1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,560 --> 00:00:12,920 Speaker 2: In the biggest tech antitrust case in three decades, Google 3 00:00:13,000 --> 00:00:17,720 Speaker 2: avoided a breakup after a DC federal judge ruled against 4 00:00:17,800 --> 00:00:23,079 Speaker 2: the government's most severe proposals for remedies, including a forced 5 00:00:23,160 --> 00:00:27,120 Speaker 2: sale of its Chrome browser. Judge on Metmeta had already 6 00:00:27,200 --> 00:00:31,880 Speaker 2: found in August of twenty twenty four that Google illegally 7 00:00:32,000 --> 00:00:35,680 Speaker 2: dominated the search market by paying more than twenty six 8 00:00:35,760 --> 00:00:39,240 Speaker 2: billion dollars to Apple and other companies to make its 9 00:00:39,240 --> 00:00:44,120 Speaker 2: search engine the default option on smartphones and web browsers. 10 00:00:44,600 --> 00:00:49,000 Speaker 2: Tuesday's ruling was all about the fix, and Google will 11 00:00:49,040 --> 00:00:53,600 Speaker 2: have to make some concessions, including sharing online search data 12 00:00:53,680 --> 00:00:58,760 Speaker 2: with rivals and ending exclusive contracts for distribution. My guest 13 00:00:58,840 --> 00:01:02,760 Speaker 2: is antitrust law expert Harry First, a professor at NYU 14 00:01:02,880 --> 00:01:07,400 Speaker 2: Law School. So on its website, the Department of Justice says, 15 00:01:08,040 --> 00:01:13,720 Speaker 2: Department of Justice wins significant remedies against Google, but this 16 00:01:13,840 --> 00:01:19,039 Speaker 2: falls far short of the severe remedies that the government wanted. 17 00:01:19,600 --> 00:01:22,120 Speaker 2: How much of a setback is it for the government 18 00:01:22,360 --> 00:01:25,400 Speaker 2: in its attempt to curb the power of the biggest 19 00:01:25,400 --> 00:01:26,240 Speaker 2: tech companies? 20 00:01:26,800 --> 00:01:30,119 Speaker 3: Well, you know, people often talk about things as being 21 00:01:30,160 --> 00:01:33,720 Speaker 3: a win win, and that's a good thing. So I 22 00:01:33,880 --> 00:01:37,640 Speaker 3: think that the judge's decision is a win win, but 23 00:01:37,800 --> 00:01:40,480 Speaker 3: not a good thing. So why is it a win 24 00:01:40,560 --> 00:01:45,000 Speaker 3: win because the Justice Department and the States gets something 25 00:01:45,520 --> 00:01:50,160 Speaker 3: and Google gets more by their not being more. So 26 00:01:50,560 --> 00:01:53,760 Speaker 3: I view it as win in sort of eight point 27 00:01:53,840 --> 00:01:57,560 Speaker 3: type on the government's side, and win in sort of 28 00:01:57,680 --> 00:02:01,800 Speaker 3: sixteen point type on Google. Said, so, here's what I mean. 29 00:02:02,200 --> 00:02:05,280 Speaker 3: It's not a significant victory for the Justice Department. They 30 00:02:05,280 --> 00:02:09,320 Speaker 3: did win some things, and you know, maybe that will 31 00:02:09,320 --> 00:02:13,280 Speaker 3: help bring some competition into search. But I think Google 32 00:02:13,320 --> 00:02:17,360 Speaker 3: won a lot by not losing very much. They get 33 00:02:17,400 --> 00:02:20,320 Speaker 3: to keep Chrome. A lot of the remedies that the 34 00:02:20,480 --> 00:02:27,519 Speaker 3: Department asked for and got even were cut down, circumscribed, diminished. 35 00:02:28,400 --> 00:02:32,280 Speaker 3: And you know, whether what the judge did will end 36 00:02:32,400 --> 00:02:37,519 Speaker 3: up changing the search business, I doubt but who knows. 37 00:02:38,200 --> 00:02:42,000 Speaker 3: But we've now passed the point where the question will 38 00:02:42,040 --> 00:02:45,640 Speaker 3: be will we get competition? And the question will just 39 00:02:45,720 --> 00:02:49,919 Speaker 3: be is Google complying with the decree. Of course, all 40 00:02:49,960 --> 00:02:54,920 Speaker 3: of that comes after a round of appeals, So there's 41 00:02:55,040 --> 00:02:57,880 Speaker 3: much more to this, But in terms of, you know, 42 00:02:58,000 --> 00:03:01,920 Speaker 3: the overall feeling about what we've done. I think it's, 43 00:03:02,040 --> 00:03:05,000 Speaker 3: you know, from a public point of view, a disappointment. 44 00:03:06,040 --> 00:03:10,200 Speaker 2: So the big headline was zoeas will Google be forced 45 00:03:10,200 --> 00:03:14,280 Speaker 2: to sell Chrome? We'll have to divest. So Google doesn't 46 00:03:14,280 --> 00:03:18,440 Speaker 2: have to do that. Why did Judge Meta decide not 47 00:03:18,560 --> 00:03:20,200 Speaker 2: to make Google divest Chrome? 48 00:03:20,560 --> 00:03:24,560 Speaker 3: So this is a second point that pervades Judge Meta's decision. 49 00:03:25,440 --> 00:03:29,400 Speaker 3: Rightly in a legal sense, but I think not so 50 00:03:30,280 --> 00:03:33,680 Speaker 3: correct from a policy point of view and really where 51 00:03:33,720 --> 00:03:36,240 Speaker 3: the law ought to be. So this is in many 52 00:03:36,240 --> 00:03:40,800 Speaker 3: ways a very conservative opinion. It's the judge expressing what 53 00:03:40,880 --> 00:03:46,400 Speaker 3: judges often express is that they understand the limits of 54 00:03:46,440 --> 00:03:50,080 Speaker 3: who they are, what the institution can do, and what 55 00:03:50,120 --> 00:03:53,920 Speaker 3: they want to do on an ongoing basis. So they're 56 00:03:54,000 --> 00:03:59,240 Speaker 3: conservative about this. And here the government's plaintiffs are asking 57 00:03:59,280 --> 00:04:03,960 Speaker 3: them to do some pretty strong restructuring of one of 58 00:04:04,000 --> 00:04:08,560 Speaker 3: the superstar firms in the United States. So you got 59 00:04:08,560 --> 00:04:12,320 Speaker 3: to be a little modest. Now. The judge backs up 60 00:04:12,360 --> 00:04:16,599 Speaker 3: his modesty with a lot of quotations from the Court 61 00:04:16,600 --> 00:04:20,200 Speaker 3: of Appeals and recently from the Supreme Court in a 62 00:04:20,200 --> 00:04:24,440 Speaker 3: different anti trust case opinion written by Justice Gorsuch, which 63 00:04:24,560 --> 00:04:29,000 Speaker 3: counsels let's be careful a little bit. So the ask 64 00:04:29,440 --> 00:04:33,320 Speaker 3: that Chrome be divested structural relief is something that the 65 00:04:33,440 --> 00:04:38,000 Speaker 3: DC Circuit itself. Remember, Judge Meta is a district court 66 00:04:38,160 --> 00:04:41,719 Speaker 3: judge overseen by a Court of Appeals from the DC 67 00:04:41,960 --> 00:04:46,880 Speaker 3: Circuit District of Columbia Circuit, so he's required to follow 68 00:04:47,440 --> 00:04:51,040 Speaker 3: the law from that circuit. The law from that circuit 69 00:04:51,120 --> 00:04:58,040 Speaker 3: on remedies is actually pretty conservative and cautious, and that 70 00:04:58,279 --> 00:05:02,279 Speaker 3: stems from actually the Microsoft case, which is much the 71 00:05:02,360 --> 00:05:05,839 Speaker 3: template for the complaint that the government filed and for 72 00:05:05,920 --> 00:05:09,120 Speaker 3: the government's theories. So you know, they said, well, when 73 00:05:09,160 --> 00:05:13,680 Speaker 3: it comes to structural relief, restructuring, reorganizing a company, you 74 00:05:13,800 --> 00:05:16,599 Speaker 3: really need some strong proof before you do that. You 75 00:05:16,720 --> 00:05:21,040 Speaker 3: need to watch out. And so he took those admonitions 76 00:05:21,080 --> 00:05:27,440 Speaker 3: to heart and just didn't find enough to overcome that 77 00:05:28,040 --> 00:05:30,599 Speaker 3: sort of a presumption that you know, you don't do 78 00:05:30,720 --> 00:05:34,359 Speaker 3: this unless you really have to do it for effective relief. 79 00:05:35,080 --> 00:05:38,479 Speaker 3: And this then goes to the second part that maybe 80 00:05:38,560 --> 00:05:42,240 Speaker 3: the government didn't make an effective enough case for divesting 81 00:05:42,320 --> 00:05:47,160 Speaker 3: Chrome and maybe made it seem too easy. So stuck 82 00:05:47,200 --> 00:05:50,360 Speaker 3: with all of that, he backed away from it. 83 00:05:50,960 --> 00:05:55,800 Speaker 2: How much did AI play into his decision, So that's. 84 00:05:55,560 --> 00:05:58,480 Speaker 3: Maybe the real lead which we're now burying. I think 85 00:05:58,600 --> 00:06:02,559 Speaker 3: his decision is all about it, frankly, and I think 86 00:06:02,640 --> 00:06:06,520 Speaker 3: that he's betting, and many in the industry, and if 87 00:06:06,520 --> 00:06:09,000 Speaker 3: you listen to some of the news shows, are just 88 00:06:09,040 --> 00:06:12,599 Speaker 3: simply betting that AI is going to replace search as 89 00:06:12,640 --> 00:06:17,000 Speaker 3: we know it with something else that's not search as 90 00:06:17,040 --> 00:06:19,680 Speaker 3: we know it, or maybe as you and I know it, 91 00:06:19,880 --> 00:06:25,520 Speaker 3: but just simply getting information, and that Google Search, that product, 92 00:06:25,880 --> 00:06:29,440 Speaker 3: no matter what he does in this opinion, is going 93 00:06:29,560 --> 00:06:34,520 Speaker 3: to be eclipsed by some AI product, and I think 94 00:06:34,560 --> 00:06:39,159 Speaker 3: that that permeates. I think that he views generative AI 95 00:06:39,360 --> 00:06:41,800 Speaker 3: as coming to the rescue of competition. 96 00:06:42,320 --> 00:06:45,760 Speaker 2: Yeah. Some say it's already eroding Google's events. 97 00:06:46,440 --> 00:06:46,560 Speaker 1: Yea. 98 00:06:46,640 --> 00:06:49,200 Speaker 3: The data seemed to show. He mentions this in his 99 00:06:49,279 --> 00:06:54,719 Speaker 3: opinion that searches on Safari have decreased. You know, people 100 00:06:54,839 --> 00:06:58,200 Speaker 3: seem to be going directly to you know, chat, GPT 101 00:06:58,520 --> 00:07:03,279 Speaker 3: or Perplexity or some of these other AI assistant things 102 00:07:03,600 --> 00:07:08,000 Speaker 3: and just getting information that way. And this is the 103 00:07:08,040 --> 00:07:13,600 Speaker 3: destructive force of innovation, as the economist Joseph Schumpeter talked 104 00:07:13,600 --> 00:07:17,200 Speaker 3: about many years ago. So maybe he's right, and you 105 00:07:17,240 --> 00:07:19,840 Speaker 3: know that may mean that sort of didn't matter what 106 00:07:19,920 --> 00:07:24,080 Speaker 3: he did so long as AI lives. But of course 107 00:07:24,120 --> 00:07:29,000 Speaker 3: the worry is that we'll just replicate the current structure 108 00:07:29,200 --> 00:07:33,400 Speaker 3: of the tech platform. Superstar firms will just control AI, 109 00:07:34,080 --> 00:07:37,960 Speaker 3: and we won't have moved to new competition, but we'll 110 00:07:38,000 --> 00:07:39,120 Speaker 3: have a different product. 111 00:07:40,360 --> 00:07:44,240 Speaker 2: He's ordering Google to share data with rivals to open 112 00:07:44,360 --> 00:07:48,640 Speaker 2: up competition in online search. Google has to share some 113 00:07:48,720 --> 00:07:51,600 Speaker 2: of the data with competitors, but not some of its 114 00:07:51,640 --> 00:07:52,800 Speaker 2: most important data. 115 00:07:52,880 --> 00:07:56,320 Speaker 3: Would you say, well, here again, it's hard to say 116 00:07:56,360 --> 00:07:59,560 Speaker 3: exactly what our important data. You could say all of 117 00:07:59,600 --> 00:08:03,360 Speaker 3: the data are important, the more the more. But you know, 118 00:08:03,640 --> 00:08:08,000 Speaker 3: this particularly involves the search index, which is something that 119 00:08:08,280 --> 00:08:12,800 Speaker 3: Google has done really well, and the government in some 120 00:08:12,840 --> 00:08:14,800 Speaker 3: ways didn't ask for as much as it could, which 121 00:08:14,880 --> 00:08:17,800 Speaker 3: would have been a license to the index itself. What 122 00:08:17,840 --> 00:08:21,200 Speaker 3: they wanted is some help with the data so competitors 123 00:08:21,240 --> 00:08:25,640 Speaker 3: could build an index. And even with that, the judge 124 00:08:25,640 --> 00:08:29,760 Speaker 3: cut down the kinds of data that will be required 125 00:08:29,800 --> 00:08:34,960 Speaker 3: to be disclosed, and to me, even more importantly, the 126 00:08:35,000 --> 00:08:39,200 Speaker 3: timing of the disclosure. So for some of these data 127 00:08:39,240 --> 00:08:42,960 Speaker 3: it's a one time snapshot, which strikes me. As you know, 128 00:08:43,200 --> 00:08:46,760 Speaker 3: the judge calls at a kickstart for competition. Yeah, like 129 00:08:46,840 --> 00:08:49,280 Speaker 3: a kick in the rear. I don't know, you know, 130 00:08:49,400 --> 00:08:53,559 Speaker 3: a one time thing for some very important parts of 131 00:08:53,720 --> 00:08:57,320 Speaker 3: some basic information to help them put together a better 132 00:08:57,400 --> 00:09:00,440 Speaker 3: index of the web. There's an awful lot of information 133 00:09:00,600 --> 00:09:03,960 Speaker 3: out there, and indexing it is critical for an effective 134 00:09:04,000 --> 00:09:07,840 Speaker 3: search engine. And you know, when it comes to sort 135 00:09:07,840 --> 00:09:11,920 Speaker 3: of this user side data to click and query. You 136 00:09:11,960 --> 00:09:15,600 Speaker 3: know what we do when we get free search is 137 00:09:15,800 --> 00:09:19,160 Speaker 3: create data that's worth a heck of a lot of 138 00:09:19,200 --> 00:09:23,040 Speaker 3: money for which we don't get paid, we being you 139 00:09:23,200 --> 00:09:26,240 Speaker 3: and me and all the other users. But these data 140 00:09:26,559 --> 00:09:31,760 Speaker 3: here Again, the judge cuts down the request, gives some 141 00:09:31,960 --> 00:09:36,079 Speaker 3: amount of the request, and then sort of puts on 142 00:09:36,240 --> 00:09:40,440 Speaker 3: some limits yet to be decided about how often this 143 00:09:40,640 --> 00:09:44,600 Speaker 3: will be disclosed more than once. Now it's not just 144 00:09:44,679 --> 00:09:48,680 Speaker 3: a snapshot, but the cap yet to be determined by 145 00:09:49,200 --> 00:09:52,360 Speaker 3: this technical committee that the decree is going to set up. 146 00:09:52,800 --> 00:09:55,600 Speaker 3: So I don't know, it's you know, it's hard for 147 00:09:55,600 --> 00:09:59,640 Speaker 3: me to say exactly, you know, will this enable competitors 148 00:09:59,720 --> 00:10:03,120 Speaker 3: real to really get an effect of competing search engine 149 00:10:03,520 --> 00:10:05,839 Speaker 3: or will it not quite be enough? And in some 150 00:10:05,920 --> 00:10:09,120 Speaker 3: ways this goes to what I've always viewed as the 151 00:10:09,240 --> 00:10:13,719 Speaker 3: underlying problem with these decrees is a judge trying to 152 00:10:13,800 --> 00:10:19,000 Speaker 3: say what competitors need to succeed, instead of a judge saying, 153 00:10:19,600 --> 00:10:22,600 Speaker 3: don't ask me, just come back, you know, Google, just 154 00:10:22,679 --> 00:10:26,440 Speaker 3: come back and let me know whether there's competition or not. 155 00:10:26,800 --> 00:10:28,480 Speaker 3: And if there isn't, we're going to have to do 156 00:10:28,559 --> 00:10:31,960 Speaker 3: something more about it. You know, trying for judges or 157 00:10:32,000 --> 00:10:35,280 Speaker 3: even the Justice Department, which apparently at least is still 158 00:10:35,320 --> 00:10:37,960 Speaker 3: made up of some lawyers. You know, trying to design 159 00:10:38,080 --> 00:10:42,120 Speaker 3: these remedies is tough, and you can feel it with 160 00:10:42,520 --> 00:10:45,400 Speaker 3: what the judge is written in this opinion. It's hard 161 00:10:45,800 --> 00:10:48,400 Speaker 3: and trying to figure out what the effect is going 162 00:10:48,480 --> 00:10:50,280 Speaker 3: to be. And he says at the beginning, you know, 163 00:10:51,120 --> 00:10:54,080 Speaker 3: I don't have a crystal ball. Other judges have used 164 00:10:54,080 --> 00:10:57,960 Speaker 3: that worry as well when being asked to predict effects 165 00:10:58,360 --> 00:10:59,480 Speaker 3: in future markets. 166 00:11:00,120 --> 00:11:02,760 Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue 167 00:11:02,760 --> 00:11:07,680 Speaker 2: this conversation with NYU law professor Harry First. Google has 168 00:11:07,840 --> 00:11:12,199 Speaker 2: already said it's going to appeal. Will judge Meta's decisions 169 00:11:12,240 --> 00:11:15,319 Speaker 2: stand up? I'm June Grosso. When you're listening to Bloomberg, 170 00:11:16,240 --> 00:11:19,560 Speaker 2: a federal judge ordered a shake up of Google's search 171 00:11:19,600 --> 00:11:22,719 Speaker 2: engine in an attempt to curb the power of an 172 00:11:22,760 --> 00:11:27,360 Speaker 2: illegal monopoly, while rejecting the government's attempt to break up 173 00:11:27,400 --> 00:11:31,800 Speaker 2: the company and impose other restraints. The two hundred twenty 174 00:11:31,800 --> 00:11:35,760 Speaker 2: six page decision made by DC Federal Judge on Meta 175 00:11:36,120 --> 00:11:40,440 Speaker 2: will likely ripple across the technological landscape at a time 176 00:11:40,480 --> 00:11:45,600 Speaker 2: when the industry is being reshaped by artificial intelligence, as 177 00:11:45,679 --> 00:11:50,800 Speaker 2: companies like Chat, GPT and Perplexity try to upend Google's 178 00:11:50,880 --> 00:11:55,920 Speaker 2: long held position as the Internet's main gateway. Those innovations 179 00:11:55,960 --> 00:11:59,880 Speaker 2: and competition reshape the judge's approach to the remedies in 180 00:12:00,120 --> 00:12:04,559 Speaker 2: the nearly five year old anti trust case, Judge Meta wrote, 181 00:12:04,800 --> 00:12:07,680 Speaker 2: unlike the typical case, where the court's job is to 182 00:12:07,760 --> 00:12:11,760 Speaker 2: resolve a dispute based on historic facts, here the judge 183 00:12:11,800 --> 00:12:14,600 Speaker 2: is asked to gaze into a crystal ball and look 184 00:12:14,640 --> 00:12:18,719 Speaker 2: to the future. Not exactly a judge's forte. I've been 185 00:12:18,720 --> 00:12:22,079 Speaker 2: talking to anti trust law professor Harry First of NYU 186 00:12:22,160 --> 00:12:25,440 Speaker 2: Law School. So, Harry, the judge is directing both sides 187 00:12:25,480 --> 00:12:29,640 Speaker 2: to come back by September tenth with a new remedy 188 00:12:29,679 --> 00:12:33,319 Speaker 2: proposal consistent with his ruling or file a status report 189 00:12:33,440 --> 00:12:36,880 Speaker 2: outlining any disagreements. Do you expect anything real from that? 190 00:12:37,240 --> 00:12:39,240 Speaker 3: I think what he's looking for is he's got to 191 00:12:39,240 --> 00:12:42,880 Speaker 3: write this down. He's got to enter a decree that 192 00:12:43,240 --> 00:12:48,520 Speaker 3: has definitions, that has specific language that's understandable. I mean, 193 00:12:48,760 --> 00:12:51,599 Speaker 3: the first challenge is figuring out sort of what to 194 00:12:51,760 --> 00:12:57,000 Speaker 3: accept in the party's proposals. But the second challenge is 195 00:12:57,280 --> 00:13:00,320 Speaker 3: the drafting of that decree. I think that's what he's 196 00:13:00,320 --> 00:13:05,080 Speaker 3: looking for. Next, you know, give me your actual proposed decrees. 197 00:13:05,520 --> 00:13:09,439 Speaker 3: The parties have done that, they have proposed final judgments, 198 00:13:09,600 --> 00:13:11,920 Speaker 3: but now they've got to take here's what he's ordered, 199 00:13:12,200 --> 00:13:16,120 Speaker 3: and I think he wants language now. He also hinted 200 00:13:16,360 --> 00:13:22,400 Speaker 3: at some fallback potential remedies. One of the problems I 201 00:13:22,559 --> 00:13:26,600 Speaker 3: think that he faced, and it surfaced in a question 202 00:13:26,800 --> 00:13:29,680 Speaker 3: that he ended up posing on the record, which is 203 00:13:29,760 --> 00:13:31,840 Speaker 3: pretty rare. You know, tell me why you ask for 204 00:13:31,880 --> 00:13:35,520 Speaker 3: this particular thing, Google, please explain it. And he had 205 00:13:35,559 --> 00:13:38,480 Speaker 3: a final hearing. But as he sits down to start 206 00:13:38,520 --> 00:13:42,200 Speaker 3: to write the opinion, he he's thinking, I've got an 207 00:13:42,200 --> 00:13:45,280 Speaker 3: interesting different idea here that no one's proposed to me. 208 00:13:46,200 --> 00:13:48,800 Speaker 3: Maybe you should think about it. So there's sort of 209 00:13:48,800 --> 00:13:55,000 Speaker 3: some version of like conditionality maybe on payments for you know, 210 00:13:55,040 --> 00:13:58,200 Speaker 3: not allowing certain kinds of payments for you said, you 211 00:13:58,240 --> 00:14:00,440 Speaker 3: can make any kinds of payments. But maybe there's a 212 00:14:00,480 --> 00:14:04,360 Speaker 3: fallback position. Maybe they had a fallback position for Chrome 213 00:14:04,720 --> 00:14:07,200 Speaker 3: that they might want to articulate now, you know, just 214 00:14:07,240 --> 00:14:09,960 Speaker 3: they said, let's get rid of it, but maybe there's 215 00:14:10,000 --> 00:14:13,000 Speaker 3: some fallback. So this may be an opportunity also for 216 00:14:13,040 --> 00:14:17,280 Speaker 3: the parties to propose, in addition to clarifying language, some 217 00:14:17,640 --> 00:14:22,440 Speaker 3: modifications for what he's imposed. So maybe that's that will 218 00:14:22,480 --> 00:14:25,120 Speaker 3: also go on as well. So who said this, Yogi Barret. 219 00:14:25,160 --> 00:14:27,680 Speaker 3: It's not over till it's over, And it was Yogi 220 00:14:27,720 --> 00:14:30,600 Speaker 3: Barrett right, well, allegedly apparently he never said anything that 221 00:14:30,640 --> 00:14:32,600 Speaker 3: he's supposed to have said, which is another thing. 222 00:14:33,320 --> 00:14:35,120 Speaker 2: Yeah, we'll discuss that next time. 223 00:14:35,960 --> 00:14:36,160 Speaker 1: Now. 224 00:14:36,240 --> 00:14:39,480 Speaker 2: As far as pay to play, the judge said that 225 00:14:40,000 --> 00:14:42,920 Speaker 2: this exclusive deal that Google had with Apple where it 226 00:14:42,920 --> 00:14:45,480 Speaker 2: pays it something like twenty billion a year to be 227 00:14:45,880 --> 00:14:49,680 Speaker 2: of the search default on iPhones, et cetera, So they 228 00:14:49,720 --> 00:14:52,200 Speaker 2: can still do that, but it just can't be exclusive. 229 00:14:52,480 --> 00:14:57,240 Speaker 3: They can pay for the fault, but can't keep others 230 00:14:57,320 --> 00:15:01,480 Speaker 3: from you know, putting another search bar or who knows what, 231 00:15:01,760 --> 00:15:04,080 Speaker 3: but they can still pay for the fault, so they 232 00:15:04,120 --> 00:15:08,320 Speaker 3: can pay anyone for having the default. The faults were 233 00:15:08,360 --> 00:15:12,400 Speaker 3: never exclusive. I mean they were exclusives. So you know, 234 00:15:12,600 --> 00:15:15,720 Speaker 3: you can only out of the box if you, you know, 235 00:15:15,760 --> 00:15:20,440 Speaker 3: were original equipment manufacturer, handset manufacture, you know, an exclusive 236 00:15:20,680 --> 00:15:24,040 Speaker 3: to put the Google search bar on if you wanted 237 00:15:24,080 --> 00:15:28,520 Speaker 3: other programs, or you know, inexclusive. If you have an exclusive, 238 00:15:28,600 --> 00:15:32,080 Speaker 3: you get revenue shares things like that. So maybe not that, 239 00:15:32,680 --> 00:15:36,480 Speaker 3: but he basically said you can pay for the faults, 240 00:15:36,640 --> 00:15:40,960 Speaker 3: which the testimony from the behavioral economist was that's the 241 00:15:41,120 --> 00:15:45,760 Speaker 3: factual equivalent of a near exclusive because people don't change 242 00:15:45,800 --> 00:15:49,960 Speaker 3: from defaults very often. You know, it's an old behavioral 243 00:15:50,000 --> 00:15:54,800 Speaker 3: habit with which we're very familiar and with which Google's familiar. 244 00:15:55,240 --> 00:15:58,840 Speaker 3: So the judge did suggest he did this in a footnote. 245 00:15:58,960 --> 00:16:01,920 Speaker 2: You read the footnotes too, Harry, I'm impressed. 246 00:16:02,440 --> 00:16:07,720 Speaker 3: Hey, I'm a not quite reformed law professor, and we 247 00:16:07,760 --> 00:16:10,120 Speaker 3: always know you put the good stuff in the footnotes. 248 00:16:10,240 --> 00:16:13,360 Speaker 3: But anyway, at least that's our version. But there is 249 00:16:13,400 --> 00:16:16,720 Speaker 3: a footnote. It's not fourteen. And he said he could 250 00:16:16,880 --> 00:16:20,960 Speaker 3: revisit the idea of a ban on paying for default 251 00:16:21,240 --> 00:16:26,640 Speaker 3: but allowing to pay for distribution. So you could say, okay, 252 00:16:26,640 --> 00:16:30,440 Speaker 3: if you distribute Google Search, that's fine, we'll pay you, 253 00:16:31,000 --> 00:16:34,520 Speaker 3: but we can't pay you to make it the default 254 00:16:34,640 --> 00:16:39,200 Speaker 3: search engine. Now me said, nobody's sort of raised this. Hello, 255 00:16:39,800 --> 00:16:42,240 Speaker 3: No one raises so I don't know the effect. Hello, 256 00:16:42,520 --> 00:16:45,120 Speaker 3: So maybe we'll get something. You could wonder whether that 257 00:16:45,160 --> 00:16:48,440 Speaker 3: makes any difference, frankly, because once you distribute it, given 258 00:16:48,720 --> 00:16:52,880 Speaker 3: the strength of this default in most people's experience, it 259 00:16:52,920 --> 00:16:55,800 Speaker 3: may not make a difference whether you label a default 260 00:16:55,960 --> 00:16:59,920 Speaker 3: or not. If you get you know, the Google win, 261 00:17:00,360 --> 00:17:02,600 Speaker 3: you know on your phone, particularly where it's very strong 262 00:17:02,880 --> 00:17:06,639 Speaker 3: because you want to use Google Search, and whether it 263 00:17:06,680 --> 00:17:09,760 Speaker 3: was a default or not, or whether it's a fault 264 00:17:09,800 --> 00:17:13,359 Speaker 3: in your Chrome browser, which it's going to be, you'll 265 00:17:13,440 --> 00:17:16,439 Speaker 3: use it, and you know the payment won't be for 266 00:17:16,960 --> 00:17:20,720 Speaker 3: requiring it to be a default, say on the iPhone. 267 00:17:21,080 --> 00:17:23,800 Speaker 3: But you know, Apple may still make it a default 268 00:17:23,920 --> 00:17:28,480 Speaker 3: unless they're offered a better alternative, which the testimony. The 269 00:17:28,520 --> 00:17:32,919 Speaker 3: testimony from Eddie Q, the Apple guy involved, was that 270 00:17:32,960 --> 00:17:35,680 Speaker 3: he wouldn't buy being for any amount of money. Ever, 271 00:17:36,040 --> 00:17:39,840 Speaker 3: apparently so he needs something better, and is he going 272 00:17:39,880 --> 00:17:43,440 Speaker 3: to take away Google Search full from Apple users? I 273 00:17:43,600 --> 00:17:46,200 Speaker 3: doubt it. So there might be some modifications, but at 274 00:17:46,240 --> 00:17:49,520 Speaker 3: the moment Google can still pay for default. And here 275 00:17:49,560 --> 00:17:54,320 Speaker 3: again this was the judge's concern for the impact and 276 00:17:54,440 --> 00:17:59,120 Speaker 3: being modest, sort of the impact on you could say, 277 00:17:59,160 --> 00:18:03,720 Speaker 3: the whole eCos system of stopping those payments and you know, 278 00:18:04,640 --> 00:18:09,720 Speaker 3: maybe wrecking Firefox, you know, go, you know, even you 279 00:18:09,760 --> 00:18:12,399 Speaker 3: seem to be concerned about wrecking Apple. I didn't know 280 00:18:12,480 --> 00:18:15,600 Speaker 3: that Apple was in such bad shape. But there we are. 281 00:18:15,960 --> 00:18:19,040 Speaker 2: Well, the government said it's considering its next steps. I mean, 282 00:18:19,160 --> 00:18:21,680 Speaker 2: I don't know what next steps it can take besides appeal. 283 00:18:22,320 --> 00:18:25,320 Speaker 2: But Google has previously said it's going to appeal. So 284 00:18:25,560 --> 00:18:27,480 Speaker 2: we assume we'll go to the Supreme Court. Right, It 285 00:18:27,520 --> 00:18:31,560 Speaker 2: could be years, then years and years before this gets implemented. 286 00:18:32,200 --> 00:18:34,520 Speaker 3: Yeah, it might not go to the Supreme Court. Court 287 00:18:34,560 --> 00:18:36,720 Speaker 3: doesn't have to take it. Who you know, who knows 288 00:18:36,840 --> 00:18:41,080 Speaker 3: the court didn't take Microsoft for example, So yeah, maybe, yes, 289 00:18:41,160 --> 00:18:43,600 Speaker 3: maybe no. But the years is right. This will be 290 00:18:43,720 --> 00:18:50,399 Speaker 3: a while yet, and we haven't seen but could see 291 00:18:50,720 --> 00:18:55,720 Speaker 3: political interference with this. We really don't know. So there's 292 00:18:55,760 --> 00:18:59,240 Speaker 3: a lot between now and then, I guess. But the 293 00:18:59,480 --> 00:19:03,280 Speaker 3: liability decision, which he made more than a year ago, 294 00:19:03,320 --> 00:19:07,480 Speaker 3: I guess is that the whole bundle is subject to 295 00:19:07,600 --> 00:19:12,120 Speaker 3: appeal once a final judgment is entered, which he has 296 00:19:12,160 --> 00:19:16,720 Speaker 3: not done yet. So once that's done, then the parties 297 00:19:16,840 --> 00:19:19,760 Speaker 3: have you know, I think, sixty days to file their 298 00:19:19,800 --> 00:19:24,119 Speaker 3: notices of appeal and then the process starts to play 299 00:19:24,119 --> 00:19:27,120 Speaker 3: out in the Court of Appeals, you know, unless they 300 00:19:27,480 --> 00:19:31,640 Speaker 3: start some sort of settlement negotiations or something. 301 00:19:32,080 --> 00:19:35,280 Speaker 2: I mean, do you think that his opinion is conservative 302 00:19:35,400 --> 00:19:38,600 Speaker 2: enough to survive the DC Court of Appeals? 303 00:19:39,320 --> 00:19:44,120 Speaker 3: So he did a lot to try to survive review 304 00:19:44,200 --> 00:19:47,359 Speaker 3: by the Court of Appeals. I mean, he relied quite 305 00:19:47,400 --> 00:19:52,240 Speaker 3: heavily on you know, key decisions, particularly the Microsoft remedy decisions. 306 00:19:52,280 --> 00:19:56,480 Speaker 3: And he also, oh, by the way, bolstered one of 307 00:19:56,520 --> 00:20:00,919 Speaker 3: the potential weaknesses in the liability decision while he was 308 00:20:01,040 --> 00:20:07,000 Speaker 3: at it. So I think it's not perfectly bulletproof the 309 00:20:07,040 --> 00:20:12,479 Speaker 3: aspect of letting AI companies share in some of these data. 310 00:20:13,000 --> 00:20:15,199 Speaker 3: If I were Google, I would be hitting on that 311 00:20:15,320 --> 00:20:18,439 Speaker 3: whether that was you know, not warranted given as he 312 00:20:18,560 --> 00:20:21,600 Speaker 3: started out by saying there was nothing at the trial 313 00:20:21,640 --> 00:20:25,080 Speaker 3: about AI and there are ways of casting what he 314 00:20:25,119 --> 00:20:29,000 Speaker 3: did as maybe not within the balance of what the 315 00:20:29,080 --> 00:20:33,480 Speaker 3: goal was in the trial. So there's some potential issue there, 316 00:20:33,520 --> 00:20:36,720 Speaker 3: and I think it is certainly possible. I mean, I 317 00:20:36,800 --> 00:20:39,080 Speaker 3: assume Google will pursue that, So I think it's a 318 00:20:39,160 --> 00:20:41,560 Speaker 3: pretty you know, I mean, it could be more conservative. 319 00:20:41,600 --> 00:20:45,040 Speaker 3: I guess he could have just given Google what Google wanted. 320 00:20:45,400 --> 00:20:49,359 Speaker 3: But it's a carefully drawn opinion, and you know, time 321 00:20:49,440 --> 00:20:53,400 Speaker 3: after time he sort of knocks the government plaintiffs back 322 00:20:54,040 --> 00:20:56,840 Speaker 3: a bit by saying, you know, you've overreached, you're asking 323 00:20:56,880 --> 00:20:59,400 Speaker 3: for too much. You know, we need to be modest, etc. 324 00:20:59,600 --> 00:20:59,760 Speaker 1: Etc. 325 00:21:00,680 --> 00:21:05,520 Speaker 2: Harry the trial later this month to determine remedies in 326 00:21:05,600 --> 00:21:09,359 Speaker 2: a different case brought by the Justice Department, where a 327 00:21:09,480 --> 00:21:16,240 Speaker 2: judge found that Google holds illegal monopolies in online advertising technology. 328 00:21:16,880 --> 00:21:19,320 Speaker 2: How does that threaten Google? Is it more of. 329 00:21:19,280 --> 00:21:23,280 Speaker 3: The same, Well, it is a little different. There's some 330 00:21:24,000 --> 00:21:28,359 Speaker 3: a bit of remedy on advertising, but not very much 331 00:21:28,480 --> 00:21:33,159 Speaker 3: because it's so much directed at effect on the search 332 00:21:33,200 --> 00:21:39,640 Speaker 3: engine market so directly, not so much indirectly. I think 333 00:21:39,680 --> 00:21:42,840 Speaker 3: we have to see it because from the beginning, the 334 00:21:42,960 --> 00:21:47,440 Speaker 3: Justice Department has asked for structural relief to break apart 335 00:21:48,000 --> 00:21:53,040 Speaker 3: the way Google does advertising, you know, to break it 336 00:21:53,160 --> 00:21:56,760 Speaker 3: up in fact, and have them to vest certain parts 337 00:21:56,840 --> 00:22:02,440 Speaker 3: of its advertising stack as they So this opinion is 338 00:22:02,760 --> 00:22:07,480 Speaker 3: very skeptical about this structural relief said, you know, if 339 00:22:07,520 --> 00:22:10,760 Speaker 3: nothing else works, then that may be possible. But the 340 00:22:10,760 --> 00:22:13,199 Speaker 3: ad Tech case may be a case where you know, 341 00:22:13,280 --> 00:22:16,960 Speaker 3: it's been directed at structural relief, so that may be okay. 342 00:22:17,280 --> 00:22:21,800 Speaker 3: Another aspect is how much money Google has made from advertising, 343 00:22:21,960 --> 00:22:25,199 Speaker 3: so it reinforces the notion that this has been a 344 00:22:25,240 --> 00:22:29,040 Speaker 3: monopolized market, so you know, that may have some effect. 345 00:22:29,440 --> 00:22:32,359 Speaker 3: It's important to note that that case is in a 346 00:22:32,440 --> 00:22:36,880 Speaker 3: different federal circuit. It's not in the DC circuit, and 347 00:22:37,280 --> 00:22:40,679 Speaker 3: it may be that the Justice Department chose to file 348 00:22:40,800 --> 00:22:42,800 Speaker 3: there for a number of reasons, but one of it 349 00:22:42,840 --> 00:22:46,480 Speaker 3: may be that on remedy wanting a structural remedy, the 350 00:22:46,600 --> 00:22:49,119 Speaker 3: DC circuit is a bad place to bring a case 351 00:22:49,240 --> 00:22:52,359 Speaker 3: like that given Microsoft, so maybe they were trying to 352 00:22:52,400 --> 00:22:55,119 Speaker 3: avoid that by being in a different circuit, in the 353 00:22:55,160 --> 00:22:58,000 Speaker 3: fourth circuit. So we've yet to see. I think she's 354 00:22:58,040 --> 00:23:02,080 Speaker 3: been holding up on this spending meta's opinion on remedy. 355 00:23:02,359 --> 00:23:07,439 Speaker 3: But you know they are fencing along on remedies hearing 356 00:23:07,960 --> 00:23:11,840 Speaker 3: in that case, so that should happen relatively soon. 357 00:23:12,320 --> 00:23:15,480 Speaker 2: Yes, I googled it and the trial is scheduled to 358 00:23:15,560 --> 00:23:20,360 Speaker 2: begin on September twenty second. Thanks so much, Harry. As always, 359 00:23:20,680 --> 00:23:24,520 Speaker 2: that's Professor Harry First of NYU Law School, coming up 360 00:23:24,560 --> 00:23:27,720 Speaker 2: next on the Bloomberg Law Show. More than one thousand 361 00:23:28,000 --> 00:23:33,280 Speaker 2: HHS employees are calling on rfk Junior to step down. 362 00:23:33,960 --> 00:23:38,640 Speaker 2: I'm June Grosso and you're listening to Bloomberg today. More 363 00:23:38,680 --> 00:23:42,520 Speaker 2: than a thousand current and former employees across the Department 364 00:23:42,560 --> 00:23:45,720 Speaker 2: of Health and Human Services signed a letter calling for 365 00:23:45,840 --> 00:23:51,280 Speaker 2: Health Secretary Robert F. Kennedy Junior's resignation, accusing him of 366 00:23:51,440 --> 00:23:55,280 Speaker 2: endangering the health of Americans. The new letter comes just 367 00:23:55,400 --> 00:24:00,159 Speaker 2: two days after nine former directors and acting directors of 368 00:24:00,200 --> 00:24:03,760 Speaker 2: the Centers for Disease Control and Prevention wrote an op 369 00:24:03,960 --> 00:24:09,200 Speaker 2: ed also condemning Kennedy for endangering every American's health. Doctor 370 00:24:09,320 --> 00:24:11,600 Speaker 2: Richard Besser was one of the signees. 371 00:24:12,400 --> 00:24:15,760 Speaker 1: We have grave concerns that the Secretary of Health is 372 00:24:15,880 --> 00:24:18,919 Speaker 1: endangering the health of people across our nation by not 373 00:24:19,080 --> 00:24:22,160 Speaker 1: letting the agency do its job, not following the science 374 00:24:22,480 --> 00:24:25,160 Speaker 1: and putting out guidance around COVID vaccine that is leading 375 00:24:25,200 --> 00:24:25,959 Speaker 1: to confusion. 376 00:24:26,720 --> 00:24:30,040 Speaker 2: But it appears Kennedy is not listening. He wrote in 377 00:24:30,040 --> 00:24:33,320 Speaker 2: a Wall Street Journal op ed published today that his 378 00:24:33,560 --> 00:24:37,760 Speaker 2: changes are restoring trust in the CDC that was lost 379 00:24:37,880 --> 00:24:41,320 Speaker 2: during the COVID pandemic. That's something he said before. 380 00:24:42,000 --> 00:24:44,760 Speaker 4: I'm very confident in the political staff that we have 381 00:24:44,880 --> 00:24:46,399 Speaker 4: down there now that they're going to be able to 382 00:24:46,440 --> 00:24:54,000 Speaker 4: accomplish that and ensure the confident functionality of that agency. 383 00:24:54,600 --> 00:24:57,560 Speaker 2: My guest is Harry Nelson, a partner at Leech Tishman 384 00:24:57,800 --> 00:25:03,320 Speaker 2: Nelson Hardiman explain some of the concerns that healthcare professionals 385 00:25:03,359 --> 00:25:05,119 Speaker 2: have about Kennedy. 386 00:25:05,280 --> 00:25:05,520 Speaker 1: Yeah. 387 00:25:05,560 --> 00:25:08,119 Speaker 5: I think first and foremost what they're sounding the alarm 388 00:25:08,160 --> 00:25:14,320 Speaker 5: over is the politicization of public health itself. It just 389 00:25:14,359 --> 00:25:16,960 Speaker 5: seems that, you know that we're kind of in a 390 00:25:17,880 --> 00:25:23,520 Speaker 5: battle where science is losing ground over ideology in steering 391 00:25:23,560 --> 00:25:26,720 Speaker 5: health policy. So, you know, I think that op ed 392 00:25:26,840 --> 00:25:29,960 Speaker 5: was intended to be as public a form of rebuke 393 00:25:30,040 --> 00:25:33,439 Speaker 5: for RSK and the way he's reshaping the CDC and 394 00:25:33,600 --> 00:25:36,960 Speaker 5: public health policy as could be. You know, it was 395 00:25:37,080 --> 00:25:40,480 Speaker 5: the vaccines left week or two, but it's going to 396 00:25:40,560 --> 00:25:44,159 Speaker 5: move on to you know, the CONTI conversation over environmental 397 00:25:44,200 --> 00:25:46,919 Speaker 5: causes of autism and all the ways in which he 398 00:25:47,040 --> 00:25:51,280 Speaker 5: has really become, you know, very politicized and moving away 399 00:25:51,320 --> 00:25:54,280 Speaker 5: from science and kind of driving our public health policy. 400 00:25:54,359 --> 00:25:59,280 Speaker 2: He's canceled medical research how much and in what areas well? 401 00:25:59,320 --> 00:26:02,080 Speaker 5: I mean the cuts medical research have mostly come through 402 00:26:02,640 --> 00:26:06,199 Speaker 5: National Institute of Health NIH grants, over a billion dollars 403 00:26:06,320 --> 00:26:10,879 Speaker 5: in NIH grant cuts across different institutions, and you know, 404 00:26:11,000 --> 00:26:14,679 Speaker 5: just a massive, you know, reduction in kind of established 405 00:26:14,760 --> 00:26:20,000 Speaker 5: leadership in positions that were previously not considered political, from 406 00:26:20,040 --> 00:26:24,080 Speaker 5: the leadership of CDC itself, removing Susan Monarez after just 407 00:26:24,119 --> 00:26:27,880 Speaker 5: a few weeks on the job, to completely clearing out 408 00:26:27,920 --> 00:26:32,320 Speaker 5: the Advisory Committee on Vaccines, and so he's just done 409 00:26:32,440 --> 00:26:36,320 Speaker 5: a wholesale shift on public policy in ways that will 410 00:26:36,359 --> 00:26:39,280 Speaker 5: be experiencing the ramifications up for years to come. It's 411 00:26:39,280 --> 00:26:39,840 Speaker 5: not decades. 412 00:26:40,440 --> 00:26:44,520 Speaker 2: What probably prompted this, the final straw, if you want 413 00:26:44,520 --> 00:26:48,320 Speaker 2: to call it, is the attempt to fire Manarez. So 414 00:26:48,480 --> 00:26:51,240 Speaker 2: she was just in there for a month. Didn't they 415 00:26:51,280 --> 00:26:53,720 Speaker 2: know what she stood for? What happened? 416 00:26:54,040 --> 00:26:57,160 Speaker 5: You know? I think essentially she was really just following 417 00:26:57,240 --> 00:27:00,919 Speaker 5: sort of standard protocol at the CDC, and it was 418 00:27:00,920 --> 00:27:04,159 Speaker 5: clear that there was tension escalating as there was a 419 00:27:04,200 --> 00:27:08,240 Speaker 5: push from RFK and the people around him to narrow 420 00:27:08,840 --> 00:27:13,640 Speaker 5: federal COVID vaccine recommendations, to get rid of the standing 421 00:27:13,760 --> 00:27:18,760 Speaker 5: Advisory Committee, to start really changing the Vaccines for Children program, 422 00:27:19,280 --> 00:27:23,480 Speaker 5: And essentially it became clear that she was standing in 423 00:27:23,520 --> 00:27:26,480 Speaker 5: the way of some of the very aggressive moves that 424 00:27:26,640 --> 00:27:28,000 Speaker 5: RFK and as people wanted to make. 425 00:27:28,920 --> 00:27:33,280 Speaker 2: RFK promised he wouldn't take vaccines away from anyone, but 426 00:27:33,560 --> 00:27:37,200 Speaker 2: tell us what happened with this guidance, the recent guidance, 427 00:27:37,280 --> 00:27:39,640 Speaker 2: and what it means for people who not in those 428 00:27:39,680 --> 00:27:41,679 Speaker 2: categories but want to get vaccines. 429 00:27:42,119 --> 00:27:43,800 Speaker 5: I mean, so the main thing was that, you know, 430 00:27:43,840 --> 00:27:46,880 Speaker 5: the SDA essentially planned the break you could say on 431 00:27:47,359 --> 00:27:50,720 Speaker 5: sort of broad access to COVID boosters. Vaccines will remain 432 00:27:50,800 --> 00:27:54,719 Speaker 5: available and covered for sixty five and over and for 433 00:27:55,320 --> 00:27:58,800 Speaker 5: younger people who have a specific risk factor, but in 434 00:27:58,880 --> 00:28:02,680 Speaker 5: general are not going to be available for people under 435 00:28:02,720 --> 00:28:06,760 Speaker 5: sixty five without some specific risk factor, and of course 436 00:28:06,880 --> 00:28:09,240 Speaker 5: it's an issue of access. It now appears that there 437 00:28:09,240 --> 00:28:11,520 Speaker 5: are a number of states in which is going to 438 00:28:11,520 --> 00:28:14,720 Speaker 5: be very difficult to get vaccines, and also the cost 439 00:28:14,760 --> 00:28:18,120 Speaker 5: of vaccines because the change in health policy is going 440 00:28:18,160 --> 00:28:22,120 Speaker 5: to mean that the insurance companies will not be doing 441 00:28:22,119 --> 00:28:24,399 Speaker 5: any cost sharing on them, so these vaccines will be 442 00:28:24,480 --> 00:28:26,879 Speaker 5: much more expensive. It's clear that there's going to be 443 00:28:27,359 --> 00:28:31,760 Speaker 5: a difficult time for people who are wanting to get vaccinated. 444 00:28:32,080 --> 00:28:35,440 Speaker 5: And you know, the real question that will come likely 445 00:28:35,480 --> 00:28:37,600 Speaker 5: at the end of the next flu season that's not 446 00:28:37,720 --> 00:28:41,080 Speaker 5: yet here, is what the death rate, what the hospitalizations 447 00:28:41,160 --> 00:28:42,840 Speaker 5: will be. I think a lot of people will be 448 00:28:42,880 --> 00:28:47,280 Speaker 5: watching closely to see what the net impact of these 449 00:28:47,320 --> 00:28:48,240 Speaker 5: changes is going to be. 450 00:28:48,480 --> 00:28:51,960 Speaker 2: So is that for the COVID vaccine? What about flu shots? 451 00:28:52,560 --> 00:28:55,360 Speaker 5: This was specifically a COVID policy, but it's clear that 452 00:28:55,400 --> 00:28:58,560 Speaker 5: there are going to be significant limits on the flu 453 00:28:58,640 --> 00:29:02,040 Speaker 5: vaccine as well. But this specific policy was update to 454 00:29:02,080 --> 00:29:06,240 Speaker 5: eligibility for the various COVID nineteen you know vaccines you'll 455 00:29:06,240 --> 00:29:10,200 Speaker 5: remember as Pfizer, Maderna, and Novovac. It's certainly going to 456 00:29:10,640 --> 00:29:14,080 Speaker 5: have a broader effect on access to other vaccines, just 457 00:29:14,120 --> 00:29:17,360 Speaker 5: because so many pharmacies and insurance companies are taking their 458 00:29:17,440 --> 00:29:22,000 Speaker 5: leads from COVID policy for purposes of broader like influenza 459 00:29:22,240 --> 00:29:25,280 Speaker 5: B and other flu related shots. 460 00:29:25,520 --> 00:29:27,200 Speaker 2: Is there anything that can be done or is it 461 00:29:27,320 --> 00:29:30,280 Speaker 2: just a question of you know, Kennedy's there and that's 462 00:29:30,320 --> 00:29:33,000 Speaker 2: it unless he's fired for some reason. 463 00:29:33,680 --> 00:29:38,120 Speaker 5: Obviously, we're going to see lawsuits undoubtedly and challenges to 464 00:29:38,640 --> 00:29:42,880 Speaker 5: the firing of CDC director essentially, you know, questioning whether 465 00:29:42,960 --> 00:29:46,560 Speaker 5: there's a violation of separation of powers here and whether 466 00:29:46,920 --> 00:29:50,800 Speaker 5: there's any kind of retaliatory aspect to this. There certainly 467 00:29:50,920 --> 00:29:54,760 Speaker 5: is the possibility that states could start enacting their own 468 00:29:54,880 --> 00:29:58,960 Speaker 5: coverage mandates. We already see California and New York Massachusetts 469 00:29:59,000 --> 00:30:01,480 Speaker 5: are kind of moving in that direct and Congress could 470 00:30:01,480 --> 00:30:03,480 Speaker 5: step in here, although it doesn't seem like that is 471 00:30:03,600 --> 00:30:06,200 Speaker 5: likely to happen. The real remedy here, I think, is 472 00:30:06,840 --> 00:30:10,600 Speaker 5: if the American public are upset about this. It's not 473 00:30:10,640 --> 00:30:14,160 Speaker 5: only in the courts or in Congress. It's also just 474 00:30:14,240 --> 00:30:18,600 Speaker 5: by a public outcry to make it clear to President 475 00:30:18,600 --> 00:30:21,400 Speaker 5: Trump and his administration that this is really, you know, 476 00:30:21,440 --> 00:30:24,320 Speaker 5: a high priority issue that's concerning people. I do think 477 00:30:24,520 --> 00:30:27,320 Speaker 5: there are political remedies that are legal remedies, but the 478 00:30:27,400 --> 00:30:29,560 Speaker 5: train that's sort of leaving the station, then if they're 479 00:30:29,600 --> 00:30:33,440 Speaker 5: going to happen. We need to see some action, you know, eminently. 480 00:30:33,960 --> 00:30:38,120 Speaker 2: In this up ed, the CDC directors called on Congress 481 00:30:38,120 --> 00:30:43,000 Speaker 2: to exercise oversight authority over the Department of Health and 482 00:30:43,080 --> 00:30:46,479 Speaker 2: Human Services. What can Congress do if they wanted to? 483 00:30:47,760 --> 00:30:52,200 Speaker 5: Congress certainly could hold hearings, They could start to subpoena 484 00:30:52,320 --> 00:30:55,600 Speaker 5: you know, administration officials. They could certainly exercise you know, 485 00:30:55,720 --> 00:31:00,600 Speaker 5: authority to restore funding to state and local health agencies 486 00:31:00,640 --> 00:31:02,600 Speaker 5: that's been cut. I mean, I think there is quite 487 00:31:02,640 --> 00:31:06,320 Speaker 5: a bit that they could do. I think investigating holding hearings, 488 00:31:06,880 --> 00:31:10,560 Speaker 5: you know, demanding accountability from RFK, from the people reporting 489 00:31:10,640 --> 00:31:12,920 Speaker 5: up to him, and filling some of the funding gaps 490 00:31:12,960 --> 00:31:15,360 Speaker 5: are the obvious things that they could do. Kennedy, it 491 00:31:15,360 --> 00:31:18,440 Speaker 5: doesn't seem that Congress is at this moment demanding the 492 00:31:18,560 --> 00:31:22,840 Speaker 5: kind of answers on everything from the vaccine policy to 493 00:31:23,120 --> 00:31:26,360 Speaker 5: the leadership changes and the funding shifts that you know, 494 00:31:26,400 --> 00:31:28,760 Speaker 5: people concerned with public health might hope that they would. 495 00:31:29,320 --> 00:31:32,320 Speaker 2: Well, Kennedy's going to appear on Thursday, I believe, so 496 00:31:33,040 --> 00:31:36,360 Speaker 2: maybe we'll see some of that. But you know, Bill Cassidy, 497 00:31:36,520 --> 00:31:41,200 Speaker 2: and he was the Louisiana Republican senator who delivered the 498 00:31:41,280 --> 00:31:44,160 Speaker 2: key vote to confirm Kennedy, and I remember he said, 499 00:31:44,200 --> 00:31:48,320 Speaker 2: I'm something like I'm trusting you on vaccines. He called 500 00:31:48,360 --> 00:31:54,360 Speaker 2: on HHS to indefinitely postpone it's Vaccine Advisory Committee meeting 501 00:31:54,840 --> 00:31:58,400 Speaker 2: on September eighteenth. That's not a long term solution. 502 00:31:58,680 --> 00:32:01,720 Speaker 5: It's justesting, you know, Cenator Casey, who was as chair 503 00:32:01,720 --> 00:32:04,400 Speaker 5: of the Senate Health Committee and as a doctor with 504 00:32:04,480 --> 00:32:08,320 Speaker 5: someone whose vote was clearly pivotal in the confirmation, seems 505 00:32:08,360 --> 00:32:11,400 Speaker 5: to be trying to walk a cautious line here asking 506 00:32:11,400 --> 00:32:15,880 Speaker 5: for oversight, transparency, postponement on some of these critical vaccine 507 00:32:15,880 --> 00:32:18,960 Speaker 5: advisory you know meetings. He's definitely an important voice here. 508 00:32:19,800 --> 00:32:22,400 Speaker 5: What's been disappointing to me has been that, you know, 509 00:32:22,560 --> 00:32:27,440 Speaker 5: RFK is basically just refusing to dress, you know, square 510 00:32:27,480 --> 00:32:30,760 Speaker 5: on the issues. He seems to be just interested in 511 00:32:31,040 --> 00:32:34,240 Speaker 5: deflecting blame and you know, kind of trying to stay 512 00:32:34,280 --> 00:32:37,680 Speaker 5: on a higher level message about problems at the CDC 513 00:32:37,840 --> 00:32:40,680 Speaker 5: and a need for strong leadership, but without really getting 514 00:32:40,760 --> 00:32:44,080 Speaker 5: into the nuts and bolt of vaccine policy. And frankly, 515 00:32:44,120 --> 00:32:47,240 Speaker 5: there's no way to see the actions being taken now 516 00:32:47,320 --> 00:32:50,960 Speaker 5: as consistent with his testimony during the confirmation hearing. 517 00:32:51,560 --> 00:32:56,240 Speaker 2: He is suggesting Silicon Valley investor and entrepreneur Jim O'Neill 518 00:32:57,040 --> 00:33:01,280 Speaker 2: is a new acting CDC director. Tell us about him. 519 00:33:01,840 --> 00:33:04,640 Speaker 5: Yeah, I think people are worried that Jim O'Neill is, 520 00:33:04,720 --> 00:33:07,560 Speaker 5: you know, is not coming from the world of public 521 00:33:07,560 --> 00:33:10,400 Speaker 5: health and science. O'Neill, first of all, was a deputy 522 00:33:10,480 --> 00:33:14,719 Speaker 5: to RFK already and seems to be aligned with his 523 00:33:14,920 --> 00:33:19,160 Speaker 5: vision that he's just rebuilding the CDC. He's not expected 524 00:33:19,200 --> 00:33:23,320 Speaker 5: to put any challenge forward, you know, in the name 525 00:33:23,400 --> 00:33:25,640 Speaker 5: of science or in the name of public health. Is 526 00:33:25,800 --> 00:33:28,239 Speaker 5: likely that he's just going to be, you know, a 527 00:33:28,280 --> 00:33:31,440 Speaker 5: mouthpiece for RFK and for all the changes that are 528 00:33:31,440 --> 00:33:34,040 Speaker 5: already being made. So I don't think anyone who's concerned 529 00:33:34,080 --> 00:33:37,600 Speaker 5: about what's going on is that all reassured by O'Neill's selection. 530 00:33:37,760 --> 00:33:40,400 Speaker 2: Does the CDC director have to be confirmed by the Senate? 531 00:33:40,560 --> 00:33:43,440 Speaker 5: Yeah, the CDC director is a confirmed position. Yeah. I 532 00:33:43,440 --> 00:33:45,520 Speaker 5: think a lot of it will flow from how much 533 00:33:45,680 --> 00:33:49,120 Speaker 5: feedback the senators are getting from their constituents. You know. 534 00:33:49,160 --> 00:33:52,400 Speaker 5: It certainly is an opportunity to sort of take the 535 00:33:52,520 --> 00:33:56,320 Speaker 5: pulse of where America is standing on these issues. My 536 00:33:56,400 --> 00:33:58,800 Speaker 5: understanding is that he can serve six or seven months 537 00:33:58,840 --> 00:34:01,640 Speaker 5: without a formal confirmation hearing, so we may see this 538 00:34:01,680 --> 00:34:04,760 Speaker 5: issue pushed off until, you know, early twenty twenty six. 539 00:34:05,720 --> 00:34:08,319 Speaker 2: So Trump said he would allow RFK Junior to go 540 00:34:08,520 --> 00:34:12,520 Speaker 2: wild on healthcare, and he certainly has done that. Are 541 00:34:12,560 --> 00:34:17,719 Speaker 2: there any restrictions on what RFK Junior can do. 542 00:34:18,239 --> 00:34:22,680 Speaker 5: It's hard to see where Trump is having misgivings. I mean, 543 00:34:23,080 --> 00:34:25,960 Speaker 5: you know, there's certainly are areas where they were aligned. 544 00:34:26,560 --> 00:34:29,320 Speaker 5: We've seen, you know, President Trump posting on true Social 545 00:34:29,800 --> 00:34:34,160 Speaker 5: urging pharmaceuticals to release more data and sort of, you know, 546 00:34:34,200 --> 00:34:38,319 Speaker 5: claiming that there's some kind of hidden story about vaccine efficacy. 547 00:34:38,680 --> 00:34:38,880 Speaker 1: You know. 548 00:34:38,960 --> 00:34:42,200 Speaker 5: I think it's funny because President Trump has taken pride 549 00:34:42,600 --> 00:34:44,960 Speaker 5: at different points on Operation Warp Speed in the extent 550 00:34:45,000 --> 00:34:48,520 Speaker 5: to which his administration brought the vaccines out in the 551 00:34:48,560 --> 00:34:50,799 Speaker 5: middle of COVID, when, by the way, we had in 552 00:34:50,840 --> 00:34:52,479 Speaker 5: the course of two years we look at the data, 553 00:34:52,520 --> 00:34:55,880 Speaker 5: now over a million Americans dead in the first two 554 00:34:55,960 --> 00:34:59,600 Speaker 5: years of COVID. I think President Trump is largely distancing 555 00:34:59,640 --> 00:35:04,120 Speaker 5: himself from RFK specific actions and still trying to protect 556 00:35:04,160 --> 00:35:08,239 Speaker 5: his vaccine legacy. I would think that there's probably some 557 00:35:08,360 --> 00:35:12,080 Speaker 5: discomfort with the more aggressive aspects of RFK, but we 558 00:35:12,400 --> 00:35:14,439 Speaker 5: have yet to see like a real action to sort 559 00:35:14,440 --> 00:35:15,839 Speaker 5: of rein him. 560 00:35:15,760 --> 00:35:18,640 Speaker 2: In Well, what was surprising to me is that they 561 00:35:18,680 --> 00:35:22,960 Speaker 2: had a gallup pole in July and Kennedy had higher 562 00:35:23,000 --> 00:35:28,439 Speaker 2: favorability ratings than Trump and the vice president and others. 563 00:35:28,480 --> 00:35:32,759 Speaker 5: Interesting. He's obviously a very polarizing figure. I mean, make 564 00:35:32,800 --> 00:35:37,360 Speaker 5: America Healthy Again campaign has a lot of resonance. He's clearly, 565 00:35:37,480 --> 00:35:40,520 Speaker 5: you know, someone who for people who were excited about 566 00:35:40,520 --> 00:35:44,080 Speaker 5: what RK presented, he's delivering right, you know, whereas President 567 00:35:44,080 --> 00:35:46,920 Speaker 5: Trump is definitely having to walk a line sort of 568 00:35:46,960 --> 00:35:49,759 Speaker 5: affecting how people view him. But for people who buy 569 00:35:49,800 --> 00:35:52,040 Speaker 5: into the public health agenda that's being carried out in 570 00:35:52,040 --> 00:35:54,520 Speaker 5: this administration, to them, RFK the hero. 571 00:35:54,680 --> 00:35:56,560 Speaker 2: Okay, so we talk about the negative things, is he 572 00:35:56,640 --> 00:36:00,080 Speaker 2: doing anything positive to make America healthy? 573 00:36:00,800 --> 00:36:04,319 Speaker 5: There definitely are some good things. He's calling attention to 574 00:36:05,360 --> 00:36:08,360 Speaker 5: big food and to you know, the need for a 575 00:36:08,400 --> 00:36:11,040 Speaker 5: sort of new look at nutrition as a driver of health. 576 00:36:11,280 --> 00:36:13,279 Speaker 5: You know, the people who support him see him as 577 00:36:13,400 --> 00:36:18,040 Speaker 5: a reformer fighting against entrenched institutions, and I think MAHA 578 00:36:18,360 --> 00:36:20,960 Speaker 5: make American Health against speaks to people who are frustrated 579 00:36:20,960 --> 00:36:24,120 Speaker 5: with public health bureaucracy. But the problem is that when 580 00:36:24,120 --> 00:36:25,960 Speaker 5: you look at the op ed piece that came out, 581 00:36:25,960 --> 00:36:28,320 Speaker 5: for example, I mean the other side has a strong 582 00:36:28,360 --> 00:36:32,440 Speaker 5: scientific grounding to say that he's taking risks with American 583 00:36:32,440 --> 00:36:36,160 Speaker 5: health buy things like dismantling vaccine infrastructure. So there are 584 00:36:36,239 --> 00:36:39,680 Speaker 5: things that are positive. He's calling attention to chronic disease. 585 00:36:40,120 --> 00:36:43,200 Speaker 5: He's doing, you know, good things to sort of try 586 00:36:43,239 --> 00:36:46,960 Speaker 5: to create a populist focus on chronic illness in America 587 00:36:47,320 --> 00:36:50,360 Speaker 5: and the way in which American healthcare could stand to 588 00:36:50,400 --> 00:36:52,680 Speaker 5: be changed and shake it up. But I think we're 589 00:36:52,680 --> 00:36:55,200 Speaker 5: seeing that he's also throwing out the baby with the 590 00:36:55,239 --> 00:36:59,279 Speaker 5: bathwater on things like vaccine policy that I expect we'll 591 00:36:59,280 --> 00:37:02,600 Speaker 5: see is really keeping Americans alive and out of the 592 00:37:02,600 --> 00:37:05,640 Speaker 5: hospital in much larger numbers than without it. 593 00:37:06,160 --> 00:37:09,479 Speaker 2: How likely is it that during the winter months we'll 594 00:37:09,520 --> 00:37:14,440 Speaker 2: see a resurgence of COVID without these vaccines. 595 00:37:15,120 --> 00:37:17,640 Speaker 5: I think that's a critical question, and I think will 596 00:37:17,640 --> 00:37:23,279 Speaker 5: be watching. Obviously nobody is hoping for bad news, but 597 00:37:23,640 --> 00:37:26,000 Speaker 5: I think people are going to be watching very very 598 00:37:26,080 --> 00:37:30,280 Speaker 5: closely for the number of hospitalizations and the number of deaths. 599 00:37:30,320 --> 00:37:36,800 Speaker 5: And I do think that clearly by narrowing vaccine eligibility 600 00:37:36,880 --> 00:37:40,440 Speaker 5: to the sixty five and older group and to people 601 00:37:40,480 --> 00:37:43,920 Speaker 5: with a high risk condition, there's a bet being made 602 00:37:44,200 --> 00:37:48,360 Speaker 5: that those populations are the most at risk and have 603 00:37:48,400 --> 00:37:51,600 Speaker 5: the biggest central benefit. And on the other side, is this, 604 00:37:51,960 --> 00:37:54,280 Speaker 5: you know, not backed up by science, that there's negative 605 00:37:54,280 --> 00:37:59,239 Speaker 5: effects of vaccines for healthier, younger Americans. And so I 606 00:37:59,280 --> 00:38:02,359 Speaker 5: think everyone's should be watching the numbers months by month 607 00:38:02,800 --> 00:38:06,040 Speaker 5: as they get released closely this season, and certainly we 608 00:38:06,080 --> 00:38:09,359 Speaker 5: should all be praying for a mild flu season, you know, 609 00:38:09,600 --> 00:38:13,560 Speaker 5: not to have deadly variants of COVID, you know all 610 00:38:13,560 --> 00:38:16,000 Speaker 5: the other flues that are out there, bird flues. You know, 611 00:38:16,000 --> 00:38:18,480 Speaker 5: we should obviously be hoping for the best, but we're 612 00:38:18,520 --> 00:38:21,279 Speaker 5: definitely not coming into the season in a state of 613 00:38:21,320 --> 00:38:24,080 Speaker 5: high preparedness. If the opposite happens, and if we have 614 00:38:24,200 --> 00:38:26,280 Speaker 5: something deadly, well, as. 615 00:38:26,080 --> 00:38:29,239 Speaker 2: You say, let's hope not. Thanks so much, Harry. That's 616 00:38:29,280 --> 00:38:34,120 Speaker 2: healthcare attorney Harry Nelson of Leech Tishman Nelson Hardiman. And 617 00:38:34,120 --> 00:38:36,279 Speaker 2: that's it for this edition of the Bloomberg Law Show. 618 00:38:36,640 --> 00:38:39,000 Speaker 2: Remember you can always get the latest legal news on 619 00:38:39,040 --> 00:38:43,319 Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 620 00:38:43,520 --> 00:38:48,520 Speaker 2: and at www dot bloomberg dot com, slash podcast, slash Law, 621 00:38:48,960 --> 00:38:51,520 Speaker 2: and remember to tune into The Bloomberg Law Show every 622 00:38:51,560 --> 00:38:55,480 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 623 00:38:55,600 --> 00:38:57,200 Speaker 2: and you're listening to Bloomberg