1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio 2 00:00:10,280 --> 00:00:13,480 Speaker 1: to reflect who we are and what we hope to build. 3 00:00:14,200 --> 00:00:18,000 Speaker 1: I am proud to announce that starting today our company 4 00:00:18,040 --> 00:00:23,560 Speaker 1: is now Meta. Our mission remains the same. It's still 5 00:00:23,600 --> 00:00:27,680 Speaker 1: about bringing people together our apps and their brands. They're 6 00:00:27,720 --> 00:00:31,120 Speaker 1: not changing either, and we are still the company the 7 00:00:31,200 --> 00:00:36,080 Speaker 1: designs technology around people. Facebook may have changed its name, 8 00:00:36,280 --> 00:00:39,320 Speaker 1: but the Federal Trade Commission says it's still up to 9 00:00:39,360 --> 00:00:43,480 Speaker 1: the same game, not designing its own technology, but buying 10 00:00:43,560 --> 00:00:46,960 Speaker 1: up a smaller company with the technology it needs and 11 00:00:47,000 --> 00:00:51,960 Speaker 1: eliminating any competition. Meta announced its deal to buy Within Unlimited, 12 00:00:52,040 --> 00:00:55,640 Speaker 1: a virtual reality fitness app, just one day after Mark 13 00:00:55,720 --> 00:01:00,080 Speaker 1: Zuckerberg announced its name change. The FTC is suing to 14 00:01:00,240 --> 00:01:03,000 Speaker 1: stop the deal, saying Meta is trying to create a 15 00:01:03,040 --> 00:01:06,959 Speaker 1: monopoly in virtual reality in the same way that Facebook 16 00:01:07,000 --> 00:01:10,560 Speaker 1: brought up Instagram and WhatsApp to extend its dominance in 17 00:01:10,680 --> 00:01:15,080 Speaker 1: social networking. Joining me is Bloomberg Intelligence Senior litigation analyst 18 00:01:15,200 --> 00:01:19,800 Speaker 1: Jennifer Ree. Why is the FTC trying to stop Meta 19 00:01:20,040 --> 00:01:23,240 Speaker 1: from buying Within? What they're trying to do, I think 20 00:01:23,480 --> 00:01:25,760 Speaker 1: is not make the same mistake that they believe they 21 00:01:25,800 --> 00:01:29,000 Speaker 1: made in the past when they cleared FTCs acquisitions of 22 00:01:29,200 --> 00:01:32,960 Speaker 1: Instagram and WhatsApp. They're looking at Meta as a company 23 00:01:33,000 --> 00:01:36,240 Speaker 1: that's trying to sort of take over this burgeoning virtual 24 00:01:36,280 --> 00:01:39,640 Speaker 1: reality space, and they see this acquisition as part of that. 25 00:01:40,040 --> 00:01:43,600 Speaker 1: Within makes virtual reality apps. It has a very popular 26 00:01:43,640 --> 00:01:47,040 Speaker 1: one for fitness called Supernatural. And what the FTC claims 27 00:01:47,120 --> 00:01:50,080 Speaker 1: is that if Meta didn't buy Within, they would be 28 00:01:50,120 --> 00:01:53,000 Speaker 1: competing on their own because they have the resources, and 29 00:01:53,040 --> 00:01:55,960 Speaker 1: they have the wherewithal and the interest in developing their 30 00:01:56,000 --> 00:01:58,120 Speaker 1: own fitness app that would compete, and it would be 31 00:01:58,120 --> 00:02:00,960 Speaker 1: better for them to compete than to buy Within and 32 00:02:01,000 --> 00:02:04,040 Speaker 1: go forward in virtual reality fitness that way. So the 33 00:02:04,080 --> 00:02:07,680 Speaker 1: allegations here is of potential competition that if it didn't 34 00:02:07,720 --> 00:02:10,440 Speaker 1: buy Within, Meta would compete with them in the future, 35 00:02:10,520 --> 00:02:13,799 Speaker 1: even though it doesn't today. Has that theory of potential 36 00:02:13,880 --> 00:02:18,360 Speaker 1: competition been used frequently. It hasn't been used frequently. It 37 00:02:18,440 --> 00:02:21,240 Speaker 1: has been used before. Most of the cases that the 38 00:02:21,280 --> 00:02:24,520 Speaker 1: FTC is relying on here are from the nineteen seventies, 39 00:02:24,800 --> 00:02:28,440 Speaker 1: because the more recent limited use in court hasn't been successful. 40 00:02:28,560 --> 00:02:30,880 Speaker 1: I mean, one of the mergers that was challenged on 41 00:02:30,919 --> 00:02:34,160 Speaker 1: this basis was between two companies called Steris and Synergy, 42 00:02:34,240 --> 00:02:37,200 Speaker 1: and the etc failed to succeed in that challenge in 43 00:02:37,240 --> 00:02:39,880 Speaker 1: court because it's very very difficult to prove, you know, 44 00:02:39,919 --> 00:02:42,040 Speaker 1: you have to show that the company actually had a 45 00:02:42,120 --> 00:02:45,200 Speaker 1: serious interest in entering the market and was well on 46 00:02:45,280 --> 00:02:47,520 Speaker 1: its way to do so and probably would have been 47 00:02:47,520 --> 00:02:50,360 Speaker 1: able to do so and been successful. So MENA has 48 00:02:50,400 --> 00:02:55,560 Speaker 1: bought more than a hundred smaller companies, including nine virtual 49 00:02:55,639 --> 00:02:59,600 Speaker 1: reality apps studios, over the last three years. This is 50 00:02:59,600 --> 00:03:03,600 Speaker 1: the first time the FTC has challenged a deal before 51 00:03:04,000 --> 00:03:07,280 Speaker 1: it takes place. Why now, is it the timing when 52 00:03:07,320 --> 00:03:10,360 Speaker 1: the FTC is on this aggressive path, or is it 53 00:03:10,440 --> 00:03:13,000 Speaker 1: the deal in particular? You know, I think it's a 54 00:03:13,000 --> 00:03:15,760 Speaker 1: combination of things. It's certainly the timing, but also some 55 00:03:15,880 --> 00:03:18,600 Speaker 1: of those past acquisitions may have been too small to 56 00:03:18,680 --> 00:03:20,920 Speaker 1: have to be filed under the heart Scot Rodino Act, 57 00:03:21,120 --> 00:03:23,360 Speaker 1: and they just may have fallen under the radar, you know, 58 00:03:23,440 --> 00:03:26,919 Speaker 1: not been noticed, gone ahead, enclosed without the FTC having 59 00:03:26,960 --> 00:03:28,920 Speaker 1: a chance to take a look at them. But the 60 00:03:28,960 --> 00:03:32,680 Speaker 1: FTC in particular, as I said, I think regrets some 61 00:03:32,840 --> 00:03:36,800 Speaker 1: of the past acquisition activity of big tech platforms in general, 62 00:03:36,840 --> 00:03:39,480 Speaker 1: and particularly Meta that have allowed them to kind of 63 00:03:39,520 --> 00:03:42,480 Speaker 1: take over full spaces, and they see that Meta has 64 00:03:42,520 --> 00:03:44,960 Speaker 1: this goal to move forward and to try to become 65 00:03:44,960 --> 00:03:47,800 Speaker 1: dominant in virtual reality, and what they're trying to do 66 00:03:47,880 --> 00:03:49,560 Speaker 1: is just nip it in the button. They see this 67 00:03:49,640 --> 00:03:52,880 Speaker 1: as one step towards that goal. You know, Meta already 68 00:03:52,960 --> 00:03:56,720 Speaker 1: has through its acquisition of Oculus, the hardware that people 69 00:03:56,840 --> 00:03:59,920 Speaker 1: use for virtual reality gaming and virtual reality apps, and 70 00:04:00,040 --> 00:04:02,760 Speaker 1: it has a content store where it's creating some of 71 00:04:02,800 --> 00:04:05,120 Speaker 1: its own virtual reality apps, and now it's trying to 72 00:04:05,160 --> 00:04:08,040 Speaker 1: buy up more content. So the FTC bus this is 73 00:04:08,080 --> 00:04:11,360 Speaker 1: just one more step towards Meta taking over that space, 74 00:04:11,480 --> 00:04:14,280 Speaker 1: kind of becoming the Apple of that space. You know, 75 00:04:14,400 --> 00:04:16,680 Speaker 1: these are all the allegations with Apple and its app 76 00:04:16,720 --> 00:04:19,560 Speaker 1: store and how it controls access to apps on iOS 77 00:04:19,640 --> 00:04:21,720 Speaker 1: mobile devices, and I think what they're doing here is 78 00:04:21,760 --> 00:04:24,960 Speaker 1: trying to prevent Meta from getting to that place. What 79 00:04:25,120 --> 00:04:28,640 Speaker 1: is Meta's defense here? What is its response? Well, first 80 00:04:28,640 --> 00:04:30,760 Speaker 1: of all, that it doesn't compete with this company, and 81 00:04:30,760 --> 00:04:33,320 Speaker 1: that it's a very small company and buying you know, 82 00:04:33,720 --> 00:04:36,800 Speaker 1: a small virtual reality app company in this very burgeoning 83 00:04:36,960 --> 00:04:40,320 Speaker 1: new nascent industry. You know, nobody really knows what's going 84 00:04:40,360 --> 00:04:43,599 Speaker 1: to happen with it. It's really it's very beginning stages 85 00:04:43,800 --> 00:04:45,440 Speaker 1: that this is a very small app and it's a 86 00:04:45,480 --> 00:04:49,320 Speaker 1: small fitness app and really can't have an impact on competition. 87 00:04:49,360 --> 00:04:51,760 Speaker 1: I mean, a merger has to have an anti competitive 88 00:04:51,800 --> 00:04:54,480 Speaker 1: impact on competition to violate the antitrust laws. And so 89 00:04:54,600 --> 00:04:56,880 Speaker 1: Meta would say, well, this just doesn't. And secondly, it 90 00:04:56,920 --> 00:04:59,520 Speaker 1: would say, look, we didn't have plans to develop our 91 00:04:59,520 --> 00:05:01,640 Speaker 1: own fitness SAP, even if we talked about it or 92 00:05:01,680 --> 00:05:04,000 Speaker 1: thought about it. You know, we talk about and think 93 00:05:04,040 --> 00:05:06,080 Speaker 1: about a lot of things, and then we end up 94 00:05:06,160 --> 00:05:08,400 Speaker 1: nixing those plans and we didn't have any plan to 95 00:05:08,440 --> 00:05:11,159 Speaker 1: go forward with this, so we wouldn't have been a 96 00:05:11,200 --> 00:05:14,560 Speaker 1: potential competitor, and we aren't buying this company so that 97 00:05:14,600 --> 00:05:17,919 Speaker 1: we can buy up a potential competitor. Meta seems to 98 00:05:17,960 --> 00:05:22,480 Speaker 1: have this growth by acquisition strategy. Is there anything wrong 99 00:05:22,480 --> 00:05:25,880 Speaker 1: with that from an antitrust point of view, Well, there 100 00:05:25,880 --> 00:05:28,120 Speaker 1: are two ways that there could be something wrong with that. 101 00:05:28,360 --> 00:05:31,120 Speaker 1: The first way is if you have your own products 102 00:05:31,400 --> 00:05:34,400 Speaker 1: and you see this new up and coming nascent competitor 103 00:05:34,640 --> 00:05:37,120 Speaker 1: and you have concerns about that company, you think it 104 00:05:37,200 --> 00:05:40,600 Speaker 1: actually could really get big and th threaten your position 105 00:05:40,920 --> 00:05:42,880 Speaker 1: with the product that you already have in the market. 106 00:05:42,920 --> 00:05:45,040 Speaker 1: I mean, this is what the allegations are today with 107 00:05:45,120 --> 00:05:49,600 Speaker 1: respect why Facebook but Instagram. So instead of trying to compete, Hey, 108 00:05:49,680 --> 00:05:52,599 Speaker 1: let's do better, let's lower our prices, let's innovate more 109 00:05:52,880 --> 00:05:55,440 Speaker 1: so consumers stick with our product. Even if we face 110 00:05:55,480 --> 00:05:59,400 Speaker 1: competition from this nascent entity. Let's buy it instead, because 111 00:05:59,400 --> 00:06:02,760 Speaker 1: buying it just vanquished that threat, so that can be 112 00:06:02,839 --> 00:06:05,599 Speaker 1: anti competitive. Then the second way could be the way 113 00:06:05,640 --> 00:06:09,919 Speaker 1: the FTC leads that Meta is harming competition with the 114 00:06:09,960 --> 00:06:13,880 Speaker 1: Within acquisition. It's they don't compete today and Meta doesn't 115 00:06:13,880 --> 00:06:17,080 Speaker 1: necessarily view Within as a nascent competitor that threatens it 116 00:06:17,120 --> 00:06:19,960 Speaker 1: down the road. But the concept is that Meta would 117 00:06:19,960 --> 00:06:22,640 Speaker 1: have enter this market and competed if it didn't buy 118 00:06:22,800 --> 00:06:25,799 Speaker 1: the entity, and it's better to have two competitors than one. 119 00:06:26,120 --> 00:06:29,159 Speaker 1: What will the judge be looking at here? I think 120 00:06:29,160 --> 00:06:31,080 Speaker 1: that the judge will be looking at a couple of things. 121 00:06:31,200 --> 00:06:35,000 Speaker 1: The first thing is if the FTC has defined what 122 00:06:35,040 --> 00:06:38,440 Speaker 1: we call a relevant antitrust market correctly. So, what the 123 00:06:38,520 --> 00:06:42,560 Speaker 1: FTC has said is that a virtual reality fitness apps, 124 00:06:42,560 --> 00:06:45,680 Speaker 1: dedicated fitness apps sit in their own relevant market that 125 00:06:45,800 --> 00:06:49,480 Speaker 1: they don't compete against anything else other than other virtual 126 00:06:49,520 --> 00:06:52,159 Speaker 1: reality fitness apps, So they don't compete, let's say, with 127 00:06:52,279 --> 00:06:56,200 Speaker 1: other in home fitness potentials out there, like Peloton or 128 00:06:56,400 --> 00:06:59,040 Speaker 1: Apple Fitness, you know, or any other kind of at 129 00:06:59,080 --> 00:07:02,560 Speaker 1: home guided fitness experienced that a consumer can have. So 130 00:07:02,880 --> 00:07:06,000 Speaker 1: they've defined this narrow market, and the judge will be asking, well, 131 00:07:06,000 --> 00:07:09,920 Speaker 1: should that market really be broader? Do consumers actually view 132 00:07:10,440 --> 00:07:13,560 Speaker 1: let's say Peloton as a substitute for this virtual reality 133 00:07:13,640 --> 00:07:16,920 Speaker 1: fitness Do they price constrained against each other? Is one 134 00:07:17,000 --> 00:07:20,880 Speaker 1: constraining against the other? Do they compete? So that's one issue, 135 00:07:21,360 --> 00:07:23,600 Speaker 1: and I think the second issue is this whole concept 136 00:07:23,600 --> 00:07:26,280 Speaker 1: of whether Meta actually would have been a potential competitor. 137 00:07:26,520 --> 00:07:29,400 Speaker 1: They'll look at what metas plans, say, had the company 138 00:07:29,400 --> 00:07:33,120 Speaker 1: devoted capital toward developing its own virtual reality fitness app, 139 00:07:33,200 --> 00:07:35,680 Speaker 1: you know, were there approved plans to go forward with 140 00:07:35,760 --> 00:07:38,320 Speaker 1: something like that that then got mixed when the company 141 00:07:38,360 --> 00:07:40,720 Speaker 1: decided to buy Within instead. I mean, the proof of 142 00:07:40,760 --> 00:07:43,240 Speaker 1: that will be in their documents and what their documents say, 143 00:07:43,640 --> 00:07:45,000 Speaker 1: and the judge is going to have to look at 144 00:07:45,000 --> 00:07:47,400 Speaker 1: that as well. And you think it's an uphill battle 145 00:07:47,440 --> 00:07:50,120 Speaker 1: for the FTC. I think it's difficult because I think 146 00:07:50,120 --> 00:07:53,679 Speaker 1: it's very speculative. Again, if the documents show that there 147 00:07:53,720 --> 00:07:57,040 Speaker 1: were no plans to develop a virtual reality fitness app, 148 00:07:57,200 --> 00:07:59,360 Speaker 1: or there might have been plans that were nixed, but 149 00:07:59,520 --> 00:08:01,880 Speaker 1: nixed not because of the purchase of within, but for 150 00:08:01,920 --> 00:08:05,520 Speaker 1: other reasons, you know, that kind of neutralizes this argument 151 00:08:05,520 --> 00:08:07,600 Speaker 1: that they would have been a potential competitor. And I 152 00:08:07,600 --> 00:08:10,320 Speaker 1: think that it's really hard to say, Hey, this company 153 00:08:10,480 --> 00:08:12,520 Speaker 1: was going to enter and you know what, if they had, 154 00:08:12,600 --> 00:08:15,840 Speaker 1: they would have been a vibrant competitor within very popular 155 00:08:15,880 --> 00:08:18,239 Speaker 1: fitness app. I think that's difficult to prove in court. 156 00:08:18,520 --> 00:08:20,480 Speaker 1: And I also think there could be some problems with 157 00:08:20,680 --> 00:08:23,880 Speaker 1: the defined relevant market here um limiting it to just 158 00:08:24,040 --> 00:08:27,760 Speaker 1: these virtual reality fitness apps. Is this a test case 159 00:08:28,120 --> 00:08:33,239 Speaker 1: for the FTC for its more aggressive strategy on mergers, 160 00:08:33,400 --> 00:08:36,520 Speaker 1: especially by the Silicon Valley giants. I think it can 161 00:08:36,559 --> 00:08:38,920 Speaker 1: be thought of that way, absolutely, not just the test 162 00:08:38,960 --> 00:08:42,520 Speaker 1: case to try to expand the boundaries of antitrust law 163 00:08:42,559 --> 00:08:45,240 Speaker 1: and try to push some of these novel theories and 164 00:08:45,320 --> 00:08:48,000 Speaker 1: have some success in court with novel theories that might 165 00:08:48,320 --> 00:08:51,280 Speaker 1: open the way, open the road in the future to 166 00:08:51,400 --> 00:08:53,959 Speaker 1: more easily challenge other deals. And I think it's also 167 00:08:54,080 --> 00:08:57,719 Speaker 1: part of trying to prevent big tech platforms from continually 168 00:08:57,800 --> 00:09:01,360 Speaker 1: growing through acquisition. You know, there's nothing on with growing organically, 169 00:09:01,559 --> 00:09:04,200 Speaker 1: but just trying to prevent this growth that's happened over 170 00:09:04,240 --> 00:09:07,800 Speaker 1: the last ten years through acquisition. So it's sort of twofold. 171 00:09:08,200 --> 00:09:11,320 Speaker 1: Meta has said that if the judge rules against them, 172 00:09:11,360 --> 00:09:14,360 Speaker 1: it will abandon the deal. If the judge rules against 173 00:09:14,400 --> 00:09:18,840 Speaker 1: the FTC might have taken appeal, absolutely it could. So 174 00:09:18,880 --> 00:09:21,719 Speaker 1: what happens there is if the judge rules against the FTC, 175 00:09:22,120 --> 00:09:24,720 Speaker 1: technically the companies are free to go ahead and close 176 00:09:24,800 --> 00:09:28,400 Speaker 1: their deal and integrate. What the FTC would do if 177 00:09:28,480 --> 00:09:31,600 Speaker 1: they chose to appeal, if they'd likely seek an emergency 178 00:09:31,720 --> 00:09:34,560 Speaker 1: order from the court to prevent the companies from closing 179 00:09:34,679 --> 00:09:37,920 Speaker 1: just pending that appeal, and sometimes they win those. More 180 00:09:37,960 --> 00:09:40,319 Speaker 1: recently in the last couple of years, they haven't been 181 00:09:40,320 --> 00:09:42,599 Speaker 1: winning those orders, and then it makes more difficult for 182 00:09:42,640 --> 00:09:44,760 Speaker 1: them to go through with the appeal because the companies 183 00:09:44,800 --> 00:09:47,640 Speaker 1: at that point would probably go ahead and close and integrate. 184 00:09:47,720 --> 00:09:50,360 Speaker 1: And now it's more difficult even if they wanted court 185 00:09:50,440 --> 00:09:53,640 Speaker 1: to get a judge to require the companies to unwind 186 00:09:53,640 --> 00:09:57,640 Speaker 1: the deal. Is the FTC still trying to unwind the 187 00:09:57,880 --> 00:10:02,280 Speaker 1: Instagram and What'sapp purchase? Yes, there's still that litigation is 188 00:10:02,280 --> 00:10:04,840 Speaker 1: still ongoing. I believe it is set to go to 189 00:10:04,920 --> 00:10:08,880 Speaker 1: trial next year, either unwind or get some other kind 190 00:10:08,960 --> 00:10:13,360 Speaker 1: of injunctive remedy like required interoperability or something like that 191 00:10:13,360 --> 00:10:17,479 Speaker 1: that's short of unwinding the deals, but does require Facebook 192 00:10:17,520 --> 00:10:21,160 Speaker 1: to allow for you know, better interoperability with other rivals 193 00:10:21,200 --> 00:10:24,760 Speaker 1: and allowing users to migrate their history and their content 194 00:10:24,880 --> 00:10:28,120 Speaker 1: to other platforms. So the FTC is very busy with 195 00:10:28,400 --> 00:10:34,600 Speaker 1: Silicon values platforms. The Commission has voted to block Microsoft's 196 00:10:34,600 --> 00:10:38,240 Speaker 1: sixty nine billion dollar acquisition of Activision, which is I 197 00:10:38,280 --> 00:10:41,520 Speaker 1: was surprised at this one of the thirty biggest acquisitions 198 00:10:41,520 --> 00:10:44,880 Speaker 1: of all time. What's the reason they're so that's a 199 00:10:44,880 --> 00:10:48,760 Speaker 1: little bit different than the challenge to Meta and within 200 00:10:49,440 --> 00:10:53,160 Speaker 1: this deal is called a vertical theory deal. So what 201 00:10:53,320 --> 00:10:56,960 Speaker 1: they're objecting to here is the vertical integration between Microsoft 202 00:10:57,040 --> 00:10:59,920 Speaker 1: and Activision. So in other words, Microsoft has consoles and 203 00:11:00,120 --> 00:11:03,800 Speaker 1: PCs on which people can play mobile games, and Activision 204 00:11:03,840 --> 00:11:07,280 Speaker 1: creates that mobile content. So there are at different levels 205 00:11:07,280 --> 00:11:10,920 Speaker 1: of distribution for an entire industry of mobile game playing. 206 00:11:11,240 --> 00:11:14,600 Speaker 1: And what the FTC is saying is, look, once Microsoft 207 00:11:14,679 --> 00:11:18,080 Speaker 1: controls this activision content, it's going to have an increased 208 00:11:18,120 --> 00:11:22,240 Speaker 1: incentive and the ability to withhold or degrade that content, 209 00:11:22,360 --> 00:11:24,559 Speaker 1: and weighs that less in competition. In other words, that 210 00:11:24,720 --> 00:11:28,400 Speaker 1: hurt its competitors, primarily it's competitors and consoles, which is 211 00:11:28,440 --> 00:11:33,479 Speaker 1: really mostly just Sony. Sony, which is a competitor for Microsoft, 212 00:11:33,840 --> 00:11:38,520 Speaker 1: is objecting because it's concerned that Microsoft could make games 213 00:11:38,559 --> 00:11:43,280 Speaker 1: like Call of Duty exclusive. And apparently Microsoft has something 214 00:11:43,280 --> 00:11:45,840 Speaker 1: of a history here. Well, you know, yes and no. 215 00:11:46,280 --> 00:11:49,320 Speaker 1: I'll start by saying it has actually been fairly typical 216 00:11:49,760 --> 00:11:53,319 Speaker 1: for console companies to have exclusive games. Sony itself, which 217 00:11:53,360 --> 00:11:57,120 Speaker 1: has the PlayStation console, has games that are exclusive to PlayStation. 218 00:11:57,360 --> 00:12:00,240 Speaker 1: It does that, and Microsoft has some exclusive games as well. 219 00:12:00,520 --> 00:12:03,800 Speaker 1: So Microsoft a couple of years ago acquired Zenemax, and 220 00:12:04,120 --> 00:12:06,920 Speaker 1: when they did, they were cleared by the European Commission 221 00:12:06,960 --> 00:12:08,920 Speaker 1: which took a look at the deal, and the European 222 00:12:08,920 --> 00:12:12,079 Speaker 1: Commission cleared it without any commitments. So Microsoft didn't make 223 00:12:12,120 --> 00:12:15,800 Speaker 1: any commitments to the Commission that it would not make 224 00:12:15,880 --> 00:12:19,160 Speaker 1: certain games exclusive. Now, we did tell the Commission, we 225 00:12:19,240 --> 00:12:22,520 Speaker 1: don't have an incentive to take these games as exclusives, 226 00:12:22,679 --> 00:12:25,160 Speaker 1: but it later did do so. And this is what 227 00:12:25,240 --> 00:12:27,679 Speaker 1: the FTC has mentioned in its complaints, saying that, well, 228 00:12:27,720 --> 00:12:30,400 Speaker 1: even if Microsoft says we have no incentive to go 229 00:12:30,480 --> 00:12:32,880 Speaker 1: exclusive with these games, hey, that's what it said that 230 00:12:32,920 --> 00:12:35,719 Speaker 1: the European Commission when it acquired Dnomax. But it went 231 00:12:35,720 --> 00:12:38,480 Speaker 1: ahead and did that. But the European Commission is actually saying, 232 00:12:38,520 --> 00:12:41,320 Speaker 1: you know, it's not exactly right. You know, we cleared 233 00:12:41,320 --> 00:12:44,040 Speaker 1: it because we actually just didn't think the deal was problematic, 234 00:12:44,320 --> 00:12:47,120 Speaker 1: and even if they took the games exclusive, we didn't 235 00:12:47,120 --> 00:12:50,240 Speaker 1: think that was problematic or could harm competition. So it 236 00:12:50,320 --> 00:12:52,720 Speaker 1: really wasn't an issue, and we weren't telling them you 237 00:12:52,720 --> 00:12:55,440 Speaker 1: shouldn't or can't take these games exclusive. And it only 238 00:12:55,480 --> 00:12:58,160 Speaker 1: took some of the Zenmax games exclusive, not all of them. 239 00:12:58,200 --> 00:13:03,000 Speaker 1: So you know, it's maybe lightly disingenuous to rely on 240 00:13:03,160 --> 00:13:06,720 Speaker 1: that conduct and compare that conduct to what might happen here, 241 00:13:07,080 --> 00:13:11,080 Speaker 1: particularly because Microsoft has been very open about the fact 242 00:13:11,160 --> 00:13:13,720 Speaker 1: that it's willing to extend a ten year license to 243 00:13:13,760 --> 00:13:16,400 Speaker 1: Sony for the Call of Duty games. Now, I think 244 00:13:16,440 --> 00:13:18,120 Speaker 1: it might have to do a little bit better than that. 245 00:13:18,160 --> 00:13:21,040 Speaker 1: It might have to include other activision games within that 246 00:13:21,120 --> 00:13:23,400 Speaker 1: license and not just Call of Duty. But it's been 247 00:13:23,440 --> 00:13:27,320 Speaker 1: fairly open about willing to enter into a legally binding contract, 248 00:13:27,400 --> 00:13:31,200 Speaker 1: you know, a license to you know, not foreclosed Sony 249 00:13:31,280 --> 00:13:34,040 Speaker 1: and to provide Call of Duty to Sony for PlayStation 250 00:13:34,040 --> 00:13:36,920 Speaker 1: players to go ahead and play. So I think that again, 251 00:13:36,960 --> 00:13:39,360 Speaker 1: this deal might be a little bit difficult also in 252 00:13:39,440 --> 00:13:42,280 Speaker 1: court for the FTC, because you know, you have that 253 00:13:42,360 --> 00:13:45,319 Speaker 1: promise out there by Microsoft which is more than just work. 254 00:13:45,480 --> 00:13:47,560 Speaker 1: You know, it would be legally binding if it entered 255 00:13:47,559 --> 00:13:51,760 Speaker 1: a license. Clarify, what is Microsoft's defense, Well, I mean 256 00:13:51,760 --> 00:13:54,440 Speaker 1: it is saying that it doesn't have the incentive or 257 00:13:54,480 --> 00:13:57,240 Speaker 1: the ability to take these games exclusive. And and the 258 00:13:57,280 --> 00:14:01,040 Speaker 1: reasoning behind this, the theory, let's behind this that the 259 00:14:01,120 --> 00:14:04,319 Speaker 1: FDC would have to prove in court is that Microsoft 260 00:14:04,320 --> 00:14:07,480 Speaker 1: would take these games exclusive or particularly Call of Duty, 261 00:14:07,760 --> 00:14:11,319 Speaker 1: and by doing so, it would not get the licensing fees, 262 00:14:11,360 --> 00:14:14,000 Speaker 1: the licensing that would have been paid to it, you know, 263 00:14:14,040 --> 00:14:16,480 Speaker 1: the revenue it would have achieved from licensing fees from 264 00:14:16,520 --> 00:14:19,720 Speaker 1: other companies because it's now taken the game exclusive. But 265 00:14:19,840 --> 00:14:23,360 Speaker 1: that ultimately it will be more profitable from Microsoft to 266 00:14:23,400 --> 00:14:26,160 Speaker 1: forgo those fees because down the road, it would drive 267 00:14:26,240 --> 00:14:30,520 Speaker 1: more consumers to its console, It's Xbox over the PlayStation, 268 00:14:30,760 --> 00:14:34,880 Speaker 1: and it would recoup revenues by selling the Xbox to consumers. 269 00:14:34,920 --> 00:14:37,400 Speaker 1: And Microsoft saying no, that's just not really the case, 270 00:14:37,680 --> 00:14:39,920 Speaker 1: that the math doesn't work out that way for us. 271 00:14:39,920 --> 00:14:43,040 Speaker 1: It's actually more profitable for us to make these games 272 00:14:43,080 --> 00:14:46,720 Speaker 1: widely available, to collect these licensing fees, and to continue 273 00:14:46,720 --> 00:14:49,560 Speaker 1: to sell our console, which I believe they sell at 274 00:14:49,600 --> 00:14:52,320 Speaker 1: a very low margin. So the proof is going to 275 00:14:52,400 --> 00:14:54,640 Speaker 1: be in the math. I mean, there will be complicated 276 00:14:54,680 --> 00:14:59,120 Speaker 1: analytics that are presented to the judge by economic experts 277 00:14:59,160 --> 00:15:02,560 Speaker 1: on both sides showing whether or not a strategy like 278 00:15:02,640 --> 00:15:05,920 Speaker 1: that would be profitable to Microsoft down the road or wouldn't. 279 00:15:06,120 --> 00:15:09,880 Speaker 1: And that's really very difficult to show, June Um. This 280 00:15:09,960 --> 00:15:13,840 Speaker 1: is very similar to what the Department of Justice tried 281 00:15:13,880 --> 00:15:15,840 Speaker 1: to do when it suits to block a T and 282 00:15:15,880 --> 00:15:20,680 Speaker 1: T from acquiring Time Warner. Very similar concept and and 283 00:15:20,800 --> 00:15:23,480 Speaker 1: similar analytics. And you know, you had to go in 284 00:15:23,480 --> 00:15:26,320 Speaker 1: there and prove that this kind of strategy would be 285 00:15:26,600 --> 00:15:29,400 Speaker 1: profitable for the company, and it just didn't work. You know, 286 00:15:29,520 --> 00:15:32,360 Speaker 1: the model that the economists presented had a lot of 287 00:15:32,400 --> 00:15:34,800 Speaker 1: problems with it, had a lot of weaknesses in it 288 00:15:34,840 --> 00:15:37,200 Speaker 1: that the judge pointed out, and he had some issues 289 00:15:37,240 --> 00:15:39,080 Speaker 1: with it, and he just simply didn't feel that they 290 00:15:39,160 --> 00:15:41,480 Speaker 1: proved that it would have been profitable for the companies 291 00:15:41,520 --> 00:15:43,680 Speaker 1: to engage in that kind of strategy. And so there 292 00:15:43,720 --> 00:15:46,520 Speaker 1: could be the same kind of challenge here, and Microsoft, 293 00:15:46,520 --> 00:15:49,600 Speaker 1: of course will have their own experts showing how it's 294 00:15:49,640 --> 00:15:52,840 Speaker 1: not profitable and wouldn't make sense for Microsoft to take 295 00:15:52,880 --> 00:15:56,080 Speaker 1: these games exclusive. This is an in house trial with 296 00:15:56,160 --> 00:16:01,600 Speaker 1: an administrative law judge. Oftentimes defended say that in those 297 00:16:01,680 --> 00:16:05,920 Speaker 1: cases the in house law judge, the administrative law judge, 298 00:16:05,960 --> 00:16:09,520 Speaker 1: favors the agency. So I have a couple of theories 299 00:16:09,560 --> 00:16:11,600 Speaker 1: about this. I think, first of all, there has been 300 00:16:11,640 --> 00:16:14,400 Speaker 1: a pattern if you look at the last ten fifteen 301 00:16:14,480 --> 00:16:18,840 Speaker 1: years of the FDC winning those few we call it 302 00:16:18,880 --> 00:16:22,200 Speaker 1: apart three when you go through these proceedings internally, very 303 00:16:22,240 --> 00:16:24,480 Speaker 1: few actually go through to the finish. But for the 304 00:16:24,560 --> 00:16:26,640 Speaker 1: few that have gone through the finish, we have seen 305 00:16:26,720 --> 00:16:28,840 Speaker 1: that the FTC is a good track record. But I 306 00:16:28,920 --> 00:16:31,200 Speaker 1: tend to think that that could be because at least 307 00:16:31,240 --> 00:16:34,880 Speaker 1: in the past until this administration, the FTC would bring 308 00:16:34,920 --> 00:16:37,960 Speaker 1: cases that were easier to win, that they had better 309 00:16:38,000 --> 00:16:42,440 Speaker 1: evidence on their side, They had stronger, more traditional antitrust theories, 310 00:16:42,600 --> 00:16:44,440 Speaker 1: so it was more likely they were going to win. 311 00:16:45,000 --> 00:16:48,600 Speaker 1: This judge, in fact, has recently ruled against the FTC 312 00:16:48,720 --> 00:16:52,920 Speaker 1: in two recent Part three proceedings. One was the merger 313 00:16:52,960 --> 00:16:56,000 Speaker 1: of Alumina and Grail that challenge and the other one 314 00:16:56,160 --> 00:16:58,960 Speaker 1: was a challenge to all Trea's investment in Jewel. These 315 00:16:58,960 --> 00:17:01,920 Speaker 1: were both in the last couple years. Same administrative law 316 00:17:02,000 --> 00:17:04,600 Speaker 1: judge that would oversee this hearing, and he ruled against 317 00:17:04,640 --> 00:17:07,520 Speaker 1: the FTC. I tend to believe he actually is quite 318 00:17:07,600 --> 00:17:12,440 Speaker 1: independent and doesn't really essentially favor the FTC going in now. 319 00:17:12,480 --> 00:17:16,000 Speaker 1: I'm a little confused about the timing because the trial 320 00:17:16,080 --> 00:17:20,680 Speaker 1: is set for August two, but the deal is set 321 00:17:20,720 --> 00:17:25,800 Speaker 1: to close by June. That's a problem for the company. Yeah, 322 00:17:26,200 --> 00:17:29,280 Speaker 1: So the timing is very complicated here because right now 323 00:17:29,320 --> 00:17:33,440 Speaker 1: the companies cannot close because there are anti trust investigations 324 00:17:33,480 --> 00:17:36,880 Speaker 1: that are still outstanding in the UK and in Europe 325 00:17:36,920 --> 00:17:41,560 Speaker 1: before the European Commission, and those reviews keep the companies 326 00:17:41,920 --> 00:17:44,879 Speaker 1: from being able to close their deal. Now both of 327 00:17:44,920 --> 00:17:48,200 Speaker 1: those right now have decision dates in the first quarter, 328 00:17:48,280 --> 00:17:50,000 Speaker 1: one of them in March and one of them in 329 00:17:50,040 --> 00:17:55,199 Speaker 1: April if they clear. If the both the UK and 330 00:17:55,359 --> 00:17:59,679 Speaker 1: Europe clear Microsoft in activision to close their deal, technically 331 00:17:59,720 --> 00:18:03,360 Speaker 1: they can even though this Part three procedure is pending. 332 00:18:03,680 --> 00:18:07,560 Speaker 1: So what will have to happen is the FTC, in 333 00:18:07,640 --> 00:18:10,680 Speaker 1: communication with Europe and with the UK, will know if 334 00:18:10,720 --> 00:18:13,840 Speaker 1: that's coming, and they'll have to actually sue the companies 335 00:18:14,119 --> 00:18:17,159 Speaker 1: for a preliminary injunction in federal court in the United 336 00:18:17,200 --> 00:18:20,520 Speaker 1: States to get a temporary block not permanent, but just 337 00:18:20,600 --> 00:18:24,040 Speaker 1: a temporary block on the closing pending their Part three. Otherwise, 338 00:18:24,160 --> 00:18:26,760 Speaker 1: even though the Part three is ongoing, the companies would 339 00:18:26,800 --> 00:18:29,360 Speaker 1: still be able to close. So I think that that's 340 00:18:29,400 --> 00:18:32,439 Speaker 1: what they will do if those approvals are forthcoming. So 341 00:18:32,520 --> 00:18:35,240 Speaker 1: we might see a filing in federal court sometime in 342 00:18:35,320 --> 00:18:38,439 Speaker 1: February or maybe in March by the FTC, and that 343 00:18:38,520 --> 00:18:41,880 Speaker 1: process will finish up if it happens more quickly than 344 00:18:41,920 --> 00:18:45,080 Speaker 1: the Part three. Now, if there aren't approvals in the 345 00:18:45,160 --> 00:18:48,159 Speaker 1: UK and Europe and Microsoft has to fight those as well, 346 00:18:48,440 --> 00:18:50,720 Speaker 1: they're either going to have to abandon the deal or 347 00:18:50,760 --> 00:18:52,679 Speaker 1: the companies are going to have to agree to extend 348 00:18:52,680 --> 00:18:57,600 Speaker 1: that ending. What's FTC Chair Lena Kahn's records so far, Yeah, 349 00:18:57,640 --> 00:18:59,840 Speaker 1: you know, it's a little bit mixed. Yeah. She she 350 00:19:00,080 --> 00:19:02,879 Speaker 1: was really kind of hobbled for quite a long time 351 00:19:03,080 --> 00:19:06,600 Speaker 1: when she first took on the chairpersonship because it was 352 00:19:06,640 --> 00:19:10,960 Speaker 1: a split FTC. There were two Republican commissioners and two 353 00:19:11,000 --> 00:19:14,000 Speaker 1: Democratic commissioners. One of them was Lena Khan. You know, 354 00:19:14,040 --> 00:19:16,879 Speaker 1: there was some trouble because there were some split vote 355 00:19:16,960 --> 00:19:19,680 Speaker 1: two to two and when the commission ties they can't 356 00:19:19,720 --> 00:19:22,640 Speaker 1: take action, it would mean no lawsuit against the deal, 357 00:19:22,680 --> 00:19:24,639 Speaker 1: and and that kind of stopped her for a while. 358 00:19:24,960 --> 00:19:28,840 Speaker 1: But once the final commissioner was appointed and confirmed that 359 00:19:28,920 --> 00:19:31,239 Speaker 1: was al Vero Badoya, she's been able to do a 360 00:19:31,240 --> 00:19:34,280 Speaker 1: little bit more. And I say it's mixed because she's 361 00:19:34,320 --> 00:19:37,600 Speaker 1: been able to get some abandonments of deals with which 362 00:19:37,600 --> 00:19:40,040 Speaker 1: the FTC would look at as a success when they 363 00:19:40,119 --> 00:19:42,800 Speaker 1: sue and instead of having to go through litigation and 364 00:19:42,840 --> 00:19:45,000 Speaker 1: when in court, the companies too, you know, just to 365 00:19:45,040 --> 00:19:48,120 Speaker 1: walk away. So they did manage that with Lockheed Arrow Jet, 366 00:19:48,160 --> 00:19:50,600 Speaker 1: and they also managed that within Video Arm and there 367 00:19:50,640 --> 00:19:53,520 Speaker 1: were several hospital deal three of them in fact, in 368 00:19:53,600 --> 00:19:56,080 Speaker 1: two thousand and twenty two that all abandoned their deal. 369 00:19:56,200 --> 00:19:58,959 Speaker 1: And and those are successes, even though it's not necessarily 370 00:19:59,000 --> 00:20:01,520 Speaker 1: a court success. But there were the two losses in 371 00:20:01,560 --> 00:20:04,280 Speaker 1: their own internal court. I just mentioned the Illuminate Grail 372 00:20:04,440 --> 00:20:07,600 Speaker 1: and the Ultria Jewel losses. So those weren't great. And 373 00:20:07,640 --> 00:20:10,240 Speaker 1: now we'll see what happens. You've got to outstanding right 374 00:20:10,280 --> 00:20:14,480 Speaker 1: now with Microsoft Activision and with Meta Within. And it's 375 00:20:14,560 --> 00:20:17,320 Speaker 1: unclear whether Microsoft Activision will get all the way to 376 00:20:17,359 --> 00:20:20,239 Speaker 1: a court decision, but clearly Meta Within will that. We 377 00:20:20,280 --> 00:20:22,480 Speaker 1: expect the decision in that one in December, So we'll 378 00:20:22,520 --> 00:20:25,160 Speaker 1: see what happens there because that'll show us at the 379 00:20:25,200 --> 00:20:27,920 Speaker 1: beginning of her record and actually in federal court. Thanks 380 00:20:27,920 --> 00:20:32,400 Speaker 1: so much, Jan, that's Bloomberg Intelligence Senior litigation analyst Jennifer Ree. 381 00:20:33,640 --> 00:20:37,399 Speaker 1: A New York law temporarily lifts the statute of limitations 382 00:20:37,440 --> 00:20:41,439 Speaker 1: on civil sexual abuse and harassment claims and is expected 383 00:20:41,440 --> 00:20:45,119 Speaker 1: to lead to a flood of lawsuits. In fact, lawsuits 384 00:20:45,119 --> 00:20:49,040 Speaker 1: have already been filed against former President Donald Trump, comedian 385 00:20:49,119 --> 00:20:53,879 Speaker 1: Bill Cosby, and billionaire Leon Black over allegations they assaulted 386 00:20:53,920 --> 00:20:57,879 Speaker 1: women decades ago. Which their lawyers deny joining me is 387 00:20:57,880 --> 00:21:02,040 Speaker 1: Bloomberg Legal reporter Eric Larson tell us more about this law. 388 00:21:02,600 --> 00:21:05,760 Speaker 1: So the law called the New York Adult Survivor's apt 389 00:21:06,000 --> 00:21:08,680 Speaker 1: It was signed into law in May and it took 390 00:21:08,720 --> 00:21:12,600 Speaker 1: effect last month on Thanksgiving Day. And what it does 391 00:21:13,040 --> 00:21:17,119 Speaker 1: is it lists temporarily for one year, lists the statute 392 00:21:17,160 --> 00:21:21,840 Speaker 1: of limitations on civil claims over sexual offenses like sexual 393 00:21:21,880 --> 00:21:25,400 Speaker 1: abuse and harassments. So it's a fairly new type of law. 394 00:21:25,880 --> 00:21:29,280 Speaker 1: It just took effects. So what we're expecting is that 395 00:21:29,480 --> 00:21:31,679 Speaker 1: is quite a few lawsuits to be filed in the 396 00:21:31,720 --> 00:21:36,440 Speaker 1: next year. Was this in response to the me too movement? 397 00:21:37,280 --> 00:21:41,320 Speaker 1: It was definitely related to that. In two thousand nineteen, 398 00:21:41,840 --> 00:21:45,640 Speaker 1: the New York State legislature actually changed to the statute 399 00:21:45,680 --> 00:21:50,600 Speaker 1: of limitations for sexual offenses from one year to twenty years, 400 00:21:50,640 --> 00:21:55,199 Speaker 1: so really acknowledging that, you know, there's a unique circumstances 401 00:21:55,200 --> 00:21:58,199 Speaker 1: here where victims they're not necessarily able to process what 402 00:21:58,280 --> 00:22:01,080 Speaker 1: has happened and seek the help that they need that quickly, 403 00:22:01,440 --> 00:22:03,919 Speaker 1: just because of the nature of the ascent. And so 404 00:22:04,000 --> 00:22:07,840 Speaker 1: this change acknowledged that gave victims twenty years of statutes 405 00:22:07,840 --> 00:22:11,719 Speaker 1: of limitations to file claims, but it wasn't retroactive. So 406 00:22:11,760 --> 00:22:14,359 Speaker 1: if you look back at the decade of alleged abuse 407 00:22:14,480 --> 00:22:17,680 Speaker 1: out there, there was still no way to do UM 408 00:22:17,680 --> 00:22:21,280 Speaker 1: over that conduct. So what they did was passed this 409 00:22:21,400 --> 00:22:23,960 Speaker 1: law to sort of fill in that gap and say, Okay, 410 00:22:24,160 --> 00:22:27,720 Speaker 1: you've got a year to file these civil claims now. 411 00:22:28,080 --> 00:22:31,080 Speaker 1: And it's also should be noted that it's similar law 412 00:22:31,240 --> 00:22:34,960 Speaker 1: was passed for child's victims of abuse, that that window 413 00:22:35,000 --> 00:22:37,800 Speaker 1: already had passed. That law was passed earlier and it 414 00:22:37,880 --> 00:22:40,440 Speaker 1: was seen as very successful. So now this new law 415 00:22:40,880 --> 00:22:43,520 Speaker 1: is to allow adults, and I actually mentioned that it's 416 00:22:43,600 --> 00:22:46,359 Speaker 1: victims who were adults at the time that they were abused. 417 00:22:46,600 --> 00:22:48,960 Speaker 1: That's what this law is geared toward, and that's what 418 00:22:49,040 --> 00:22:51,840 Speaker 1: it's just taken affect. Are there any challenges expected to 419 00:22:51,880 --> 00:22:54,600 Speaker 1: this law? You can expect there will definitely be challenged 420 00:22:54,760 --> 00:22:59,359 Speaker 1: to these lawsuits and they're going to be very strongly defended, 421 00:22:59,520 --> 00:23:02,600 Speaker 1: you know, both with lawyers on both sides here. I 422 00:23:02,680 --> 00:23:05,320 Speaker 1: spoke with played this lawyers who are out there looking 423 00:23:05,359 --> 00:23:09,040 Speaker 1: for clients or who have already filed these lawsuits. And 424 00:23:09,080 --> 00:23:12,560 Speaker 1: I spoke with lawyers who are representing companies UM that 425 00:23:12,920 --> 00:23:15,359 Speaker 1: are looking into this who expects that they might be 426 00:23:15,480 --> 00:23:18,880 Speaker 1: sued or have been sued already, And so there are 427 00:23:19,119 --> 00:23:22,800 Speaker 1: plenty of defenses that are going to be deployed here 428 00:23:23,200 --> 00:23:26,640 Speaker 1: very strongly. But when it came to the law actually 429 00:23:26,680 --> 00:23:32,080 Speaker 1: being debated, there wasn't quite the outpouring of lobbying against 430 00:23:32,119 --> 00:23:34,840 Speaker 1: the law publicly. You know, I spoke with some people 431 00:23:34,880 --> 00:23:37,119 Speaker 1: involved in the passage of the laws. They really couldn't 432 00:23:37,160 --> 00:23:40,600 Speaker 1: say who is publicly coming out against it. When that 433 00:23:40,840 --> 00:23:44,560 Speaker 1: Child Victims Act passed, By comparison, there were groups coming 434 00:23:44,560 --> 00:23:47,240 Speaker 1: out publicly against it related to the Catholic Church and 435 00:23:47,280 --> 00:23:50,399 Speaker 1: Boy Scout to America and organizations that were worried about 436 00:23:50,520 --> 00:23:53,359 Speaker 1: getting hit with lots of lawsuits. They've lobbied against it. 437 00:23:53,440 --> 00:23:56,639 Speaker 1: But there wasn't that same lobbying against this law publicly. 438 00:23:56,840 --> 00:23:59,000 Speaker 1: But what you can expect to see is that these 439 00:23:59,320 --> 00:24:02,880 Speaker 1: individual lawsuits will be challenged in court and also out 440 00:24:02,880 --> 00:24:04,920 Speaker 1: of court before they're filed. But I think there will 441 00:24:04,920 --> 00:24:06,720 Speaker 1: be a lot of settlements that are reached that we 442 00:24:06,800 --> 00:24:11,240 Speaker 1: never hear about. What big names have already been sued. Well, 443 00:24:11,440 --> 00:24:14,200 Speaker 1: Former President Donald Trump was one of the first people 444 00:24:14,240 --> 00:24:17,000 Speaker 1: to be sued under this law, eating Carol and New 445 00:24:17,080 --> 00:24:21,520 Speaker 1: York writer who had previously accused Trump of raping her 446 00:24:21,920 --> 00:24:24,520 Speaker 1: over two decades ago, and then in two thousand nineteen 447 00:24:24,600 --> 00:24:27,760 Speaker 1: sued him for defamation when he denied it and said 448 00:24:27,800 --> 00:24:30,440 Speaker 1: she was lying. She would have had filed a claim 449 00:24:30,520 --> 00:24:33,800 Speaker 1: the first day of this lawsop effect, she sued Trump 450 00:24:33,840 --> 00:24:37,119 Speaker 1: for battery. You know, five women have come forward and 451 00:24:37,200 --> 00:24:41,360 Speaker 1: sued Bill Cosby last week. You know, victims who had 452 00:24:41,400 --> 00:24:45,680 Speaker 1: already accused him of wrongdoing previously, but now sued under 453 00:24:45,720 --> 00:24:48,280 Speaker 1: this law, now that it has taken an effect, billing 454 00:24:48,520 --> 00:24:52,560 Speaker 1: Leon Black, He was also sued over allegedly assaulting women 455 00:24:52,680 --> 00:24:56,280 Speaker 1: decades ago. All of these men have denied these allegations 456 00:24:56,320 --> 00:24:58,760 Speaker 1: when the lawyers said that they planned to fight these cases. 457 00:24:58,800 --> 00:25:02,560 Speaker 1: So clearly there's all already some high profile lawsuits being filed. 458 00:25:02,960 --> 00:25:06,240 Speaker 1: Canna plaintive sue a company to hold them accountable for 459 00:25:06,280 --> 00:25:10,720 Speaker 1: alleged abuse, even if the alleged abuser is deceased. Yes, 460 00:25:10,800 --> 00:25:13,320 Speaker 1: in fact, that has already happened. In the case of 461 00:25:13,680 --> 00:25:18,600 Speaker 1: Atlantic Records, part of Warner Music group. Warner Music is 462 00:25:18,680 --> 00:25:24,000 Speaker 1: being sued because the Atlantic Records founder allegedly decades ago, 463 00:25:24,080 --> 00:25:27,760 Speaker 1: more than forty years ago, sexually abused women. So now 464 00:25:27,880 --> 00:25:30,560 Speaker 1: the company and you know, saying that they're looking into 465 00:25:30,600 --> 00:25:33,840 Speaker 1: these allegations, interviewing people who may have been around back then, 466 00:25:34,080 --> 00:25:36,280 Speaker 1: saying that many of the individuals who would have been 467 00:25:36,280 --> 00:25:39,480 Speaker 1: witnessing are deceased or in their eighties or nineties. So 468 00:25:39,600 --> 00:25:42,840 Speaker 1: clearly that this case against the Warner Music Group is 469 00:25:42,880 --> 00:25:46,080 Speaker 1: a good illustration of how difficult it might be for 470 00:25:46,240 --> 00:25:50,720 Speaker 1: some of these defendants to defend themselves. Notably the suit 471 00:25:50,840 --> 00:25:54,560 Speaker 1: against Bill Cosby, you know, it also named NBC Universal 472 00:25:54,600 --> 00:25:57,600 Speaker 1: Media as a defendant because it aired the Cosby Show 473 00:25:57,680 --> 00:26:00,080 Speaker 1: in a Different World, you know, to which was a 474 00:26:00,240 --> 00:26:03,720 Speaker 1: the starting that allegedly, uh he used these shows in 475 00:26:03,840 --> 00:26:07,000 Speaker 1: his popularity around these shows to lure women onto the 476 00:26:07,000 --> 00:26:10,200 Speaker 1: sets of the shows in his circles and then abuse them, 477 00:26:10,520 --> 00:26:13,080 Speaker 1: you know, allegedly drugging and raping them in some cases. 478 00:26:13,359 --> 00:26:17,000 Speaker 1: So NBC Universal is accused of essentially turning a blind 479 00:26:17,080 --> 00:26:20,320 Speaker 1: eye to cause these conducts for years, a similar claim 480 00:26:20,359 --> 00:26:24,200 Speaker 1: made against Warner Music Groups. Of course, both companies are 481 00:26:24,200 --> 00:26:27,640 Speaker 1: expected to fit those very strongly in court. This law, 482 00:26:27,880 --> 00:26:31,359 Speaker 1: you know, the the effect it seems like fundamental unfairness 483 00:26:31,400 --> 00:26:33,879 Speaker 1: to the companies. How do you defend against a suit 484 00:26:34,080 --> 00:26:37,360 Speaker 1: when the person accused is dead, I mean, you're you're 485 00:26:37,400 --> 00:26:39,520 Speaker 1: You're definitely going to hear arguments like this in court, 486 00:26:39,600 --> 00:26:42,360 Speaker 1: and I'm personally very curious to see how these arguments 487 00:26:42,359 --> 00:26:45,600 Speaker 1: are made because it is very unusual set of circumstances here. 488 00:26:45,640 --> 00:26:49,160 Speaker 1: That is a pretty unique law. So any companies even 489 00:26:49,200 --> 00:26:52,080 Speaker 1: now can be accused of turning a blind eye to 490 00:26:52,160 --> 00:26:55,680 Speaker 1: conduct that end sued for negligence. So the civil fact 491 00:26:55,760 --> 00:26:58,320 Speaker 1: is that this law has a raised the statute of limitations. 492 00:26:58,359 --> 00:27:00,920 Speaker 1: So even if you know the allegation, since they're very old, 493 00:27:01,200 --> 00:27:04,119 Speaker 1: anyone can can bring these claims in court. But that 494 00:27:04,200 --> 00:27:07,159 Speaker 1: doesn't mean that they're automatically going to win, right, So 495 00:27:07,840 --> 00:27:11,040 Speaker 1: if you have a victim coming in and they're only 496 00:27:11,080 --> 00:27:15,640 Speaker 1: evidence is essentially their testimony and their statement of what happens, 497 00:27:16,000 --> 00:27:18,240 Speaker 1: it may seem like it's unfair to the company that 498 00:27:18,320 --> 00:27:20,520 Speaker 1: has been too but it also may make it fairly 499 00:27:20,560 --> 00:27:22,679 Speaker 1: easy for that company to win the case and just 500 00:27:22,720 --> 00:27:25,240 Speaker 1: say I'm sorry, but you don't have any evidence here. 501 00:27:25,560 --> 00:27:27,000 Speaker 1: But I think what we'll see is a lot of 502 00:27:27,000 --> 00:27:31,160 Speaker 1: these cases do have some additional evidence where you might 503 00:27:31,240 --> 00:27:34,560 Speaker 1: have witnesses who have victims confided in at the time, 504 00:27:34,840 --> 00:27:37,320 Speaker 1: who could testify about what they were told at the time, 505 00:27:37,480 --> 00:27:42,000 Speaker 1: could have a document um internal corporate documents or employment 506 00:27:42,040 --> 00:27:45,520 Speaker 1: records that placed the plaintiffs and they accused of user 507 00:27:45,560 --> 00:27:47,560 Speaker 1: in the same place at the same time. And you 508 00:27:47,600 --> 00:27:49,879 Speaker 1: may also be able to show a pattern of conduct 509 00:27:50,080 --> 00:27:53,560 Speaker 1: by interviewing other victims. So there's a lot of different 510 00:27:53,560 --> 00:27:55,720 Speaker 1: ways that the planets are going to make their case here. 511 00:27:55,760 --> 00:27:57,520 Speaker 1: But as you say that, some of these claims are 512 00:27:57,520 --> 00:27:59,960 Speaker 1: going to be very old, and it doesn't automatically mean 513 00:28:00,040 --> 00:28:02,240 Speaker 1: the jury is going to accept them. As you said, 514 00:28:02,240 --> 00:28:04,960 Speaker 1: you talked to a lot of lawyers, and one told 515 00:28:04,960 --> 00:28:08,760 Speaker 1: you that plaintiff lawyers best chance is before they even 516 00:28:08,840 --> 00:28:11,760 Speaker 1: file the suit. That's right. That's why I see as 517 00:28:11,760 --> 00:28:14,119 Speaker 1: the lawyers I suppose to said that what we end 518 00:28:14,200 --> 00:28:16,840 Speaker 1: up seeing in court, actual lawsuits that are filed are 519 00:28:16,880 --> 00:28:18,680 Speaker 1: really just going to be the tip of the iceberg, 520 00:28:19,240 --> 00:28:21,280 Speaker 1: and that a lot of these claims are and are 521 00:28:21,320 --> 00:28:24,760 Speaker 1: going to be resolved before anything becomes public, and that 522 00:28:25,359 --> 00:28:27,760 Speaker 1: as these plaintiff lawyers know, you know, some of these 523 00:28:27,800 --> 00:28:30,720 Speaker 1: claims may be so serious that a company will simply 524 00:28:30,760 --> 00:28:33,680 Speaker 1: want to settle them just to keep them from becoming 525 00:28:33,680 --> 00:28:36,240 Speaker 1: public that they can use that as part of their 526 00:28:36,359 --> 00:28:40,480 Speaker 1: settlement strategy. So I'm not sure if that increases the 527 00:28:40,480 --> 00:28:42,760 Speaker 1: amount of money that they get paid or whatnot. I'm 528 00:28:42,760 --> 00:28:44,800 Speaker 1: sure that every settlement is going to be handled a 529 00:28:44,840 --> 00:28:48,880 Speaker 1: little bit differently, but clearly the reputational damage is potentially 530 00:28:48,920 --> 00:28:51,400 Speaker 1: significant for some of these employers, as you can imagine. 531 00:28:51,720 --> 00:28:55,800 Speaker 1: Are there any estimates of how many lawsuits might be filed? 532 00:28:56,440 --> 00:28:59,600 Speaker 1: You know, nobody really knows for sure, and because so 533 00:28:59,600 --> 00:29:02,640 Speaker 1: many of the claims could be out of court, we 534 00:29:02,720 --> 00:29:05,280 Speaker 1: might not hear about. But one lawyer at least pointed 535 00:29:05,360 --> 00:29:08,960 Speaker 1: to the child victims ask that I mentioned earlier and 536 00:29:09,040 --> 00:29:11,840 Speaker 1: said that in their estimation, there has been tens of 537 00:29:11,880 --> 00:29:15,680 Speaker 1: thousands of lawsuits resulting in hundreds of millions of dollars 538 00:29:15,680 --> 00:29:19,520 Speaker 1: in settlements and damages awards. So you could easily see 539 00:29:19,560 --> 00:29:21,760 Speaker 1: something like that happening here. I mean, as we know 540 00:29:21,960 --> 00:29:25,200 Speaker 1: this conduct is real, and you can't say in specific 541 00:29:25,200 --> 00:29:27,760 Speaker 1: case whether it's real or not because we haven't seen 542 00:29:27,800 --> 00:29:29,640 Speaker 1: them all yet, but we do know that this conduct 543 00:29:29,680 --> 00:29:31,640 Speaker 1: did occur, and we do know I think it's pretty 544 00:29:31,640 --> 00:29:34,520 Speaker 1: well established that a lot of employers and industries did 545 00:29:34,560 --> 00:29:37,520 Speaker 1: turn a blind eye to the conduct for a long time, 546 00:29:37,720 --> 00:29:40,440 Speaker 1: which is exactly why the these two movements was such 547 00:29:40,480 --> 00:29:44,200 Speaker 1: a watershed moment. So it is more likely now, as 548 00:29:44,240 --> 00:29:47,200 Speaker 1: some of these lawyers said, that juries are going to 549 00:29:47,280 --> 00:29:50,680 Speaker 1: take these claims more seriously, just because people seem to 550 00:29:50,680 --> 00:29:53,000 Speaker 1: be looking at these allegations in a different way now. 551 00:29:53,280 --> 00:29:57,360 Speaker 1: So that's another potential benefit here for plainest lawyers. And 552 00:29:57,400 --> 00:29:59,720 Speaker 1: I should also point out that yes, their lawyers and 553 00:30:00,000 --> 00:30:01,760 Speaker 1: and they do stand to make quite a bit of 554 00:30:01,960 --> 00:30:05,600 Speaker 1: money from these claims, but they also some of these lawyers, 555 00:30:05,600 --> 00:30:07,800 Speaker 1: they've been working on these types of cases for years, 556 00:30:07,800 --> 00:30:10,520 Speaker 1: since long before this law was around. So this is 557 00:30:10,560 --> 00:30:12,320 Speaker 1: also something that a lot of some of these lawyers 558 00:30:12,400 --> 00:30:15,520 Speaker 1: really deeply believe in and have a sense of justice around. 559 00:30:15,720 --> 00:30:18,040 Speaker 1: So that's another element to it too. There's a very 560 00:30:18,120 --> 00:30:20,560 Speaker 1: human element to this, and it it isn't just all 561 00:30:20,600 --> 00:30:23,640 Speaker 1: about the money. You spoke to a former prosecute who 562 00:30:23,760 --> 00:30:28,560 Speaker 1: said that Wall Street employers are especially at risk. Yeah, 563 00:30:28,800 --> 00:30:31,760 Speaker 1: you know, and I wasn't too surprised to hear that, 564 00:30:31,960 --> 00:30:34,920 Speaker 1: because as all the lawyers point out, and as you noted, 565 00:30:35,480 --> 00:30:38,600 Speaker 1: there is a lot of money involved here, and not 566 00:30:38,720 --> 00:30:40,920 Speaker 1: all of these claims are going to be taken on 567 00:30:41,000 --> 00:30:44,240 Speaker 1: by plainest lawyers simply because there may not be a 568 00:30:44,280 --> 00:30:46,840 Speaker 1: big enough financial payout at the end to make it 569 00:30:46,840 --> 00:30:50,800 Speaker 1: worth anyone's time and energy. So when you're looking at 570 00:30:50,840 --> 00:30:53,560 Speaker 1: companies with the deep pockets that are based in New York, 571 00:30:53,680 --> 00:30:56,560 Speaker 1: you know, financial institutions just to do come to mind. 572 00:30:57,000 --> 00:30:59,920 Speaker 1: And uh, you know, we know from past litigation and 573 00:31:00,240 --> 00:31:03,560 Speaker 1: testimonials that this kind of conduct was rampant in the 574 00:31:03,600 --> 00:31:06,720 Speaker 1: industry for a long time. And we're talking about something 575 00:31:06,760 --> 00:31:08,800 Speaker 1: that might have happened to a woman in you know, 576 00:31:08,840 --> 00:31:12,240 Speaker 1: the eighties or early nineties, something that you know, all 577 00:31:12,320 --> 00:31:14,600 Speaker 1: of that sort of ancient history. But then they now 578 00:31:14,640 --> 00:31:17,240 Speaker 1: have a chance to bring it up here in a lawsuit, 579 00:31:17,800 --> 00:31:20,120 Speaker 1: and they might and they might see it as a 580 00:31:20,120 --> 00:31:22,600 Speaker 1: way to get some financial conversation to make up for 581 00:31:22,680 --> 00:31:26,120 Speaker 1: whatever was that allegedly happened. So the word deep pockets 582 00:31:26,120 --> 00:31:29,240 Speaker 1: did come up a lot in these interviews, and I 583 00:31:29,280 --> 00:31:32,080 Speaker 1: think that they do spect to see lawsuits against Wall 584 00:31:32,080 --> 00:31:36,040 Speaker 1: Street fans speak of deep pockets. I understand suits have 585 00:31:36,080 --> 00:31:40,960 Speaker 1: already been filed against the New York prison system. Yeah, 586 00:31:41,080 --> 00:31:44,160 Speaker 1: you know, that was a really interesting element to its 587 00:31:44,200 --> 00:31:47,520 Speaker 1: whole issue here. When I spoke with a lawyer who 588 00:31:47,600 --> 00:31:51,720 Speaker 1: noted that she had already received hundreds of inquiries from 589 00:31:51,720 --> 00:31:53,480 Speaker 1: clients that you know that she and she was taking 590 00:31:53,520 --> 00:31:56,600 Speaker 1: their cases and had already filed ten suits by the 591 00:31:56,600 --> 00:31:58,400 Speaker 1: time I talked to her, But so that she already 592 00:31:58,480 --> 00:32:01,640 Speaker 1: she had hundreds more kind And the reason that the 593 00:32:01,640 --> 00:32:04,720 Speaker 1: New York prison system or or any prison system is 594 00:32:04,760 --> 00:32:07,360 Speaker 1: so unique of courses you have, for example, you know, 595 00:32:07,520 --> 00:32:10,959 Speaker 1: these women's prisons where according to this lawyer, there's been 596 00:32:10,960 --> 00:32:14,760 Speaker 1: a long history of sexual abuse and rape in the 597 00:32:14,800 --> 00:32:19,600 Speaker 1: prison system, involving the correctional officers and other you know, 598 00:32:19,640 --> 00:32:22,960 Speaker 1: employees at the prison who have this complete control over 599 00:32:23,080 --> 00:32:27,160 Speaker 1: this female population. So according to this lawyer, um, when 600 00:32:27,160 --> 00:32:31,840 Speaker 1: it's similar law like this pass in California recently, it 601 00:32:31,880 --> 00:32:34,800 Speaker 1: didn't totally lift the statute of limitations, that it only 602 00:32:34,840 --> 00:32:37,880 Speaker 1: went back to two thousand nine temporarily. But even in 603 00:32:37,920 --> 00:32:40,280 Speaker 1: that case, she said that she had foilved hundreds you know, 604 00:32:40,320 --> 00:32:43,320 Speaker 1: there were hundreds of claimants for involving the prison systems, 605 00:32:43,640 --> 00:32:46,480 Speaker 1: and so she's expecting that here in New York. And 606 00:32:46,640 --> 00:32:48,160 Speaker 1: you know, she told me some of the stories and 607 00:32:48,160 --> 00:32:50,239 Speaker 1: they were they were pretty awful, some of them, and 608 00:32:50,320 --> 00:32:53,120 Speaker 1: some of the alleged conducts that occurred. So I think 609 00:32:53,160 --> 00:32:56,400 Speaker 1: that's something that will probably see some big lawsuits and 610 00:32:56,520 --> 00:32:59,760 Speaker 1: some big potential damage awards, maybe a trial come out 611 00:32:59,760 --> 00:33:03,200 Speaker 1: of that. And you mentioned a gene Carol. Her case 612 00:33:03,240 --> 00:33:06,440 Speaker 1: has been going on it seems like forever. So now 613 00:33:06,480 --> 00:33:09,440 Speaker 1: she suited under this law. But tell us what's happening 614 00:33:09,800 --> 00:33:12,200 Speaker 1: with the rest of her case. I mean part of 615 00:33:12,240 --> 00:33:15,600 Speaker 1: it is now in d C. Yeah, that's right. This 616 00:33:15,880 --> 00:33:18,920 Speaker 1: law really, you know, I guess the simple way of 617 00:33:18,960 --> 00:33:22,200 Speaker 1: looking at it is this, if she loses her defamation 618 00:33:22,360 --> 00:33:25,680 Speaker 1: case for whatever reason, if it gets dismissed, she will 619 00:33:25,720 --> 00:33:29,280 Speaker 1: still have this case now to go forward on because 620 00:33:29,560 --> 00:33:33,120 Speaker 1: her new lawsuit alleged battery. So the specific facts are 621 00:33:33,160 --> 00:33:36,480 Speaker 1: around the alleged rate, whereas the earlier case that we've 622 00:33:36,520 --> 00:33:38,920 Speaker 1: been talking about for so long is the defamation suit 623 00:33:39,000 --> 00:33:42,000 Speaker 1: related to the best same alleged rates. So you know, 624 00:33:42,120 --> 00:33:44,920 Speaker 1: right now next month in the DC Court of Appeals 625 00:33:45,000 --> 00:33:48,040 Speaker 1: is going to hear arguments. The DC local courts or 626 00:33:48,080 --> 00:33:51,560 Speaker 1: highest appeals court is going to determine whether or not 627 00:33:51,680 --> 00:33:56,000 Speaker 1: Donald Trump's alleged defamation the words that he said about 628 00:33:56,040 --> 00:33:59,000 Speaker 1: eating Carroll back and she dousand nineteen qualified as an 629 00:33:59,040 --> 00:34:02,240 Speaker 1: employment do Essentially, it's come down to a matter of 630 00:34:02,320 --> 00:34:07,280 Speaker 1: DC employment law. So if Eging Carroll prevails improved that 631 00:34:07,640 --> 00:34:10,720 Speaker 1: his comments about her did not qualify as an official duty, 632 00:34:11,320 --> 00:34:14,399 Speaker 1: then the case will get kicked back to federal court 633 00:34:14,440 --> 00:34:17,279 Speaker 1: in New York where it's been for a while, and 634 00:34:17,320 --> 00:34:22,040 Speaker 1: it will go to trial in April. And despite this 635 00:34:22,360 --> 00:34:26,840 Speaker 1: litigation over the litigation, Donald Trump did give a deposition 636 00:34:26,840 --> 00:34:29,560 Speaker 1: in that case. He did, He did fit for a 637 00:34:29,640 --> 00:34:33,360 Speaker 1: deposition and according to his lawyer, answered all the questions 638 00:34:33,440 --> 00:34:35,480 Speaker 1: of her asked of him. As she put it, he 639 00:34:35,560 --> 00:34:38,160 Speaker 1: set the record straight. You know, a lot of people 640 00:34:38,200 --> 00:34:42,759 Speaker 1: were deposed in that case, including Eging Carroll, and so 641 00:34:43,360 --> 00:34:46,000 Speaker 1: we don't know what exactly was asked or said in 642 00:34:46,040 --> 00:34:48,879 Speaker 1: those but that's potentially some of those details could come 643 00:34:48,880 --> 00:34:52,360 Speaker 1: out at trial. Thanks so much, Eric. That's Eric Lawson, 644 00:34:52,400 --> 00:34:55,160 Speaker 1: Bloomberg Legal Reporter, and that's it for this edition of 645 00:34:55,200 --> 00:34:57,880 Speaker 1: The Bloomberg Law Show. Remember you can always get the 646 00:34:57,920 --> 00:35:01,399 Speaker 1: latest legal news honor Bloomberg Law Podcast. You can find 647 00:35:01,400 --> 00:35:06,000 Speaker 1: them on Apple Podcasts, Spotify, and at www dot Bloomberg 648 00:35:06,040 --> 00:35:09,839 Speaker 1: dot com, Slash podcast Slash Law, and remember to tune 649 00:35:09,840 --> 00:35:12,640 Speaker 1: into the Bloomberg Law Show every week night at ten 650 00:35:12,760 --> 00:35:16,520 Speaker 1: BM Wall Street Time. I'm June Grosso and you're listening 651 00:35:16,600 --> 00:35:17,279 Speaker 1: to Bloomberg