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

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Speaker 1: Cryptocurrency scored a victory over the Securities and Exchange Commission

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Speaker 1: when a federal judge ruled that Ripple Labs XRP token

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Speaker 1: is a security when sold to institutional investors, but not

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Speaker 1: the general public. Ripple's CEO, Brad Garlinghouse said it was

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Speaker 1: a victory for Ripple and the industry.

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Speaker 2: The sec clearly lost as a matter of law, and

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Speaker 2: the judge wrote XRP is not a security as a

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Speaker 2: kind of intrinsic thing. In certain circumstances, which is a

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Speaker 2: kind of a narrow definition around institutional sales, it could

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Speaker 2: be a security. So look, the market reacted in a

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Speaker 2: very positive way. Certainly, Team Ripple's very happy with the decision.

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Speaker 1: Joining me is securities law attorney Robert him a partner

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Speaker 1: at Tartar krinskyin Drogan How important is the decision in

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Speaker 1: this Ripple case for determining regulatory authority over crypto assets?

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Speaker 3: Well, the decision in the Ripple case is usually important

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Speaker 3: because it really shifts the legal landscape in terms of

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Speaker 3: how the United States may start looking at regulating cryptocurrency.

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Speaker 3: Up till now, the SEC has been the primary enforcer,

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Speaker 3: and it's been using enforcement actions, which is called regulation

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Speaker 3: by enforcement, to try to help define the parameters of

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Speaker 3: what companies and investors can do in terms of developing

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Speaker 3: new cryptocurrencies and selling new cryptocurrencies. And this has created

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Speaker 3: a huge problem for the industry because without any rules

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Speaker 3: of the road, it's inherently gone to stifle innovation and

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Speaker 3: hold back investors from investing in new crypto projects until

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Speaker 3: there's more clarity about whether you're sale and the promotion

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Speaker 3: of these products is in fact legal. So this is

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Speaker 3: going to be a big game changer in my opinion

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Speaker 3: with regards to how cryptocurrency is regulated in the United States.

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Speaker 1: But this is a ruling by one judge. Are people

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Speaker 1: reading too much into this? Should we wait for an

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Speaker 1: appellate court ruling? I mean, do other judges in Manhattan

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Speaker 1: even have to follow this decision?

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Speaker 3: Well, no, other judges don't technically have to follow this decisions.

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Speaker 3: But the decision itself is very well written and the

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Speaker 3: reasoning behind the decision, perhaps even more importantly, is very

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Speaker 3: logical and I think will be very persuasive to other judges.

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Speaker 3: What happened in the Ripple case is that this judge,

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Speaker 3: like many others, Judge Torres, went to an old Supreme

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Speaker 3: Court case Howie case set up this test to see

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Speaker 3: when is a particular financial instrument of security and when

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Speaker 3: is it not a security? And there's various elements to

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Speaker 3: that test. But the judge in the Ripple case held

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Speaker 3: that the XRP token did not meet the definition of

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Speaker 3: a security at least the extent that it was sold

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Speaker 3: on crypto exchanges to investors in the aftermarket. And I

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Speaker 3: think that reasoning is going to be very persuasive to

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Speaker 3: other judges, particularly as the SEC continues to try to

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Speaker 3: do regulation by enforcement, as we could see with its

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Speaker 3: recent cases against Coinbase and Bittrex, which are crypto exchanges.

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Speaker 1: The SEC chair Gary Gensler, said he was both pleased

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Speaker 1: and disappointed. Tell us about why there's a little bit

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Speaker 1: of it that he might be pleased with.

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Speaker 3: There is some sunshine for the SEC in the Rippled decision.

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Speaker 3: Not much, but there is some because it was only

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Speaker 3: a partial victory for Ripple, and the procedural context is

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Speaker 3: is that this decision came out on a motion for

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Speaker 3: some rejudgment, which happens after all the discovery in the

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Speaker 3: case has taken place, and we have to remember that

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Speaker 3: this case the SEC originally filed against Ripple in December

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Speaker 3: twenty twenty, so it's been about two and a half

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Speaker 3: years of litigation and discovery. So there's a very well

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Speaker 3: developed record that the judge made her decision on. And

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Speaker 3: what happened here is that the judge really, in a sense,

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Speaker 3: gave the decision to Ripple. What she did is she

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Speaker 3: drew a line between the XRP tokens that were sold

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Speaker 3: by Ripple Labs directly to institutional investors. In that case,

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Speaker 3: Ripple got the money from the investors, and the judge

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Speaker 3: said that is traditionally like a security, that's almost like

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Speaker 3: selling a stock because when an investor purchases the token.

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Speaker 3: Under those circumstances, Ripple used the money to further develop

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Speaker 3: the Ripple ecosystem to help banks and other financial institutions

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Speaker 3: to start adopting the XRP token. And in contrast, Judge

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Speaker 3: Torres said that those sales that occurred on exchanges where

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Speaker 3: buyers did not know who the sellers were and also

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Speaker 3: had no expectation that the money that they were using

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Speaker 3: to purchase XRP would in any way be used to

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Speaker 3: help further development of the Ripple network and ecosystem. Those

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Speaker 3: were not securities, and those are more akin to currencies

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Speaker 3: or other sorts of things like bitcoin and not securities

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Speaker 3: that were subject SEC regulation.

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Speaker 1: Is the SEC going to appeal this or are there

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Speaker 1: risks for an appeal?

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Speaker 3: I think that there's a high chance that the SEC

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Speaker 3: is going to appeal this decision. This is just one

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Speaker 3: district court's ruling, and so far, the SEC has been

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Speaker 3: very successful in its enforcement actions against cryptocurrency companies, and

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Speaker 3: this decision in the Ripple case is a very notable

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Speaker 3: blow and probably the first major defeat the SEC has

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Speaker 3: suffered in court in its efforts to regulate cryptocurrency. There's

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Speaker 3: low risk for the SEC that the appellate court would

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Speaker 3: either expand the ruling or engage in any sort of

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Speaker 3: reasoning that could help other cryptocurrencies. So I think, in

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Speaker 3: light of the procedural posture and the reasoning that the

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Speaker 3: trial court judge gave for her decision, that there would

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Speaker 3: be a good chance the SEC would see appellate court

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Speaker 3: review of the decision.

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Speaker 1: The Second Circuit affirms the judge's decision, then that's binding

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Speaker 1: on federal courts in New York, Connecticut, and Vermont.

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Speaker 3: Yes, that's correct. If the Second Circuit affirms the District

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Speaker 3: Court's decision, then we have binding precedent. And the fact

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Speaker 3: that it's in the Second Circuit would also be very

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Speaker 3: critical for the crypto industry because Number one, many cases

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Speaker 3: are brought up in the Southern District of New York,

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Speaker 3: which covers Manhattan, which is the center of the financial

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Speaker 3: industry in the United States, and as a result, the

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Speaker 3: Second Circuit has a lot of weight when it comes

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Speaker 3: to its decisions in this space and many other circuit

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Speaker 3: courts outside of New York and Connecticut and Vermont. Also,

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Speaker 3: we'll look to the Second circuits reasoning and decisions and

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Speaker 3: help them inform their own decisions with respect to how

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Speaker 3: securities laws could develop and whether or not they are

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Speaker 3: the appropriate vehicle to regulate cryptocurrencies.

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Speaker 1: Is there another avenue for the sec besides pursuing an appeal?

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Speaker 3: The SEC could turn its attention to try to maybe

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Speaker 3: create draft legislation or lobbying Congress to come out with

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Speaker 3: a new set of rules that are specifically applicable to

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Speaker 3: the crypto industry. We've seen other jurisdictions in other countries

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Speaker 3: and particularly the EU recently, where many countries have come

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Speaker 3: together to come up with a framework that's specifically designed

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Speaker 3: to regulate cryptocurrencies and digital tokens like XRP and these

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Speaker 3: schemes include licensing, inspection, and what companies can can't do,

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Speaker 3: and really a lot of what the crypto industry is

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Speaker 3: asking the SEC to do is just to set out

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Speaker 3: what the rules of the road are so that people

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Speaker 3: can know where the lines are. Just having some firm

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Speaker 3: rules will help investors come into the industry and help

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Speaker 3: with early adoption of a lot of these technologies. The

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Speaker 3: industry argues that the way things are now with the

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Speaker 3: SEC just picking and choosing which cases to bring and

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Speaker 3: just bringing enforcement cases against companies and their senior executives,

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Speaker 3: is really no way to run a new and merging industry.

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Speaker 1: As you mentioned, the SEC has filed lawsuits against Coinbase

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Speaker 1: and Binance, two of the world's largest crypto platforms, for

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Speaker 1: failing to register as securities exchanges. How does the Ripple

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Speaker 1: decision affect those cases.

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Speaker 3: The Ripple decision is going to be very helpful for

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Speaker 3: the defendants in those cases to push back against the

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Speaker 3: SEC's narrative and against the SEC's theory of the case

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Speaker 3: Ripple one on the argument that exchange sales of cryptocurrencies

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Speaker 3: and digital tokens of XRP at least were not securities

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Speaker 3: because the investors in those transactions had no expectation that

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Speaker 3: that money was going to be ultimately sent to the

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Speaker 3: company or used to further develop the platform. Is really

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Speaker 3: just speculation. So Coinbase and bittrix will have exactly the

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Speaker 3: same arguments that as exchanges they are just helping to

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Speaker 3: facilitate these sort of aftermarket transactions, and the court in

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Speaker 3: the Ripples case held that those were not securities and

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Speaker 3: therefore not subject to either registration at the SEC. And

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Speaker 3: once it's determined that those types of digital tokens are

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Speaker 3: not securities, companies like coinbase and pittricks have no obligation

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Speaker 3: to register with the SEC as exchanges because that obligation

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Speaker 3: merely flows from the type of instruments to trades, and

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Speaker 3: if they're not securities, they don't need to register securities exchanges.

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Speaker 1: Does the SEC have to argue that the judge in

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Speaker 1: Ripple was wrong, Yes.

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Speaker 3: That's exactly right. But the SEC is going to have to

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Speaker 3: argue that the judge and the Ripple case got it wrong,

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Speaker 3: and that that decision is not finding precedent for other

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Speaker 3: cases and be fair too, a lot of the determination

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Speaker 3: regarding whether a particular instrument is a security or not

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Speaker 3: are very fact specific. That's why the Ripple case had

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Speaker 3: to wait until after discovery was concluded so that a

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Speaker 3: record could be developed that looks at, particularly how these

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Speaker 3: instruments are marketed to people, what proceeds are used for,

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Speaker 3: and what sort of communications are sent out the marketplace.

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Speaker 3: And that's the determinative factor and something that the judge

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Speaker 3: and the Ripple case spent a lot of time analyzing

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Speaker 3: in her decision. Where those types of very factually nuanced

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Speaker 3: type of elements.

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Speaker 1: So was this Ripple case the first major setback for

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Speaker 1: the SEC in its decade of trying to enforce against

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Speaker 1: the cryptocurrency industry.

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Speaker 4: Yes.

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Speaker 3: The reason that the Ripple decision is so important and

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Speaker 3: so noteworthy is that it really was the first major

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Speaker 3: setback that the SEC has suffered in terms of its

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Speaker 3: enforcement actions against cryptocurrencies. And even more importantly the nature

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Speaker 3: of this setback is crucial because the judge held that

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Speaker 3: the XRP token is not a security, So this really

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Speaker 3: goes to the fundamental arguments that the SEC is making

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Speaker 3: in many other cases just to assert their jurisdiction over

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Speaker 3: this market. And Ripple, of course, is one of the

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Speaker 3: most popular digital tokens. It's very well known in the market.

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Speaker 3: The SEC's complaint alleges that over a billion dollars worth

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Speaker 3: of XRP was sold over the years. So it's a

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Speaker 3: very very significant decision just due to the fact that

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Speaker 3: Ripple and XRP are such key players in the industry.

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Speaker 3: But also it's noteworthy because the judge really knocked the

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Speaker 3: footing out from the SEC in terms of the fundamental

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Speaker 3: question of whether the SEC even has any sort of

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Speaker 3: jurisdiction over these types of virtual tokens and digital assets.

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Speaker 1: We'll have to wait and see whether the SEC actually

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Speaker 1: does appeal. It's a pleasure to have you on, Bob.

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Speaker 1: Thanks so much. That's Robert him, our partner at Tartar,

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Speaker 1: Krinsky and Drogan. FTC chair Lena Kahn's aggressive agenda to

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Speaker 1: beef up anti trust enforcement has suffered one setback after another,

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Speaker 1: the latest a major defeat when a judge rejected the

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Speaker 1: agency's efforts to block Microsoft's seventy five billion dollar acquisition

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Speaker 1: of activision Blizzard, and then con had to endure hours

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Speaker 1: of criticism and ridicule, along with a few questions from

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Speaker 1: Republicans on the House Judiciary Committee last Thursday, questions like

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Speaker 1: this from Republican Representative Kevin Kylie about the FTC's zero

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Speaker 1: to four record in merger challenges. We fight hard when

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Speaker 1: we believe that there is a law violation, and unfortunately

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Speaker 1: things don't always go our way, but we make determinations.

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Speaker 3: Or are you bringing cases that you expect to lose?

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Speaker 3: You repeat, are you bringing cases that you expect to lose?

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Speaker 1: Absolutely not joining me, is Anthony Sabino, Professor of Law

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Speaker 1: at the Peter Tobin College of Business at Saint John's University.

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Speaker 1: How big a blame bo was this Microsoft activision decision

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Speaker 1: to Lena Khan's agenda.

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Speaker 4: Well, it's certainly a setback, but it's only one case

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Speaker 4: out of many, but certainly gives a moment of pause

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Speaker 4: where she probably should be reconsidering her position again. One

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Speaker 4: of the reasons that Judge Jennifer Scott Corleyott in California

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Speaker 4: rejected the preliminary injunction was that she believed that the

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Speaker 4: FTC did not make a strong enough showing on the

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Speaker 4: facts that they would ultimately prevail with respect to blocking

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Speaker 4: the merger. So what it says to the FTC going

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Speaker 4: forward is that they should really pick their battles like

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Speaker 4: anything else in life June, they should pick the battles

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Speaker 4: that they're going to have and be more sure of

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Speaker 4: themselves going forward. A litigate first, think about it later,

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Speaker 4: and no compromise whatsoever is not a winning strategy. And

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Speaker 4: again this is something for the Commission to consider with

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Speaker 4: regard to doing more to making a compromise with the

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Speaker 4: parties as opposed to going to court and only to court.

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Speaker 1: So her theory, I believe is that even with losses

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Speaker 1: in court, you would gradually reform the theories of antitrust

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Speaker 1: and also you would send a strong signal that you

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Speaker 1: know the agency is becoming a tougher sheriff.

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Speaker 4: I disagree with the first and only slightly agree with

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Speaker 4: the second, as follows number one, A loss is a

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Speaker 4: loss is a loss, and it does not necessarily change

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Speaker 4: the law. And again, while it sets forth a position,

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Speaker 4: the bottom line is that if you don't prevail, well

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Speaker 4: you've lost. You have not prevailed, So that's not going

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Speaker 4: to change the law. At all with respect to the

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Speaker 4: other intention of the current FTC chair is the fact

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Speaker 4: that again she wants to show strength. But strength is

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Speaker 4: demonstrated to you not only by going to court and litigating.

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Speaker 4: It also can be demonstrated across the conference room table

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Speaker 4: is seeking compromise with the parties to any particular for

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Speaker 4: post transaction. And you can be strong in the ward room,

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Speaker 4: you can be strong in settlement talks and so forth

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Speaker 4: and reach a negotiated compromise, and in doing so you

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Speaker 4: set a workable precedence going forward for all other cases.

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Speaker 4: Because everyone it's a small, relatively small community, both legal,

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Speaker 4: both in terms of the legal and business community, and

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Speaker 4: everybody knows what the other side is doing. So again

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Speaker 4: that awareness of being the tough cop out there is

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Speaker 4: satisfied just as well. And again there's a difference, I

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Speaker 4: think between being a tough cop and again being forgive

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Speaker 4: me don't know, disrespect intended, but being a bit full

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Speaker 4: of bluster and losing anyway.

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Speaker 1: So do you know how were there any negotiations with

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Speaker 1: the Microsoft over activision Blizzard?

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Speaker 4: No, I can't speak to that. I'm not aware if

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Speaker 4: there were in negotiations there certainly was tremendous amounts of discovery,

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Speaker 4: both before Judge Corley in the District Court and also

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Speaker 4: before the FTC Administrative Judge, who I believe is going

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Speaker 4: to start hearing the FTC administrative action in early August.

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Speaker 4: Because Judge Corley makes a strong mention of the fact

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Speaker 4: that there were dozens and dozens of people in both

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Speaker 4: cases deposed and literally millions of pages of exhibits, and

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Speaker 4: so you know that tells you that there was certainly

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Speaker 4: a lot of activity here. But again it speaks to

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Speaker 4: the point that if you're going to spend all this

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Speaker 4: time doing discovery, well you must have something to talk

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Speaker 4: about in terms of negotiation, because the whole purpose of discovery,

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Speaker 4: among other things, is to demonstrate the relative strength and

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Speaker 4: strengths and weaknesses of each side. So having been so

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Speaker 4: well informed, again, one can help the things that after

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Speaker 4: deposing all these witnesses, all these experts, viewing millions of

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Speaker 4: pages of documents, each side is not very cognizant of

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Speaker 4: what the other side has in terms of their strengths

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Speaker 4: and weaknesses. So therefore, sit down and talk.

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Speaker 1: So but do you think that the US and particularly

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Speaker 1: the FTC has not been tough enough in antitrust matters.

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Speaker 1: I mean, and if you look at the European Union,

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Speaker 1: they seem to be.

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Speaker 4: Much tougher, right, And I think before I address that

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Speaker 4: is the fact that one cannot really rely upon the

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Speaker 4: European model, and with all due respect to our cousins

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Speaker 4: across the ocean, is the fact that traditionally the European

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Speaker 4: enter trust model has always been one where they safeguard competitors,

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Speaker 4: as opposed to the distinct American model, which is where

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Speaker 4: we protect competition, in other words, protect the competitive process.

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Speaker 4: And again I think that's just a reflection of history.

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Speaker 4: That's why they're the old world. In the new world.

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Speaker 4: You have many businesses in Europe that are entrenched, important

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Speaker 4: parts of the local economy and in years past partly

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Speaker 4: owned by state governments, are otherwise supported for whatever reason.

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Speaker 4: In America, with our tradition of free enterprise and during

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Speaker 4: certain points in our history laisse fair economics, the bottom

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Speaker 4: line is we're more worried about protecting competition. When the

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Speaker 4: Landmark Standard Oil case was brought and the old Standard

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Speaker 4: old monopoly is broken up, it wasn't to protect specific

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Speaker 4: competitors of John D. Rockefeller Senior. It was done to

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Speaker 4: protect the competitive process in the petroleum market. As far

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Speaker 4: as being tough, again I reiterate, you can be tough

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Speaker 4: in corporate you can also be tough with the negotiating table.

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Speaker 4: And that varies because it is very much where I

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Speaker 4: should say, at least important to influenced by politics. And again,

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Speaker 4: American history is shown that a Republican administration traditionally is

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Speaker 4: a little more laissez fair, a little more open to

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Speaker 4: mergers and acquisitions, whereas a democratic administration is usually a

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Speaker 4: little less pro business and a little more against mergers

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Speaker 4: and so forth. But again that's a political choice based

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Speaker 4: upon who the American people put it into office. Okay,

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Speaker 4: and you can still have so we call it a

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Speaker 4: skeptical view towards mergers and acquisitions, but it doesn't mean

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Speaker 4: that that takes shape by going to court for every

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Speaker 4: single case that comes along and refusing to or at

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Speaker 4: least not pursuing thoughtfully negotiations with the relevant parties.

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Speaker 1: Do you think that the Justice Department has done better?

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Speaker 1: I mean, I look at they pushed the envelope with

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Speaker 1: that random House Penguin merger.

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Speaker 4: Yeah, I think the Justice Department is doing what they

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Speaker 4: usually do and again it's interesting to see the byplay

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Speaker 4: because again not to split hairs, but the role of

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Speaker 4: the Anti Trust division of the DOJ is again to

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Speaker 4: prosecute and enforce the anti trust laws, whereas the FTC's

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Speaker 4: bailiwick is more their primary motivations more to protect competition

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Speaker 4: for the purpose of protecting the consumer. And with respect

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Speaker 4: to the DOJ, I think they've been somewhat more thoughtful

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Speaker 4: in the cases they've brought, the Penguin Press Day the

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Speaker 4: publishing case being one example. But again that's one of

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Speaker 4: the other points here where one would like to see

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Speaker 4: a little more shall we call it efficiency between these

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Speaker 4: two components of the executive branch, to be better coordinated

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Speaker 4: in that respect and maybe balance each other and again

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Speaker 4: find a motive of venting as to what cases they bring.

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Speaker 4: Shortantly is disposed to separately.

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Speaker 1: She was before Congress last week, and Republicans at the

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Speaker 1: hearing ridiculed her many times. I mean, was that appropriate?

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Speaker 4: Well, I don't think it's appropriate for any American in

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Speaker 4: public office or private citience to be ridiculed by Congress.

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Speaker 4: But again, what is appropriate is for Congress to questions

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Speaker 4: exercise oversight because the FTC is an executive agency and

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Speaker 4: its job is to enforce the laws. And who makes

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Speaker 4: those laws Congress, and who also has the power of

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Speaker 4: the purse, and that is likewise Congress. And again, one

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Speaker 4: of the points that's been raised by some others and

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Speaker 4: to a lesser extent myself, I have to be honest,

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Speaker 4: is that was it really was for the FTC to

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Speaker 4: go so gung ho on the Microsoft Slash Activision Blizzard

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Speaker 4: merger and oppose it and spend a lot of taxpayer

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Speaker 4: dollars of fighting that when again, the same results are

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Speaker 4: a similar result that still enforces the law still shows

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Speaker 4: itself on me, still shows rigorous enforcement, aniti trust law

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Speaker 4: is still good for the American public for the consumer.

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Speaker 4: Could have been done. The same result could have been

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Speaker 4: reached by negotiating deals with Microsoft, for example. Okay, was

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Speaker 4: it necessary. In One of the things the court case

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Speaker 4: bood and again Judge Curley made quite a big deal

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Speaker 4: about this is the fact that the CEO of Microsoft

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Speaker 4: took the stand and underwead said he promised to uphold

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Speaker 4: sales of call of duty to sowning Nintendo and other

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Speaker 4: competing platforms, which was a major concern of the FTC.

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Speaker 4: Did you need to go to court and spend taxpayer

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Speaker 4: dollars to extract the concession from the CEO of Microsoft,

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Speaker 4: not to mention also the CEO of Activision Blizzards on

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Speaker 4: the other side of the merger. Or could that have

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Speaker 4: been done across the conference room table at far less

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Speaker 4: costs and then be reduced to a stipulation? Okay? I

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Speaker 4: think the latter is far more cost efficient and beneficial

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Speaker 4: to the taxpayer than the former approach.

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Speaker 1: Do you think that these FDC losses embold and companies

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Speaker 1: to go forward with mergers or acquisitions they might not have.

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Speaker 4: No, I really don't think they do. I don't think

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Speaker 4: it emboldens anyone. I think what the companies do is say, look,

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Speaker 4: what's good the first point of course, and this is

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Speaker 4: part of the joy of speaking to your particular audiences.

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Speaker 4: These are business people, okay, These are person's in business.

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Speaker 4: So they're going to make a dollars and cents analysis

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Speaker 4: as to what's good for their business with respect to

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Speaker 4: their due diligence as to well, how will the dog

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Speaker 4: react to this, how will FTC react to this? Okay?

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Speaker 4: What are our obligations on the law? For example, the

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Speaker 4: Partscott Reginal Act for pre mergering notification. Okay, that is

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Speaker 4: just part of the calculus with respect to a course

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Speaker 4: of doing business. So I don't think it emboldens anyone,

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Speaker 4: but in a way it makes potential merger partners better

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Speaker 4: prepared to say, Okay, well, you know what, we may

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Speaker 4: have a fight with the FTC over this, so we're

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Speaker 4: just going to be better prepared. And again that's something

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Speaker 4: that from the government's side, is something to because if

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Speaker 4: business is more on the alert for aggressive or some

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Speaker 4: might even venture over aggressive enforcement by the FTC, then

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Speaker 4: the constituent parties to the merger can conford and say, look,

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Speaker 4: we know you're not gonna like this, okay, but we're

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Speaker 4: prepared to make this concession, that concession, etc. And put

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Speaker 4: things on the table. And that's really where the FTC

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Speaker 4: or and even DOJ has to take a step back,

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Speaker 4: in my humble opinion, say okay, fine, instead of running

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Speaker 4: to court and again going through discovery and spending tax

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Speaker 4: payer money on this, why don't we sit down in

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Speaker 4: a conference room somewhere convenient and let's hash this out

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Speaker 4: and let's see if there's a deal to be made.

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Speaker 4: I mean, that was really the ten or of mergers

404
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Speaker 4: of the past Exon Mobil in the nineties, the various

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Speaker 4: airlines over the years, where for example, in the in

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Speaker 4: the oil industry, Exon Mobil is a great example. All right,

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Speaker 4: DOJFTC said, look, okay, you can't have an intersection the

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Speaker 4: usual four corners, all right, with an Exon station on

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Speaker 4: one corner and mobile on the other. So what an

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Speaker 4: exime moe we'll do? They stay, fine, okay, we'll identify

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Speaker 4: them or you identify them for us, and we'll sell

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Speaker 4: one of those stations. So that way it forces competition, okay,

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Speaker 4: because there's other oil companies out there and so forth.

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Speaker 4: And that's why it was done. Airlines when they merge

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Speaker 4: June okay. Typically what they do is the FTC or

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Speaker 4: DOJ comes in again and says, look, you're going to

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Speaker 4: dominate a particular airport whatever, And so they say, okay, listen,

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Speaker 4: we're willing to sell our landing slots, our gate rights

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Speaker 4: and so forth to a competing airline. So let's do

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Speaker 4: a deal. And that's how it's done. It's done by negotiation,

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Speaker 4: it's done by stipulation. Okay. But the key factor, the

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Speaker 4: key distinction June is that it's not done in a

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Speaker 4: court of law, okay, And it's simply more efficient. It's

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Speaker 4: just smarter and better for everybody. And again you still

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Speaker 4: reach the same bottom line that everyone wants and what

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Speaker 4: the law demands, which is you're protecting consumer choice.

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Speaker 1: Do you think it's time for Congress to pass an

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Speaker 1: antitrust statute?

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Speaker 4: No, not at all. Okay, I for one, and very

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Speaker 4: content with the anti trustler that we have. It's been

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Speaker 4: around for well over one hundred years. It works well.

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Speaker 4: Now certainly reasonable people can disagree, but the bottom line

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Speaker 4: is the law is just fine, and enforcement I think

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Speaker 4: is just fine. And again that varies with the political wins.

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Speaker 4: But the bottom line is the law is there. And again,

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Speaker 4: when there have been situations where it can be demonstrated

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Speaker 4: in the court of law okay, or prior to that,

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Speaker 4: in the process of negotiation that a particular merger is

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Speaker 4: not going to fly, then for that reason, those mergers fail, okay.

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Speaker 4: But mergers that are proposed and then how shall I

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Speaker 4: say this, are modified massage by the negotiation process they

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Speaker 4: go through, and they prove to be beneficial in the

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Speaker 4: long run for everyone concerned, for the American public.

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Speaker 1: So how long do you think Lena Khan has before

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Speaker 1: people start calling her tenure a failure.

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Speaker 4: That's up to Congress, and that's up to the chief

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Speaker 4: executive because once again she's the head of an executive agency.

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Speaker 4: And again I don't recall what her tenure protection is,

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Speaker 4: if at all. But the bottom line is her boss

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Speaker 4: is President Biden. And guess what who's his boss the

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Speaker 4: American people. So if the American people tell President Biden

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Speaker 4: she's got to go okay, then he should listen. But

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Speaker 4: again I'm going to leave that to the great American

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Speaker 4: people out there to let their approval or displeasure be known.

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Speaker 1: Thanks for being on the show, Anthony. That's Anthony Sabino,

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Speaker 1: Professor of Law at the Peter Tobin College of Business

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Speaker 1: at Saint John's University. And that's it for this edition

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Speaker 1: of The Bloomberg Law Show. Remember you can always get

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Speaker 1: the latest legal news on our Bloomberg Law Podcast. You

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00:26:29,760 --> 00:26:33,800
Speaker 1: can find them on Apple Podcasts, Spotify, and at www

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00:26:33,960 --> 00:26:38,240
Speaker 1: dot Bloomberg dot com, slash podcast Slash Law, and remember

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Speaker 1: to tune into The Bloomberg Law Show every weeknight at

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Speaker 1: ten pm Wall Street Time. I'm June Grosso and you're

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Speaker 1: listening to Bloomberg