WEBVTT - Michael Jordan's Racing Team Sues NASCAR 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:11.720 --> 0:00:15.239 NASCAR is one of the most popular spectator sports in 0:00:15.280 --> 0:00:20.480 the country, but unlike other major professional sports leagues, NASCAR 0:00:20.720 --> 0:00:24.360 is owned privately by the France family, and now two 0:00:24.520 --> 0:00:27.600 racing teams are suing the Stock Car Series and its 0:00:27.720 --> 0:00:32.199 chairman for anti trumpt violations, saying it exploited its position 0:00:32.600 --> 0:00:37.199 to extract monopoly profits. Leading the way is NBA legend 0:00:37.240 --> 0:00:40.400 Michael Jordan, a co owner of one of those teams. 0:00:40.760 --> 0:00:43.320 He told Fox Sports that it hasn't been a fair 0:00:43.440 --> 0:00:45.360 playing field. 0:00:45.000 --> 0:00:47.000 So the smaller teams as well. It's not just me, 0:00:47.159 --> 0:00:49.639 I mean, obviously, I think everybody can. I have an 0:00:49.640 --> 0:00:50.280 opportunity to be. 0:00:50.360 --> 0:00:54.040 To chessco in any business that my voice is saying 0:00:54.080 --> 0:00:56.360 that it hadn't been what they hadn't been happening. 0:00:56.640 --> 0:00:59.480 Joining me is Anti Truss law expert Harry First, a 0:00:59.520 --> 0:01:03.400 professor YU Law School. Harry tell us about this lawsuit, 0:01:04.120 --> 0:01:05.000 NASCAR is a. 0:01:04.920 --> 0:01:07.960 Little odd for a sports league. It's organized a little differently. 0:01:08.280 --> 0:01:12.240 Most sports leagues are owned by sort of the participants, 0:01:12.280 --> 0:01:15.600 like the National Football League owns the league. The people 0:01:15.600 --> 0:01:19.920 who own the clubs the teams. The NCAA is run 0:01:19.959 --> 0:01:24.240 by the universities, and the NBA is that's run by 0:01:24.240 --> 0:01:28.160 the teams. The PGA about which we've talked the golfers 0:01:28.280 --> 0:01:32.959 are supposedly running the PGA. But here NASCAR, the stock 0:01:33.080 --> 0:01:35.839 car racing, the circuit or the league in a way, 0:01:36.280 --> 0:01:40.480 is run by apparently one family, this France family, who 0:01:40.680 --> 0:01:46.760 puts together the racing circuit that NASCAR team owners drive on. 0:01:47.000 --> 0:01:49.680 And they're sort of at the mercy, or so they 0:01:49.720 --> 0:01:53.360 say in their complaint of NASCAR of how they run 0:01:53.400 --> 0:01:57.960 the business and critically for them, how they split the money, 0:01:58.040 --> 0:02:01.520 because the money, of course is in the broadcast rights. 0:02:02.080 --> 0:02:05.040 So there's been a lot of back and forth apparently 0:02:05.160 --> 0:02:09.359 between the race car owners and the France family a 0:02:09.520 --> 0:02:14.399 NASCAR about what the deal is going to be and renegotiations, 0:02:14.680 --> 0:02:17.920 and recently the France family has sort of turned the 0:02:17.960 --> 0:02:22.320 screws a little bit and made the next deal less attractive. 0:02:22.720 --> 0:02:27.120 According to the complaint, the race car owners are barely 0:02:27.240 --> 0:02:30.680 scraping by, hopefully not on the track scraping by, but 0:02:30.760 --> 0:02:34.920 financially scraping by. Now Michael Jordan comes along and he 0:02:35.160 --> 0:02:38.240 decides that he's sort of going to lead the charge 0:02:38.400 --> 0:02:44.040 in not bowing to what the owner of NASCAR, France wants, 0:02:44.600 --> 0:02:48.120 and instead is going to file this any trust suit 0:02:48.320 --> 0:02:52.600 represented by a very good sports any trust lawyer. The 0:02:52.600 --> 0:02:54.880 basic idea is they look at a number of the 0:02:54.919 --> 0:02:59.320 contracts that NASCAR has entered into and look at its 0:02:59.360 --> 0:03:04.280 acquisitions of the racing circuit of other tracks and say, hey, look, 0:03:04.320 --> 0:03:09.360 you're excluding competitors, you're fencing out others. You control this 0:03:09.520 --> 0:03:13.519 sport and you are sort of taking all the money 0:03:13.520 --> 0:03:17.080 for yourself. The great line is the France family and 0:03:17.240 --> 0:03:19.600 NASCAR are monopolistic, bully. 0:03:20.200 --> 0:03:23.000 That was a good line. So there's a noncompete. The 0:03:23.040 --> 0:03:26.919 teams have to agree not to race in any other circuits. 0:03:26.919 --> 0:03:31.120 They have to buy their supplies and whatnot from NASCAR 0:03:31.160 --> 0:03:36.000 approved dealers. And you mentioned the hardball tactics. NASCAR sent 0:03:36.120 --> 0:03:39.880 a final take it or leave it charter in the 0:03:39.960 --> 0:03:44.040 late afternoon early evening of September sixth, and the teams 0:03:44.080 --> 0:03:47.280 were given until midnight to sign it, under the threat 0:03:47.360 --> 0:03:51.119 that they would eliminate the charter system if a substantial 0:03:51.240 --> 0:03:54.680 number of teams didn't sign. Several of the teams described 0:03:54.720 --> 0:03:58.320 the signing as coerced it doesn't sound good. 0:04:00.120 --> 0:04:03.000 That's a good way of putting it. Sounds like strong 0:04:03.120 --> 0:04:05.400 arm tactics. The question is whether it sounds like an 0:04:05.440 --> 0:04:08.480 anti trust case. And that's going to be the plaints 0:04:08.520 --> 0:04:12.600 burden a little bit. And you know, bullying is bullying, 0:04:12.640 --> 0:04:15.120 and we don't like bullies. But the anti trust laws 0:04:15.160 --> 0:04:19.520 actually don't protect companies necessarily from bullying. What they want 0:04:19.720 --> 0:04:24.440 is competition in the marketplace that helps consumers. So whether 0:04:25.160 --> 0:04:28.360 NASCAR really has a monopoly is not so clear from 0:04:28.400 --> 0:04:32.120 the complaint. They sort of skirt around it in a way. 0:04:32.240 --> 0:04:36.159 No market share figures. What do they compete with Formula 0:04:36.200 --> 0:04:38.560 one racing? I have no idea what these things are exactly, 0:04:38.920 --> 0:04:42.320 but you know, what's their competitors? Do they really have 0:04:42.440 --> 0:04:46.280 monopoly power? If they don't, the case dissolves, you know, 0:04:46.640 --> 0:04:49.400 I mean, why don't these drivers go to some other circuit? 0:04:49.440 --> 0:04:52.000 Why do they Why are they so stuck with NASCAR? 0:04:52.400 --> 0:04:54.800 It's not so clear. It's not so clear to me 0:04:55.040 --> 0:04:59.080 why the race car owners are allowed to negotiate together 0:05:00.040 --> 0:05:03.760 against the owner of the circuit, because, in a sense, 0:05:03.800 --> 0:05:07.560 they are selling their services. Normally, we don't allow firms 0:05:07.600 --> 0:05:11.040 that are selling their services to negotiate together. They're forming 0:05:11.040 --> 0:05:15.080 a league, of course, so there are anti trust complexities 0:05:15.240 --> 0:05:18.000 that have yet to be surmounted. There's not a lot 0:05:18.040 --> 0:05:21.640 of detail about who the other competitors might be, so 0:05:21.800 --> 0:05:24.000 maybe there aren't, but they're still going to have to 0:05:24.040 --> 0:05:27.400 prove things, and you know, there needs to be a 0:05:27.440 --> 0:05:31.440 little more fleshed out about what the competition is exactly. 0:05:31.920 --> 0:05:34.320 But if they are monopoly, some of the things that 0:05:34.760 --> 0:05:38.600 they've allegedly done do sound like the things that courts 0:05:38.600 --> 0:05:44.520 have been condemning recently from monopoly firms, like exclusionary contracts, exclusives, 0:05:44.560 --> 0:05:46.680 you can only deal with me, not with others, And 0:05:46.720 --> 0:05:49.680 this is a problem in the golfing case as well. 0:05:50.200 --> 0:05:53.440 So you know, that could be a problem for NASCAR 0:05:53.720 --> 0:05:54.480 in the litigation. 0:05:55.279 --> 0:05:59.120 As far as a preliminary injunction where the standards are 0:05:59.320 --> 0:06:01.960 pretty high, do you think that they'll be able to 0:06:01.960 --> 0:06:03.120 get a preliminary injunction? 0:06:04.080 --> 0:06:07.120 Well, so we haven't seen the answer to the complaint yet, 0:06:07.680 --> 0:06:10.880 so you know, I don't know. It has to be 0:06:10.880 --> 0:06:14.400 in the public interest. My instinct is something's going to 0:06:14.440 --> 0:06:16.839 be worked out with the parties. You know, they're not 0:06:16.880 --> 0:06:20.120 going to throw everyone out of NASCAR. Something will get 0:06:20.160 --> 0:06:23.960 worked out in some way so that the case can 0:06:24.040 --> 0:06:27.160 move on and the business can move on, because that's 0:06:27.160 --> 0:06:31.839 in everyone's interest. They've interestingly sued the head of NASCAR 0:06:32.000 --> 0:06:35.760 as well personally, so I don't know, you know, they 0:06:35.760 --> 0:06:37.960 have to prove a likelihood of success and they have 0:06:38.040 --> 0:06:40.320 to prove that, you know, an injunction is in the 0:06:40.360 --> 0:06:43.520 public interest, So hard to say exactly whether they're really 0:06:43.560 --> 0:06:46.760 going to be able to succeed with that at this point. 0:06:46.839 --> 0:06:50.559 Can they get discovery before emotion to dismiss. 0:06:50.200 --> 0:06:52.960 So judges don't have a bit of discretion on this. 0:06:53.360 --> 0:06:57.039 The complaint will survive emotion to dismiss, and the motion 0:06:57.160 --> 0:07:00.000 to dismiss is just on the face of the complaint, 0:07:00.120 --> 0:07:03.840 so in some sense they don't need discovery to get 0:07:03.880 --> 0:07:07.520 past that hurdle. Of course, it's sometimes put off the 0:07:07.560 --> 0:07:11.160 emotion to dismiss and allow some degree of discovery, or 0:07:11.160 --> 0:07:14.320 allow full discovery. There's a lot of sort of play 0:07:14.320 --> 0:07:18.480 in the system. My guess is they'll survive emotion dismissed, 0:07:18.520 --> 0:07:22.400 but in part depends on how NASCAR wants to respond 0:07:22.440 --> 0:07:24.680 to this, and they may say they have no standing 0:07:24.720 --> 0:07:28.080 to sue for damages because the injury is the competition, 0:07:28.240 --> 0:07:31.800 not competitors, And they're just complaining that, you know, they 0:07:31.880 --> 0:07:34.800 want a different cut of the monopoly profits, not that 0:07:34.840 --> 0:07:38.760 they really want competition in Stockhart racing. Maybe they're going 0:07:38.840 --> 0:07:41.840 to you know, ring that bell to try to stop 0:07:41.880 --> 0:07:43.240 obligation because you. 0:07:43.280 --> 0:07:47.280 Never know what you find in discovery. Well, you never 0:07:47.320 --> 0:07:49.440 know about that email that shouldn't have been sent. 0:07:50.200 --> 0:07:53.600 No, you do know you'll find something. You'll find the 0:07:53.680 --> 0:07:57.160 email that looks bad. It's lurking somewhere in all those 0:07:57.240 --> 0:08:02.160 gigabytes or terabytes of data that everyone has. So yes, 0:08:02.640 --> 0:08:08.120 discovery is something that's expensive and defenders would rather not 0:08:08.280 --> 0:08:11.080 have happened because at this point they might not know 0:08:11.120 --> 0:08:12.200 what's in their own file. 0:08:13.120 --> 0:08:17.119 NASCAR has faced two anti trust actions over the last 0:08:17.120 --> 0:08:21.400 twenty five years, but those came from race tracks that 0:08:21.480 --> 0:08:25.520 wanted cup races. NASCAR one one and settled the other. 0:08:26.000 --> 0:08:29.640 Well, I mean, usually the owner of a circuit has 0:08:29.680 --> 0:08:33.560 a lot of discretion in deciding how it's going to 0:08:34.000 --> 0:08:36.600 allocate games and so forth. The NFL has been through 0:08:36.640 --> 0:08:39.360 this a lot as well. And you know, if you're 0:08:39.360 --> 0:08:41.800 going to run a circuit, run a league, any of 0:08:41.840 --> 0:08:47.720 these things, you're balancing the number of races against you know, 0:08:47.800 --> 0:08:50.920 too much, too few, and that's generally in the circuit's 0:08:50.960 --> 0:08:53.480 interest and they need to figure that out. So there's 0:08:53.559 --> 0:08:55.959 usual a lot of discretion with that, and unless they're 0:08:56.000 --> 0:08:59.439 trying to exclude where it gets touchiers, if they're trying 0:08:59.440 --> 0:09:04.320 to exclud some potential competitor, and that's what this case 0:09:04.360 --> 0:09:07.760 seems to have over those other cases where the argument 0:09:07.960 --> 0:09:11.840 is that they acquired a circuit much like Facebook acquired 0:09:11.880 --> 0:09:16.560 WhatsApp or Instagram to suppress the competitor. So that's a 0:09:16.640 --> 0:09:18.600 different competition story. 0:09:19.840 --> 0:09:23.360 Let's move from race cars to handbags. This is an 0:09:23.400 --> 0:09:26.400 area I do have some expertise in. Is this, I 0:09:26.440 --> 0:09:31.839 guess the first foray of the FTC into fashion. It's 0:09:31.880 --> 0:09:35.720 suing to stop the eight point five billion dollar deal 0:09:36.440 --> 0:09:39.480 to marry the Coach and Kate Spade brands with Versace 0:09:39.720 --> 0:09:42.920 and Michael Core's, and the battle is over whether the 0:09:43.000 --> 0:09:49.520 deal would suppress competition in the category of accessible luxury handbags. 0:09:49.840 --> 0:09:52.320 What is that? I mean, it seems made up. 0:09:52.960 --> 0:09:56.080 My innits reaction is, of course it's made up. Market 0:09:56.080 --> 0:09:59.080 definitions are often made up in a sense, you know, 0:09:59.520 --> 0:10:05.360 luxury fountain pens, premium ice, cream cases abound with those 0:10:05.480 --> 0:10:08.120 kind of market definitions. I do want to back you 0:10:08.200 --> 0:10:11.120 up for one second. Of very famous anti trust case 0:10:11.160 --> 0:10:14.439 from the thirties was brought by the Federal Trade Commission 0:10:14.520 --> 0:10:20.079 against the Fashion Originator's Guild of America, which was suppressing 0:10:20.520 --> 0:10:25.400 knockoffs on Seventh Avenue by you know, companies that would 0:10:25.679 --> 0:10:28.880 get the high fashion stuff and quickly turn out knockoffs 0:10:28.880 --> 0:10:32.520 that looked alike. So the fashion industry wanted to stop that, 0:10:33.040 --> 0:10:36.000 and the Federal Trade Commission stopped them from doing it. 0:10:36.440 --> 0:10:41.040 So not the first time, Just to give a little history, 0:10:41.640 --> 0:10:44.319 It's not often perhaps, but this is an eight and 0:10:44.360 --> 0:10:46.800 a half billion dollar acquisition, so there are a few 0:10:46.880 --> 0:10:50.400 zeros attached to it. Now, your question is does this 0:10:50.520 --> 0:10:54.360 make sense as a market And you know, key to 0:10:54.440 --> 0:10:56.840 all of this and mentioned this with you know, stock 0:10:56.880 --> 0:11:01.840 car racing is assessing what the universe competitors might be, 0:11:02.280 --> 0:11:05.120 or as you know, we call it market definition. So 0:11:05.480 --> 0:11:08.160 that's the start of every anti trust case. Not necessarily 0:11:08.200 --> 0:11:12.920 the finish. Current law gives some latitudes. Even though you know, 0:11:12.960 --> 0:11:16.000 a handbag's a handbag and a lot of things can 0:11:16.120 --> 0:11:20.200 serve the same function. Current law gives the plaintiffs a 0:11:20.320 --> 0:11:24.520 chance to look at how consumers actually behave patterns of trade, 0:11:24.559 --> 0:11:27.319 the way things are recognized. The Wall Street Journal actually 0:11:27.400 --> 0:11:30.200 ran a story sort of as the Commission is considering 0:11:30.240 --> 0:11:34.040 this case, where they use this category of accessible luxury. 0:11:34.320 --> 0:11:38.800 So the industry seems to recognize this. That's the first thing. Yes, 0:11:38.840 --> 0:11:42.000 it seems a little cooked, and that's always a danger 0:11:42.040 --> 0:11:45.640 in anti trust cases, but it may be backed up 0:11:45.679 --> 0:11:51.280 with how the parties themselves the market, and more importantly 0:11:51.320 --> 0:11:54.559 in this case, I think who the parties themselves saw 0:11:54.679 --> 0:11:59.080 as their close competitors, because that's really the key to 0:11:59.120 --> 0:12:02.800 the theory of what's going on, and that corps saw 0:12:02.960 --> 0:12:06.920 Coach and Kate Spade and vice versa as close competitors 0:12:07.040 --> 0:12:10.640 and looked at pricing data based on those and paid 0:12:10.679 --> 0:12:14.800 a lot of attention to that to those as competitors. Obviously, 0:12:14.840 --> 0:12:17.920 there are lots of handbags and you know, lots of sellers. 0:12:18.200 --> 0:12:20.680 But if they paid close attention to those, and it's 0:12:20.720 --> 0:12:24.319 backed up by data that consumers see them as pretty 0:12:24.320 --> 0:12:28.520 close by, or you know, they consider one or the other, 0:12:29.120 --> 0:12:33.240 that will probably be enough for the Federal Trade Commission's case. 0:12:33.440 --> 0:12:35.880 You know, the first leg of showing that the effect 0:12:35.920 --> 0:12:38.480 of the merger may be the less competition. 0:12:39.040 --> 0:12:41.920 All right, coming up next, I'll continue this conversation with 0:12:42.400 --> 0:12:45.559 NYU Law professor Harry First and we'll talk more about 0:12:45.559 --> 0:12:49.679 this handbag deal. You're listening to Bloomberg. I've been talking 0:12:49.679 --> 0:12:53.080 to anti trust law professor Harry First of NYU Law 0:12:53.080 --> 0:12:57.960 School about the FTC trying to block tapestries eight point 0:12:58.000 --> 0:13:02.120 five billion dollar acquisition of Capri Holdings, saying the deal 0:13:02.160 --> 0:13:06.079 would eliminate head to head competition between the fashion companies 0:13:06.160 --> 0:13:09.600 brands like Coach and Michael Core's in the so called 0:13:09.760 --> 0:13:14.400 affordable luxury handbag market. It seems like there's a lot 0:13:14.440 --> 0:13:17.960 of competition in the handbag market, and it's a market 0:13:18.000 --> 0:13:19.280 that's easy to enter. 0:13:19.840 --> 0:13:23.000 Yeah, And in that Wall Street Journal article, they said 0:13:23.160 --> 0:13:25.880 a search of Macy's website for bags price from one 0:13:25.920 --> 0:13:28.480 hundred to five hundred dollars yields results for more than 0:13:28.559 --> 0:13:31.679 seventy brands. So that sounds like a lot of competition. 0:13:32.000 --> 0:13:35.600 And you're right that this is going to be the argument. 0:13:35.640 --> 0:13:37.679 On the other hand, I'll put it back to you. 0:13:37.760 --> 0:13:43.520 Apparently the defend economic experts testify that people who buy 0:13:43.559 --> 0:13:47.720 Coach would consider Prada and Burbery. Now is that true? 0:13:47.760 --> 0:13:51.320 Isn't it true? I don't know personally, But the question 0:13:51.640 --> 0:13:54.480 again in the end is, you know not is there 0:13:54.520 --> 0:13:58.480 a whole universe? But if Cores raises its price by 0:13:58.520 --> 0:14:02.400 a little, what brand will consumers switch to? And if 0:14:02.440 --> 0:14:07.120 a lot of consumers switch to either Coach or Kate Spade, 0:14:08.200 --> 0:14:11.240 this means I think the FDC is going to argue, 0:14:11.679 --> 0:14:15.320 this means that by having all three brands, they could 0:14:15.559 --> 0:14:19.920 raise the corese price a bit and what they used 0:14:19.960 --> 0:14:23.480 to lose because these were separate companies in terms of business, 0:14:23.920 --> 0:14:27.840 they'll retain because people will now switch to Coach or 0:14:27.920 --> 0:14:31.200 Kate Spade. So this would give them the ability to 0:14:31.320 --> 0:14:35.040 raise price on these bags in a way that they 0:14:35.080 --> 0:14:38.440 couldn't before. And I think that's going to be a 0:14:38.560 --> 0:14:43.080 key to the government's complaint, is that by putting the 0:14:43.080 --> 0:14:46.760 brands together, they'll do things that they couldn't do if 0:14:46.800 --> 0:14:48.640 the brands were competing. 0:14:49.120 --> 0:14:53.200 The FDC says that working in middle class women will 0:14:53.240 --> 0:14:56.640 suffer harm if the acquisition goes through. I mean, is 0:14:56.640 --> 0:14:58.640 it really harm if you don't get to buy one 0:14:58.680 --> 0:15:01.000 handbag as opposed to the other. I mean, it's not 0:15:01.080 --> 0:15:01.920 like groceries. 0:15:02.760 --> 0:15:05.000 Well, yeah, I wish I could parry that by saying, 0:15:05.280 --> 0:15:08.600 excuse me, this bag is important. Well, the harm that 0:15:08.640 --> 0:15:10.320 they're saying is is not that they won't be able 0:15:10.360 --> 0:15:12.680 to buy the bag. So one of the stories is 0:15:12.720 --> 0:15:17.000 that Cores has been suffering because they've had to discount 0:15:17.640 --> 0:15:21.160 some suffering. Cores may be suffering, but consumers are, like 0:15:21.240 --> 0:15:25.600 Corps bags, presumably are pleased with this. Now is the 0:15:25.640 --> 0:15:30.720 merger supposed to end that suffering by how by allowing 0:15:30.800 --> 0:15:35.640 Cores to raise its price? So what will buyers of 0:15:36.280 --> 0:15:40.120 Cores bags then do? Will they be harmed? Well, maybe 0:15:40.120 --> 0:15:42.800 some of them just won't buy handbag. I guess not. 0:15:43.160 --> 0:15:45.560 But maybe some of them will pay the higher price, 0:15:45.720 --> 0:15:48.240 or maybe some of them will say, now step up 0:15:48.280 --> 0:15:51.240 to that Kate Spade that I wouldn't have before. So 0:15:51.600 --> 0:15:55.960 they're now spending more So from the point of view 0:15:56.000 --> 0:15:59.680 of the company, they keep the sale, and consumers now 0:16:00.160 --> 0:16:02.520 instead of being able to pay a lower price for 0:16:02.600 --> 0:16:05.040 the Cores one have to pay either pay a higher 0:16:05.080 --> 0:16:09.640 price or switch to something they would not have bought before. So, 0:16:10.320 --> 0:16:12.720 you know, are they harmed in a way that we 0:16:12.880 --> 0:16:15.960 think of for consumer welfare? The answer would be yes, 0:16:16.680 --> 0:16:19.400 you know, they would be better off with competition between 0:16:19.440 --> 0:16:22.080 the brands, and in fact, that's what the Supreme Court 0:16:22.120 --> 0:16:25.680 has emphasized. Inter brand competition is supposed to be a 0:16:25.800 --> 0:16:30.280 key thing, and you know, now Tapestry says, well. 0:16:30.000 --> 0:16:30.640 Not so much. 0:16:30.920 --> 0:16:33.640 The trial's over. The judge is going to rule, we 0:16:33.720 --> 0:16:38.360 expect soon. Would a victory here for the FTC in 0:16:38.400 --> 0:16:41.320 any way expand what the FTC is doing or is 0:16:41.320 --> 0:16:45.000 it just another in a line of cases? 0:16:45.640 --> 0:16:49.880 Well, it's not high tech. It's actually not an unusual 0:16:50.000 --> 0:16:54.200 theory to me. It's it's within what we might call 0:16:54.520 --> 0:17:01.200 conventional analysis in the sense that most merge enforcement has 0:17:01.280 --> 0:17:05.600 been done against horizontal mergers, mergers between competitors. That's what 0:17:06.040 --> 0:17:08.679 this is. I mean, if they win, that's what the 0:17:08.720 --> 0:17:12.560 court's saying, that they were really direct competitors. It uses, 0:17:13.040 --> 0:17:15.720 in a sense, familiar theories the government has been using 0:17:15.760 --> 0:17:18.919 for a decade. Really, you know, nothing new here that 0:17:19.480 --> 0:17:23.000 questions does it apply to these facts? So I don't 0:17:23.040 --> 0:17:26.760 think this is breaking new ground. It's confirming the ground 0:17:26.880 --> 0:17:31.280 that courts have been going on now really consistently with 0:17:31.480 --> 0:17:35.159 the government's cases, which is being willing to look at 0:17:35.200 --> 0:17:38.080 the patterns of trade, look at how people operate, not 0:17:38.240 --> 0:17:43.800 be super reliant on you know, economists and economic models. 0:17:44.200 --> 0:17:47.159 So I think it's that sort of case, not not 0:17:47.400 --> 0:17:49.840 a oh my god, this is something really new. 0:17:50.320 --> 0:17:53.159 I want to turn for a moment to the Google 0:17:53.359 --> 0:17:56.440 anti trust case, which was the biggest anti trust case 0:17:56.480 --> 0:17:59.720 of the summer, perhaps of the year. And the question 0:18:00.080 --> 0:18:04.520 now is what remedies the government is going to ask for. 0:18:05.280 --> 0:18:07.680 I have to say, I don't know what the government's 0:18:07.720 --> 0:18:11.320 going to ask for, and the government is still being 0:18:11.680 --> 0:18:17.080 maybe koi is the word shy. I don't know exactly. 0:18:17.600 --> 0:18:21.399 All the government has filed has been this framework for remedies. 0:18:22.280 --> 0:18:24.480 You know, their shows they're thinking about it, which is 0:18:24.560 --> 0:18:27.080 very nice. They've been litigating this case for four years. 0:18:27.200 --> 0:18:30.000 It's nice that they're now thinking about now that they've 0:18:30.080 --> 0:18:31.880 caught the bus, what do they want to do with it. 0:18:32.280 --> 0:18:33.840 I hope they really have an idea in mind and 0:18:33.880 --> 0:18:36.880 they're not just now trying to figure this out. So 0:18:37.240 --> 0:18:39.040 one of the things that people have been talking about 0:18:39.240 --> 0:18:43.280 is to you know, restructure Google in a way that 0:18:43.320 --> 0:18:46.920 would force them to sell some of their assets, maybe 0:18:46.920 --> 0:18:51.320 get rid of their interests, their their own brand of Android, 0:18:52.359 --> 0:18:57.040 maybe to vest chrome. Maybe there are other things, so 0:18:57.400 --> 0:19:00.280 that is a possibility. The government sort of tea that 0:19:00.560 --> 0:19:06.800 in its papers said it could include these things. Maybe 0:19:06.840 --> 0:19:11.080 Google plays also at the app store, So possible, But 0:19:11.160 --> 0:19:12.760 I don't know whether they'll ask it, and I don't 0:19:12.800 --> 0:19:15.160 know whether the judge would order it even if I asked. 0:19:15.200 --> 0:19:18.119 Why is the government playing coy? What's the point a 0:19:18.160 --> 0:19:18.959 surprise attack? 0:19:20.520 --> 0:19:25.600 I don't know for sure. Sometimes, I mean, one strategy 0:19:25.640 --> 0:19:27.840 is to play close to the vest so that you 0:19:28.600 --> 0:19:32.120 don't really you wait until the last minute to tell 0:19:32.160 --> 0:19:36.800 your opponent exactly what you want. Another thing is the 0:19:36.840 --> 0:19:41.159 government might not want to royal the markets unduly, and 0:19:41.400 --> 0:19:44.800 you know, by indicating it's going to ask for X 0:19:44.840 --> 0:19:48.160 and then maybe not get it, and it affects, you know, markets, 0:19:48.600 --> 0:19:51.040 These are market events, so the governments can be a 0:19:51.080 --> 0:19:54.399 little cautious about that. I have no idea whether you know, 0:19:54.520 --> 0:19:57.240 someone in the Justice Department is thinking about the election 0:19:57.440 --> 0:20:01.080 says let's not put anything crazy out here until after 0:20:01.080 --> 0:20:03.080 the election. I have no idea. So it could be 0:20:03.160 --> 0:20:05.680 any of those things, And it could be that they 0:20:05.720 --> 0:20:10.080 don't know for sure because they're still talking to people 0:20:10.760 --> 0:20:15.040 in the industry and to experts about what might work 0:20:15.480 --> 0:20:19.439 and thinking about what legally they can ask for, So 0:20:20.080 --> 0:20:23.000 all those are possible. I don't have any way really 0:20:23.040 --> 0:20:24.919 of choosing what it might be. 0:20:25.600 --> 0:20:29.719 The Google case was a Justice Department case. The FTC 0:20:30.240 --> 0:20:33.800 and the Justice Department do they divvy up these cases 0:20:33.920 --> 0:20:36.359 where you'll take this, I'll take that. I mean, how 0:20:36.400 --> 0:20:37.760 does it work out in. 0:20:37.680 --> 0:20:41.399 These tech cases. Apparently what they did, and this was 0:20:41.440 --> 0:20:44.840 in the Trump administration, is they did divide them up 0:20:45.040 --> 0:20:50.359 two industries for each, So the FTC got Amazon and 0:20:50.440 --> 0:20:55.520 Facebook and the Justice Department got Google and Apple. They 0:20:55.520 --> 0:20:58.880 don't know how that was done, you know, presumably some 0:20:58.960 --> 0:21:02.360 agreement between maybe the Attorney General, the head of any 0:21:02.359 --> 0:21:06.040 trust division, and the then chair of the Federal Trade Commission. 0:21:06.080 --> 0:21:08.200 So I think that was sort of an ad hoc 0:21:08.440 --> 0:21:12.280 thing that usually the cases go to the agency that 0:21:12.320 --> 0:21:15.480 has had some prior experience with the industry, and these 0:21:15.520 --> 0:21:20.960 fights are generally held in merger cases where notification has 0:21:21.000 --> 0:21:23.800 to be given to both the Justice Department and the 0:21:23.800 --> 0:21:28.040 Federal Trade Commission, and then the two agencies have a 0:21:28.080 --> 0:21:33.400 liaison procedure to decide who gets what, and sometimes they 0:21:33.400 --> 0:21:38.080 get pretty contentious, actually, but these monopolization cases were more 0:21:38.160 --> 0:21:41.560 unusual because the government hadn't really filed a major case 0:21:41.600 --> 0:21:44.000 since Microsoft twenty years before. 0:21:44.320 --> 0:21:47.240 Always a pleasure to have you on Harry. That's NYU 0:21:47.320 --> 0:21:52.119 law professor Harry First. The Supreme Court seems unlikely to 0:21:52.240 --> 0:21:56.360 side with an American citizen challenging the revocation of her 0:21:56.400 --> 0:21:59.879 spouse is visa a visa which was revoked because of 0:21:59.880 --> 0:22:04.120 a sham marriage. Join me is immigration law expert Leon Fresco, 0:22:04.320 --> 0:22:07.160 a partner Holiday Night. Leon tell us what this case 0:22:07.240 --> 0:22:07.679 is about. 0:22:07.880 --> 0:22:10.560 So let's start with the simple facts of the case. 0:22:10.640 --> 0:22:14.359 You have a US citizen here whose name is Amina Buarfa, 0:22:15.080 --> 0:22:17.600 and what she's trying to do is she's trying to 0:22:17.680 --> 0:22:20.359 do what many people, almost a million people a year do, 0:22:21.119 --> 0:22:24.200 and that is to take a foreign national and convert 0:22:24.280 --> 0:22:30.159 their status from either undocumented or some other visa status 0:22:30.200 --> 0:22:34.159 to the status of a lawful permanent resident on the 0:22:34.160 --> 0:22:37.800 basis of a marriage to US citizens. And so this 0:22:37.880 --> 0:22:42.080 person Buarfa marries her husband. That petition is approved. But 0:22:42.119 --> 0:22:44.760 then what happens is as the petition starts to go 0:22:44.880 --> 0:22:48.120 toward the final step of what's called the background check 0:22:48.160 --> 0:22:53.560 approval process, it actually gets revoke because they say that 0:22:53.760 --> 0:22:56.920 the foreign national who is marrying the US citizen here 0:22:57.160 --> 0:23:00.560 had entered into a previous marriage solely to evade the 0:23:00.600 --> 0:23:03.960 immigration laws. So the point was they couldn't be approved 0:23:04.000 --> 0:23:06.600 because then this marriage was not deemed to be a 0:23:06.680 --> 0:23:12.560 valid marriage. Had that been an original decision denying the application, 0:23:13.640 --> 0:23:16.800 that decision could have been reviewed by a federal court. 0:23:17.440 --> 0:23:22.680 But because it was a revocation of an approved decision, 0:23:23.240 --> 0:23:28.600 the question is is that review barred because the ability 0:23:28.720 --> 0:23:34.440 to revoke such a petition is discretionary, and because of that, 0:23:34.480 --> 0:23:37.200 there's all these statutes in the Immigration Code that say 0:23:37.680 --> 0:23:41.760 there's no judicial review of discretionary immigration decisions, which is 0:23:41.800 --> 0:23:44.560 something the Supreme Court over the last two three years 0:23:44.560 --> 0:23:48.840 has really been focusing on and eliminating as much judicial 0:23:48.840 --> 0:23:52.520 review as possible on all of these questions where they're 0:23:52.560 --> 0:23:57.760 starting to dean these things discretionary. And so the incongruency 0:23:57.840 --> 0:24:02.680 year is does Supreme Court want to create this perverse 0:24:02.720 --> 0:24:09.280 incentive where it gives, basically, in difficult cases, the immigration 0:24:09.400 --> 0:24:13.959 authority the ability to avoid review by saying, look, why 0:24:14.000 --> 0:24:16.639 don't we just grant it and then revoke it a 0:24:16.640 --> 0:24:18.600 few days later, and then that way it can't be 0:24:18.680 --> 0:24:21.880 reviewed as opposed to just denying it, and then this 0:24:22.080 --> 0:24:26.480 can get judicial review. And so that's the debate here. 0:24:27.040 --> 0:24:30.640 If someone's accused of a prior sham marriage, would they 0:24:30.720 --> 0:24:34.280 ever be allowed to stay here as a permanent residence. 0:24:34.800 --> 0:24:37.880 Well, so one of the questions was is this really 0:24:37.960 --> 0:24:42.240