1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. 2 00:00:08,920 --> 00:00:12,119 Speaker 1: It's a pretty bad deal. So the core issue here 3 00:00:12,320 --> 00:00:14,600 Speaker 1: was that Live Nation and a ticketmaster when they merged 4 00:00:14,600 --> 00:00:17,520 Speaker 1: a few years back, they became so powerful that they 5 00:00:17,520 --> 00:00:18,960 Speaker 1: were able to raise ticket prices. 6 00:00:20,000 --> 00:00:24,520 Speaker 2: Republican and Democratic attorneys general are among those who are 7 00:00:24,560 --> 00:00:29,120 Speaker 2: not happy with the Justice Department's sudden mid trial settlement 8 00:00:29,560 --> 00:00:34,200 Speaker 2: of its landmark anti trust case against Live Nation. North 9 00:00:34,240 --> 00:00:38,400 Speaker 2: Carolina Attorney General Jeff Jackson says it's a bad deal 10 00:00:38,880 --> 00:00:41,960 Speaker 2: that keeps Live Nations monopoly in place. 11 00:00:42,840 --> 00:00:45,479 Speaker 1: The vast majority of the ages who started on this 12 00:00:45,560 --> 00:00:48,720 Speaker 1: lawsuit are going to stay on this lawsuit. That's Republicans 13 00:00:48,720 --> 00:00:52,120 Speaker 1: and Democrats, a couple dozen of us from across the country. 14 00:00:52,360 --> 00:00:54,880 Speaker 1: We're working out the timeline, but we've told Life Nation 15 00:00:54,960 --> 00:00:57,600 Speaker 1: they can expect to see us back in court very soon. 16 00:00:57,800 --> 00:01:01,760 Speaker 2: Perhaps as soon as Monday, if settlement talks ordered by 17 00:01:01,800 --> 00:01:05,880 Speaker 2: the federal trial judge go nowhere. Joining me is anti 18 00:01:05,880 --> 00:01:11,080 Speaker 2: trust law expert Harry First, a professor at NYU Law School. Harry, 19 00:01:11,160 --> 00:01:14,560 Speaker 2: let's start with the trial judge's reaction to this surprise 20 00:01:14,760 --> 00:01:20,360 Speaker 2: settlement of the Justice Department with Live Nation. The judge 21 00:01:21,040 --> 00:01:25,160 Speaker 2: scolded everyone at a hearing on Tuesday. He said the 22 00:01:25,240 --> 00:01:30,480 Speaker 2: DOJ's lack of transparency about its settlement negotiations was mind 23 00:01:30,560 --> 00:01:34,840 Speaker 2: boggling and that the party's conduct here strains the bounds 24 00:01:34,840 --> 00:01:39,400 Speaker 2: of acceptable conduct. I mean, four days into the trial, 25 00:01:39,680 --> 00:01:41,640 Speaker 2: the secrecy, what's up? 26 00:01:42,200 --> 00:01:46,080 Speaker 3: Well, these are great questions. You know, we can speculate. 27 00:01:46,240 --> 00:01:48,720 Speaker 3: I'm glad to speculate, but we don't know for sure. 28 00:01:49,000 --> 00:01:52,760 Speaker 3: Here's my guess. My guess is the trial staff. They 29 00:01:52,760 --> 00:01:56,200 Speaker 3: have really top people trying this case. My guess is 30 00:01:56,240 --> 00:01:59,160 Speaker 3: they were blindsided. My guess is that they were not 31 00:02:00,160 --> 00:02:03,480 Speaker 3: involved in this settlement. 32 00:02:04,200 --> 00:02:05,000 Speaker 4: Just to guess. 33 00:02:05,400 --> 00:02:09,680 Speaker 3: These are real long serving professionals, both in and out 34 00:02:09,720 --> 00:02:12,919 Speaker 3: of the Justice Department. I think that this was done 35 00:02:12,960 --> 00:02:17,320 Speaker 3: above them. That's a guess. And the term sheet I've 36 00:02:17,320 --> 00:02:20,200 Speaker 3: never seen. This is the crazy term sheet. What is 37 00:02:20,240 --> 00:02:23,880 Speaker 3: this a deal? The term sheet is signed by the 38 00:02:23,919 --> 00:02:27,640 Speaker 3: acting Assistant Attorney General, not by anyone on the trial staff. 39 00:02:28,000 --> 00:02:31,800 Speaker 3: And for this to become a what's called a consent 40 00:02:31,880 --> 00:02:35,120 Speaker 3: decree that the judge enters, it's got to look a 41 00:02:35,160 --> 00:02:38,520 Speaker 3: little more formal than this. So whether they'll sign it 42 00:02:38,639 --> 00:02:41,080 Speaker 3: or not, I think would be a good question, and 43 00:02:41,280 --> 00:02:43,360 Speaker 3: I don't know. I think that's to look forward to 44 00:02:43,680 --> 00:02:47,400 Speaker 3: and blaming the states, I would be close to certain 45 00:02:47,400 --> 00:02:49,760 Speaker 3: that the States were completely out of the loop on this. 46 00:02:50,360 --> 00:02:53,480 Speaker 3: I think everyone was concerned that this case was going 47 00:02:53,520 --> 00:02:56,960 Speaker 3: to be sold out, and I mean sold out in 48 00:02:57,000 --> 00:03:03,040 Speaker 3: the literal sense that this was a political deal. And 49 00:03:03,600 --> 00:03:06,560 Speaker 3: you know, whether it's actual money changing hands or just 50 00:03:06,600 --> 00:03:10,760 Speaker 3: straight lobbying that this is another example of you know, 51 00:03:10,840 --> 00:03:14,440 Speaker 3: something happening like that, and you know, people were watching 52 00:03:14,440 --> 00:03:15,960 Speaker 3: this case to see if was ever going to go 53 00:03:16,040 --> 00:03:19,200 Speaker 3: to trial, you know, whether it would be settled out 54 00:03:19,680 --> 00:03:22,880 Speaker 3: before with exactly the thing that we see, which is 55 00:03:22,919 --> 00:03:25,440 Speaker 3: that Live Nation doesn't have to give up Ticketmaster. 56 00:03:26,480 --> 00:03:30,519 Speaker 2: The settlement doesn't address the main relief sought in the case, 57 00:03:30,600 --> 00:03:35,880 Speaker 2: which is which is Live Nations selling its Ticketmaster subsidiary. 58 00:03:36,240 --> 00:03:38,200 Speaker 2: I mean that was that the center of the case. 59 00:03:39,280 --> 00:03:42,440 Speaker 2: So what does the public get from this settlement? 60 00:03:44,560 --> 00:03:47,000 Speaker 3: A little bit older and deeper in debt. Wasn't that 61 00:03:47,040 --> 00:03:50,480 Speaker 3: the song? I don't think the public interest is served 62 00:03:50,520 --> 00:03:53,000 Speaker 3: by I think public gets very much. There may be 63 00:03:53,160 --> 00:03:56,200 Speaker 3: some money, who knows how much the states have to 64 00:03:56,240 --> 00:04:00,280 Speaker 3: agree to it. There's some pullback it wasn't clear who 65 00:04:00,360 --> 00:04:03,320 Speaker 3: owns what in these arenas. I don't know exactly. They 66 00:04:03,320 --> 00:04:06,680 Speaker 3: were negotiating the terms, you know, Sunday night before this 67 00:04:07,480 --> 00:04:12,120 Speaker 3: term sheet was released, so it really isn't isn't clear, 68 00:04:12,360 --> 00:04:14,800 Speaker 3: and if they have to, you know, go back on 69 00:04:14,880 --> 00:04:18,560 Speaker 3: some of the contracts, the exclusivity. The problem is not 70 00:04:18,640 --> 00:04:22,160 Speaker 3: in the formal contracts. The problem is in the economics 71 00:04:22,200 --> 00:04:27,360 Speaker 3: of this business and tying the ticket sellers to the talent. 72 00:04:27,520 --> 00:04:29,760 Speaker 3: I mean, that's what it is. And you're not going 73 00:04:29,839 --> 00:04:32,960 Speaker 3: to solve it by saying, excuse me, don't insist on 74 00:04:33,000 --> 00:04:36,480 Speaker 3: a contract. That's where they started out in twenty ten. 75 00:04:37,000 --> 00:04:40,479 Speaker 3: It never worked, it never will work. So it's just 76 00:04:40,640 --> 00:04:44,599 Speaker 3: really not something to advance the public interest. The second 77 00:04:44,600 --> 00:04:49,560 Speaker 3: part is some access to ticket Master's API so some 78 00:04:50,240 --> 00:04:55,160 Speaker 3: other ticketing company can do something. They actually tried this before, 79 00:04:55,320 --> 00:04:58,360 Speaker 3: that was part of the twenty ten settlement and one 80 00:04:58,400 --> 00:05:00,560 Speaker 3: of the things that happened is the company supposed to 81 00:05:00,720 --> 00:05:02,800 Speaker 3: give it access to it didn't want it. I mean, 82 00:05:02,800 --> 00:05:08,040 Speaker 3: it's just it's failed. Failed, and it fails because venues 83 00:05:08,640 --> 00:05:12,599 Speaker 3: will not want to offend Live Nation by using a 84 00:05:12,640 --> 00:05:15,680 Speaker 3: different ticketing company. And Live Nation has said it they 85 00:05:15,720 --> 00:05:18,800 Speaker 3: said in testimony. They said, you know, we're going to 86 00:05:18,839 --> 00:05:21,280 Speaker 3: make the choice that makes us the most money. Guess 87 00:05:21,360 --> 00:05:25,640 Speaker 3: what you know. So it's sad, but overlaying it is 88 00:05:25,680 --> 00:05:31,240 Speaker 3: this question of political influence, which has been the song 89 00:05:31,400 --> 00:05:35,520 Speaker 3: of anti trust from the beginning, and here we are again. 90 00:05:35,600 --> 00:05:39,599 Speaker 2: I think thirty nine state attorneys general are also part 91 00:05:39,640 --> 00:05:43,920 Speaker 2: of the case, and twenty seven states in DC asks 92 00:05:43,960 --> 00:05:47,479 Speaker 2: for a mistrial and also for sixty days so that 93 00:05:47,520 --> 00:05:49,960 Speaker 2: their attorneys can try to get up to speed to 94 00:05:50,040 --> 00:05:52,680 Speaker 2: try the case. Because the Justice Department was the lead 95 00:05:52,720 --> 00:05:55,839 Speaker 2: on the case. So the judge didn't rule on the 96 00:05:55,880 --> 00:05:59,320 Speaker 2: mistrial motion, but he required the top officials to stay 97 00:05:59,320 --> 00:06:01,360 Speaker 2: in the court house for the rest of the week 98 00:06:01,720 --> 00:06:04,320 Speaker 2: and try to hammer out a deal. I mean, what 99 00:06:04,400 --> 00:06:06,359 Speaker 2: are the chances of a deal zero to. 100 00:06:07,839 --> 00:06:07,919 Speaker 1: What? 101 00:06:09,000 --> 00:06:12,800 Speaker 3: Well, you never knowing these things. I mean, the states 102 00:06:12,800 --> 00:06:16,000 Speaker 3: are now in a tough spot. They were sitting there 103 00:06:16,040 --> 00:06:19,000 Speaker 3: watching the trial. They knew that this could blow up 104 00:06:19,040 --> 00:06:22,360 Speaker 3: at any point. I don't think they're surprised in that sense. 105 00:06:22,880 --> 00:06:25,159 Speaker 3: But of course there's a difference between sitting there watching 106 00:06:25,200 --> 00:06:29,000 Speaker 3: the trial and stepping you know, up there and trying 107 00:06:29,000 --> 00:06:31,880 Speaker 3: the cases before a jury. I don't know how it goes. 108 00:06:31,920 --> 00:06:34,440 Speaker 3: When you know, you can see why they'd want to mistrial, 109 00:06:34,760 --> 00:06:37,200 Speaker 3: not want to have to come before the jury without 110 00:06:37,240 --> 00:06:41,320 Speaker 3: the Justice Department there and say Hi, we're your new friends. 111 00:06:42,120 --> 00:06:44,120 Speaker 3: You remember those those other folks. 112 00:06:44,240 --> 00:06:44,920 Speaker 4: Do you explain this? 113 00:06:45,360 --> 00:06:47,400 Speaker 3: I don't know how that exactly that would work. This 114 00:06:47,480 --> 00:06:52,559 Speaker 3: is really weird. There have been cases well, one case 115 00:06:52,600 --> 00:06:55,839 Speaker 3: in which I'm familiar is the Microsoft case where states 116 00:06:55,839 --> 00:06:58,800 Speaker 3: and the federal government tried the case together and then 117 00:06:58,960 --> 00:07:02,919 Speaker 3: the Justice Department settled with Microsoft, but not all the 118 00:07:03,000 --> 00:07:07,080 Speaker 3: states did, and they continued to litigate the remedy but 119 00:07:07,320 --> 00:07:10,280 Speaker 3: not you know, whether there's a liability, so it's still 120 00:07:10,280 --> 00:07:13,680 Speaker 3: a little different. Didn't go so well for them, so 121 00:07:14,160 --> 00:07:16,480 Speaker 3: it's hard. They're in a hard position. 122 00:07:17,360 --> 00:07:17,600 Speaker 1: You know. 123 00:07:17,840 --> 00:07:22,040 Speaker 3: Maybe they can eke out some more something from Live Nation, 124 00:07:22,320 --> 00:07:28,640 Speaker 3: although I bet they don't. And you know, they either 125 00:07:28,640 --> 00:07:31,560 Speaker 3: are going to have to join the settlement or go 126 00:07:31,640 --> 00:07:33,360 Speaker 3: it alone. I think the judge is not going to 127 00:07:33,360 --> 00:07:37,480 Speaker 3: be too happy about a mistrial and starting over again. 128 00:07:38,320 --> 00:07:42,000 Speaker 3: And the only reason to do it, well, there are 129 00:07:42,000 --> 00:07:44,600 Speaker 3: two reasons. One is to get good law made, is 130 00:07:44,600 --> 00:07:50,040 Speaker 3: to get a verdict against Live Nation, and Ticketmaster will 131 00:07:50,080 --> 00:07:53,800 Speaker 3: help in some other private litigation, maybe not so much help, 132 00:07:53,800 --> 00:07:57,280 Speaker 3: but a little. And the second is that relief to 133 00:07:57,400 --> 00:08:01,280 Speaker 3: get to vestiture and you know, maybe they can make 134 00:08:01,320 --> 00:08:03,920 Speaker 3: the case if they've got the right experts, and that 135 00:08:04,000 --> 00:08:06,120 Speaker 3: this is the only way to solve this problem than 136 00:08:06,240 --> 00:08:10,840 Speaker 3: to have competition in ticketing, is to change the incentives 137 00:08:10,840 --> 00:08:13,320 Speaker 3: of the parties in this industry if. 138 00:08:13,240 --> 00:08:16,000 Speaker 2: You talk about you know, politics and the politics of 139 00:08:16,040 --> 00:08:19,559 Speaker 2: the states. For example, New York Attorney General Letitia James 140 00:08:19,560 --> 00:08:22,320 Speaker 2: has said that at least twenty five states in DC 141 00:08:22,520 --> 00:08:25,720 Speaker 2: are going to continue with the trial. The idea of 142 00:08:25,720 --> 00:08:29,640 Speaker 2: this suit is also popular with the public because buying 143 00:08:29,720 --> 00:08:33,680 Speaker 2: concert tickets has become a luxury item. Every time you 144 00:08:33,720 --> 00:08:36,440 Speaker 2: go to buy tickets on ticket Master, it seems like 145 00:08:36,960 --> 00:08:40,280 Speaker 2: the prices have climbed yet again. So what do the 146 00:08:40,280 --> 00:08:43,200 Speaker 2: states have to lose by going forward with the trial. 147 00:08:43,600 --> 00:08:46,320 Speaker 3: Well, part of the answer is that the remedy of 148 00:08:46,360 --> 00:08:50,080 Speaker 3: splitting them apart will not, you know, the day after 149 00:08:50,240 --> 00:08:54,320 Speaker 3: produce lower ticket prices. It's a market process, and you 150 00:08:54,440 --> 00:08:58,679 Speaker 3: hope that new companies will enter the ticketing business particularly 151 00:08:59,040 --> 00:09:03,120 Speaker 3: and bring some competition there. But you know, Taylor Swift 152 00:09:03,120 --> 00:09:06,520 Speaker 3: concerts are still going to be really expensive and there'll 153 00:09:06,559 --> 00:09:09,920 Speaker 3: still be resale markets and so it's a slow fix. 154 00:09:10,559 --> 00:09:13,720 Speaker 3: So yes, it looks attractive from the point of view 155 00:09:13,720 --> 00:09:16,640 Speaker 3: of the States and you know, pushing on and being 156 00:09:16,720 --> 00:09:20,600 Speaker 3: the public interest, but it is a longer term public interest. 157 00:09:20,760 --> 00:09:23,880 Speaker 3: So maybe there's some quick fix or something. Everybody who 158 00:09:23,920 --> 00:09:27,760 Speaker 3: bought a Taylor Swift ticket gets free out, but I 159 00:09:27,760 --> 00:09:31,440 Speaker 3: don't know, you know, get some money, so maybe they'll 160 00:09:31,440 --> 00:09:33,920 Speaker 3: increase the money in the pot. There's a lot of 161 00:09:33,960 --> 00:09:34,560 Speaker 3: money here. 162 00:09:35,320 --> 00:09:38,360 Speaker 2: So when the judge rejected the request and said that 163 00:09:38,400 --> 00:09:40,760 Speaker 2: if the parties truly want to settle, a deal could 164 00:09:40,760 --> 00:09:43,640 Speaker 2: be made within the week, and the Innaus attorney for 165 00:09:43,720 --> 00:09:46,840 Speaker 2: Live Nations, Dan Wall, said, I've done this for forty 166 00:09:46,840 --> 00:09:49,400 Speaker 2: five years and there's zero chance we get this done 167 00:09:49,480 --> 00:09:52,880 Speaker 2: by Friday. And the judge said, not with that attitude. 168 00:09:53,640 --> 00:09:54,240 Speaker 4: I love that. 169 00:09:54,240 --> 00:09:57,800 Speaker 3: That was great. Yeah, Dan Wall is very sure of himself. 170 00:09:57,880 --> 00:10:00,839 Speaker 3: Let's say, but the States have now apparently hired a 171 00:10:00,960 --> 00:10:05,200 Speaker 3: very very successful anti trust trial lawyer, Jeffrey Kessler. It's 172 00:10:05,200 --> 00:10:10,040 Speaker 3: a smart, sharp move, so they're not looking to you know, 173 00:10:10,480 --> 00:10:14,400 Speaker 3: just vanish, but they are up against a difficult tactical 174 00:10:14,640 --> 00:10:17,800 Speaker 3: position here, and they have to be sure that they 175 00:10:18,240 --> 00:10:21,520 Speaker 3: really want to go ahead and push for divestiture. It's 176 00:10:21,520 --> 00:10:26,040 Speaker 3: not impossible, but the States don't generally do so well 177 00:10:26,520 --> 00:10:29,520 Speaker 3: once they've been deserted by the Justice Department. There are 178 00:10:29,960 --> 00:10:33,679 Speaker 3: past cases, not always, but it's hard now. You know, 179 00:10:33,720 --> 00:10:37,319 Speaker 3: they need the experts, the economists, industry experts, and the 180 00:10:37,960 --> 00:10:41,640 Speaker 3: you know, they need a top lawyer. I guess they 181 00:10:41,679 --> 00:10:45,400 Speaker 3: have good lawyers in the house, but they've hired, you know, 182 00:10:45,480 --> 00:10:48,680 Speaker 3: a guy who could go up against Dan wall if there's. 183 00:10:48,440 --> 00:10:50,720 Speaker 2: No settlement of the judge says the trial's going to 184 00:10:50,760 --> 00:10:54,000 Speaker 2: restart on Monday with the same jury. It seems very 185 00:10:54,040 --> 00:10:57,160 Speaker 2: difficult for the States to just pick up now if 186 00:10:57,200 --> 00:11:00,400 Speaker 2: the judge doesn't give them more time. Okay, on Monday, 187 00:11:00,440 --> 00:11:03,120 Speaker 2: we're in court when you know, we haven't been prepping 188 00:11:03,160 --> 00:11:04,800 Speaker 2: the witnesses. We haven't been doing this. 189 00:11:05,480 --> 00:11:06,440 Speaker 4: Yeah, I don't know. 190 00:11:06,760 --> 00:11:11,120 Speaker 3: I don't know how actively involved they've been in trial 191 00:11:11,240 --> 00:11:14,720 Speaker 3: prep or how much is it always an underlying tension 192 00:11:14,760 --> 00:11:17,160 Speaker 3: between the States and the Feds even when they're trying 193 00:11:17,640 --> 00:11:21,480 Speaker 3: cases together. You know, playing with your friends doesn't always 194 00:11:21,559 --> 00:11:26,400 Speaker 3: go smoothly, even if you're good friends. But my guess 195 00:11:26,440 --> 00:11:29,920 Speaker 3: also is that the professionals on the staff. The trial 196 00:11:30,000 --> 00:11:35,840 Speaker 3: staff will not be the roadblocks, but the front office. 197 00:11:36,440 --> 00:11:39,040 Speaker 3: Who knows what they'll do with the witnesses they've got 198 00:11:39,040 --> 00:11:41,840 Speaker 3: and the information they've got, and how hard they'll make 199 00:11:41,880 --> 00:11:45,280 Speaker 3: it for the states. I don't know. To add one 200 00:11:45,360 --> 00:11:47,800 Speaker 3: other thing in there. In February, the head of the 201 00:11:47,800 --> 00:11:49,360 Speaker 3: any Trust Division was fired. 202 00:11:49,720 --> 00:11:51,240 Speaker 2: I was going to ask you about that. You know 203 00:11:51,600 --> 00:11:56,960 Speaker 2: where the anti trust division is going in trump second administration. 204 00:11:57,160 --> 00:12:01,400 Speaker 3: Yeah, Well, the speculation was, my speculation was that she 205 00:12:01,600 --> 00:12:03,280 Speaker 3: was told that she was going to have to settle 206 00:12:03,280 --> 00:12:07,360 Speaker 3: this case and she refused. This really is speculation. I 207 00:12:07,360 --> 00:12:11,680 Speaker 3: haven't read any reporting about it. In the grand scheme 208 00:12:11,720 --> 00:12:15,120 Speaker 3: of things, this barely caused a ripple, you know, in 209 00:12:15,160 --> 00:12:18,079 Speaker 3: the world. So the reporting was that she was fired, 210 00:12:18,160 --> 00:12:21,200 Speaker 3: not that she quit, you know. So all of this 211 00:12:21,320 --> 00:12:24,920 Speaker 3: sort of fits together in light of some other things 212 00:12:24,920 --> 00:12:28,920 Speaker 3: that have happened in antitrust as well as of course 213 00:12:28,960 --> 00:12:30,360 Speaker 3: the broader world. 214 00:12:30,720 --> 00:12:34,160 Speaker 2: I mean, the judge can always reject the settlement, right, So. 215 00:12:34,559 --> 00:12:37,840 Speaker 3: There's a legal process for the settlement itself. They have 216 00:12:37,920 --> 00:12:41,400 Speaker 3: to file what's called a competitive impact statement. They have 217 00:12:41,520 --> 00:12:44,920 Speaker 3: to let it open for public comment for a period 218 00:12:44,920 --> 00:12:49,000 Speaker 3: of time. Then there's a hearing before the judge. It's 219 00:12:49,040 --> 00:12:53,040 Speaker 3: called a Tonny Act, and the judge has to approve 220 00:12:53,559 --> 00:12:57,520 Speaker 3: the settlement as in the public interest. Now that, as 221 00:12:57,559 --> 00:13:02,160 Speaker 3: it's been interpreted over to time, does not give the judge, 222 00:13:02,440 --> 00:13:04,840 Speaker 3: you know, the broadest power to say this is a 223 00:13:04,920 --> 00:13:08,199 Speaker 3: crappy settlement, forget it, I want you to try this case. 224 00:13:08,440 --> 00:13:12,000 Speaker 3: But the judge does have some power and this will 225 00:13:12,040 --> 00:13:16,640 Speaker 3: certainly provoke a lot of public comment, and that's a 226 00:13:16,679 --> 00:13:20,679 Speaker 3: process that will go forward while the case is being tried. Apparently, 227 00:13:20,760 --> 00:13:23,920 Speaker 3: I mean there, I forget the exact time, but it's 228 00:13:23,920 --> 00:13:27,319 Speaker 3: say thirty or sixty days for comment that this has 229 00:13:27,360 --> 00:13:30,640 Speaker 3: to be put into a formal decree, yes, and the 230 00:13:30,760 --> 00:13:34,880 Speaker 3: judge has to eventually review it and approve it, and 231 00:13:34,920 --> 00:13:37,480 Speaker 3: then it can be appealed. Actually, so we're not at 232 00:13:37,520 --> 00:13:38,720 Speaker 3: the end of this process. 233 00:13:39,040 --> 00:13:41,600 Speaker 2: What do you make of the judge telling the attorneys 234 00:13:41,600 --> 00:13:43,559 Speaker 2: for a live nation the government, you know, this is it. 235 00:13:43,600 --> 00:13:44,760 Speaker 2: You can't go back on this. 236 00:13:44,760 --> 00:13:49,600 Speaker 3: Now, well, because you know, the second step in this 237 00:13:49,760 --> 00:13:53,240 Speaker 3: could be that the Justice Department moves to dismiss its complaint, 238 00:13:53,840 --> 00:13:58,000 Speaker 3: doesn't even go through the formal process. You know, we've 239 00:13:58,080 --> 00:14:02,320 Speaker 3: seen that where the Justice Department just says bye, we 240 00:14:02,360 --> 00:14:05,679 Speaker 3: haven't seen it in any trust cases because the anti 241 00:14:05,760 --> 00:14:09,840 Speaker 3: trust professionals really don't want to see a case where 242 00:14:10,080 --> 00:14:12,760 Speaker 3: parties promise to do something but it's not backed up 243 00:14:13,240 --> 00:14:16,640 Speaker 3: with the court decree. This consent decree. So I don't 244 00:14:16,679 --> 00:14:20,840 Speaker 3: really predict it here unless she's I've been pretty bad 245 00:14:20,840 --> 00:14:23,280 Speaker 3: at predicting things, so don't help me to to this. 246 00:14:23,440 --> 00:14:25,520 Speaker 2: I don't know about that. I'll also look back at 247 00:14:25,520 --> 00:14:29,880 Speaker 2: your score. Also, under this agreement, the government could sue 248 00:14:29,920 --> 00:14:30,400 Speaker 2: them again. 249 00:14:31,520 --> 00:14:35,080 Speaker 3: So as it's written, you know, this is not you know, 250 00:14:35,480 --> 00:14:38,920 Speaker 3: we're forever done. It's hard to know what to make 251 00:14:38,960 --> 00:14:42,520 Speaker 3: of that. I mean, the government has actually they did 252 00:14:42,600 --> 00:14:47,920 Speaker 3: sue in twenty ten when Ticketmaster acquired Live Nation and 253 00:14:48,080 --> 00:14:51,920 Speaker 3: entered into a consent decree. They re up the consent 254 00:14:52,000 --> 00:14:55,440 Speaker 3: decree in twenty nineteen where they threatened to sue again. 255 00:14:55,920 --> 00:14:58,680 Speaker 3: And then this is a suit with a different legal 256 00:14:58,720 --> 00:15:02,600 Speaker 3: theory that they out in twenty twenty four. So the 257 00:15:02,720 --> 00:15:07,160 Speaker 3: standard rule is the government is not stopped from, you know, 258 00:15:07,320 --> 00:15:10,520 Speaker 3: unless they've signed a piece of paper, from bringing a 259 00:15:10,520 --> 00:15:13,800 Speaker 3: new suit. So the answer to that is, yes, they 260 00:15:13,800 --> 00:15:16,400 Speaker 3: could bring another suit. I mean, in a way, it's 261 00:15:16,440 --> 00:15:20,440 Speaker 3: cold comfort we've now had from twenty ten to you know, 262 00:15:20,520 --> 00:15:25,880 Speaker 3: twenty twenty six. This monopoly. It's you know, they've made 263 00:15:25,920 --> 00:15:28,120 Speaker 3: a lot of money off of this. Thank you very much. 264 00:15:28,160 --> 00:15:30,400 Speaker 3: We could eventually sue them at some point. 265 00:15:30,080 --> 00:15:33,200 Speaker 2: When this settlement is actually turning out to be more 266 00:15:33,240 --> 00:15:36,720 Speaker 2: interesting than the trial in some ways. Thanks so much, 267 00:15:36,760 --> 00:15:41,720 Speaker 2: Harry for your insights. That's Professor Harry First of NYU 268 00:15:41,880 --> 00:15:46,240 Speaker 2: Law School. Prediction market platforms have soared in popularity in 269 00:15:46,360 --> 00:15:51,320 Speaker 2: recent years, testing legal and regulatory norms like never before, 270 00:15:52,040 --> 00:15:56,000 Speaker 2: although most have drawn a line at one category, direct 271 00:15:56,040 --> 00:16:00,000 Speaker 2: wagers on war. In fact, betting on war is prohibit 272 00:16:00,200 --> 00:16:04,360 Speaker 2: in the United States, as is insider trading. Despite that, 273 00:16:04,560 --> 00:16:08,000 Speaker 2: it seems to be flourishing on Polymarket, one of the 274 00:16:08,040 --> 00:16:13,520 Speaker 2: world's largest prediction markets, whose main exchange operates offshore and 275 00:16:13,680 --> 00:16:19,360 Speaker 2: outside the oversight of US regulators and now blockchain analysts 276 00:16:19,400 --> 00:16:24,680 Speaker 2: have flagged suspicious activity and lawmakers are calling for a crackdown. 277 00:16:25,280 --> 00:16:25,520 Speaker 5: Why. 278 00:16:26,000 --> 00:16:29,080 Speaker 2: The day before the US and Israel launched an attack 279 00:16:29,120 --> 00:16:32,240 Speaker 2: on Iran, there was a surge in big bets on 280 00:16:32,400 --> 00:16:36,680 Speaker 2: poly Market that correctly predicted the strike would happen. The 281 00:16:36,720 --> 00:16:41,600 Speaker 2: next day, bubble Map's Paris based company that tracks data 282 00:16:41,600 --> 00:16:47,680 Speaker 2: on crypto transactions, identified what it called six suspected insiders 283 00:16:48,040 --> 00:16:51,280 Speaker 2: who made a one point two million dollar wager that 284 00:16:51,520 --> 00:16:56,000 Speaker 2: correctly predicted the US would strike Iran. Joining me is 285 00:16:56,040 --> 00:17:00,240 Speaker 2: business law professor Eric Tally of Columbia Law School. He's 286 00:17:00,280 --> 00:17:04,880 Speaker 2: the co host of the Beyond Unprecedented podcast. Eric tell 287 00:17:04,920 --> 00:17:09,000 Speaker 2: us about the bets on Polymarket that are causing concern. 288 00:17:09,640 --> 00:17:09,920 Speaker 4: Yeah. 289 00:17:09,960 --> 00:17:17,000 Speaker 5: So, Polymarket is one of two major event driven contract 290 00:17:17,480 --> 00:17:20,919 Speaker 5: websites that people use that are basically prediction market, you know, 291 00:17:21,000 --> 00:17:26,600 Speaker 5: sort of platforms. And both Polymarket and Calshi had various 292 00:17:26,640 --> 00:17:30,119 Speaker 5: types of events, including events that might occur in Iran, 293 00:17:30,280 --> 00:17:35,640 Speaker 5: and many of those pertained to the continued integrity of 294 00:17:35,880 --> 00:17:41,000 Speaker 5: the Ayatola Kamenese regime in Iran and whether it would 295 00:17:41,119 --> 00:17:44,000 Speaker 5: still be you know, in power, say by the end 296 00:17:44,000 --> 00:17:45,840 Speaker 5: of February or by the end of the first week 297 00:17:45,840 --> 00:17:49,879 Speaker 5: of March. And these are essentially binary bets, you know, 298 00:17:49,960 --> 00:17:52,479 Speaker 5: they call them contracts, but they're essentially bets where you 299 00:17:52,520 --> 00:17:56,520 Speaker 5: can bet on yes or bet on no. And it 300 00:17:56,600 --> 00:18:00,800 Speaker 5: became pretty apparent in the hours before the Israeli and 301 00:18:00,920 --> 00:18:04,880 Speaker 5: US strike on Iran that ended up killing both Iotola 302 00:18:04,920 --> 00:18:09,280 Speaker 5: Khameni and many other senior members of the Iranian government 303 00:18:09,640 --> 00:18:12,439 Speaker 5: that there had been a lot of activity that was 304 00:18:12,520 --> 00:18:17,480 Speaker 5: essentially betting against the continuing viability of the how many 305 00:18:17,920 --> 00:18:22,400 Speaker 5: government passed in some future date. The interesting part about 306 00:18:22,440 --> 00:18:24,439 Speaker 5: this June is that while there were a lot of 307 00:18:24,440 --> 00:18:27,399 Speaker 5: bets that were being placed on this most were small 308 00:18:27,480 --> 00:18:30,399 Speaker 5: scale and kind of went on both sides of the transaction. 309 00:18:30,720 --> 00:18:33,320 Speaker 5: But there were some really big ones that got placed 310 00:18:33,560 --> 00:18:37,240 Speaker 5: literally within hours of the bombing, that were all betting 311 00:18:37,280 --> 00:18:41,400 Speaker 5: against the Iyatola's fate, and all of them at least 312 00:18:41,440 --> 00:18:46,240 Speaker 5: purportedly paid out. That gave rise, unsurprisingly to a pretty 313 00:18:46,280 --> 00:18:50,160 Speaker 5: significant kerfuffle about who created these brand new accounts, why 314 00:18:50,200 --> 00:18:53,120 Speaker 5: were they placing hundreds of thousands, even millions of dollars 315 00:18:53,480 --> 00:18:57,400 Speaker 5: in betting on this particular event when these accounts hadn't 316 00:18:57,440 --> 00:18:58,520 Speaker 5: made any bets before. 317 00:18:59,240 --> 00:19:05,200 Speaker 2: And which is a company that tracks data on crypto transactions, 318 00:19:05,440 --> 00:19:09,920 Speaker 2: identified what it called six suspected insiders who made one 319 00:19:10,000 --> 00:19:13,600 Speaker 2: point two million dollars in wagers that the US would 320 00:19:13,640 --> 00:19:17,040 Speaker 2: strike Iran Senator Chris Murphy was one of the people 321 00:19:17,040 --> 00:19:19,960 Speaker 2: who said, you know, it's insane that this is legal, 322 00:19:20,480 --> 00:19:25,399 Speaker 2: and he said that the unusual betting suggested that even 323 00:19:26,119 --> 00:19:29,760 Speaker 2: decision makers might have had a stake in the outcome, 324 00:19:30,200 --> 00:19:34,359 Speaker 2: which the White House denied. But insider trading look. 325 00:19:34,200 --> 00:19:37,040 Speaker 5: So a couple of points to pick apart in that statement. 326 00:19:37,119 --> 00:19:40,200 Speaker 5: The first has to do with is this in fact 327 00:19:40,359 --> 00:19:41,760 Speaker 5: legal or not legal? 328 00:19:41,840 --> 00:19:42,080 Speaker 4: Now? 329 00:19:42,240 --> 00:19:44,760 Speaker 5: You know, because prediction markets are new in the US, 330 00:19:44,880 --> 00:19:49,160 Speaker 5: there's still a battle raging about how exactly these contracts 331 00:19:49,240 --> 00:19:52,880 Speaker 5: get classified. I think most people think that they are 332 00:19:52,920 --> 00:19:55,080 Speaker 5: a type of derivative contract. 333 00:19:55,320 --> 00:19:56,919 Speaker 4: That's kind of my belief as well. 334 00:19:57,280 --> 00:19:59,159 Speaker 5: They tend to have a lot of the look and 335 00:19:59,200 --> 00:20:01,879 Speaker 5: feel of a lot of other call options, put options, 336 00:20:02,119 --> 00:20:05,679 Speaker 5: various exotic options that you can buy and sell on 337 00:20:06,000 --> 00:20:10,240 Speaker 5: the Chicago Mercantile Exchange. And so those are in fact, 338 00:20:10,440 --> 00:20:13,080 Speaker 5: to the extent that they are derivative contracts. They are 339 00:20:13,359 --> 00:20:17,600 Speaker 5: in fact regulated by the Commodities Future Trading Commission or 340 00:20:17,640 --> 00:20:22,359 Speaker 5: a CFTC, and that commission has a pretty robust insider 341 00:20:22,480 --> 00:20:26,000 Speaker 5: trading prohibition that we can talk a little bit about. 342 00:20:25,720 --> 00:20:26,560 Speaker 4: The specifics of. 343 00:20:26,960 --> 00:20:29,800 Speaker 5: But I think that the Senator, all due respect, might 344 00:20:29,840 --> 00:20:33,600 Speaker 5: be leaping to conclusions to say that this wasn't prohibited 345 00:20:33,640 --> 00:20:36,399 Speaker 5: by law. In addition, there are a lot of state 346 00:20:36,480 --> 00:20:39,639 Speaker 5: laws that might also sweep in to prohibit this type 347 00:20:39,840 --> 00:20:43,159 Speaker 5: of inside trading that can also. 348 00:20:42,920 --> 00:20:44,399 Speaker 4: Have criminal implications. 349 00:20:44,640 --> 00:20:49,520 Speaker 5: So, irrespective of current bills pending in Congress, this is 350 00:20:49,800 --> 00:20:54,600 Speaker 5: definitely something that I would expect that CFTC lawyers might 351 00:20:54,640 --> 00:20:57,320 Speaker 5: be kicking the tires off as to who did it. 352 00:20:57,359 --> 00:20:59,320 Speaker 5: We still don't really know. We don't know who the 353 00:20:59,320 --> 00:21:02,080 Speaker 5: owners of these accounts were. And you know, the fact 354 00:21:02,119 --> 00:21:05,160 Speaker 5: of the matter is this could range from anyone from 355 00:21:05,560 --> 00:21:09,479 Speaker 5: senior decision makers in the process in the room of 356 00:21:09,560 --> 00:21:13,240 Speaker 5: making these decisions, to potentially mid level staffers or even 357 00:21:13,320 --> 00:21:16,560 Speaker 5: White House interns who were asked to run papers back 358 00:21:16,600 --> 00:21:19,560 Speaker 5: and forth. One thing is kind of interesting, June, is 359 00:21:19,560 --> 00:21:21,439 Speaker 5: that you know, I don't know whether you have a 360 00:21:21,480 --> 00:21:23,400 Speaker 5: polymarket or calshy account. 361 00:21:23,560 --> 00:21:24,320 Speaker 2: Absolutely not. 362 00:21:24,960 --> 00:21:28,160 Speaker 5: Yeah, I'm just gonna say that there is a definite 363 00:21:28,240 --> 00:21:31,639 Speaker 5: generational skew on who has these accounts. 364 00:21:31,960 --> 00:21:32,720 Speaker 4: I have them. 365 00:21:32,760 --> 00:21:35,280 Speaker 5: But the only reason that I have these accounts is 366 00:21:35,280 --> 00:21:37,919 Speaker 5: that I teach finance to twenty four year olds and 367 00:21:37,960 --> 00:21:39,960 Speaker 5: they all have them, and so I have to kind 368 00:21:39,960 --> 00:21:42,000 Speaker 5: of get inside their head to figure out, you know, 369 00:21:42,040 --> 00:21:45,080 Speaker 5: how I'm going to present the material. So I would say, yeah, 370 00:21:45,160 --> 00:21:48,879 Speaker 5: it's certainly possible that senior leadership in the Trump administration 371 00:21:49,040 --> 00:21:51,720 Speaker 5: White House was engaged in some of this trading, but 372 00:21:51,720 --> 00:21:54,560 Speaker 5: I wouldn't be surprised if a twenty four year old 373 00:21:54,600 --> 00:21:58,040 Speaker 5: intern wasn't. Also, you know, asked to shuffle some papers 374 00:21:58,040 --> 00:22:00,280 Speaker 5: back and forth, put two and two together, and then 375 00:22:00,280 --> 00:22:02,480 Speaker 5: got on Calshi and you know, borrowed a bunch of 376 00:22:02,480 --> 00:22:04,720 Speaker 5: money to make a one directional bet. 377 00:22:04,960 --> 00:22:10,080 Speaker 2: The CFTC has the authority to investigate this, but Michael Sellig, 378 00:22:10,200 --> 00:22:14,000 Speaker 2: the chair, came out in February saying that he sees 379 00:22:14,080 --> 00:22:17,359 Speaker 2: the platforms as a way for society to channel the 380 00:22:17,400 --> 00:22:21,159 Speaker 2: wisdom of crowds for useful information, offering a check on 381 00:22:21,280 --> 00:22:25,199 Speaker 2: news media and other gatekeepers. And earlier this year the 382 00:22:25,240 --> 00:22:30,000 Speaker 2: CFTC withdrew a Biden era effort to prevent Calshie from 383 00:22:30,040 --> 00:22:35,080 Speaker 2: accepting bets on the outcome of sports events and political elections. So, first, 384 00:22:35,359 --> 00:22:39,040 Speaker 2: does the CFTC have the authority here to look into this? 385 00:22:39,520 --> 00:22:41,919 Speaker 2: And second are they likely to? 386 00:22:42,800 --> 00:22:45,280 Speaker 5: Yeah, it's a fine point, and maybe backing up a 387 00:22:45,359 --> 00:22:47,480 Speaker 5: little bit, one of the things that I have to 388 00:22:47,760 --> 00:22:50,960 Speaker 5: you know, impress upon my law students is that formal 389 00:22:51,080 --> 00:22:55,560 Speaker 5: legal differences don't always add up into substantive differences. So, 390 00:22:55,800 --> 00:22:57,520 Speaker 5: you know, one thing that I asked my students is 391 00:22:57,560 --> 00:23:03,120 Speaker 5: what's the difference between gambling, insurance, and buying and trading securities? 392 00:23:03,640 --> 00:23:08,560 Speaker 5: And many valiantly attempts to distinguish them, but the fact 393 00:23:08,560 --> 00:23:11,320 Speaker 5: of the matter is, June, they are all kind of 394 00:23:11,359 --> 00:23:14,920 Speaker 5: the same type of a thing. They're regulated very differently, 395 00:23:14,960 --> 00:23:17,200 Speaker 5: and so the boundaries of where one ends and one 396 00:23:17,240 --> 00:23:20,479 Speaker 5: begins it's really important from a legal perspective, but you know, 397 00:23:20,560 --> 00:23:23,840 Speaker 5: really the biggest difference between you know, insurance, gambling and 398 00:23:24,240 --> 00:23:27,400 Speaker 5: securities trading is how exciting is the thing that you're 399 00:23:27,400 --> 00:23:30,399 Speaker 5: trading on, and gambling is probably more more exciting than 400 00:23:30,440 --> 00:23:33,040 Speaker 5: any of them. The other thing, though, that is important 401 00:23:33,080 --> 00:23:36,800 Speaker 5: to keep in mind is that while the CFTC you 402 00:23:36,800 --> 00:23:40,640 Speaker 5: know spokesperson certainly has a point to say that prediction 403 00:23:40,800 --> 00:23:46,120 Speaker 5: markets are an important tool for marshaling the wisdom of 404 00:23:46,160 --> 00:23:50,320 Speaker 5: the crowd, there are at least two important caveats to that. 405 00:23:50,760 --> 00:23:55,360 Speaker 5: The first caveat is that if one allowed pretty much 406 00:23:55,480 --> 00:24:00,240 Speaker 5: unbridled insider trading in these circumstances, then you and I, 407 00:24:00,280 --> 00:24:02,800 Speaker 5: as people who don't have access to that type of 408 00:24:02,800 --> 00:24:06,280 Speaker 5: inside information are going to get wise to it pretty soon, 409 00:24:06,440 --> 00:24:09,440 Speaker 5: and we're going to realize that any bet that we 410 00:24:09,520 --> 00:24:12,880 Speaker 5: make on Calshi or polymarket, there's a good chance we're 411 00:24:12,880 --> 00:24:14,560 Speaker 5: going to be on the losing side of it because 412 00:24:14,560 --> 00:24:16,800 Speaker 5: we don't have as much information as the person that 413 00:24:16,840 --> 00:24:20,439 Speaker 5: we are essentially trading with on that platform. And so 414 00:24:20,640 --> 00:24:24,680 Speaker 5: one of the big conundrums with inside information and trying 415 00:24:24,720 --> 00:24:27,440 Speaker 5: to see how quickly we can get it infused into 416 00:24:27,480 --> 00:24:30,520 Speaker 5: the market is that if you basically say we're just 417 00:24:30,560 --> 00:24:34,480 Speaker 5: taking the breaks off completely, that can have a feedback 418 00:24:34,520 --> 00:24:37,640 Speaker 5: effect of causing all the uninformed people to say, I'm 419 00:24:37,680 --> 00:24:39,639 Speaker 5: just going to sit this dance out. I don't trust 420 00:24:39,640 --> 00:24:42,800 Speaker 5: these markets, and I'm not going to provide liquidity and 421 00:24:42,880 --> 00:24:46,400 Speaker 5: depth to these markets. So that's one thing to worry 422 00:24:46,400 --> 00:24:49,040 Speaker 5: about that even if you believe this idea that the 423 00:24:49,080 --> 00:24:52,359 Speaker 5: wisdom of crowds is really really important for things like 424 00:24:52,480 --> 00:24:57,040 Speaker 5: price discovery, and I do believe that, that doesn't necessarily 425 00:24:57,080 --> 00:25:00,280 Speaker 5: imply that you should basically take all the break breaks 426 00:25:00,320 --> 00:25:03,320 Speaker 5: off of insider trading, because it can undermine that very 427 00:25:03,359 --> 00:25:06,560 Speaker 5: market itself. The second thing that is probably worth keeping 428 00:25:06,640 --> 00:25:10,480 Speaker 5: in mind is that there are bets and there are bets. Right, 429 00:25:10,560 --> 00:25:12,200 Speaker 5: So if you and I were to make a bet 430 00:25:12,320 --> 00:25:16,840 Speaker 5: about I don't know Friday's temperature at noon in Botswana, 431 00:25:17,359 --> 00:25:20,680 Speaker 5: that's something that you know, there will be a temperature reading, 432 00:25:20,760 --> 00:25:23,280 Speaker 5: it will probably be trustworthy, and there is nothing that 433 00:25:23,400 --> 00:25:27,680 Speaker 5: you or I could do to influence the nature of 434 00:25:27,720 --> 00:25:30,840 Speaker 5: that outcome. On the other hand, if we are betting 435 00:25:30,920 --> 00:25:35,000 Speaker 5: on whether you know, the Yankees pitcher is next going 436 00:25:35,040 --> 00:25:37,920 Speaker 5: to throw a ball or a strike, or a curveball 437 00:25:38,119 --> 00:25:42,760 Speaker 5: or a fastball, and that picture himself is in you know, 438 00:25:42,880 --> 00:25:45,560 Speaker 5: contact with folks who are making those sorts of bets, 439 00:25:45,840 --> 00:25:50,720 Speaker 5: that's a highly manipulable decision, and there the wisdom of 440 00:25:50,800 --> 00:25:53,840 Speaker 5: crowds is almost self defeating. As soon as the wisdom 441 00:25:53,880 --> 00:25:57,120 Speaker 5: of crowds points in one direction are hypothetical, Yankees pitcher 442 00:25:57,200 --> 00:25:58,800 Speaker 5: is going to have an incentive to pitch in the 443 00:25:58,800 --> 00:26:01,840 Speaker 5: other direction to make money off of it. So they're 444 00:26:01,880 --> 00:26:05,320 Speaker 5: in situations where the thing that is being bet upon, 445 00:26:05,840 --> 00:26:08,280 Speaker 5: you know, is basically under the control of someone who 446 00:26:08,359 --> 00:26:11,879 Speaker 5: is either participating in those markets or has connections to 447 00:26:11,920 --> 00:26:14,760 Speaker 5: people that are participating in that market. They're you know, 448 00:26:15,040 --> 00:26:18,760 Speaker 5: I think people lose trust in these markets almost immediately, 449 00:26:18,800 --> 00:26:21,840 Speaker 5: and they don't actually even serve this idea of aggregating 450 00:26:22,240 --> 00:26:23,720 Speaker 5: preferences and beliefs in a. 451 00:26:23,800 --> 00:26:24,880 Speaker 4: Very effective way. 452 00:26:25,240 --> 00:26:27,600 Speaker 5: And so you know, where do we put things like 453 00:26:27,880 --> 00:26:31,080 Speaker 5: bombing of Iran? You know, that's kind of kind of 454 00:26:31,080 --> 00:26:33,520 Speaker 5: in the middle. It's a big decision. You and I 455 00:26:33,560 --> 00:26:37,520 Speaker 5: probably don't have an awful lot of influence over it, 456 00:26:37,880 --> 00:26:39,720 Speaker 5: but there may be a lot of people who either 457 00:26:39,800 --> 00:26:42,040 Speaker 5: know about it and want to go out and make 458 00:26:42,240 --> 00:26:46,240 Speaker 5: approximately infinity dollars off of the markets here, or you know, 459 00:26:46,280 --> 00:26:49,080 Speaker 5: are the decision makers in this area, which which creates 460 00:26:49,119 --> 00:26:51,600 Speaker 5: a second problem, right, which is that as soon as 461 00:26:51,600 --> 00:26:54,120 Speaker 5: they see money to be made by a particular decision. 462 00:26:54,359 --> 00:26:56,520 Speaker 5: You know, if they're engaged in these markets, do they 463 00:26:56,520 --> 00:26:59,159 Speaker 5: have an incentive to change their decision so as to 464 00:26:59,160 --> 00:26:59,959 Speaker 5: be able to cash out. 465 00:27:00,680 --> 00:27:04,720 Speaker 2: Just straighten one thing out for me. The CFTC does 466 00:27:04,840 --> 00:27:08,760 Speaker 2: prohibit these prediction markets from listing markets related to war 467 00:27:09,280 --> 00:27:09,840 Speaker 2: right now. 468 00:27:09,880 --> 00:27:16,280 Speaker 5: There is a prohibition in US trading on various types 469 00:27:16,520 --> 00:27:20,680 Speaker 5: of extremely sort of political type of events. But it's 470 00:27:21,000 --> 00:27:24,680 Speaker 5: very hazy, and so sometimes you know, something on the periphery, 471 00:27:24,880 --> 00:27:28,359 Speaker 5: like you know, will this administration be around in four months? 472 00:27:28,640 --> 00:27:30,480 Speaker 5: That's going to be something that gets wrapped up in 473 00:27:31,040 --> 00:27:33,680 Speaker 5: war as well. And so, you know, I think that 474 00:27:33,720 --> 00:27:36,040 Speaker 5: we're in the middle of this kind of process where 475 00:27:36,280 --> 00:27:39,120 Speaker 5: these platforms are trying to figure out, you know, what 476 00:27:39,200 --> 00:27:42,280 Speaker 5: can we allow and what should we disallow on these 477 00:27:42,320 --> 00:27:46,719 Speaker 5: platforms in ways that make people both participate and trust 478 00:27:46,760 --> 00:27:49,960 Speaker 5: these platforms as not basically being a suckers. 479 00:27:49,520 --> 00:27:51,680 Speaker 4: Play for people that don't have inside information. 480 00:27:52,480 --> 00:27:54,480 Speaker 5: And that's going to be very much in Calshing's and 481 00:27:54,520 --> 00:27:58,080 Speaker 5: polymarkets interests to try to try to do that, but 482 00:27:58,119 --> 00:27:59,800 Speaker 5: they're hardly ever going to be able to get it. 483 00:28:00,640 --> 00:28:04,080 Speaker 5: And a lot of times, you know, the underlying nature 484 00:28:04,200 --> 00:28:07,440 Speaker 5: of these of these securities bet if you will, are 485 00:28:07,520 --> 00:28:10,000 Speaker 5: essentially going to be around the fringes of what you know, 486 00:28:10,119 --> 00:28:13,600 Speaker 5: the designers of Calci and Polymarket are capable of anticipating 487 00:28:13,600 --> 00:28:14,160 Speaker 5: in advance. 488 00:28:14,600 --> 00:28:19,320 Speaker 2: Calhi faced backlash over a multimillion dollar market on whether 489 00:28:19,600 --> 00:28:24,040 Speaker 2: Commania would be ousted, and they actually issued refunds on 490 00:28:24,119 --> 00:28:29,040 Speaker 2: the market citing regulations barring wagers on death. Yeah, so 491 00:28:29,080 --> 00:28:30,719 Speaker 2: they self regulated. 492 00:28:31,600 --> 00:28:34,240 Speaker 5: They sort of self regulated, and you know, I think 493 00:28:34,280 --> 00:28:37,639 Speaker 5: that there is you know, in some ways because a 494 00:28:37,680 --> 00:28:40,479 Speaker 5: lot of these bets were very very one sided. Calshi 495 00:28:40,600 --> 00:28:43,800 Speaker 5: actually you know, faced possibly a little bit of exposure 496 00:28:43,880 --> 00:28:45,920 Speaker 5: on this as well, and so I think, you know, 497 00:28:46,000 --> 00:28:48,440 Speaker 5: some people are trying to say, was this Calshi basically 498 00:28:48,440 --> 00:28:52,320 Speaker 5: trying to cover their own backsides, or were they legitimately 499 00:28:52,400 --> 00:28:57,720 Speaker 5: trying to enforce a prohibition on various types of effectively 500 00:28:57,760 --> 00:29:01,400 Speaker 5: what becomes wagering at the form level, you know, where 501 00:29:01,440 --> 00:29:03,840 Speaker 5: they ended up sort of coming down was this sort 502 00:29:03,840 --> 00:29:06,840 Speaker 5: of I think a little bit of a messy distinction 503 00:29:07,120 --> 00:29:09,400 Speaker 5: between you know, were they going to pay off at all? 504 00:29:09,480 --> 00:29:11,080 Speaker 5: And if they were, were they going to pay off 505 00:29:11,080 --> 00:29:13,800 Speaker 5: only a portion of the wager that was put down? 506 00:29:14,600 --> 00:29:16,480 Speaker 5: And you know, I think that you know, created a 507 00:29:16,520 --> 00:29:19,360 Speaker 5: lot of ire amongst their clients who felt, you know, 508 00:29:19,400 --> 00:29:21,880 Speaker 5: maybe some of them honestly were you know, making a 509 00:29:21,920 --> 00:29:24,520 Speaker 5: wager in a direction that paid off and they didn't 510 00:29:24,560 --> 00:29:27,320 Speaker 5: have any inside information on and suddenly they were getting 511 00:29:27,320 --> 00:29:29,760 Speaker 5: short changed on it by the same token. 512 00:29:30,160 --> 00:29:34,000 Speaker 4: You know, these platforms absolutely have an incentive not to 513 00:29:34,040 --> 00:29:37,360 Speaker 4: develop a reputation as being kind of the place where 514 00:29:37,360 --> 00:29:38,840 Speaker 4: suckers go to lose their money. 515 00:29:39,400 --> 00:29:43,680 Speaker 2: Coming up next, what about possible prosecutions? This is Bloomberg. 516 00:29:46,120 --> 00:29:49,160 Speaker 2: I've been talking to Columbia Law School professor Eric Talley 517 00:29:49,600 --> 00:29:54,000 Speaker 2: about the controversy over Bett's placed on the prediction market 518 00:29:54,080 --> 00:30:00,400 Speaker 2: platform Polymarket, correctly predicting the US strike on Iran. So Liebruary, 519 00:30:00,840 --> 00:30:05,600 Speaker 2: Israeli authorities arrested several people and charged to a civilian 520 00:30:05,640 --> 00:30:10,200 Speaker 2: and a military reservist with using classified information to place 521 00:30:10,280 --> 00:30:14,560 Speaker 2: bets on Polymarket. Anyone in the US who used classified 522 00:30:14,680 --> 00:30:17,800 Speaker 2: information to place a bet, I mean it would be 523 00:30:17,920 --> 00:30:22,880 Speaker 2: subject to criminal prosecution. Right Is anybody looking into that? 524 00:30:23,000 --> 00:30:25,600 Speaker 2: Is there an agency besides the CFTC. 525 00:30:26,480 --> 00:30:29,440 Speaker 5: I'm pretty positive there are some state attorneys general that 526 00:30:29,480 --> 00:30:31,920 Speaker 5: are looking at this as well. One of the things 527 00:30:31,920 --> 00:30:34,000 Speaker 5: that's kind of interesting about this June is that it 528 00:30:34,040 --> 00:30:37,040 Speaker 5: gets a little bit into the details of how insider 529 00:30:37,120 --> 00:30:39,960 Speaker 5: trading law works, and there are a couple of theories 530 00:30:40,000 --> 00:30:42,200 Speaker 5: behind it, but the one that would most likely apply 531 00:30:42,680 --> 00:30:47,120 Speaker 5: to this situation is something that lawyers call the misappropriation theory, 532 00:30:47,440 --> 00:30:51,920 Speaker 5: and what it basically means is if my employer or 533 00:30:52,080 --> 00:30:54,680 Speaker 5: someone with whom I have some kind of a relationship 534 00:30:54,680 --> 00:31:00,040 Speaker 5: of trust and confidence reveals inside information to me that 535 00:31:00,160 --> 00:31:04,920 Speaker 5: is gonna happen with either the stated or implied a 536 00:31:04,960 --> 00:31:07,120 Speaker 5: restriction that I have to keep that confidential. So if 537 00:31:07,160 --> 00:31:09,800 Speaker 5: I go out and trade on it, then I have 538 00:31:09,960 --> 00:31:14,400 Speaker 5: breached that confidentiality, and that is effectively what triggers a 539 00:31:14,400 --> 00:31:17,960 Speaker 5: lot of criminal and civil liability for insider trading, the 540 00:31:17,960 --> 00:31:22,320 Speaker 5: fact that I've misappropriated, I've violated this order or this 541 00:31:22,400 --> 00:31:25,680 Speaker 5: command of confidentiality that came from the source, maybe it's 542 00:31:25,720 --> 00:31:28,360 Speaker 5: my employer or someone else. But the thing it's always 543 00:31:28,360 --> 00:31:31,040 Speaker 5: been weird about this theory, and that applies also in 544 00:31:31,640 --> 00:31:36,040 Speaker 5: the derivatives context, is that it hinges very very critically 545 00:31:36,560 --> 00:31:41,400 Speaker 5: on what does your employer permit and not permit, right, 546 00:31:41,480 --> 00:31:44,600 Speaker 5: And so you could, in principle, have an employer who 547 00:31:44,640 --> 00:31:48,160 Speaker 5: develops a lot of confidential information and their inside employee 548 00:31:48,160 --> 00:31:51,840 Speaker 5: policies say, you know what, rather than paying you salaries, 549 00:31:51,880 --> 00:31:54,040 Speaker 5: we're just going to let you trade rampantly on this 550 00:31:54,120 --> 00:31:57,560 Speaker 5: inside information. And the third parties, the third party suckers 551 00:31:57,600 --> 00:31:59,640 Speaker 5: who trade with these informed folks, they have no idea 552 00:31:59,760 --> 00:32:02,000 Speaker 5: even who they're trading with or what the inside policy 553 00:32:02,120 --> 00:32:04,720 Speaker 5: is of the employer. But that's going to have a 554 00:32:04,840 --> 00:32:08,240 Speaker 5: huge effect on whether there will be civil or criminal liability, 555 00:32:08,480 --> 00:32:11,640 Speaker 5: whether there was such a prohibition. So you transport this 556 00:32:11,760 --> 00:32:16,360 Speaker 5: over to the administration in which clearly for classified information 557 00:32:16,480 --> 00:32:21,440 Speaker 5: there's both an implicit and an explicit prohibition on, you know, 558 00:32:21,720 --> 00:32:24,520 Speaker 5: trying to make money off of your own private knowledge 559 00:32:24,520 --> 00:32:28,520 Speaker 5: of classified information. On the other hand, as we learned 560 00:32:29,120 --> 00:32:34,240 Speaker 5: from the first Trump administration's you know, classified documents Gate, right, 561 00:32:34,320 --> 00:32:37,600 Speaker 5: there's a big question about, well, what constitutes classified and 562 00:32:37,640 --> 00:32:40,760 Speaker 5: not classified and who gets to determine when something is 563 00:32:40,800 --> 00:32:46,160 Speaker 5: suddenly classified or declassified and when? And President Trump basically 564 00:32:46,200 --> 00:32:49,400 Speaker 5: made the claim on behalf of himself that as he 565 00:32:49,480 --> 00:32:51,440 Speaker 5: spirited these documents out of the White House at the 566 00:32:51,520 --> 00:32:56,360 Speaker 5: end of his first administration, he basically declared, possibly to 567 00:32:56,520 --> 00:32:59,760 Speaker 5: himself or possibly in passing, that they're all declassified now 568 00:33:00,000 --> 00:33:04,640 Speaker 5: therefore he doesn't have any liability. So query whether I 569 00:33:04,640 --> 00:33:08,920 Speaker 5: don't know some some staffer, employee or you know, person 570 00:33:09,080 --> 00:33:12,800 Speaker 5: higher up in the administration was placing some of these bets. 571 00:33:13,160 --> 00:33:16,360 Speaker 5: The way that it would trigger, you know, most directly 572 00:33:17,080 --> 00:33:20,600 Speaker 5: inside of trading prohibitions is because they were classified. If 573 00:33:20,680 --> 00:33:22,920 Speaker 5: you know, President Trump said, oh, no, I de classified 574 00:33:22,920 --> 00:33:25,880 Speaker 5: that in a meeting, that I did it orally, But 575 00:33:25,920 --> 00:33:26,640 Speaker 5: it's totally fine. 576 00:33:27,240 --> 00:33:28,960 Speaker 4: Who knows what's going to happen there now? 577 00:33:29,120 --> 00:33:31,840 Speaker 5: Having said that that doesn't necessarily take these folks off 578 00:33:31,920 --> 00:33:34,120 Speaker 5: the hook for state level offenses, and there are some 579 00:33:34,200 --> 00:33:37,440 Speaker 5: state level offenses that easily could be applied here. California 580 00:33:37,440 --> 00:33:41,920 Speaker 5: and New York have pretty rigorous prohibitions on inside trading transactions. 581 00:33:42,080 --> 00:33:46,440 Speaker 5: There are also various other types of provisions out there, 582 00:33:46,480 --> 00:33:49,400 Speaker 5: the wire fraud acts, the computer fraud and abuse acts 583 00:33:49,680 --> 00:33:53,680 Speaker 5: that might also kind of play a peripheral role in 584 00:33:53,760 --> 00:33:57,440 Speaker 5: this context. You know, at the federal level, that's only 585 00:33:57,480 --> 00:33:59,400 Speaker 5: going to be as strong as the stomach of the 586 00:33:59,440 --> 00:34:02,840 Speaker 5: federal prosecutors who are going to bring these cases. And 587 00:34:02,880 --> 00:34:05,320 Speaker 5: if they've gotten a command from on high that they 588 00:34:05,360 --> 00:34:07,560 Speaker 5: shouldn't bring any of them, then I think we're going 589 00:34:07,600 --> 00:34:09,800 Speaker 5: to be largely going to be left up to state 590 00:34:10,160 --> 00:34:11,040 Speaker 5: attorneys general. 591 00:34:11,480 --> 00:34:16,000 Speaker 2: Are they difficult to investigate because the main prediction platform 592 00:34:16,160 --> 00:34:21,120 Speaker 2: operates offshore, the bets are placed on the blockchain, the 593 00:34:21,160 --> 00:34:25,080 Speaker 2: identities of the accounts making the trades are anonymous. I mean, 594 00:34:25,200 --> 00:34:27,680 Speaker 2: let's say state attorneys general, would it be difficult for 595 00:34:27,719 --> 00:34:29,840 Speaker 2: them to get through all those layers? 596 00:34:30,640 --> 00:34:33,840 Speaker 5: Yeah, this has always been a difficult thing in investigating 597 00:34:33,880 --> 00:34:36,640 Speaker 5: trades made on the blockchain. Compared to ten years ago, 598 00:34:36,719 --> 00:34:39,239 Speaker 5: it's much easier to trace who, you know, the identity 599 00:34:39,280 --> 00:34:40,560 Speaker 5: of who was making these trades. 600 00:34:40,760 --> 00:34:41,560 Speaker 4: You know, where was this. 601 00:34:41,560 --> 00:34:45,040 Speaker 5: Wallet created, Who did the creation of this wallet. It's 602 00:34:45,040 --> 00:34:48,000 Speaker 5: possible to get that information. LIVA would rest on subpoena 603 00:34:48,040 --> 00:34:51,879 Speaker 5: power that might have to be applied extra territorially right 604 00:34:51,920 --> 00:34:55,040 Speaker 5: outside the country, because ice companies are based in Ireland 605 00:34:55,120 --> 00:34:58,520 Speaker 5: or England or Europe and so forth. So that creates 606 00:34:58,560 --> 00:35:03,680 Speaker 5: a stumbling block, not one that is necessarily insurmountable. I 607 00:35:03,719 --> 00:35:09,040 Speaker 5: could certainly imagine various regulators inside the EU or the 608 00:35:09,160 --> 00:35:13,400 Speaker 5: UK being equally worried about the use of prediction markets 609 00:35:13,400 --> 00:35:17,640 Speaker 5: for insider trading, and being perfectly willing to assist a 610 00:35:17,719 --> 00:35:20,520 Speaker 5: request from say the New York State Attorney General or 611 00:35:20,520 --> 00:35:23,920 Speaker 5: the California State Attorney General for some of that information, 612 00:35:24,080 --> 00:35:25,880 Speaker 5: or at least to say, yeah, we were willing to 613 00:35:26,840 --> 00:35:29,360 Speaker 5: serve your subpoena in Europe. 614 00:35:30,000 --> 00:35:32,040 Speaker 2: So, finally, Eric, what do you think about You know, 615 00:35:32,080 --> 00:35:36,080 Speaker 2: you talked about bills, and yesterday Senator Adam Schiff, Democrat 616 00:35:36,080 --> 00:35:41,080 Speaker 2: of California, introduced legislation seeking to explicitly ban any entity 617 00:35:41,160 --> 00:35:44,600 Speaker 2: regulated by the CFTC from listing a contract that involves 618 00:35:44,680 --> 00:35:49,200 Speaker 2: relates to a references terrorism, assassination, war or death. I mean, 619 00:35:49,239 --> 00:35:51,759 Speaker 2: what do you think about these bills? Long chances they 620 00:35:51,800 --> 00:35:54,879 Speaker 2: go through, But if they did, I think it's. 621 00:35:54,800 --> 00:35:57,480 Speaker 5: A valued attempt by center shif. I think there's a 622 00:35:57,560 --> 00:36:00,440 Speaker 5: couple things that are going to be challenged for it. 623 00:36:00,880 --> 00:36:03,879 Speaker 5: So thing one is that if you take a look 624 00:36:03,920 --> 00:36:07,279 Speaker 5: at that distinction that we talked about earlier between you know, 625 00:36:07,320 --> 00:36:11,200 Speaker 5: events that no one has much control over practically versus 626 00:36:11,239 --> 00:36:15,640 Speaker 5: events that that you know, decision makers do have control over. 627 00:36:16,120 --> 00:36:17,160 Speaker 4: You know, these things sit. 628 00:36:17,239 --> 00:36:20,880 Speaker 5: Right in the middle, right, terrorist events, war, you know, 629 00:36:21,400 --> 00:36:25,120 Speaker 5: in a lot of circumstances, those are completely extraneous events 630 00:36:25,160 --> 00:36:28,160 Speaker 5: to a lot of participants in these markets. And these 631 00:36:28,200 --> 00:36:31,239 Speaker 5: markets June are also you know, potentially helpful ways to 632 00:36:31,320 --> 00:36:33,719 Speaker 5: hedge various types of risk that you might bear. Right, 633 00:36:33,800 --> 00:36:36,719 Speaker 5: if you're running, I don't know, a wholesale operation that 634 00:36:36,840 --> 00:36:41,040 Speaker 5: requires shipping things through the strait of horror moves and 635 00:36:41,040 --> 00:36:43,600 Speaker 5: and you're quite worried that war is basically going to 636 00:36:43,640 --> 00:36:47,239 Speaker 5: shut down your business, you know, having some type of 637 00:36:47,280 --> 00:36:50,759 Speaker 5: insurance or a more exciting version of insurance, right, taking 638 00:36:50,760 --> 00:36:54,239 Speaker 5: a position in these in these prediction markets might be 639 00:36:54,640 --> 00:36:57,760 Speaker 5: a particularly good way to to try to hedge those risks. 640 00:36:57,960 --> 00:37:00,000 Speaker 5: So on some level, you know, is this just gonna 641 00:37:00,280 --> 00:37:04,440 Speaker 5: push things back into insurance markets that may be less 642 00:37:04,480 --> 00:37:08,120 Speaker 5: competitive than having more choices out there, So, you know, 643 00:37:08,160 --> 00:37:10,520 Speaker 5: I think that's gonna be, you know, potentially a problem. 644 00:37:10,560 --> 00:37:12,800 Speaker 5: I think another one is, you know, we're exactly do 645 00:37:12,840 --> 00:37:15,680 Speaker 5: you set the boundaries things like terrorism and war affect 646 00:37:15,719 --> 00:37:18,880 Speaker 5: a lot of other things that don't at least optically 647 00:37:18,960 --> 00:37:21,799 Speaker 5: look like their terrorism and war. Right, Like, you know, 648 00:37:21,960 --> 00:37:25,399 Speaker 5: does a prediction market contract that says, you know, we're 649 00:37:25,400 --> 00:37:28,319 Speaker 5: making predictions on how many ships are going to pass 650 00:37:28,360 --> 00:37:30,440 Speaker 5: through the strait of horror moves? Is it going to 651 00:37:30,520 --> 00:37:32,680 Speaker 5: be more than a hundred or less than one hundred, 652 00:37:32,840 --> 00:37:35,400 Speaker 5: you know a day in the month of April. Is 653 00:37:35,440 --> 00:37:38,640 Speaker 5: that a war contract? Or is that a shipping contract? 654 00:37:38,760 --> 00:37:38,960 Speaker 4: Right? 655 00:37:39,280 --> 00:37:42,080 Speaker 5: And you know, on some level it could be both. 656 00:37:42,200 --> 00:37:45,040 Speaker 5: And so I envision a lot a lot of sort 657 00:37:45,040 --> 00:37:48,560 Speaker 5: of boundary marking that's going to be heavily freighted, and 658 00:37:48,600 --> 00:37:50,600 Speaker 5: there's easy it's going to be easy to spot things 659 00:37:50,600 --> 00:37:53,000 Speaker 5: that ended up on the permitted side of the boundary 660 00:37:53,320 --> 00:37:56,280 Speaker 5: that pretty much look and walk and talk and act 661 00:37:56,320 --> 00:37:59,120 Speaker 5: as though they're a bet on war or terrorism, a lot. 662 00:37:59,000 --> 00:38:02,439 Speaker 2: More to come with these platforms. Thanks so much. 663 00:38:02,600 --> 00:38:02,839 Speaker 4: Eric. 664 00:38:03,120 --> 00:38:07,440 Speaker 2: That's Professor Eric Tally of Columbia Law School. His podcast 665 00:38:07,640 --> 00:38:11,719 Speaker 2: is called Beyond Unprecedented. And that's it for this edition 666 00:38:11,760 --> 00:38:14,399 Speaker 2: of The Bloomberg Law Show. Remember you can always get 667 00:38:14,400 --> 00:38:17,560 Speaker 2: the latest legal news on our Bloomberg Law podcasts. You 668 00:38:17,600 --> 00:38:21,680 Speaker 2: can find them on Apple Podcasts, Spotify, and at www 669 00:38:21,800 --> 00:38:26,080 Speaker 2: dot Bloomberg dot com slash podcast Slash Law, And remember 670 00:38:26,120 --> 00:38:29,080 Speaker 2: to tune into The Bloomberg Law Show every weeknight at 671 00:38:29,080 --> 00:38:32,560 Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're 672 00:38:32,680 --> 00:38:33,880 Speaker 2: listening to Bloomberg