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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: The Supreme Court kicks off its new term on Monday.

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Speaker 1: The justices are coming off a blockbuster term with several

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Speaker 1: highly controversial decisions that divided the justices down ideological lines.

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Speaker 1: The Court continues to face criticism and calls for reform

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Speaker 1: after ethical controversies, and public trust in the Court has

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Speaker 1: continued its downward slide to historic lows. Several blockbuster cases

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Speaker 1: involving transgender rights, ghost guns, and online pornography are already

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Speaker 1: scheduled for this term, but it's shaping up to be

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Speaker 1: less contentious than last at least so far. More cases

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Speaker 1: will be added to the docket. Joining me is former

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Speaker 1: United States Solicitor General Gregory Garr, the Global Chair of

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Speaker 1: the Supreme Court in appellate practice at least Nathan and

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Speaker 1: Watkins greg the Supreme Court's coming off this blockbuster term

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Speaker 1: some highly controversial six to three decisions. There are continuing

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Speaker 1: calls for reform. Public trust is on a downward slide

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Speaker 1: to historic lows, and some of the justices themselves have

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Speaker 1: publicly expressed concerns about the court. What's on the line,

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Speaker 1: if anything, for the Court this term.

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Speaker 2: Well, I think a lots on the line. Every year

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Speaker 2: for the Supreme Court is a big year. As you say,

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Speaker 2: there's been some clouds surrounding the Supreme Court recently, and

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Speaker 2: so they've got to go back to work and they've

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Speaker 2: got to, you know, as always, work on building and

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Speaker 2: sustaining the public trust. They've got twenty eight cases so far,

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Speaker 2: which is light as the docket's been in recent terms.

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Speaker 2: But things always heat up in October and we expect

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Speaker 2: that the Court will add to its docket, and for

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Speaker 2: all we know, there could be election related cases down

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Speaker 2: the pipeline as well.

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Speaker 1: Let's take a look at some of the cases that

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Speaker 1: are coming up, starting with a few cases that are

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Speaker 1: going to be argued next week. On Tuesday, the justices,

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Speaker 1: we'll hear arguments in the case of Garland versus Van Derstock,

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Speaker 1: a high profile case involving a challenge to the Biden

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Speaker 1: administration's regulation of ghost guns. Tell us about the issue here.

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Speaker 2: So, the Court has taken a number of gun cases

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Speaker 2: in recent years, and they sort of fall into two dockets.

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Speaker 2: One set of cases involves challenges under the Second Amendment

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Speaker 2: in the individual right to bear firearms and The second

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Speaker 2: involves more traditional administrative law type challenges, where the argument

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Speaker 2: is that an agency has passed a rule involving guns

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Speaker 2: that exceeds its statutory authority. The ghost gun case falls

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Speaker 2: into that latter category. As you noted, it involves a

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Speaker 2: challenge of twenty twenty two regulation by the Bureau of Alcohol,

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Speaker 2: Tobacco and Firearms that defines kits that are sold with

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Speaker 2: parts that can be used to assemble a gun as

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Speaker 2: little as thirty minutes. And the rule says that those

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Speaker 2: kits qualify as a firearm under the Gun Control Act

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Speaker 2: and can be regulated as such. And that's important, the

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Speaker 2: government claims, because the guns, once assembled, lack serial numbers,

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Speaker 2: and so that's why they're known as ghost guns. So

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Speaker 2: this case is a lot like the bump stock case

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Speaker 2: that the Supreme Court decided last year Garland versus Carhill.

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Speaker 2: In that case, the court invalidated a rule regulating bump

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Speaker 2: stocks as going beyond the technical definition in a statute

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Speaker 2: of barring machine guns. So we can expect a very

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Speaker 2: technical review of the part kits and ghost guns in

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Speaker 2: this case and whether that assemblage qualifies as a firearm

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Speaker 2: under the Gun Control Act. The Court previously undered in

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Speaker 2: order in this case, allowing the government to reinstate the

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Speaker 2: rule while it was being litigated. But Justices Thomas, Alito

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Speaker 2: and Gorsich and Kavanaugh all descended from that, which means

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Speaker 2: that the Chief Justice and Justice Barrett likely hold the

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Speaker 2: controlling votes in this case.

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Speaker 1: The Fifth Circuit upheld the lower court's decision to strike

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Speaker 1: down the regulation. What was the reasoning there?

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Speaker 2: Again, this is a statutory interpretation case, and it involves

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Speaker 2: the technical terms of the statute, including the particular parts

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Speaker 2: the frames and receivers, and whether or not the agency's

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Speaker 2: interpretation of that is reasonable in light of the statutory

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Speaker 2: definition of firearms. I mean, it's a gun case, but

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Speaker 2: it's really a conventional statutory interpretation case.

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Speaker 1: Considering that the court throughout the federal ban on bump stocks,

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Speaker 1: I'm wondering why they took this case, which is similar.

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Speaker 2: Well, it's a different issue, and it's a very important

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Speaker 2: issue according to the sisterenor General who asked the Court

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Speaker 2: to take this case. So in light of that request,

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Speaker 2: it's less surprising that the Court agreed to hear it,

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Speaker 2: and I think all agree that the issue is quite important.

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Speaker 1: Can you read anything into the fact that the Court

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Speaker 1: is allowing the rule to be enforced until it's settled

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Speaker 1: at the Supreme Court.

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Speaker 2: I wouldn't read too much into that June. You know,

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Speaker 2: now that the case is before the Court, I think

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Speaker 2: the justices will take a close look at it. I

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Speaker 2: think what is significant is that in that prior order

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Speaker 2: you had four justices descending, so you can expect that

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Speaker 2: those justices are probably skeptical of the rule as it

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Speaker 2: arrives at the Court.

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Speaker 1: The Justice is sidestepped a lot of appeals over the

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Speaker 1: Second Amendment, including challenges to bands in Illinois and assault

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Speaker 1: style weapons, federal bands on firearm possession by felons. Do

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Speaker 1: you think they're taking a break from the Second Amendment.

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Speaker 2: I think some of them would like to take a

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Speaker 2: break from the Second Amendment, but the cases keep coming.

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Speaker 2: The recent decision a few terms ago in Bruin sort

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Speaker 2: of re establishing the framework for evaluating Second Amendment challenges,

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Speaker 2: has created a lot of litigation. There's more cases in

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Speaker 2: the pipeline, so I think whether anyone likes it or not,

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Speaker 2: I think we're going to see a stream of cases

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Speaker 2: arriving at the Supreme Court.

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Speaker 1: Now next week on Wednesday, Oral arguments in a death

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Speaker 1: penalty case Glossop versus Oklahoma, And this goes back to

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Speaker 1: two thousand and four when Richard Glossip was convicted of

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Speaker 1: murder and sentenced to death. Nine execution dates have been

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Speaker 1: set for him, and he's had his last meal three times.

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Speaker 1: According to the Death Penalty Information Center, it seems as

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Speaker 1: if over the years the case against him has fallen

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Speaker 1: apart in many ways.

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Speaker 2: This is truly someone who has had almost nine lives already.

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Speaker 2: So he was sentenced to death for a killing at

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Speaker 2: a motel in Oklahoma City a couple of decades ago,

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Speaker 2: in which the case really turned on the testimony of

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Speaker 2: one individual who worked at the hotel and who said

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Speaker 2: that Richard Glossip paid the mand to kill the victim.

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Speaker 2: And what makes this case really interesting today is that

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Speaker 2: Golossop's challenge is now supported by the people who sought

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Speaker 2: the death only against him, the prosecution prosecutor's attorney general

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Speaker 2: in this case of Oklahoma, who now agrees, based on

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Speaker 2: newly discovered evidence, that glossip conviction is tainted by constitutional errors,

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Speaker 2: including a very important Brady error. Brady is the decision

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Speaker 2: in which puts an obligation on the prosecution to come

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Speaker 2: forward with exculplatory evidence in criminal cases. In this case,

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Speaker 2: the claim is based on the prosecution's failure to turn

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Speaker 2: over exculplatory evidence that bore in the credibility of the

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Speaker 2: state's star witness, again, this man who claimed that Glossip

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Speaker 2: paid him to kill the victim. The Oklahoma Court of

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Speaker 2: Appeals refused to set aside glossop death sentence, even notwithstanding

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Speaker 2: the Attorney General's own confession of error in the case.

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Speaker 2: Supreme Court, which hasn't taken many death cases in the

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Speaker 2: past few years, granted review. So now it'll be really

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Speaker 2: interesting to see what the Supreme Court does as it

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Speaker 2: reviews glossip claims of constitutional error, again with the attorney

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Speaker 2: general roll of the state separately represented, arguing alongside gloss Up,

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Speaker 2: and then looking in the background of this case is

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Speaker 2: the interesting question of how courts should treat a state's

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Speaker 2: own confession of error in a decade's old case. On

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Speaker 2: the one hand, you would think that would be a

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Speaker 2: pretty compelling reason to re examine and perhaps set aside

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Speaker 2: a conviction. On the other hand, there have been some

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Speaker 2: concerns of political considerations that could enter the mix. As

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Speaker 2: you go from one administration to the next, so that

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Speaker 2: the court's going to take a close and fresh look

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Speaker 2: at this case.

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Speaker 1: The Court's not going to consider all the alleged errors

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Speaker 1: by police and prosecutors, but just that prosecutors didn't turn

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Speaker 1: over these handwritten notes that the state's key witness was

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Speaker 1: suffering from a serious mental disorder.

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Speaker 2: Yeah, that's exactly right. There are a lot of claims

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Speaker 2: in the case, but the Supreme Court's review here is

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Speaker 2: going to focus on that Brady error, which involved the

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Speaker 2: failure to turn over those notes, which mister Glossip claims

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Speaker 2: could have been used to impeach this witness, whose testimony

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Speaker 2: The case, I think both sides agree, basically turned on.

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Speaker 1: So the Supreme Court, as you mentioned, hasn't taken many

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Speaker 1: death penalty cases recently, and there's a history of finding

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Speaker 1: that state convictions should remain final even if there is

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Speaker 1: later evidence that they may be unreliable. The Supreme Court,

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Speaker 1: in a six or three decision last week, allowed Zuri

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Speaker 1: to execute a man for a murder even though his

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Speaker 1: conviction was contested by prosecutors. So, no matter how strong

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Speaker 1: the evidence, if they stick to the idea that state

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Speaker 1: convictions should be final. Will it make any difference.

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Speaker 2: I think you're right June that the Court has been

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Speaker 2: hesitant to overturn state court convictions. In a way, it

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Speaker 2: has to be because of the statutory law governing habeas

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Speaker 2: corpus and the like. But nevertheless, here there are clean

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Speaker 2: constitutional claims of error, including brain and that's something that

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Speaker 2: justices on both sides of the ideological spectrum. They have

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Speaker 2: taken very seriously, and the fact that this is a

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Speaker 2: death case only raises the stake. So I think it's

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Speaker 2: the court it looks at this record and agrees there

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Speaker 2: is constitutional error here. I would surprise if it didn't

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Speaker 2: take some form of corrective action. But there's no doubt

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Speaker 2: that those challenging death sentences face an uphill battle before

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Speaker 2: the current court.

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Speaker 1: So now, perhaps the highest profile case so far on

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Speaker 1: the docket involves a polarizing issue across the country. Tennessee's

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Speaker 1: ban on gender transition care for miners tell us about

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Speaker 1: the issue here.

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Speaker 2: So this is really the one big culture war case

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Speaker 2: that's currently on the docket right now. It involves a

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Speaker 2: challenge to a Tennessee law that bars gender type medical

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Speaker 2: procedures or treatment for miners, including surgeries and puberty blockers

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Speaker 2: and hormone treatments and the like. And it's a lot

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Speaker 2: that twenty one other states have acted right now in

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Speaker 2: similar form, and several individuals, backed by the Biden administration itself,

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Speaker 2: have challenged the law on the ground that it rests

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Speaker 2: on a sex based classification that violates the Equal Protection Clause.

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Speaker 2: The six Circuit upheld the law below Supreme Court grant review,

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Speaker 2: and that the key question now is whether the law

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Speaker 2: triggers heightened scrutiny under the equal Protection clause or instead

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Speaker 2: the much lower rational basis review. And that turns on

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Speaker 2: whether you view the Tennessee laws making a classification based

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Speaker 2: on sex or instead one that is based on the

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Speaker 2: regulation of access to medical care and that acts on

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Speaker 2: an even handed basis among miners regardless of sex. And

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Speaker 2: what's interesting about this is that question implicates a case

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Speaker 2: from a few terms ago Bostk versus Clayton County, in

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Speaker 2: which the Court, in a closely divided opinion written by

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Speaker 2: Justice Gorsicic joining with the more liberal justices, held the

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Speaker 2: Title seven's prohibition against sex based discrimination applies to sexual orientation.

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Speaker 2: So the US argues that the reason of mastak leads

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Speaker 2: to the conclusion that laws concerning access to gender treatments

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Speaker 2: are sex based in the sense that one who is

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Speaker 2: male at birth can get testosterone treatments, but a female

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Speaker 2: at birth can't, Whereas the state argues in this case

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Speaker 2: that the law doesn't draw any distinction based on sex

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Speaker 2: because it simply applies to all minors and borrowers access

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Speaker 2: to these treatments, and the case of gender type procedures

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Speaker 2: for all individuals regardless of sex. And then lurking in

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Speaker 2: the background of this case is a debate over the

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Speaker 2: medical importance of these treatments for those seeking access to them,

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Speaker 2: which could well color the legal arguments on both sides

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Speaker 2: of the case.

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Speaker 1: You mentioned that about two dozen states have laws restricting

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Speaker 1: access to therapies like this, So could this decision establish

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Speaker 1: a landmark legal precedent.

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Speaker 2: I think it's going to be quite important because this

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Speaker 2: is one of the early cases in which the Court

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Speaker 2: as confronted issue of transgender rights and laws drawing classifications

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Speaker 2: of this type. So, although I suspect that the Court's

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Speaker 2: decision will be focused on the Tennessee law at issue here,

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Speaker 2: I think it could have long term implications for laws

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Speaker 2: and actions dealing with this important question.

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Speaker 1: Coming up next on the Bloomberg Law show cases involving

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Speaker 1: flavored vapes and e cigarettes, environmental rules, and securities, fraud lawsuits.

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Speaker 1: I'm June Grosso and you're listening to Bloomberg. The Supreme

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Speaker 1: Court's new term starts on Monday, and I've been talking

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Speaker 1: to former US Solicitor General Gregory gar about some of

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Speaker 1: the noteworthy cases the justices will be deciding. Another case

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Speaker 1: involving miners is Free Speech Coalition versus Paxton. It's about

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Speaker 1: age verification for pornographic websites.

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Speaker 2: So Texas enacted a law that says that any website

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Speaker 2: that publishes pornographic or other harmful material must require users

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Speaker 2: to verify that they're eighteen years or older in order

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Speaker 2: to access the site using various forms of virtual ideas.

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Speaker 2: And the argument that the plan is brought in this

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Speaker 2: case is that the law violates the First Amendment by

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Speaker 2: burdening adults rights to access the material on such websites

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Speaker 2: by basically making it more burdens than their cumbersome to

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Speaker 2: have to show an idea or the like to get

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Speaker 2: onto the site. The Fifth Circuit upheld the law in

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Speaker 2: the Supreme Court granted review. There's another case where the

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Speaker 2: big question is how strictly the court has to review

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Speaker 2: the law. Do you apply strict scrutiny or the much

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Speaker 2: lower form of review rational basis, And that turns on

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Speaker 2: the Court's reading of a fifty five year old case

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Speaker 2: called Ginsburg versus New York in nineteen sixty eight, in

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Speaker 2: which the Court held that the States may restrict miners'

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Speaker 2: access to pornographic material. But in more recent cases, including

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Speaker 2: case ten years or so ago in Ashcroft versus acl You,

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Speaker 2: the Court is subjected laws restricting adult access to websites

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Speaker 2: and the like to strict scrutiny. And this court is

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Speaker 2: established itself as very pro First Amendment and arguably is

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Speaker 2: one of the most pro First Amendment courts in the

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Speaker 2: Court's history. So it'll be interesting to see how it

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Speaker 2: analyzes this law.

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Speaker 1: So the Supreme Court in April refused a request by

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Speaker 1: the challengers to halt enforcement of the law while litigation

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Speaker 1: in the dispute proceeds. Every time they do something like that,

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Speaker 1: I say, does that indicate where they're going here?

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Speaker 2: I mean, of course, if the court really hates a law,

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Speaker 2: it's going to prevent it from being in forced, so

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Speaker 2: that that's a strong indication it's not going to get

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Speaker 2: a favorable reception when it arrives. But it's a really

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Speaker 2: high standard to invalidate a law during litigation. And so

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Speaker 2: I think that's, you know, one sort of tea leaf.

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Speaker 2: But I think that in itself is unlikely to tell

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Speaker 2: us much about how the court would resolve this case.

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Speaker 2: So this this well could be a case that involves

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Speaker 2: an interesting lineup in a narrow decision.

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Speaker 1: So another case from the fifth This is about the

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Speaker 1: FDA's efforts to curb flavored vapes and e cigarettes.

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Speaker 2: And here it's a challenge to the FDA's defense of

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Speaker 2: its rejection of the applications by two companies who sell

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Speaker 2: flavored vaping products. And the FDA declined the application, as

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Speaker 2: it has done for most similar applications, because of public

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Speaker 2: health concerns stemming from the use of flavored vaping products

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Speaker 2: and the attraction of minors. And so the companies argued

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Speaker 2: here that the FDA had violated the Administrative Procedures Act

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Speaker 2: by acting arbitrarily and capriciously in that it had engaged

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Speaker 2: in sort of an unfair surprise by changing the rules

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Speaker 2: for evaluating these applications in midstream with that fair notice

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Speaker 2: and improperly refusing to consider certain evidence. It was something

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Speaker 2: of a surprise that the Fifth Circuit here broke with

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Speaker 2: other courts that had faced similar challenges and finding that

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Speaker 2: the FDA had acted unlawfully into supproving these applications. And

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Speaker 2: so I think that this could be a sleeper case.

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Speaker 2: And it's definitely an interesting case to follow, because it's

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Speaker 2: really more of a Nuts and Bolt's administrative law case

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Speaker 2: than sort of an e cigarette case. But a decision

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Speaker 2: by the Supreme Court in this case upholding the Fifth

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Speaker 2: Circuit I think would invigorate arbitrary and capricious challenges to

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Speaker 2: all sorts of rules. And one thing that we've seen

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Speaker 2: in the past few years, as you know, is the

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Speaker 2: Supreme Court taking an intense interest in administrative law cases

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Speaker 2: and really sort of pushing back on various aspects of

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Speaker 2: the administrative state. Kept off last term, of course, in

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Speaker 2: the decision overturning Chevron deference.

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Speaker 1: Yes, I say the Court has taken a sledgehammer to

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Speaker 1: agency power. Perhaps a too intense description there, but what

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Speaker 1: could be the implications of ruling against the FDA in

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Speaker 1: a case like this where health of children is concerned,

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Speaker 1: and you know the FDA's authority over health concerns in general,

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Speaker 1: or is it just about the standard of arbitrarian capricious.

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Speaker 2: In a sense, it's broader, June. I think it does

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Speaker 2: raise public health implications of allowing these sorts of products

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Speaker 2: which FDA is regulating. And of course, if the Supreme

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Speaker 2: Court affirms the Fifth Circuit here, it doesn't mean that

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Speaker 2: the applications would be granted. It would mean that the

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Speaker 2: FDA would have to go back and take another look

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Speaker 2: at them, presumably. But the broader implications here are if

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Speaker 2: the Supreme Court agrees that the agencies acted arbitrarily here,

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Speaker 2: then I think what it would mean is that courts

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Speaker 2: would have to take a much closer look at agency

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Speaker 2: decision making and claims that agencies have changed the rules

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Speaker 2: sort of in the course of an administrative decision making process.

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Speaker 2: That's the sort of claim that agencies, you know, typically

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Speaker 2: at one a decade or so ago. And you know,

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Speaker 2: it's tough for sledding these days. So I do think

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Speaker 2: that this is a really important case to keep our

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Speaker 2: eyes home.

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Speaker 1: Next, let's turn to a completely different area involving standards

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Speaker 1: for investor claims in shareholder lawsuits in Vidia versus e

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Speaker 1: Omen j out of the Ninth.

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Speaker 2: Circuit, so this is a technical securities case. The question

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Speaker 2: is whether the heightened pleading requirements of the private securities

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Speaker 2: litigation format apply to allegations of security fraud based on

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Speaker 2: internal company documents. Such a plan of seeking to establish

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Speaker 2: center using company documents have to allege the actual contents

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Speaker 2: of those documents, and the question tends to come up

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Speaker 2: when securities planet is claim that a company's internal documents

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Speaker 2: contradict its public statements that the company's executives and the

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Speaker 2: like are making two investors. But oftentimes, or sometimes at

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Speaker 2: least the planets don't actually have their hands on the documents,

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Speaker 2: so they're making allegations based on what they surmise are

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Speaker 2: in the documents. In this case, the planeffs claim that

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Speaker 2: the CEO of Navidia, a company in the manufacturer's computer chips,

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Speaker 2: made public statements at odds with the company's reports about

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Speaker 2: what other or crypto miners or gamers were buying their chips,

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Speaker 2: which became important when NA Video's revenues dropped after the

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Speaker 2: twenty eighteen crypto crash. The Planets argue that imposing a

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Speaker 2: heightened pleading standard in this context is at odds with

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Speaker 2: the PSLRA and the court's prior precedents, and the Supreme Court,

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Speaker 2: though in prior cases, has generally sort of rigorously enforced

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Speaker 2: these heightened pleading standards. There's a related question that comes

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Speaker 2: up in this case which is interesting, which is whether

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Speaker 2: a planeff can rely on expert testimony itself to establish

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Speaker 2: the falsity of internal documents based on an assumption of

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Speaker 2: what the information the documents contain. So that'll be one

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Speaker 2: we want to follow as well. You know, the backdrop

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Speaker 2: of this case is that business really has had something

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Speaker 2: of a mixed record before this court in the past

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Speaker 2: few terms. This is not a court that is reflectively

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Speaker 2: ruling in favor of business, and so it will be

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Speaker 2: interesting to follow this case and see where the court

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Speaker 2: ends up here.

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Speaker 1: So a decision here would give companies leverage for earlier

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Speaker 1: dismissal of shareholder lawsuits.

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Speaker 2: Exactly If the heightened pleating standards apply to these sorts

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Speaker 2: of claims and internal documents, then it's going to be

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Speaker 2: much harder for plantiffs to bring claims based on internal

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Speaker 2: company documents because they often don't have access to the

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Speaker 2: full contents of those documents.

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Speaker 1: Next, let's discuss a case on water pollution in the

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Speaker 1: EPA's powers. And this case involves San Francisco versus the EPA,

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Speaker 1: which is not one of the cities I would expect

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Speaker 1: to go against the EPA. So tell us what San

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Speaker 1: Francisco's case against the EPA is.

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Speaker 2: Yeah, it's kind of an indication of where we arrived

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Speaker 2: with aggressive environmental enforcement, where you've got San Francisco itself

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Speaker 2: taking on the EPA. So this case arises out of

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Speaker 2: a permit issued by EPA under the Clean Water Act

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Speaker 2: for San Francisco's discharge of sewage into the Pacific Ocean.

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Speaker 2: And the question is whether the Clean Water Act authorizes

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Speaker 2: EPA to impose general water quality standards in San Francisco

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Speaker 2: and other jurisdictions for the quality of the receiving waters,

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Speaker 2: as opposed to specific what's called effluent limitations on discharges.

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Speaker 2: San Francisco itself taking on the EPA. So, San Francisco

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Speaker 2: argues that the Clean Water Act was intentionally designed to

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Speaker 2: enable EPA to regulate what was coming out of the

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Speaker 2: pipe or what's known as point sources through these effluent

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Speaker 2: limitations which impose specific limits on particular pollutants, and that

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Speaker 2: you know, EPA is sort of changing the game when

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Speaker 2: it's trying to impose general water quality standards on the

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Speaker 2: regulated which then is much more abstract and difficult for

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Speaker 2: jurisdictions to comply with. But EPA says not so fast.

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Speaker 2: EPA says that that the Clean Water Act can't be

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Speaker 2: interpreted that narrowly, that although it refers to effluent limitations

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Speaker 2: on discharge, that it also allows EPA to regulate water

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Speaker 2: quality in other ways. The case really boils down to

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Speaker 2: whether EPA's interpretation violates the Administrative Proceedure Act on the

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Speaker 2: ground that it contravenes the statute. Now, this is exactly

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Speaker 2: the sort of thing to which EPA would have asked

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Speaker 2: for and received Chevron deference a decade or so ago,

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Speaker 2: and after the liver Bright decision last term, though, it's

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Speaker 2: going to have to fight this one out on the

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Speaker 2: level playing field.

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Speaker 1: And do you think that lowber Bright and the courts,

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Speaker 1: I'm going to say, tendency to eliminate environmental protections or

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Speaker 1: to rule against the EPA. I mean, last term they

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Speaker 1: split about blocking the EPA's good neighbor ozone emission rule.

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Speaker 1: I mean, do you think that bodes ill for the

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Speaker 1: EPA here?

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Speaker 2: I think it could. I mean there's been something of

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Speaker 2: a perfect storm where you combine aggressive agency enforcement with

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Speaker 2: reliance on broad statutory provisions, which is where what we've

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Speaker 2: seen come up time and again in these cases. And

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Speaker 2: if that's the way the Supreme Court views this case,

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Speaker 2: then EPA may be in for a fight.

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Speaker 1: Thanks so much, Greg for joining me again in our

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Speaker 1: yearly preview of the Supreme Court term. Former Uslicitor General

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Speaker 1: Gregory Garr, a partner at Latham and Watkins. Coming up next.

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Speaker 1: Why deals are collapsing? This is bloomberg. The Biden administration

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Speaker 1: is touting the fact that so many potential deals are

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Speaker 1: being abandoned under its policy of pushing for fewer settlements

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Speaker 1: and more lawsuits. Firms attracting antitrust scrutiny are abandoning deals

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Speaker 1: at their highest clip in years. Six significant merger inquiries

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Speaker 1: during the first half of the year ended with the

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Speaker 1: Federal Trade Commission or the Department of Justice saying the

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Speaker 1: party's nixt a proposed transaction that figure exceeds yearly totals

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Speaker 1: from the previous decade, according to a report from the

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Speaker 1: law firm Deckert. Joining me is William Kavasik, former chair

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Speaker 1: of the FTC and a professor at George Washington University

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Speaker 1: Law School. I wanted to start with getting your first

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Speaker 1: reaction to the report that firm attracting antitrust scrutiny are

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Speaker 1: abandoning deals at the highest level in years.

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Speaker 3: My sense in talking to friends who are counseling companies

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Speaker 3: is that's true. It's very difficult to judge how much

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Speaker 3: in which deals are being chased off. On the one hand,

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Speaker 3: the commitment to litigate cases more broadly, plus a variety

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Speaker 3: of other policy adjustments that basically takes settlements out of

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Speaker 3: the picture or make settlements harder to achieve, not impossible,

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Speaker 3: means that at the margin, more companies are deciding not

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Speaker 3: to proceed with deals. And that's not just a function

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Speaker 3: of the US regime. If it's a company that does business,

439
00:25:46,800 --> 00:25:49,680
Speaker 3: say in the European Union and the United Kingdom, or

440
00:25:49,800 --> 00:25:54,520
Speaker 3: is a global goods and services company, the risk associated

441
00:25:54,560 --> 00:25:58,480
Speaker 3: with going forward has increased in the United Kingdom and

442
00:25:58,640 --> 00:26:01,399
Speaker 3: in Europe, and that means means that you not only

443
00:26:01,440 --> 00:26:06,000
Speaker 3: have to cope with the additional cost delay in the

444
00:26:06,080 --> 00:26:10,479
Speaker 3: United States. There is the certainty of additional reviews in

445
00:26:10,520 --> 00:26:14,360
Speaker 3: other countries, so that when firms are looking at the

446
00:26:14,400 --> 00:26:17,800
Speaker 3: path they have to take in order to achieve the result,

447
00:26:17,880 --> 00:26:20,720
Speaker 3: they have in mind that is a more perilous path

448
00:26:20,800 --> 00:26:23,560
Speaker 3: than it was before, and at a minimum, it is

449
00:26:23,600 --> 00:26:26,960
Speaker 3: a path that is slower and more expensive. And I

450
00:26:27,000 --> 00:26:31,840
Speaker 3: think at the margin that's discouraging companies from even pursuing

451
00:26:31,880 --> 00:26:35,120
Speaker 3: certain types of deals, in part because when they turn

452
00:26:35,240 --> 00:26:39,280
Speaker 3: to their internal advisors, their own internal counsel, or to

453
00:26:39,359 --> 00:26:44,160
Speaker 3: external counsel and say, will this deal get through, they're

454
00:26:44,200 --> 00:26:48,840
Speaker 3: being told it is highly unpredictable, it's very risky. It's

455
00:26:48,920 --> 00:26:51,679
Speaker 3: risky both for the buyer but certainly for the seller

456
00:26:51,760 --> 00:26:55,000
Speaker 3: as well, and that additional risk, I am certain is

457
00:26:55,040 --> 00:26:58,880
Speaker 3: scaring off some transactions. It's hard to tell how many.

458
00:26:59,680 --> 00:27:05,080
Speaker 1: By administration has touted these trends, But do the numbers

459
00:27:05,160 --> 00:27:08,080
Speaker 1: mean that the deals are anti competitive and so the

460
00:27:08,119 --> 00:27:10,639
Speaker 1: firms are banning them or just because they don't want to,

461
00:27:10,720 --> 00:27:13,000
Speaker 1: as you say, go through litigation with the government or

462
00:27:13,000 --> 00:27:14,960
Speaker 1: this long review process.

463
00:27:15,280 --> 00:27:18,080
Speaker 3: Yeah. Part of it is that in the past, where

464
00:27:18,080 --> 00:27:22,200
Speaker 3: there was a perceived problem, even if the company sought

465
00:27:22,280 --> 00:27:26,440
Speaker 3: the problem didn't exist or was trivial, it was possible

466
00:27:26,520 --> 00:27:30,120
Speaker 3: for them to negotiate with the FTC or the DOJ

467
00:27:30,760 --> 00:27:34,719
Speaker 3: a settlement that solved the problem, either with divestitures or

468
00:27:34,760 --> 00:27:39,520
Speaker 3: with behavioral commitments. That flexibility has been largely rung out

469
00:27:39,520 --> 00:27:43,679
Speaker 3: of the system, where although the agencies are not completely

470
00:27:43,760 --> 00:27:47,639
Speaker 3: unwilling to accept settlements, and we saw a chevron and

471
00:27:47,680 --> 00:27:52,040
Speaker 3: has accept such a settlement, only just recently, the government

472
00:27:52,080 --> 00:27:55,480
Speaker 3: agencies have said, by and large, we think settlements don't work,

473
00:27:55,920 --> 00:28:00,960
Speaker 3: that even structural solutions are often ineffective. As a consequence,

474
00:28:01,000 --> 00:28:03,840
Speaker 3: because we don't believe they work, we're willing to go

475
00:28:03,920 --> 00:28:06,879
Speaker 3: to court and try and block deals rather than negotiate.

476
00:28:07,040 --> 00:28:11,959
Speaker 3: So even where a competitive problem existed until the relatively

477
00:28:12,000 --> 00:28:15,439
Speaker 3: recent past, the government agencies were willing to bargain and

478
00:28:15,480 --> 00:28:19,240
Speaker 3: to accept settlements, that flexibility to a large degree has

479
00:28:19,280 --> 00:28:22,440
Speaker 3: been taken out of the system, which means that even

480
00:28:22,480 --> 00:28:26,160
Speaker 3: where companies recognize that there was a competitive problem, they've

481
00:28:26,160 --> 00:28:28,960
Speaker 3: lost the ability to negotiate with the government to find

482
00:28:29,000 --> 00:28:32,320
Speaker 3: a solution, or if they really want the deal to

483
00:28:32,320 --> 00:28:34,560
Speaker 3: be done, they have to be willing to go to

484
00:28:34,640 --> 00:28:38,080
Speaker 3: court and argue to the court. We have a solution

485
00:28:38,240 --> 00:28:41,080
Speaker 3: in place to solve the problem and to persuade the

486
00:28:41,080 --> 00:28:43,120
Speaker 3: court that death solution is effective.

487
00:28:43,440 --> 00:28:47,280
Speaker 1: So as you say, Jonathan Canter, the DOJ's antitrust head,

488
00:28:47,320 --> 00:28:50,920
Speaker 1: and FTC chair Lena Khan, have said they are skeptical

489
00:28:51,000 --> 00:28:55,520
Speaker 1: that settlements or consent degrees work. Do you think they work?

490
00:28:55,560 --> 00:28:57,760
Speaker 1: I mean, even if they don't work, do you just

491
00:28:57,880 --> 00:28:59,280
Speaker 1: give up on them completely?

492
00:28:59,680 --> 00:29:03,320
Speaker 3: I think that their concerns there's somewhat exaggerated. That the

493
00:29:03,400 --> 00:29:07,000
Speaker 3: concerns I've expressed are not baseless. There is a history

494
00:29:07,200 --> 00:29:10,280
Speaker 3: of failed settlements and a number of sectors. There is

495
00:29:10,320 --> 00:29:13,480
Speaker 3: always a danger in settlements that, for the sake of

496
00:29:13,960 --> 00:29:17,720
Speaker 3: building up numbers of enforcement events and moving matters through

497
00:29:17,720 --> 00:29:21,440
Speaker 3: the system, both the parties and the agencies will step

498
00:29:21,480 --> 00:29:25,280
Speaker 3: forward to the world saying we accepted a solution that

499
00:29:25,320 --> 00:29:28,920
Speaker 3: protects consumers. I've never read a press release from a

500
00:29:29,000 --> 00:29:32,600
Speaker 3: government agency in the US or abroad that said we

501
00:29:32,760 --> 00:29:36,080
Speaker 3: accepted the settlement, but there are real risks here, and

502
00:29:36,320 --> 00:29:38,400
Speaker 3: if you want to watch whether or not this works,

503
00:29:38,440 --> 00:29:41,600
Speaker 3: you should focus on the following factors. That press release

504
00:29:41,640 --> 00:29:45,880
Speaker 3: has never written. The press release always says we spotted

505
00:29:45,920 --> 00:29:49,560
Speaker 3: the problem, and like the most skillful surgeons you ever saw,

506
00:29:49,920 --> 00:29:54,320
Speaker 3: we intervene to take out all of the any competitive possibilities.

507
00:29:54,640 --> 00:29:58,160
Speaker 3: The patient of competition is alive and thriving. We are

508
00:29:58,200 --> 00:30:01,680
Speaker 3: the most successful competition on the earth. That's the way

509
00:30:01,720 --> 00:30:05,360
Speaker 3: the settlement press release reads. But that often is a

510
00:30:05,440 --> 00:30:08,800
Speaker 3: fiction or not quite right. So Assistant Attorney General Canter

511
00:30:09,080 --> 00:30:12,680
Speaker 3: and fair Con are exactly right that we should perhaps

512
00:30:12,720 --> 00:30:15,720
Speaker 3: be more wary about settlements. But there's a spectrum of

513
00:30:15,760 --> 00:30:21,000
Speaker 3: options that range from absolute skepticism and doubt to a

514
00:30:21,040 --> 00:30:24,840
Speaker 3: more critical point of view that still accepts the settlements.

515
00:30:25,000 --> 00:30:27,680
Speaker 3: And here I think is what's lost in the process

516
00:30:28,080 --> 00:30:30,640
Speaker 3: is that let's suppose that you have a settlement that

517
00:30:30,680 --> 00:30:32,600
Speaker 3: gets you ninety percent of where you want to be.

518
00:30:32,960 --> 00:30:36,440
Speaker 3: That settlement allows you to move more resources to focus

519
00:30:36,480 --> 00:30:41,520
Speaker 3: on deals that are manifestly any competitives and deserve litigation challenge.

520
00:30:41,680 --> 00:30:44,880
Speaker 3: If you take away the flexibility to take that ninety

521
00:30:44,920 --> 00:30:48,040
Speaker 3: percent solution, it means that you better be willing to

522
00:30:48,200 --> 00:30:51,280
Speaker 3: fight a much larger number of deals for which you

523
00:30:51,360 --> 00:30:53,760
Speaker 3: do not have the resources to carry out all of

524
00:30:53,760 --> 00:30:57,320
Speaker 3: those battles, or you are going to find quiet and

525
00:30:57,400 --> 00:31:00,960
Speaker 3: more subtle ways to let deals go through that may

526
00:31:01,000 --> 00:31:05,280
Speaker 3: involve some informal conceptions, may involve you waving through deals

527
00:31:05,280 --> 00:31:08,680
Speaker 3: that are not so visible, that aren't tech, that aren't food,

528
00:31:09,040 --> 00:31:13,040
Speaker 3: that aren't energy, in order to keep your statistics balance

529
00:31:13,040 --> 00:31:18,400
Speaker 3: sheet clean with no settlements, but with prohibitions or clearances

530
00:31:18,440 --> 00:31:22,120
Speaker 3: being the main option. So I think their express concerns

531
00:31:22,160 --> 00:31:25,760
Speaker 3: are somewhat exaggerated, and I don't think that they quite

532
00:31:25,800 --> 00:31:29,640
Speaker 3: respond to the reality of what decisions an agency has

533
00:31:29,680 --> 00:31:33,280
Speaker 3: to make when it has a continuing flow of filings

534
00:31:33,680 --> 00:31:35,920
Speaker 3: where you have some transactions that are going to be

535
00:31:35,960 --> 00:31:40,240
Speaker 3: problematic a lot or a little, you need some flexibility

536
00:31:40,320 --> 00:31:44,560
Speaker 3: to accept deals for transactions to pose a more modest

537
00:31:44,560 --> 00:31:48,560
Speaker 3: competitive risk where the settlement is maybe not perfect, but

538
00:31:48,640 --> 00:31:51,800
Speaker 3: it might be good enough in order to allow you

539
00:31:51,920 --> 00:31:56,680
Speaker 3: to mobilize resources to focus on deals that are manifestly

540
00:31:56,760 --> 00:32:00,320
Speaker 3: problematic for which you have to pursue the settlements. So

541
00:32:00,400 --> 00:32:03,480
Speaker 3: to some extent, I think that they have denied themselves

542
00:32:03,760 --> 00:32:07,000
Speaker 3: an element of flexibility that is very important to making

543
00:32:07,040 --> 00:32:09,800
Speaker 3: the entire merger review process effective.

544
00:32:10,400 --> 00:32:13,040
Speaker 1: So, Bill, can you talk a little bit about how

545
00:32:13,560 --> 00:32:18,800
Speaker 1: they've also stepped up enforcement in areas that previously they

546
00:32:18,840 --> 00:32:23,400
Speaker 1: didn't look to so much like labor and potential competition

547
00:32:23,520 --> 00:32:24,840
Speaker 1: in vertical mergers.

548
00:32:25,200 --> 00:32:30,120
Speaker 3: They've unmistakably highlighted the importance of competition in markets for

549
00:32:30,240 --> 00:32:32,760
Speaker 3: labor and any stress. Law for a long time has

550
00:32:32,880 --> 00:32:38,080
Speaker 3: recognized that competition for labor inputs is very important, but

551
00:32:38,160 --> 00:32:41,680
Speaker 3: it hasn't elevated those concerns as much as the agencies have.

552
00:32:42,160 --> 00:32:46,160
Speaker 3: That happened in the DOJ, Simon and Schuster transaction, where

553
00:32:46,320 --> 00:32:50,560
Speaker 3: DOJ relied very successfully on essentially a labor market theory

554
00:32:50,560 --> 00:32:54,440
Speaker 3: of arms. The most interesting of all the labor cases,

555
00:32:54,480 --> 00:32:58,640
Speaker 3: I think is the Albertsons Kroger transaction, where, to an

556
00:32:58,680 --> 00:33:03,400
Speaker 3: extent not previously seen, the FTC has elevated the role

557
00:33:03,600 --> 00:33:07,520
Speaker 3: of labor as a key input, has highlighted the impact

558
00:33:07,640 --> 00:33:11,760
Speaker 3: on organized labor of the transaction, saying that the transaction

559
00:33:12,000 --> 00:33:15,560
Speaker 3: will deny unions the ability to bargain as effectively as

560
00:33:15,560 --> 00:33:19,320
Speaker 3: they might otherwise. That transaction is the most interesting test

561
00:33:19,440 --> 00:33:23,320
Speaker 3: of the effort of the agencies to extend the frontiers

562
00:33:23,760 --> 00:33:28,280
Speaker 3: where labor theories of harm are important. Unmistakably, they've also

563
00:33:28,360 --> 00:33:32,840
Speaker 3: demonstrated their willingness to litigate vertical merger series of harm

564
00:33:33,360 --> 00:33:35,800
Speaker 3: more than the agencies had in the past. The Trump

565
00:33:35,840 --> 00:33:40,640
Speaker 3: administration did challenge the at Time Warner Deal unsuccessfully, but

566
00:33:40,720 --> 00:33:43,800
Speaker 3: that was a major effort to focus on vertical series

567
00:33:43,840 --> 00:33:48,000
Speaker 3: of harm. The FTC and DJ have had success, some failures,

568
00:33:48,000 --> 00:33:51,680
Speaker 3: but success as well. The FTC's challenged to illuminate Grail

569
00:33:52,040 --> 00:33:56,560
Speaker 3: vertical transaction, where the FDC was largely successful. What happened

570
00:33:56,600 --> 00:33:59,959
Speaker 3: is that the agencies, because of their skepticism of seven,

571
00:34:00,480 --> 00:34:05,440
Speaker 3: have cast aside the previous practice of resolving vertical concerns

572
00:34:05,680 --> 00:34:08,800
Speaker 3: by taking supplements. It's not as though the agencies before

573
00:34:08,840 --> 00:34:11,799
Speaker 3: twenty twenty or before the Ate and Time Warner Deal

574
00:34:12,080 --> 00:34:16,040
Speaker 3: ignored vertical issues, but those vertical issues usually were resolved

575
00:34:16,080 --> 00:34:20,920
Speaker 3: with settlements that imposed behavioral controls on the firms, especially

576
00:34:20,960 --> 00:34:24,480
Speaker 3: controls that said that you won't discriminate against third parties

577
00:34:24,520 --> 00:34:27,560
Speaker 3: with respect to access to an asset or an output

578
00:34:27,560 --> 00:34:30,560
Speaker 3: that you now control. So what we've seen is what's

579
00:34:30,680 --> 00:34:34,320
Speaker 3: interesting and distinctive about the modern practice is that the

580
00:34:34,360 --> 00:34:38,160
Speaker 3: agencies have been willing to litigate those deals to block

581
00:34:38,239 --> 00:34:43,440
Speaker 3: them again, not with complete success, but firms now realize

582
00:34:43,760 --> 00:34:46,520
Speaker 3: that a vertical merger is much more likely to show

583
00:34:46,600 --> 00:34:49,719
Speaker 3: up in the courtroom in a litigated challenge rather than

584
00:34:49,840 --> 00:34:54,040
Speaker 3: result in a somewhat predictable behavioral fix. That means that

585
00:34:54,160 --> 00:34:56,960
Speaker 3: vertical deals are riskier now than they used to be.

586
00:34:57,440 --> 00:35:02,080
Speaker 3: And on the question of nascent competition, both agencies are

587
00:35:02,120 --> 00:35:07,000
Speaker 3: approaching the acquisition of upstart firms or smaller firms with

588
00:35:07,120 --> 00:35:11,320
Speaker 3: interesting ideas with a lot more skepticism than their predecessors.

589
00:35:11,520 --> 00:35:15,760
Speaker 3: They believe that a grievous failure of anti trust policy

590
00:35:16,200 --> 00:35:19,680
Speaker 3: in the previous decades was not to bear down on

591
00:35:19,840 --> 00:35:26,680
Speaker 3: acquisitions by established incumbents of smaller upstarts. So they've decided that,

592
00:35:27,000 --> 00:35:31,319
Speaker 3: especially for big tech, that acquisitions of small upstarts in

593
00:35:31,400 --> 00:35:35,040
Speaker 3: a variety of different areas could pose a competitive threat,

594
00:35:35,320 --> 00:35:39,280
Speaker 3: both because the upstart has the capability to grow into

595
00:35:39,320 --> 00:35:43,040
Speaker 3: an independent source of rivalry to the incumbent dominant firms,

596
00:35:43,600 --> 00:35:47,600
Speaker 3: or that the upstart has a complementary capability which, when

597
00:35:47,680 --> 00:35:50,880
Speaker 3: added to the portfolio of the incumbent, gives it a

598
00:35:50,920 --> 00:35:55,040
Speaker 3: greater ability to resist entry and expansion by other firms. Now,

599
00:35:55,200 --> 00:35:58,400
Speaker 3: those series of harm have been somewhat harder to establish.

600
00:35:58,600 --> 00:36:01,520
Speaker 3: The courts have been somewhat more resistant to those theories,

601
00:36:01,840 --> 00:36:05,680
Speaker 3: in particular because they feel the government has lacked proof

602
00:36:06,200 --> 00:36:09,359
Speaker 3: that shows that the acquisition of the nascent threat is

603
00:36:09,480 --> 00:36:12,319
Speaker 3: likely to be harmful. They accept the theory that the

604
00:36:12,400 --> 00:36:16,200
Speaker 3: acquisition could be harmful. They haven't repudiated the government with

605
00:36:16,239 --> 00:36:18,960
Speaker 3: respect to the theory, but they've said, you have an

606
00:36:18,960 --> 00:36:23,800
Speaker 3: interesting hypothesis about what might happen if this smaller upstart

607
00:36:23,840 --> 00:36:27,560
Speaker 3: firm is acquired. Do you have more facts to show

608
00:36:27,880 --> 00:36:31,200
Speaker 3: to give us confidence that that hypothesis is likely to

609
00:36:31,239 --> 00:36:31,640
Speaker 3: be true?

610
00:36:31,960 --> 00:36:38,000
Speaker 1: Finally, the Biden administration formalized its enforcement approach in merger guidelines.

611
00:36:38,280 --> 00:36:40,400
Speaker 1: What's your take on those merger guidelines?

612
00:36:40,800 --> 00:36:45,840
Speaker 3: The merger guidelines unmistakably stake out a broader perimeter of enforcement.

613
00:36:46,560 --> 00:36:50,399
Speaker 3: They embrace a wider range of theories of harm. They

614
00:36:50,640 --> 00:36:54,360
Speaker 3: announced that the government will review horizontal mergers at lower

615
00:36:54,400 --> 00:36:58,320
Speaker 3: concentration thresholds than they had announced that they would in

616
00:36:58,400 --> 00:37:02,640
Speaker 3: the previous guidelines issued twenty ten. They spell out greater

617
00:37:02,719 --> 00:37:07,960
Speaker 3: skepticism about efficiencies as justification for mergers. So in a

618
00:37:08,040 --> 00:37:12,520
Speaker 3: very general way, the twenty twenty three government merger guidelines

619
00:37:12,560 --> 00:37:16,759
Speaker 3: announce a decided effort to extend the frontiers of enforcement

620
00:37:17,200 --> 00:37:20,560
Speaker 3: beyond the boundaries at which they've been set certainly since

621
00:37:20,600 --> 00:37:25,000
Speaker 3: twenty ten. The real effect of those guidelines, and all

622
00:37:25,160 --> 00:37:28,640
Speaker 3: government guidelines, depends on their absorption in the courts. The

623
00:37:28,719 --> 00:37:31,960
Speaker 3: guidelines are important as an indication of what the government

624
00:37:32,040 --> 00:37:35,440
Speaker 3: means to do, but it's only when federal judges look

625
00:37:35,520 --> 00:37:39,880
Speaker 3: at those guidelines and say these make sense as a

626
00:37:39,960 --> 00:37:45,800
Speaker 3: principle for merger control and adopt the reasoning in published opinions.

627
00:37:46,280 --> 00:37:49,839
Speaker 3: There are several cases now in litigation that will give

628
00:37:49,920 --> 00:37:53,640
Speaker 3: judges an opportunity to do that. Albertson's Kroger is one.

629
00:37:54,480 --> 00:38:00,600
Speaker 3: The Tapestry Capri case is another, involving accessories handbags. The

630
00:38:00,640 --> 00:38:05,200
Speaker 3: temper Steally Mattress merger case is a third that's in litigation.

631
00:38:05,719 --> 00:38:08,800
Speaker 3: There are a couple of others at the fringes of litigation. Now.

632
00:38:09,440 --> 00:38:12,520
Speaker 3: Those cases are interesting to watch because they will tell

633
00:38:12,600 --> 00:38:16,319
Speaker 3: us how rapid this rate of absorption is. You need

634
00:38:16,360 --> 00:38:20,080
Speaker 3: a critical mass of district judge or Court of Appeals

635
00:38:20,120 --> 00:38:23,160
Speaker 3: pinions that say we don't have to follow these guidelines.

636
00:38:23,200 --> 00:38:26,600
Speaker 3: They don't bind us, but we find their reasoning compelling,

637
00:38:26,960 --> 00:38:29,480
Speaker 3: and we are going to embrace and rely upon the

638
00:38:29,480 --> 00:38:33,120
Speaker 3: analytical approach that they've set out. So over the next

639
00:38:33,360 --> 00:38:37,240
Speaker 3: eighteen twenty four months, we will see if that judicial

640
00:38:37,280 --> 00:38:38,320
Speaker 3: uptake is happening.

641
00:38:38,680 --> 00:38:41,440
Speaker 1: Thanks so much for sharing those insights with us. Bill.

642
00:38:41,880 --> 00:38:45,920
Speaker 1: That's William Klevasik, former chair of the FTC and a

643
00:38:45,960 --> 00:38:48,920
Speaker 1: professor at GW Law School. And that's it for this

644
00:38:49,040 --> 00:38:52,200
Speaker 1: edition of the Bloomberg Law Podcast. Remember you've can always

645
00:38:52,200 --> 00:38:54,960
Speaker 1: get the latest legal news by subscribing and listening to

646
00:38:55,000 --> 00:38:59,160
Speaker 1: the show on Apple Podcasts, Spotify, and at Bloomberg dot com,

647
00:38:59,160 --> 00:39:03,440
Speaker 1: slash podcast, Slash Law. I'm June Grosso and this is

648
00:39:03,440 --> 00:39:04,040
Speaker 1: Bloomberg