Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: In a class that fits the rights of same sex
Speaker 1: couples against free speech, the conservative justices on the Supreme
Speaker 1: Court appear ready to side with a website designer who
Speaker 1: says she has a free speech right to refuse to
Speaker 1: create websites for same sex weddings because of her Christian faith.
Speaker 1: Liberal Justice Sonya Sotomayor said that a decision allowing the
Speaker 1: designer to turn away same sex couples would be a first.
Speaker 1: This would be the first time in the Court's history
Speaker 1: correct that it would say that a business opened to
Speaker 1: the public, a commercial business open to the public serving
Speaker 1: the public, that it could refuse to serve a customer
Speaker 1: based on race, sex, religion, or sexual orientation. But several
Speaker 1: of the conservative justices focused on the designers stated intention
Speaker 1: to create customized wedding sites and the difference between businesses
Speaker 1: engaged in expression and one simply selling products. Here's Justice
Speaker 1: Brett Kavanaugh, how do you characterize website designers? Are they
Speaker 1: more like the restaurants and the jewelers and the tailors,
Speaker 1: or they more like, uh, you know, the publishing houses
Speaker 1: and the other free speech analogs. My guest is constitutional
Speaker 1: law expert Michael Dorff, a professor at Cornell Law School.
Speaker 1: Under Colorado law, a business may not refuse to serve
Speaker 1: individuals because of their sexual orientation. How is freedom of
Speaker 1: speech involved? So, the petitioner argues that her web design
Speaker 1: business is inherently expressive because when clients come to her
Speaker 1: and say they want her to design a wedding website,
Speaker 1: she puts various creative efforts into it to fashion a
Speaker 1: bespoke website, and in so doing she is creating speech
Speaker 1: thus speaking, and if the government tells her she must
Speaker 1: create same sex wedding websites, it is forcing her to
Speaker 1: espouse a message the tacit approval of same sex marriage
Speaker 1: that is inconsistent with her beliefs tell us now. The
Speaker 1: justices responded to this claim. Some of them were skeptical
Speaker 1: of whether there really was any expression at all here.
Speaker 1: I think Justice Sonia Sotomayor was the most skeptical. She
Speaker 1: wanted to know how this is speech by Laurie Smith,
Speaker 1: the owner of the web design company, given that it's
Speaker 1: essentially for the couple. Right, part of the point is
Speaker 1: that it's not speech endorsing same sex marriage at all.
Speaker 1: It's simply saying things like, here's the date of the wedding,
Speaker 1: here's the venue. Here direct and here's a registry, here's
Speaker 1: how we met, etcetera. So there's skepticism that it's the
Speaker 1: web designers speech at all, and then there's a question
Speaker 1: of whether it's speech that endorses this particular message. So
Speaker 1: that's at one end. At the other end of the spectrum,
Speaker 1: you had Justice Alito and some of the other justices
Speaker 1: who seem to just accept that, of course this is expressive,
Speaker 1: and they gave some hypothetical examples where you pretty clearly
Speaker 1: would have expression. For example, you know, if you had
Speaker 1: to put on the website, I the web designer, believe
Speaker 1: that God blesses this marriage, or even just God blesses
Speaker 1: this marriage. I think some of the justice has had
Speaker 1: the view that there certainly is expression here and it
Speaker 1: could be understood as expression endorsing same sex marriage. And
Speaker 1: then the question is does the state get to override
Speaker 1: that because they have a public accommodations law And what
Speaker 1: about the argument they're making about expressive works. Oh, this
Speaker 1: is hardly new. So a very similar case was before
Speaker 1: the Supreme Court in seventeen, also from Colorado. That case
Speaker 1: involved a baker, the so called Masterpiece Cake Shop case,
Speaker 1: and there too, the business owner objected to providing services
Speaker 1: for a same sex wedding on the ground that he
Speaker 1: opposed same sex marriage. In that case, the court had
Speaker 1: before it the same argument that has here, but it
Speaker 1: also had a claim of religious discrimination, and a majority
Speaker 1: of the court decided the case on that ground without
Speaker 1: addressing the free speech issue. But I should say that
Speaker 1: these arguments go back as far as the nineteen sixties
Speaker 1: when Congress enacted the nineteen sixty four Civil Rights Act
Speaker 1: that includes titled two with the Public Accommodations Provision, and
Speaker 1: some business owners during the tail end of the Jim
Speaker 1: Crow era said that it would be inconsistent with either
Speaker 1: their religious or speech views to serve African American customers
Speaker 1: either at all or in an integraded setting. And the
Speaker 1: claims then were pretty quickly rejected by the courts. The
Speaker 1: justices are considering only her free speech arguments, not her
Speaker 1: religious rights arguments. Did the justices jettison the religious rights
Speaker 1: part of the case so they'll be able to say,
Speaker 1: the conservative justices, well, this is free speech, not free exercise.
Speaker 1: Of religion against same sex marriage. Well, I'm not sure
Speaker 1: why they decided not to take the religion question, but
Speaker 1: it was apparent throughout the argument that even though as
Speaker 1: a technical matter they're not going to decide and can't
Speaker 1: decide the case on religious freedom grounds, this is understood
Speaker 1: to be religiously motivated speech. And of course everybody understands
Speaker 1: that part of what sets this up in a conservative
Speaker 1: liberal ideological space, so that the conservatives come in sympathetic
Speaker 1: to the claimant and liberals come in sympathetic to the state.
Speaker 1: That might not necessarily be the political valence if we
Speaker 1: imagined a very different law, and they're very different circumstances
Speaker 1: with different speakers. But the religious dimension of it, I
Speaker 1: think is below the surface, if not expressly part of
Speaker 1: the case. There is a lot of discussion about race
Speaker 1: discrimination here. The liberal justices express concern that this argument
Speaker 1: would open the door to discrimination on the basis of
Speaker 1: race or disability. Justice Soda Mayor said, how about people
Speaker 1: who don't believe in interracial marriage, or about people who
Speaker 1: don't believe that disabled people should get married? Where is
Speaker 1: the line? That is a question? Where is the line here? Yeah,
Speaker 1: so that's right there were a whole series of hypothetical examples.
Speaker 1: One that Justice Jackson gave, which I think was intriguing,
Speaker 1: was she imagined a Santa Clause in a mall who
Speaker 1: takes photos with and the Santa Claus takes photographs with
Speaker 1: children of all races, but says that there's a certain
Speaker 1: kind of photograph sort of it's a wonderful life kind
Speaker 1: of photograph that he only takes with white children because
Speaker 1: it's got a sort of nostalgic element and that's part
Speaker 1: of his artistic expression. So it's not that he doesn't
Speaker 1: serve African American children, but he excludes him from that.
Speaker 1: And presumably a Colorado style public accommodations law would say, well,
Speaker 1: you can't do that. And the argument of the petitioner
Speaker 1: here would say, well, that Santa Claus gets to exclude
Speaker 1: the African American children from that kind of photograph, which
Speaker 1: seems problematic. Justice Alito countered with his own Santa Claus example.
Speaker 1: So he imagined an African American Santa Claus at the
Speaker 1: other end of the mall and a child who wants
Speaker 1: to be photographed in a ku Klux Klan outfit. And
Speaker 1: the point of his example, I think was to generate
Speaker 1: the intuition that the African American Santa Claus shouldn't have
Speaker 1: to do that. And I thought there was a good
Speaker 1: response to that that got kind of washed over pretty ically,
Speaker 1: which was that there is no public accommodations law saying
Speaker 1: you have to serve people even if they're in clan outfits,
Speaker 1: at least not in Colorado, not at the federal level. Now,
Speaker 1: it's true that there are some state laws that say
Speaker 1: you can't discriminate in your business on the basis of
Speaker 1: the politics or ideology of your customers. And so maybe
Speaker 1: in one of those states that law would mean that
Speaker 1: the African American Santa Claus would have to take the
Speaker 1: photo with the child in the clan outfit. But you
Speaker 1: might say, and I would be inclined to say, that
Speaker 1: the state doesn't have the same compelling interest in forbidding
Speaker 1: discrimination on the basis of political viewpoints that it does
Speaker 1: in preventing the discrimination on the basis of an identity
Speaker 1: characteristic such as ray sex, sexual orientation, gender identity, or disability.
Speaker 1: After all, you can always go into the store and
Speaker 1: you know, take off your Maga hat or your A
Speaker 1: C l U pin if you're worried it about viewpoint discrimination.
Speaker 1: You can't you know, change who you are in these
Speaker 1: other settings, nor should you have to even if you can,
Speaker 1: you know, be closeted for purposes of getting service. Yeah,
Speaker 1: I mean there were so many hypotheticals and some for example,
Speaker 1: what happens if an architect whose work is expressive refuses
Speaker 1: to work for black customers? I mean, none of those
Speaker 1: were answered sufficiently. I think that's right. So I think
Speaker 1: it's very tempting to want to go where David Cole,
Speaker 1: the National legal director of the a c L. You
Speaker 1: went in a brief at the a c L you
Speaker 1: filed and in a New York Times op ed that
Speaker 1: he published under his own name, which is to say
Speaker 1: that none of these claims really should get off the ground.
Speaker 1: Of course, you have a right to free speech, but
Speaker 1: when you go out into the marketplace and offer your services,
Speaker 1: you're going to have to take some lumps, because otherwise
Speaker 1: everybody in virtually any trade or craft is going to
Speaker 1: say that there's some expressive element. Right. Think about a
Speaker 1: bart Sure bartender just provides drinks, but we know that
Speaker 1: part of being a bartender is talking to the patrons
Speaker 1: at the bar and you might not want to engage
Speaker 1: in certain conversations with certain people because you'll have to
Speaker 1: express views that are polite and therefore could be taken
Speaker 1: as endorsing their lifestyle or whatever it is. So if
Speaker 1: the Court goes down this road and wants to say, well,
Speaker 1: there's some occupations, some services, some goods that are more
Speaker 1: inherently expressive than others, it's going to have a lot
Speaker 1: of cases for a long time trying to draw those lines.
Speaker 1: Why do you think that Justices took this case over
Speaker 1: the rights of same sex couples at a time when
Speaker 1: there's so much concern that the Court will reverse the
Speaker 1: right to same sex marriage, just as it reversed the
Speaker 1: right to abortion. I mean, that's the reason for the
Speaker 1: same sex marriage bill. I think they took it for
Speaker 1: at least two sorts of reasons. One is that the
Speaker 1: timing is somewhat accidental. This was an issue that they
Speaker 1: did want to address in twenties mainteen. They punted then,
Speaker 1: and it's sort of been around since then. And that
Speaker 1: was from before the Court's decision overruling rob Wade and
Speaker 1: thus raising the possibility of the overruling of other cases,
Speaker 1: including a Burger Fell against HADJ is the case recognizing
Speaker 1: a right to same sex marriage. The second reason, though,
Speaker 1: I think, is that especially the conservative justices on this
Speaker 1: court want to limit the scope of lgbt Q plus equality,
Speaker 1: at least insofar as they see it infringing on conservative
Speaker 1: religious lifestyles. There's a line in Justice Kennedy's majority opinion
Speaker 1: in the Burger Filt case in which he says that
Speaker 1: many people oppose same sex marriage based on honorable and
Speaker 1: decent religious or philosophical principles. Now, when Justice Kennedy wrote that,
Speaker 1: just the leado in dissent mocked it is saying, well, sure,
Speaker 1: you're saying that they're entitled to have these principles, are
Speaker 1: just not entitled to act on them. But since then
Speaker 1: he and some of the other conservative justices have sort
Speaker 1: of taken that up as a banner to say, well,
Speaker 1: if it's decent and honorable, then people should be able
Speaker 1: to opt out. That wanting to oppose same sex marriage
Speaker 1: is not the same thing. It's not morally equivalent to
Speaker 1: race discrimination, and so they want to sort of carve
Speaker 1: a hole in anti discrimination law. Indeed, you might even
Speaker 1: look at just as Gorsuch, who after all wrote the
Speaker 1: court's opinion in the case, finding that discrimination on the
Speaker 1: basis of sexual orientation and gender identity are forbidden by
Speaker 1: the Federal employment anti discrimination law. That having sort of
Speaker 1: established his bona fides as not a homophob or transphobe
Speaker 1: in those cases, he now wants to say, but don't worry,
Speaker 1: I'm going to give something to the other side by
Speaker 1: giving this carve out or religiously motivated expression or opposition
Speaker 1: your said ruling for the web designer here would be
Speaker 1: the first time in Supreme Court history to allow a
Speaker 1: business open to the general public to refuse to serve
Speaker 1: a customer based on race, sex, religion, or sexual orientation.
Speaker 1: So how do the conservatives make a carve out that
Speaker 1: doesn't characterize this as inviting business to be exempt from
Speaker 1: civil rights laws? Well, so, I mean, she's right, but
Speaker 1: only because we defined you know, that narrowly. After all,
Speaker 1: in the hobby lobby case, and I believe it was
Speaker 1: the Court gave a carve out from statute and regulations
Speaker 1: requiring the provision of health insurance that covers contraception to
Speaker 1: religiously motivated business owners, and that was in the context
Speaker 1: of employment rather than public accommodations, but it's also a
Speaker 1: carve out from antidiscrimination law, also based in sort of
Speaker 1: conservative religious principles. Part of the reason the Court would
Speaker 1: be doing this for the first time, I think, is
Speaker 1: because it's the first time they're addressing it in this
Speaker 1: specific context. Although I do think Justice of my Aora
Speaker 1: is right herketing back to those cases from the nineties
Speaker 1: and seventies in which they dismiss the proposed exceptions with
Speaker 1: respect to race. But I think the answer to the
Speaker 1: question of how does the Court prevent people from perceiving
Speaker 1: this as them, you know, taking sides, you know, against
Speaker 1: anti discrimination law, is that they can't. They can't control
Speaker 1: how their decisions are perceived. I actually would share that perception.
Speaker 1: I'm you know, I'm sympathetic to the position articulated by
Speaker 1: Justice so to Mayor, but I think this Court has
Speaker 1: shown that they're not all that attuned to or concerned
Speaker 1: about how the public perceives them. Chief Justice Roberts seemed
Speaker 1: more concerned about that early in his career, and maybe
Speaker 1: still is, but he's lost control of this court. I
Speaker 1: know you can't get everything from these oral arguments, but
Speaker 1: what do you see as the result here, I think
Speaker 1: it's likely that three to three creative and MS Smith,
Speaker 1: the owner of the web design company, will win. I
Speaker 1: think that at chief Justice Roberts will either write the
Speaker 1: opinion himself or try to assign it to one of
Speaker 1: his colleagues, likely Justice Barrett or Justice Kavanaugh, who he
Speaker 1: thinks will write a somewhat narrow opinion that doesn't open
Speaker 1: the door to the complete gutting of anti discrimination law,
Speaker 1: at least not initially. But exactly what distinctions they draw
Speaker 1: is hard to predict at this point. You know, depending
Speaker 1: on how they write it. This becomes a question that's
Speaker 1: going to be litigated over and over, isn't it. It's
Speaker 1: it's opening the door. Yes, sure, for the most part,
Speaker 1: claims like this have lost in the lower courts. But
Speaker 1: if the web designer wins in the Supreme Court, even
Speaker 1: in a relatively narrow way, there will then be a
Speaker 1: large number of cases of this sort, posing all sorts
Speaker 1: of difficult questions. Right, one will be about you know,
Speaker 1: our florist like web designers if they're not, what about
Speaker 1: Baker's What about you know, the difference between a bespoke
Speaker 1: website and one off the rack? Right? So there are
Speaker 1: very many questions that will be left open, and as
Speaker 1: alexis to Toakville pointed out in the early nineteenth century
Speaker 1: when he visited America. In America, the open questions become
Speaker 1: legal questions and they're all going to be litigated. So then,
Speaker 1: if this decision comes out as you expected to, what
Speaker 1: does this mean for lgbt Q rights, It's open season
Speaker 1: on lgbt Q rights. I No, I don't think so.
Speaker 1: I think I think it's still going to be true
Speaker 1: that the vast majority of let's say, same sex couples
Speaker 1: looking for wedding services will find them, especially because people
Speaker 1: tend to clump geographically in places that are sympathetic. So
Speaker 1: you know, the people who will be most hurt by
Speaker 1: this are same sex couples and lgbt Q plus individuals
Speaker 1: living outside of major metropolitan areas in places that are
Speaker 1: not sympathetic to their rights, and they will face discrimination there.
Speaker 1: Although the truth is that they might face discrimination they're
Speaker 1: already because the law is hardly perfect at changing people's attitudes.
Speaker 1: This um struck me. The web designer hasn't even tried
Speaker 1: to start wedding website business yet, so why does she
Speaker 1: have standing and it seems like it's one of those
Speaker 1: cases being brought to bring this issue to the court. Yeah,
Speaker 1: that that was a threshold question. It does seem like
Speaker 1: it's sort of made up, both because she hasn't entered
Speaker 1: the business yet. It was done on stipulated facts, just
Speaker 1: as Thomas asked that question at the beginning of the case.
Speaker 1: And there is sort of a technical way around it.
Speaker 1: But it does it does have that kind of air
Speaker 1: of unreality. It seems unreal to me in another way,
Speaker 1: which is, I don't see how she's going to make
Speaker 1: any money on this website anyway. If you just if
Speaker 1: you just go online and google wedding websites, you'll find
Speaker 1: half a dozen services that allow you to create your
Speaker 1: own website in about fifteen minutes for free, and they
Speaker 1: look very professional. Um so, why someone is going to
Speaker 1: go to this person to, you know, to have her
Speaker 1: services for a fee is a mystery to me. Thanks
Speaker 1: so much, Mike. That's Professor Michael Dorff of Cornell Law School.
Speaker 1: The fate of grocery store workers seems to be a
Speaker 1: pivotal factor in the Federal Trade Commission's decision on whether
Speaker 1: to sue to block Kroger's twenty four point six billion
Speaker 1: dollar acquisition of Albertson's. The labor concerns surrounding the merger
Speaker 1: were underscore at a Senate hearing this week, where Kroger's
Speaker 1: CEO made promises not to lay off quote frontline workers,
Speaker 1: joining me as Bloomberg Law reporter Dan Paskin, Dan tell
Speaker 1: us a little about this proposed merger. So Kroger and Albertson's,
Speaker 1: which are two of the largest grocery companies in the US.
Speaker 1: They're the second and fourth largest in the country in
Speaker 1: terms of where Americans buy their groceries. So walmartt is
Speaker 1: also Mozon is competing with them program I was a
Speaker 1: couple of months ago. It's going to buy Albertson's um
Speaker 1: for almost twenty five billion dollars, and regulators and some
Speaker 1: of the public and advocacy groups are concerned that the
Speaker 1: deal could basically concentrate the market for the groceries in
Speaker 1: certain parts of the country where there aren't that many
Speaker 1: stores and where Kroger and Albertson's stores like Safeway and
Speaker 1: Harris Teeter are the only ones in town. Has Albertson's
Speaker 1: promised that stores won't be closed, that they'll be sold.
Speaker 1: Is that part of the deal. Yes, So, as part
Speaker 1: of the proposed deal, Kroger and Albertson's are offering to
Speaker 1: spin off up to about six hundred, six hundred fifty stores,
Speaker 1: probably around three hundred right now, basically to a suage
Speaker 1: concerns that it would concentrate the market, and it's basically
Speaker 1: a move to forestall a Federal Trade Commission challenge to
Speaker 1: the deal. And yes, in a kind of hearing last week,
Speaker 1: the CEO Kroger committed to not close stores, distribution centers,
Speaker 1: or manufacturing facilities as a result of the merger. We've
Speaker 1: seen antitrust regulators focus recently on concerns about labor with
Speaker 1: mergers or acquisition. So tell us what the concern is
Speaker 1: here about labor. Yeah, So the last few years, labor
Speaker 1: has become a much more significant part of murder review
Speaker 1: and anti trust in general. It's not just about product
Speaker 1: markets anymore. It's also about you know, where you and
Speaker 1: I work, and so here there's a concern that if
Speaker 1: you have several stores in a town or a city
Speaker 1: where grocery workers work, and the merger goes through, all
Speaker 1: of the stores could be owned by the new Kroger
Speaker 1: Albertson's company, the merged company, and so workers. Typically when
Speaker 1: when mergers go through, stores are closed, there are layoffs
Speaker 1: because we can save money by laying off like extra workers.
Speaker 1: And so lawmakers and specifically the union that represents over
Speaker 1: a hundred thousand Roger and Albertson's workers, are concerned that
Speaker 1: despite kind of what the CEO said is hearing last week,
Speaker 1: there could still be layoffs. There could still be um
Speaker 1: decreasing circumstances for promotions. Pay could be suppressed because when
Speaker 1: you think about it, um, if I work at at
Speaker 1: a Kroger store, and UM, I want to get a raise,
Speaker 1: maybe the best way for me to get a raised
Speaker 1: isn't keep working at the Kroger store, but it's to
Speaker 1: get hired at an Albigeon store or somewhere else where
Speaker 1: they'll pay me more and go. When you don't have
Speaker 1: that kind of threat of losing your employees to a competitor,
Speaker 1: you're much less incentivized to raise their wages every so
Speaker 1: often give them a raise. At the Senate hearing, the
Speaker 1: Kroger CEO promised to refrain from laying off quote frontline workers.
Speaker 1: So what did he mean by frontline take a good question. Um,
Speaker 1: he was referring to kind of the frontline workers that
Speaker 1: we've talked about all pandemic, and he was pressed on
Speaker 1: it by a couple of different editors to kind of say,
Speaker 1: will you not layoff any workers? And he wouldn't say that,
Speaker 1: which the implication being that kind of more staffing and
Speaker 1: managerial roles could be affected, or people at headquarters. But
Speaker 1: it's hard to say exactly, like we don't know exactly
Speaker 1: what human He didn't offer a kind of a clear
Speaker 1: definition of frontline, so it's it's hard to say. And
Speaker 1: the union, like I said, is concerned that even that
Speaker 1: isn't a guarantee. This focus of the FTC does it
Speaker 1: come from the Biden administration's supportive unions, Yes and no.
Speaker 1: Um in the DJ and the FTC came out with
Speaker 1: new guidance that they would be going after what are
Speaker 1: called noppoach cases and treating them as criminal cases, which
Speaker 1: is basically agreements between employers not to hire each other's workers.
Speaker 1: So there there's evidence that like this overall interest in
Speaker 1: labor goes beyond the Biden administration. That was at the
Speaker 1: end of the Obama administration into the Trump administration when
Speaker 1: that happens. But yes, this kind of specific focus on
Speaker 1: workers is very much under FTC chair Lena Kahn and
Speaker 1: d o J and Star's division as an Attorney General
Speaker 1: Jonathan canter Um, they both said it's a big priority
Speaker 1: for them, and it's very much in line with the
Speaker 1: overall bid administration focus on labor and on competition. So
Speaker 1: the Justice Department was successful recently in blocking Penguin Random
Speaker 1: Houses two point one eight billion dollar acquisition of Simon
Speaker 1: and Schuster, and the focus there was on the authors
Speaker 1: who might lose lucrative contracts and advances because of a deal.
Speaker 1: Is that different from trying to focus on supermarket workers.
Speaker 1: It's actually pretty similar, and that's a really good comparison. So,
Speaker 1: I mean, yes, they are at opposite ends of the
Speaker 1: economic spectrum in terms of income and the kind of
Speaker 1: form of labor, but they're both cases that kind of
Speaker 1: could indicate a focus on labor um. The publisher's case
Speaker 1: is actually the first big murder challenge we've seen, or
Speaker 1: at least the first one in a while that has
Speaker 1: focused primarily on labor. There were other arguments there, but
Speaker 1: d o J really leaned on kind of the effect
Speaker 1: on authors. So yeah, they're they're similar, and there I mean,
Speaker 1: you can't compare them perfectly. That the group of authors
Speaker 1: who make kind of the amount of money and the
Speaker 1: books um that would have been affected by the Penguin
Speaker 1: Random House deal are nowhere in the economic bracket of
Speaker 1: grocery store workers. And grocery store workers can work in
Speaker 1: other places. They're not limited to just banking groceries at Kroger,
Speaker 1: for example. But now there are absolutely comparison and the
Speaker 1: overall focus is similar. Could the FTC decide to go
Speaker 1: after this merger just based on its effect on labor markets?
Speaker 1: That's pretty unlikely, um, And it's we probably won't see
Speaker 1: a challenge really with any specific allegations about labor markets.
Speaker 1: We won't see a kind of a Sherman Act or
Speaker 1: Clayton Act charge saying this would concentrate the labor market
Speaker 1: and in Los Angeles or in Washington. Um. What it
Speaker 1: will do is uh. The sources told me it's likely
Speaker 1: to kind of influence how the FTC analyzes the deal
Speaker 1: right now before it actually files the challenge and during
Speaker 1: these because of the merger of view process before an
Speaker 1: agency decides to sue or not um their meeting with
Speaker 1: the lawyers or um both companies, and it's likely influencing
Speaker 1: the FTC to kind of not take company promises that
Speaker 1: like they won't close stores for granted and often kind
Speaker 1: of those are the sorts of things companies will point
Speaker 1: out as reasons to let the deal go through, like
Speaker 1: these are kind of shavings that are good for the
Speaker 1: economy and that we can um, we translate the savings
Speaker 1: to customers right that you won't pay as much at
Speaker 1: the cash register. And it basically means, uh, the SEC's
Speaker 1: focused on whatever. Basically means the companies probably can't make
Speaker 1: those commitments to the FTC because the FTC won't see
Speaker 1: them as a good thing. So they're kind of forcedalled
Speaker 1: in those defenses what we call in efficiencies defense. It
Speaker 1: definitely means the FEC is scrutinizing as harder than it
Speaker 1: would be other ones. How does Albertson's acquisition in safe
Speaker 1: Way affect the thinking here or you know, the thinking
Speaker 1: of those who are opposing this. Yeah, so in Albertson's
Speaker 1: purchased safe Way, which is a pretty significant, pretty large brand,
Speaker 1: and as part of the deal, the FTC let it
Speaker 1: go through and required that alberton has been off. I
Speaker 1: believe it was a hundred and sixty nine hundred sixty
Speaker 1: eight stores. Most of those went to a regional grocery
Speaker 1: chain called Higgins, which I believe is in the Pacific
Speaker 1: Northwest and UM within a year, Higgins declared bankruptcy and
Speaker 1: sold thirty three of the stores back to Albertson's at
Speaker 1: a massive discount. So Alberton's actually made money on the
Speaker 1: stores that that has then bought back. They purchased them
Speaker 1: for so little. One of my sources called it like
Speaker 1: a poster child for bad murder of you because the FTC,
Speaker 1: according to is advocate and now chair Lena Coln, made
Speaker 1: a mistake in letting Mattieod go through at least with
Speaker 1: the divester that it required, because Higgins can handle the
Speaker 1: additional stores, and albertson has benefited. At the end of
Speaker 1: the day, UM and we talked to several union members
Speaker 1: who had friends who are laid off for co workers,
Speaker 1: and there was a union press conference where members talked
Speaker 1: about like going through layoffs as a result of as well.
Speaker 1: So the ACTUALC is definitely aware of what went wrong.
Speaker 1: Seven years ago Um, and that's going to make both
Speaker 1: them and Oversight way more interested in longer push back. Here.
Speaker 1: Thanks Dan. That's Bloomberg Law reporter Dan Paskin, and that's
Speaker 1: it for this edition of The Bloomberg Law Show. Remember
Speaker 1: you can always get the latest legal news on our
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