker 3>sure we hit the ground running when the authority takes effect.

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<v Speaker 1>Right now, we are hiring.

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<v Speaker 3>Specialists, prosecutors, lawyers, investigators, and IT experts to enable us

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<v Speaker 3>the second that this thing takes effect to start bringing

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<v Speaker 3>enforcement actions wherever these things are happening. And I don't

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<v Speaker 3>care what kind of company you are, if you are

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<v Speaker 3>a platform, whether you're a legacy social media company a

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<v Speaker 3>burgeoning AI company, I don't care. If you are violating

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<v Speaker 3>to take a down Act, you are going to hear

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<v Speaker 3>from us, and we are going to be ready to

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<v Speaker 3>do it. This is incredibly important legislation. I'm really excited

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<v Speaker 3>that the FTC has a role in this. I lobby

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<v Speaker 3>Congress very heavily to make sure that we had enough

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<v Speaker 3>money to get this program off the ground when it

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<v Speaker 3>takes effect in the middle of this year.

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<v Speaker 1>You're getting that money and we will be ready, Chairman.

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<v Speaker 2>President Trump has nominated David McNeil to the Commission. Our

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<v Speaker 2>audience have asked me to ask you your thoughts on

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<v Speaker 2>that someone perhaps without antitrust experience, legal experience, the Commission experience,

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<v Speaker 2>and somebody, you know, frankly with high net wealth.

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<v Speaker 1>Your thoughts, please look.

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<v Speaker 3>I am generally of the view that Washington has too

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<v Speaker 3>many lawyers. I think it is great that the President

0:11:57.520 --> 0:12:00.200
<v Speaker 3>has decided to nominate someone who isn't a lawyer, who

0:12:00.480 --> 0:12:03.400
<v Speaker 3>doesn't sort of think in the pathways that lawyers always think.

0:12:03.520 --> 0:12:06.680
<v Speaker 3>I think it's great that the President has nominated. You know,

0:12:06.720 --> 0:12:08.559
<v Speaker 3>I've never met mister McNeil. I've talked to him a

0:12:08.559 --> 0:12:11.800
<v Speaker 3>little since the nomination. The man is a true American patriot.

0:12:11.840 --> 0:12:14.400
<v Speaker 3>He's created thousands of jobs in this country. He has

0:12:14.400 --> 0:12:19.079
<v Speaker 3>been one of the most outspoken proponents of manufacturing here

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<v Speaker 3>in America. That has been one of the President's principal

0:12:22.320 --> 0:12:25.400
<v Speaker 3>economic priorities is to make sure we make and build

0:12:25.440 --> 0:12:26.320
<v Speaker 3>things in America.

0:12:26.679 --> 0:12:28.360
<v Speaker 1>David McNeil has done that.

0:12:28.760 --> 0:12:30.880
<v Speaker 3>He has been successful in doing that, and I think

0:12:30.920 --> 0:12:33.160
<v Speaker 3>it's great that there is going to be sort of

0:12:33.160 --> 0:12:36.720
<v Speaker 3>someone with that perspective who isn't coming at this like

0:12:36.800 --> 0:12:39.480
<v Speaker 3>I am from fancy law schools with a long sort

0:12:39.520 --> 0:12:40.600
<v Speaker 3>of litigation.

0:12:40.280 --> 0:12:41.760
<v Speaker 1>And law enforcement background.

0:12:42.120 --> 0:12:44.800
<v Speaker 3>He's coming at it as a job creator, as a

0:12:44.800 --> 0:12:48.640
<v Speaker 3>wealth creator, and as one of the most outspoken proponents

0:12:48.640 --> 0:12:51.320
<v Speaker 3>of manufacturing in America that there is in this country.

0:12:51.600 --> 0:12:53.960
<v Speaker 3>You know, is it an unconventional pick, Yeah, of course

0:12:54.000 --> 0:12:56.720
<v Speaker 3>it is. But part of what has made President Trump

0:12:56.800 --> 0:12:59.280
<v Speaker 3>so successful is that he doesn't always think in the

0:12:59.360 --> 0:13:01.720
<v Speaker 3>conventions that governed DC. And I think that this is

0:13:01.760 --> 0:13:04.600
<v Speaker 3>a really really good idea to bring someone with mister

0:13:04.679 --> 0:13:08.040
<v Speaker 3>McNeil's perspective here to the Commission chairman.

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<v Speaker 2>The major concern to the consumer right now is affordability.

0:13:12.480 --> 0:13:16.720
<v Speaker 2>What is the TC able to do on pricing pressure,

0:13:16.800 --> 0:13:19.760
<v Speaker 2>bringing prices down? Addressing that consumer concern?

0:13:21.559 --> 0:13:23.920
<v Speaker 3>Yeah, I mean it's one of my main concerns too.

0:13:24.240 --> 0:13:26.280
<v Speaker 3>We're doing a lot on this front. On the merger

0:13:26.320 --> 0:13:29.320
<v Speaker 3>review front, my first two merger enforcement actions were in

0:13:29.360 --> 0:13:35.160
<v Speaker 3>the healthcare space. We just won one of those healthcare

0:13:35.240 --> 0:13:38.920
<v Speaker 3>enforcement actions last week and several months before, the judge

0:13:38.920 --> 0:13:41.920
<v Speaker 3>denied our injunction, but only because after I sued them,

0:13:42.200 --> 0:13:44.400
<v Speaker 3>they offered to divest the assets that were.

0:13:44.280 --> 0:13:46.200
<v Speaker 1>The problem, so that was a win for the Commission

0:13:46.200 --> 0:13:46.560
<v Speaker 1>as well.

0:13:46.840 --> 0:13:51.160
<v Speaker 3>Another merger enforcement action I brought is about industrial adhesives

0:13:51.160 --> 0:13:53.560
<v Speaker 3>that are used to build homes. We have a real

0:13:53.600 --> 0:13:56.520
<v Speaker 3>home building crisis in this country. Although under President Trump,

0:13:56.559 --> 0:13:59.160
<v Speaker 3>home sales went up last year for the first time

0:13:59.200 --> 0:14:02.199
<v Speaker 3>in a while, we still have a home affordability crisis

0:14:02.200 --> 0:14:05.320
<v Speaker 3>in this country. And I have focused intently on the

0:14:05.320 --> 0:14:08.840
<v Speaker 3>competition side, on making sure that we are active in

0:14:08.960 --> 0:14:14.199
<v Speaker 3>markets grocery, healthcare, homes to try to bring prices down

0:14:14.240 --> 0:14:17.199
<v Speaker 3>to consumers and to make sure that all Americans get

0:14:17.240 --> 0:14:21.520
<v Speaker 3>the advantages that come with vigorous competition. On the other side,

0:14:21.720 --> 0:14:26.040
<v Speaker 3>I sued ticket Master and a groundbreaking lawsuit charging them

0:14:26.040 --> 0:14:29.040
<v Speaker 3>with having basically inflated all the prices of tickets in

0:14:29.120 --> 0:14:34.280
<v Speaker 3>violation of multiple federal laws. Americans have been complaining justly

0:14:34.360 --> 0:14:37.080
<v Speaker 3>for a long time that it has become almost impossible

0:14:37.400 --> 0:14:39.720
<v Speaker 3>to take your family to a ballgame or to a

0:14:39.760 --> 0:14:42.760
<v Speaker 3>concert without having a fork over the value of a

0:14:42.800 --> 0:14:45.360
<v Speaker 3>mortgage payment to do it. We have been very active

0:14:45.400 --> 0:14:47.680
<v Speaker 3>in the ticketing space to make sure that those prices

0:14:47.680 --> 0:14:50.720
<v Speaker 3>are going to come down. We have been bringing actions

0:14:50.760 --> 0:14:54.000
<v Speaker 3>on the consumer protection side in the healthcare space. We've

0:14:54.040 --> 0:14:56.760
<v Speaker 3>also been bringing a lot of consumer protection cases and

0:14:56.840 --> 0:15:00.440
<v Speaker 3>competition cases to protect the value of wages again non

0:15:00.520 --> 0:15:02.440
<v Speaker 3>competes against job scams.

0:15:02.800 --> 0:15:04.640
<v Speaker 1>The FTC is a little agency.

0:15:05.000 --> 0:15:07.160
<v Speaker 3>Our budget is even half a billion dollars, but we

0:15:07.200 --> 0:15:11.280
<v Speaker 3>have returned literally billions of dollars of wrongfully taken money

0:15:11.720 --> 0:15:13.480
<v Speaker 3>just in the last year back in the pockets of

0:15:13.520 --> 0:15:17.320
<v Speaker 3>the American consumers. We are doing everything we can within

0:15:17.400 --> 0:15:20.400
<v Speaker 3>our little remit to try to bring down prices and

0:15:20.440 --> 0:15:22.680
<v Speaker 3>to make this country a more affordable place to live,

0:15:22.720 --> 0:15:24.840
<v Speaker 3>which is exactly what President Trump has been telling us

0:15:24.840 --> 0:15:25.040
<v Speaker 3>to do.

0:15:25.880 --> 0:15:26.240
<v Speaker 1>Chairman.

0:15:26.640 --> 0:15:29.880
<v Speaker 2>Very quickly, Bloomberg's reported that the White House is considering

0:15:29.920 --> 0:15:34.360
<v Speaker 2>you for a DOJ fraud role. What would that entail

0:15:34.600 --> 0:15:38.080
<v Speaker 2>and legally would it be possible for you to take

0:15:38.120 --> 0:15:41.000
<v Speaker 2>on that role while remaining chair of the FTC.

0:15:42.520 --> 0:15:44.880
<v Speaker 3>I can tell you definitively, I'm not leaving the Federal

0:15:44.920 --> 0:15:47.560
<v Speaker 3>Trade Commission and I'm not going to the Department of Justice.

0:15:47.760 --> 0:15:50.240
<v Speaker 3>This is an important full time job that the President

0:15:50.520 --> 0:15:53.720
<v Speaker 3>entrusted me with to try to help the American people

0:15:53.760 --> 0:15:56.040
<v Speaker 3>that just voted in their tens of millions to make

0:15:56.080 --> 0:15:58.840
<v Speaker 3>Donald Trump president. That's what we have done. We've sent

0:15:59.000 --> 0:16:01.920
<v Speaker 3>billions of dollars wrongfully taken money back to Americans, and

0:16:01.960 --> 0:16:05.480
<v Speaker 3>I'm focused on fighting fraud and protecting competition right here

0:16:05.520 --> 0:16:06.160
<v Speaker 3>at the FTC.

0:16:07.240 --> 0:16:10.000
<v Speaker 2>Andrew Ferguson, the FTC Chairman, thank you for your time

0:16:10.040 --> 0:16:13.680
<v Speaker 2>here on Bloomberg Tech. Okay, coming up, Jermaina Alaman of

0:16:13.800 --> 0:16:17.800
<v Speaker 2>Prometeer joins us to discuss the future of banking within AI.

0:16:18.840 --> 0:16:19.360
<v Speaker 1>That's next.

0:16:19.360 --> 0:16:20.320
<v Speaker 2>This is Bloomberg Tech.