1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:11,039 --> 00:00:14,480 Speaker 2: I've been gathering the greatest hunters across all realities, and 3 00:00:14,640 --> 00:00:18,120 Speaker 2: I started with the best cost a lot of credits 4 00:00:18,160 --> 00:00:19,239 Speaker 2: to convince Mando. 5 00:00:19,239 --> 00:00:20,880 Speaker 1: But this is the way. 6 00:00:23,200 --> 00:00:26,799 Speaker 2: The plan, pure chaos and no one will sew it 7 00:00:26,840 --> 00:00:29,680 Speaker 2: better than them. 8 00:00:29,960 --> 00:00:33,599 Speaker 3: Fortnite is an online video game where players collaborate to 9 00:00:33,640 --> 00:00:36,879 Speaker 3: survive in an open world environment, and the winner is 10 00:00:37,000 --> 00:00:40,880 Speaker 3: really Epic Games, which makes billions of dollars every year 11 00:00:40,880 --> 00:00:44,240 Speaker 3: from it. And this week Epic won its years long 12 00:00:44,400 --> 00:00:47,760 Speaker 3: real world battle with Google over its app store, where 13 00:00:47,760 --> 00:00:51,960 Speaker 3: it charges companies' fees when users make purchases. 14 00:00:51,360 --> 00:00:52,880 Speaker 4: For games like Fortnite. 15 00:00:53,040 --> 00:00:55,640 Speaker 3: In a major blow to the tech giant, a San 16 00:00:55,680 --> 00:01:00,600 Speaker 3: Francisco jury found that Google's app store constitutes an illegal 17 00:01:00,640 --> 00:01:04,679 Speaker 3: monopoly in violation of the anti trust laws. Google is 18 00:01:04,840 --> 00:01:09,040 Speaker 3: vowing to appeal. Joining me is anti trust expert Harry First, 19 00:01:09,200 --> 00:01:11,240 Speaker 3: a professor at NYU Law School. 20 00:01:12,080 --> 00:01:14,520 Speaker 4: What did the jury decide exactly? 21 00:01:14,600 --> 00:01:14,800 Speaker 3: Here? 22 00:01:15,200 --> 00:01:19,120 Speaker 5: So, the jury decided basically that in a number of 23 00:01:19,120 --> 00:01:24,560 Speaker 5: different ways, Google abused its power to keep its monopoly 24 00:01:24,959 --> 00:01:29,880 Speaker 5: in the Google app stores or the distribution of Google 25 00:01:30,200 --> 00:01:33,200 Speaker 5: apps and that they did a number of different ways, 26 00:01:33,520 --> 00:01:38,560 Speaker 5: Agreements with the handset makers, agreements with developers, you know, 27 00:01:38,680 --> 00:01:42,959 Speaker 5: making sure that Google Play appears on every Android phone, 28 00:01:43,400 --> 00:01:48,200 Speaker 5: keeping developers from going off and developing their own app stores, 29 00:01:48,480 --> 00:01:52,600 Speaker 5: and basically requiring everyone to sort of go through this funnel. 30 00:01:52,640 --> 00:01:52,800 Speaker 6: You know. 31 00:01:52,840 --> 00:01:55,680 Speaker 5: It's sort of like the old hourglasses. You know, it 32 00:01:55,720 --> 00:02:00,000 Speaker 5: goes down into the middle and everything goes through. Google 33 00:02:00,040 --> 00:02:01,880 Speaker 5: will play if you want to reach someone with an 34 00:02:01,920 --> 00:02:05,880 Speaker 5: Android phone in their hands. So those little grains of sand, 35 00:02:06,160 --> 00:02:09,000 Speaker 5: thirty percent of them go into Google's pocket. 36 00:02:09,240 --> 00:02:11,920 Speaker 3: Yes, those are the commissions as high as thirty percent 37 00:02:12,080 --> 00:02:16,280 Speaker 3: that Google takes from software developers. The jury deliberated for 38 00:02:16,560 --> 00:02:19,959 Speaker 3: a little over three hours after a month long trial, 39 00:02:20,000 --> 00:02:21,880 Speaker 3: and came back with the unanimous verdict. 40 00:02:22,520 --> 00:02:25,200 Speaker 4: Was the evidence against Google. That's strong. 41 00:02:25,600 --> 00:02:30,600 Speaker 5: Jurors take these cases very seriously. Jurors pay attention. They 42 00:02:30,960 --> 00:02:34,640 Speaker 5: sit there and they listen hard. This is new to 43 00:02:34,720 --> 00:02:37,040 Speaker 5: them in a sense. I mean maybe some of them 44 00:02:37,160 --> 00:02:40,960 Speaker 5: have played video games on their phone, but they listen hard. 45 00:02:41,360 --> 00:02:44,600 Speaker 5: And I took a look at the sheep with their findings, 46 00:02:44,919 --> 00:02:48,360 Speaker 5: and it said, you're supposed to define what the market is, 47 00:02:48,760 --> 00:02:52,040 Speaker 5: and instead of the sheet having a list of things 48 00:02:52,040 --> 00:02:54,480 Speaker 5: with a checkbox. You know what it might be. It 49 00:02:54,600 --> 00:02:56,400 Speaker 5: just had a box and you had to write it in. 50 00:02:56,760 --> 00:03:00,640 Speaker 5: So they wrote in the exact right product market definition 51 00:03:00,680 --> 00:03:03,840 Speaker 5: that the plaintiffs wanted. And to me, it's sort of 52 00:03:03,880 --> 00:03:07,239 Speaker 5: a little tell that they're paying attention. I mean, this 53 00:03:07,280 --> 00:03:10,040 Speaker 5: is a little bit technical language, and they were paying 54 00:03:10,040 --> 00:03:13,919 Speaker 5: attention to what was going on. There were atmospherics in 55 00:03:13,960 --> 00:03:17,280 Speaker 5: the case, of course, there always are, you know, testimony 56 00:03:17,360 --> 00:03:23,600 Speaker 5: of how apparently Google made an offer to Epic to 57 00:03:23,639 --> 00:03:26,080 Speaker 5: come back on board, We'll give you a lot of money. 58 00:03:26,200 --> 00:03:29,799 Speaker 5: There was some question about how Google was dealing with 59 00:03:29,840 --> 00:03:33,520 Speaker 5: its internal chats and whether they were trying to, you know, 60 00:03:33,520 --> 00:03:36,400 Speaker 5: erase the evidence as they were making it. So those 61 00:03:36,440 --> 00:03:38,880 Speaker 5: may have played a role. But I think that's a 62 00:03:38,960 --> 00:03:45,720 Speaker 5: real indication of non technical experts saying, Okay, we understand 63 00:03:45,800 --> 00:03:49,160 Speaker 5: what power is. You know what a monopoly is. We're 64 00:03:49,200 --> 00:03:52,080 Speaker 5: not economists, but we can understand this evidence. 65 00:03:52,360 --> 00:03:56,440 Speaker 3: And Google's it Epic, which seems to be on a mission, 66 00:03:57,000 --> 00:04:01,160 Speaker 3: lost a similar challenge to Apple's Appstor two years ago, 67 00:04:01,320 --> 00:04:04,160 Speaker 3: and both companies have asked the Supreme Court to review that. 68 00:04:04,760 --> 00:04:08,560 Speaker 3: Does the judges verdict there contradict the jury's verdict here, 69 00:04:08,720 --> 00:04:11,560 Speaker 3: or are the cases and the facts different. 70 00:04:12,800 --> 00:04:17,520 Speaker 5: Yes, maybe or maybe yes. It depends, So you're doing. 71 00:04:17,360 --> 00:04:19,280 Speaker 4: It again, Harry, you got me in one of those. 72 00:04:20,560 --> 00:04:21,240 Speaker 6: I mean, this. 73 00:04:21,360 --> 00:04:23,960 Speaker 5: Certainly is going to be one of Google's arguments when 74 00:04:24,040 --> 00:04:26,760 Speaker 5: Google appeals this case to the Court of Appeals in 75 00:04:26,760 --> 00:04:30,000 Speaker 5: the Ninth Circuit, saying, you know, you just affirmed this 76 00:04:30,160 --> 00:04:34,680 Speaker 5: decision finding a very different statement of what the product 77 00:04:34,720 --> 00:04:39,360 Speaker 5: market is, finding that Apple and Google compete in the 78 00:04:39,440 --> 00:04:44,080 Speaker 5: distribution of gaming apps, and you were right in the 79 00:04:44,120 --> 00:04:48,400 Speaker 5: Apple case, and this case can't stand. The jury made 80 00:04:48,520 --> 00:04:51,440 Speaker 5: an error of law, you know, reflected no doubt the 81 00:04:51,440 --> 00:04:55,200 Speaker 5: instructions that it was given, and the verdict can't stand. 82 00:04:55,400 --> 00:04:57,160 Speaker 5: So I think that's going to be a key part. 83 00:04:57,520 --> 00:05:01,960 Speaker 5: Now what did I say? Maybe yes, yes, maybe. Epic 84 00:05:02,040 --> 00:05:04,200 Speaker 5: is still arguing, of course that the judge was wrong 85 00:05:04,279 --> 00:05:07,480 Speaker 5: in the Apple case, but putting that to the side, 86 00:05:07,640 --> 00:05:11,440 Speaker 5: we'll argue there's differences between what Google's doing and what 87 00:05:11,520 --> 00:05:16,200 Speaker 5: Apple's doing, and the product market definition is different because 88 00:05:16,480 --> 00:05:23,560 Speaker 5: other companies actually do distribute Android compatible applications, so it's 89 00:05:23,680 --> 00:05:27,800 Speaker 5: not a product market definition constructed for one seller as 90 00:05:27,800 --> 00:05:30,880 Speaker 5: it seems for Apple, since no one else can distribute 91 00:05:31,040 --> 00:05:35,520 Speaker 5: applications that will work with the Apple operating system because 92 00:05:35,640 --> 00:05:40,440 Speaker 5: Apple controls that, but Google doesn't quite control Android in 93 00:05:40,480 --> 00:05:43,280 Speaker 5: the same way, although there are probably arguments over that. 94 00:05:43,560 --> 00:05:45,760 Speaker 5: So they'll try to distinguish the facts of the case 95 00:05:46,000 --> 00:05:50,120 Speaker 5: a little bit. But at heart it seems like a problem. 96 00:05:50,560 --> 00:05:53,880 Speaker 3: The case isn't over because the judge has to decide 97 00:05:53,880 --> 00:05:57,240 Speaker 3: what the remedy will be. Yet Epic didn't seek monetary 98 00:05:57,320 --> 00:06:01,400 Speaker 3: damages from Google, only a change in app store policies. 99 00:06:01,760 --> 00:06:04,800 Speaker 3: I mean, what's the range that the judge can order here? 100 00:06:05,279 --> 00:06:09,680 Speaker 5: Well, you're being more specific about what Epic seeking than 101 00:06:09,920 --> 00:06:14,440 Speaker 5: Epic was in its complaint. The remedy was stated very 102 00:06:14,480 --> 00:06:17,920 Speaker 5: generally about adjunctive relief. So it's not one hundred percent 103 00:06:18,000 --> 00:06:23,680 Speaker 5: clear what Epic wants, except to say that apparently whatever 104 00:06:24,040 --> 00:06:27,599 Speaker 5: match was offered Match dot Com was offered and agreed 105 00:06:27,640 --> 00:06:31,360 Speaker 5: to in its settlement. Presumably Google would have been glad 106 00:06:31,720 --> 00:06:35,800 Speaker 5: for Epic to take the same settlement it didn't, so 107 00:06:36,279 --> 00:06:41,760 Speaker 5: presumably it wants more than just that. Now, I'm not 108 00:06:41,800 --> 00:06:45,359 Speaker 5: one hundred percent clear about exactly what it wants, except 109 00:06:45,680 --> 00:06:49,000 Speaker 5: it certainly wants to be able to free itself from 110 00:06:49,040 --> 00:06:51,839 Speaker 5: the Google payment system. It wants to be able to 111 00:06:51,920 --> 00:06:56,640 Speaker 5: sell things in Fortnite through its own Fortnite app and 112 00:06:56,880 --> 00:06:59,720 Speaker 5: not have to pay a commission to Google. But exactly 113 00:07:00,160 --> 00:07:04,279 Speaker 5: how they want to achieve that technically, they don't seem 114 00:07:04,320 --> 00:07:06,840 Speaker 5: to want to have some sort of a choice thing 115 00:07:06,920 --> 00:07:11,800 Speaker 5: that's within Google's control. So it's not one hundred percent clear, 116 00:07:12,160 --> 00:07:15,240 Speaker 5: But I would say this Epic did not invest so 117 00:07:15,400 --> 00:07:19,800 Speaker 5: much money in this litigation without thinking that it could 118 00:07:19,840 --> 00:07:23,440 Speaker 5: get something worth more. So whatever it wants, they must 119 00:07:23,440 --> 00:07:25,680 Speaker 5: think it will be worth a lot of money to 120 00:07:25,760 --> 00:07:29,720 Speaker 5: them going forward. Because Fortnite's big business, some. 121 00:07:29,640 --> 00:07:33,400 Speaker 3: Analysts have been saying that the business model in apps 122 00:07:33,800 --> 00:07:37,400 Speaker 3: that generates for Google and Apple close to two hundred 123 00:07:37,440 --> 00:07:40,720 Speaker 3: billion dollars a year is in jeopardy. Jim Sweeney, the 124 00:07:40,800 --> 00:07:44,200 Speaker 3: chief executive officer of Epic, said, the dominoes are going 125 00:07:44,240 --> 00:07:47,760 Speaker 3: to start falling here. The end of thirty percent is 126 00:07:47,800 --> 00:07:48,280 Speaker 3: in sight. 127 00:07:48,640 --> 00:07:50,200 Speaker 4: Do you think it's as big as all that? 128 00:07:50,800 --> 00:07:55,239 Speaker 5: Well? Maybe, I mean it's certainly Epic wants to argue 129 00:07:55,320 --> 00:07:58,480 Speaker 5: that your business is about to end. You know, this 130 00:07:58,560 --> 00:08:01,520 Speaker 5: may just be a dance towards the settlement. Hard to say, 131 00:08:01,880 --> 00:08:04,880 Speaker 5: but you know, whatever it is. Apple and Google have 132 00:08:05,040 --> 00:08:08,840 Speaker 5: already moderated some of their pricing for smaller developers, but 133 00:08:09,000 --> 00:08:12,120 Speaker 5: the big money appears to be particularly with the games, 134 00:08:12,280 --> 00:08:15,400 Speaker 5: which offers subscriptions and things that can be bought within 135 00:08:15,520 --> 00:08:18,120 Speaker 5: the app itself, and there's a lot of money in that. 136 00:08:18,440 --> 00:08:21,560 Speaker 5: So no doubt that's thirty percent is going to stick. 137 00:08:21,840 --> 00:08:24,120 Speaker 5: But what it's going to be and who's going to 138 00:08:24,160 --> 00:08:26,840 Speaker 5: control the payment I don't know. And part of the 139 00:08:26,920 --> 00:08:29,800 Speaker 5: question is is this a settlement that's only sort of 140 00:08:29,840 --> 00:08:33,239 Speaker 5: a one off for them or is it going to 141 00:08:33,280 --> 00:08:36,600 Speaker 5: help other developers? And I guess that's yet to be seen. 142 00:08:37,080 --> 00:08:40,439 Speaker 3: Google is defending two other anti trust cases by the 143 00:08:40,559 --> 00:08:43,880 Speaker 3: Justice Department, one in DC over its search engine and 144 00:08:43,960 --> 00:08:47,240 Speaker 3: another in Virginia over its ad tech business, and the 145 00:08:47,360 --> 00:08:52,080 Speaker 3: Justice Department has been investigating Apple's app store practices since 146 00:08:52,280 --> 00:08:57,240 Speaker 3: around twenty nineteen. So is it like an antitrust revolution 147 00:08:57,400 --> 00:09:01,080 Speaker 3: against big tech? Looking at it from the viewpoint of 148 00:09:01,360 --> 00:09:03,960 Speaker 3: a professor of antitrust. 149 00:09:03,840 --> 00:09:08,160 Speaker 5: Well, from professor of antitrust, I think, gee, what took 150 00:09:08,200 --> 00:09:10,000 Speaker 5: everyone so long catched up? 151 00:09:10,120 --> 00:09:10,320 Speaker 6: You know? 152 00:09:10,400 --> 00:09:14,640 Speaker 5: If you think about using anti trust against major economic powerhouses, 153 00:09:14,679 --> 00:09:17,920 Speaker 5: and particularly in the tech space, it took two decades 154 00:09:18,000 --> 00:09:23,199 Speaker 5: between Microsoft and filing cases against the major tech platforms. 155 00:09:23,440 --> 00:09:27,319 Speaker 5: So in that sense, it's a revolution not taking place 156 00:09:27,360 --> 00:09:32,000 Speaker 5: in the streets, it's taking place in courtrooms. So it's 157 00:09:32,160 --> 00:09:36,040 Speaker 5: pretty amazing in that sense. And the ad tech case 158 00:09:36,080 --> 00:09:39,480 Speaker 5: against Google that will also be tried before a jury 159 00:09:39,679 --> 00:09:43,840 Speaker 5: because the Justice Department is asking for money damages because 160 00:09:44,040 --> 00:09:47,440 Speaker 5: the federal government is an advertiser. So it's a way 161 00:09:47,840 --> 00:09:52,240 Speaker 5: both to get money back for taxpayers, but also a 162 00:09:52,320 --> 00:09:55,280 Speaker 5: way to have a case try before a jury instead 163 00:09:55,320 --> 00:09:58,400 Speaker 5: of a judge. And this may be a little cautionary 164 00:09:58,440 --> 00:09:59,880 Speaker 5: tale for Google. 165 00:09:59,559 --> 00:10:02,240 Speaker 3: About that sort of a test of whether a jury 166 00:10:02,280 --> 00:10:05,280 Speaker 3: makes a difference rather than a judge. Thanks so much, Harry. 167 00:10:05,360 --> 00:10:08,959 Speaker 3: That's Professor Harry First of NYU Law School. This is Bloomberg. 168 00:10:12,280 --> 00:10:17,079 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 169 00:10:19,080 --> 00:10:22,400 Speaker 7: Look, I screwed up, like I would CEO. I had 170 00:10:22,400 --> 00:10:25,200 Speaker 7: a responsibility here. I had a responsibility to be on 171 00:10:25,240 --> 00:10:29,080 Speaker 7: top of what was going on on the exchange. I 172 00:10:29,120 --> 00:10:30,520 Speaker 7: wish I had done much better at that. 173 00:10:31,120 --> 00:10:36,120 Speaker 3: Sam Bankman Freed accepted responsibility for ftx's collapse in his 174 00:10:36,240 --> 00:10:39,920 Speaker 3: so called apology tour after its bankruptcy in November of 175 00:10:40,000 --> 00:10:43,360 Speaker 3: twenty twenty two. But fast forward to a year later 176 00:10:43,400 --> 00:10:45,760 Speaker 3: when he took the stand at his front trial, and 177 00:10:45,800 --> 00:10:49,600 Speaker 3: it was a completely different story. Bankman Freed danced around 178 00:10:49,640 --> 00:10:53,479 Speaker 3: the questions and appeared vague and evasive in a painstaking 179 00:10:53,520 --> 00:10:57,400 Speaker 3: cross examination, so much so that his own lawyer says 180 00:10:57,600 --> 00:11:01,000 Speaker 3: he was the worst witness he's ever seen. Joining me 181 00:11:01,040 --> 00:11:04,200 Speaker 3: is Bloomberg Legal reporter Ava Benni Morrison, who spoke to 182 00:11:04,240 --> 00:11:08,720 Speaker 3: attorney David Mills behind the scenes. Architect of Bankman Freed's 183 00:11:08,720 --> 00:11:12,320 Speaker 3: defense at trial, Ava tell us about David Mills, who 184 00:11:12,400 --> 00:11:13,040 Speaker 3: is he for. 185 00:11:13,240 --> 00:11:18,079 Speaker 8: David Mills is a Stamford law professor, a longtime White 186 00:11:18,080 --> 00:11:20,720 Speaker 8: Cole lawyer who is also best friends with Sam Bateman, 187 00:11:20,760 --> 00:11:25,079 Speaker 8: Fred's parents, Barbara and Joe. They're also Stanford Lall professors, 188 00:11:25,200 --> 00:11:30,120 Speaker 8: and he came into SBF case to be the legal strategist, 189 00:11:30,280 --> 00:11:32,720 Speaker 8: though he was sort of directing the approach that trial 190 00:11:32,760 --> 00:11:36,280 Speaker 8: attorney should take, suggesting different strategies in terms of dealing 191 00:11:36,320 --> 00:11:38,559 Speaker 8: with the chargers, the defense, the kind of case that 192 00:11:38,600 --> 00:11:39,600 Speaker 8: they would make at the trial. 193 00:11:40,080 --> 00:11:45,040 Speaker 4: Law isn't his only career. He has quite an expansive resume. 194 00:11:45,360 --> 00:11:45,840 Speaker 3: The's riot. 195 00:11:45,920 --> 00:11:49,320 Speaker 8: He's a very interesting guy. On top of being an attorney, 196 00:11:49,360 --> 00:11:52,480 Speaker 8: he's also a managing director at Fortress. He's also a 197 00:11:52,760 --> 00:11:56,880 Speaker 8: general counsel at a quite reputable Silicon Valley design firm 198 00:11:57,000 --> 00:12:00,680 Speaker 8: run by the very well known former chief designer Apple, 199 00:12:00,760 --> 00:12:05,480 Speaker 8: Johnny Ives. He's also been advisor to the VC firm Benchmark, 200 00:12:05,720 --> 00:12:09,720 Speaker 8: when it was trying to out the Uber CEO Travis 201 00:12:09,840 --> 00:12:13,000 Speaker 8: Kalenick a few years ago. So he has his things 202 00:12:13,040 --> 00:12:16,640 Speaker 8: in a lot of different pies, but he is relatively unknown. 203 00:12:16,840 --> 00:12:19,440 Speaker 8: Most people outside of the industry don't really know who 204 00:12:19,440 --> 00:12:21,320 Speaker 8: he is. People that I spoke to for this story 205 00:12:21,400 --> 00:12:23,439 Speaker 8: that he's very humble. He likes to keep his head 206 00:12:23,440 --> 00:12:25,720 Speaker 8: down and just do the work. He doesn't really seek 207 00:12:25,720 --> 00:12:26,840 Speaker 8: the limeline at all. 208 00:12:27,360 --> 00:12:29,760 Speaker 3: And he's done very well, although he won't talk about 209 00:12:29,960 --> 00:12:33,080 Speaker 3: just how well. He donated at least ten million dollars 210 00:12:33,080 --> 00:12:36,400 Speaker 3: to stand for law school, millions more to the NAACP 211 00:12:36,600 --> 00:12:40,080 Speaker 3: Legal Defense Fund, and when SBF was jailed in the Bahamas, 212 00:12:40,360 --> 00:12:42,600 Speaker 3: he flew there on his own private jet. 213 00:12:42,880 --> 00:12:45,240 Speaker 4: But he's also been involved in a lot of pro. 214 00:12:45,200 --> 00:12:48,960 Speaker 3: Bono efforts for criminal defendants, and when you interviewed him, 215 00:12:49,040 --> 00:12:51,800 Speaker 3: he had a cap on with the number three, four, 216 00:12:51,880 --> 00:12:55,520 Speaker 3: one nine representing the number of people he's helped to 217 00:12:55,520 --> 00:12:56,320 Speaker 3: get out of prison. 218 00:12:56,840 --> 00:13:00,720 Speaker 8: This is something he's probably most proud of. Was a 219 00:13:00,840 --> 00:13:04,640 Speaker 8: major financial backer and driver of the effort to overturn 220 00:13:04,720 --> 00:13:08,120 Speaker 8: California's three strikes law. That was a law that put 221 00:13:08,240 --> 00:13:10,800 Speaker 8: people in prison for life on their third conviction, no 222 00:13:10,800 --> 00:13:13,800 Speaker 8: matter how big or small that third conviction was. So 223 00:13:13,880 --> 00:13:17,760 Speaker 8: he worked with students at Stanford Law in twenty twelve 224 00:13:18,000 --> 00:13:20,920 Speaker 8: to change that law, which ended up getting thousands of 225 00:13:20,920 --> 00:13:22,400 Speaker 8: people released from prison. 226 00:13:22,960 --> 00:13:26,880 Speaker 3: He told you that he realized right away that it 227 00:13:26,920 --> 00:13:31,560 Speaker 3: would be an uphill battle defending bankman freed because lawyers 228 00:13:31,559 --> 00:13:32,360 Speaker 3: turned him down. 229 00:13:32,640 --> 00:13:36,240 Speaker 8: He'd had a bit of an idea about FTX from 230 00:13:36,320 --> 00:13:40,640 Speaker 8: Joe's and Beamon Fred's barber. They had informal conversations about 231 00:13:40,679 --> 00:13:44,480 Speaker 8: how the crypto exchange was going. Joe thinking about going 232 00:13:44,480 --> 00:13:47,559 Speaker 8: over and working for FDx full time, but when there 233 00:13:47,760 --> 00:13:51,400 Speaker 8: was a run of a bank at FTX in November 234 00:13:51,440 --> 00:13:55,920 Speaker 8: twenty twenty two, so called David essentially for advice. David's 235 00:13:55,960 --> 00:13:59,200 Speaker 8: response was, Sam needs a lawyer right away. So David 236 00:13:59,200 --> 00:14:02,240 Speaker 8: started calling around on different firms looking for someone to 237 00:14:02,240 --> 00:14:05,080 Speaker 8: try and represent Sam Bankman Freeze, but he said a 238 00:14:05,080 --> 00:14:06,880 Speaker 8: lot of people didn't want to touch the case. He 239 00:14:06,960 --> 00:14:11,520 Speaker 8: described Sam a most hated person in America behind Donald Trump. 240 00:14:11,800 --> 00:14:14,640 Speaker 8: He finally set it on two trial attorneys in New York, 241 00:14:14,800 --> 00:14:17,439 Speaker 8: Mark Cohen and Christian Evidel, who ended up taking the 242 00:14:17,520 --> 00:14:18,520 Speaker 8: case right through a trial. 243 00:14:18,800 --> 00:14:22,000 Speaker 3: He doesn't believe the trial was fair. Tell us why. 244 00:14:22,320 --> 00:14:26,080 Speaker 8: He said he believed that Sam is innocent because he 245 00:14:26,120 --> 00:14:28,840 Speaker 8: didn't form the intent to do anything wrong, which is 246 00:14:28,880 --> 00:14:33,200 Speaker 8: obviously a key element of proving fraud. He said that 247 00:14:33,480 --> 00:14:36,760 Speaker 8: the pre trial motions, though the orders that the judge 248 00:14:36,840 --> 00:14:40,320 Speaker 8: handed down before the trial even got started, really put 249 00:14:40,360 --> 00:14:43,120 Speaker 8: the defense at had disadvantaged. They weren't allowed to haul 250 00:14:43,240 --> 00:14:46,440 Speaker 8: a number of expert witnesses, so they couldn't really rely 251 00:14:46,520 --> 00:14:49,360 Speaker 8: on the defense that Sam was acting on the advice 252 00:14:49,400 --> 00:14:51,160 Speaker 8: of lawyers and doing a lot of the things that 253 00:14:51,240 --> 00:14:54,720 Speaker 8: the prosecution said was wrong. He said, from that point 254 00:14:54,760 --> 00:14:57,560 Speaker 8: on he realized the case was essentially unwinnable. 255 00:14:58,160 --> 00:15:01,680 Speaker 3: And you and I have discussed Sam bekman Fried's decision 256 00:15:01,800 --> 00:15:05,920 Speaker 3: to take the witness down. He said that after the 257 00:15:05,960 --> 00:15:10,840 Speaker 3: prosecution's case, SBF really had no choice but to testify. 258 00:15:11,200 --> 00:15:14,640 Speaker 8: He said, after those profile motions and hearing the damning 259 00:15:14,720 --> 00:15:19,120 Speaker 8: testimony from some of Sam mcman fried's former friends and 260 00:15:19,120 --> 00:15:21,960 Speaker 8: fellow executives that Sam really had no other choice but 261 00:15:22,280 --> 00:15:26,280 Speaker 8: to testify himself. Mill said it was his idea and 262 00:15:26,480 --> 00:15:30,240 Speaker 8: his strategy for Sam to get up there and say, yes, 263 00:15:30,320 --> 00:15:32,760 Speaker 8: I did everything that you said I did, and I 264 00:15:32,840 --> 00:15:35,840 Speaker 8: made all of these statements that yes, they were conflicting 265 00:15:36,080 --> 00:15:38,920 Speaker 8: after FTX Pubs bankruptcy last year, but I was doing 266 00:15:38,920 --> 00:15:41,720 Speaker 8: my best to look after customers and I was trying 267 00:15:41,720 --> 00:15:44,320 Speaker 8: to save their money. But he didn't do that. He 268 00:15:44,840 --> 00:15:48,640 Speaker 8: seemed to be okay and coherent and clear on direct examination, 269 00:15:48,840 --> 00:15:51,960 Speaker 8: but when he was under cross examination, he came across 270 00:15:52,000 --> 00:15:54,200 Speaker 8: as a little bit of basive. He was quibbling with 271 00:15:54,240 --> 00:15:58,280 Speaker 8: the prosecutors questioning. It seemed like he wouldn't answer sort 272 00:15:58,280 --> 00:16:01,120 Speaker 8: of simple questions about whether he says or he didn't. 273 00:16:01,240 --> 00:16:04,720 Speaker 8: And Mills was pretty candid in his assessment of Sam 274 00:16:04,920 --> 00:16:08,040 Speaker 8: under cross examination, saying he was probably the worst witness 275 00:16:08,120 --> 00:16:09,760 Speaker 8: he's ever seen under. 276 00:16:09,480 --> 00:16:11,960 Speaker 3: Cross I assume they prepped him, but did he talk 277 00:16:11,960 --> 00:16:13,360 Speaker 3: about how they prepped him at all? 278 00:16:13,560 --> 00:16:15,600 Speaker 8: I asked that question. I said, well, isn't it your 279 00:16:15,800 --> 00:16:21,000 Speaker 8: job to Sam ahead of his trial for this very situation. 280 00:16:21,360 --> 00:16:23,400 Speaker 8: He said that while there was a lot of preparation 281 00:16:23,520 --> 00:16:27,560 Speaker 8: done for his direct examination, it was really difficult to 282 00:16:27,680 --> 00:16:31,600 Speaker 8: prepare him adequately because he was in prison. His battle 283 00:16:31,680 --> 00:16:33,960 Speaker 8: was revoked just before trial. There were a lot of 284 00:16:34,000 --> 00:16:37,160 Speaker 8: issues around his lawyers getting proper access to him, and 285 00:16:37,200 --> 00:16:39,440 Speaker 8: Mill also said that if he had all of the 286 00:16:39,480 --> 00:16:42,080 Speaker 8: resources and money in the world, he would have hired 287 00:16:42,160 --> 00:16:44,760 Speaker 8: a different lawyer who wasn't involved in the case to 288 00:16:45,200 --> 00:16:47,880 Speaker 8: go through a mock cross examination with Sam, but they 289 00:16:47,880 --> 00:16:50,520 Speaker 8: didn't do that. So he put it down to the 290 00:16:50,640 --> 00:16:53,640 Speaker 8: lack of access to Sam in prison and the lack 291 00:16:53,680 --> 00:16:54,120 Speaker 8: of money. 292 00:16:54,200 --> 00:16:58,600 Speaker 3: Essentially, he told you that SBF went off script when 293 00:16:58,600 --> 00:16:59,440 Speaker 3: he took the stand. 294 00:17:00,040 --> 00:17:00,960 Speaker 4: What did he mean by that? 295 00:17:01,240 --> 00:17:04,760 Speaker 8: Mills said that it was his strategy and he wanted 296 00:17:04,800 --> 00:17:07,520 Speaker 8: Sam to get up there and admit to everything that 297 00:17:07,560 --> 00:17:10,200 Speaker 8: the prosecution and the witnesses said that he did. They 298 00:17:10,200 --> 00:17:12,840 Speaker 8: wanted him to just admit to all of the public 299 00:17:12,840 --> 00:17:16,160 Speaker 8: statements for the tweets and the media interviews and all 300 00:17:16,200 --> 00:17:18,560 Speaker 8: of those different things that were on the public record 301 00:17:18,880 --> 00:17:21,600 Speaker 8: in the context of yes, I said these things, but 302 00:17:21,640 --> 00:17:24,879 Speaker 8: I was trying the best in really difficult circumstances to 303 00:17:24,920 --> 00:17:28,520 Speaker 8: do the best for customers, but he didn't do that. Instead, 304 00:17:28,840 --> 00:17:31,720 Speaker 8: Sam got up there and said, time and time again, 305 00:17:31,920 --> 00:17:34,840 Speaker 8: he couldn't recall things that the prosecution said that he 306 00:17:34,960 --> 00:17:38,639 Speaker 8: had said that he couldn't recall certain conversations with witnesses. 307 00:17:38,840 --> 00:17:41,960 Speaker 8: So there was a disconnect there between what Mills wanted 308 00:17:42,040 --> 00:17:44,480 Speaker 8: him to do and what his strategy was and what 309 00:17:44,520 --> 00:17:45,080 Speaker 8: Sam did. 310 00:17:45,400 --> 00:17:48,919 Speaker 3: But Mills thinks that even if bankman Freed had performed 311 00:17:48,960 --> 00:17:51,880 Speaker 3: better on the stand, the jury still would have found 312 00:17:51,960 --> 00:17:52,560 Speaker 3: him guilty. 313 00:17:52,840 --> 00:17:56,680 Speaker 8: Yes, Mills said that he thought a guilty verdict was inevitable, 314 00:17:56,760 --> 00:18:00,800 Speaker 8: but the trial wasn't there. This circles back to Mills 315 00:18:00,840 --> 00:18:04,199 Speaker 8: referring to the pretrial motions that essentially whittled down the 316 00:18:04,240 --> 00:18:07,200 Speaker 8: defense case to a case that was very thin. He 317 00:18:07,240 --> 00:18:12,000 Speaker 8: also thought that the testimony from Sam Batemanfried's former friends 318 00:18:12,240 --> 00:18:15,720 Speaker 8: Gary Wong, Caroline Ellison, and the Shad Seeing were pretty 319 00:18:15,760 --> 00:18:18,960 Speaker 8: powerful and it was difficult to go up against those. 320 00:18:19,359 --> 00:18:22,520 Speaker 3: This really struck me, he said, I'm not going to 321 00:18:22,520 --> 00:18:25,840 Speaker 3: get myself emotionally involved on a very deep personal level 322 00:18:25,880 --> 00:18:29,520 Speaker 3: in a case like this again, And he's rethinking taking 323 00:18:29,600 --> 00:18:30,359 Speaker 3: criminal law. 324 00:18:30,280 --> 00:18:34,960 Speaker 8: Cases exactly He seems like someone who just throws absolutely 325 00:18:35,000 --> 00:18:37,720 Speaker 8: everything into a case once he signs onto it. 326 00:18:38,000 --> 00:18:38,159 Speaker 9: You know. 327 00:18:38,200 --> 00:18:40,480 Speaker 8: He told us he often talks to his wife to 328 00:18:40,720 --> 00:18:43,919 Speaker 8: almost get her permission and her support to take on 329 00:18:44,119 --> 00:18:46,840 Speaker 8: a client because he just gives his entire life to it. 330 00:18:47,119 --> 00:18:49,320 Speaker 8: So that's what he did in this case. And I 331 00:18:49,320 --> 00:18:52,359 Speaker 8: think it had the added complexity of a friendship there. 332 00:18:52,640 --> 00:18:56,679 Speaker 8: And he found the whole experience very demanding, very exhausting, 333 00:18:57,119 --> 00:18:59,240 Speaker 8: and he just doesn't want to do another criminal law 334 00:18:59,280 --> 00:19:00,000 Speaker 8: case like it again. 335 00:19:00,560 --> 00:19:03,160 Speaker 4: So he's not going to be involved in the appeal. 336 00:19:03,240 --> 00:19:05,280 Speaker 8: Then, that's what he said. He doesn't want to be 337 00:19:05,320 --> 00:19:08,159 Speaker 8: involved in the appeal. He feels like he's done his 338 00:19:08,280 --> 00:19:10,840 Speaker 8: bit and he's ready to just take it down a 339 00:19:10,880 --> 00:19:13,320 Speaker 8: few notches and spend a bit more time with his family. 340 00:19:13,720 --> 00:19:16,639 Speaker 3: Did the trial cause a breach in his friendship with 341 00:19:17,000 --> 00:19:18,520 Speaker 3: Sam bankman Fried's parents. 342 00:19:18,920 --> 00:19:19,080 Speaker 2: Yes. 343 00:19:19,359 --> 00:19:22,040 Speaker 8: Mill thinks that this case and the verdict against Sam 344 00:19:22,080 --> 00:19:24,920 Speaker 8: bankman Fred has certainly had an impact on his friendship 345 00:19:25,240 --> 00:19:28,159 Speaker 8: with Barbara and Joe. Neil said that he took on 346 00:19:28,240 --> 00:19:31,479 Speaker 8: this case out of the favor to Sam bankman Free's parents, 347 00:19:31,720 --> 00:19:34,480 Speaker 8: as well as an interest in being involved in a 348 00:19:34,560 --> 00:19:37,760 Speaker 8: really novel and high profile case. Mills said that he 349 00:19:37,920 --> 00:19:41,800 Speaker 8: was concerned that parents who think that their child hasn't 350 00:19:41,840 --> 00:19:44,959 Speaker 8: done anything wrong will look for someone to blame, and 351 00:19:45,000 --> 00:19:47,800 Speaker 8: that he was in their line of sight. He also 352 00:19:47,840 --> 00:19:50,399 Speaker 8: said that he didn't think their friendship would recover. He 353 00:19:50,480 --> 00:19:53,040 Speaker 8: actually went to Barbara and Joe and asked them what 354 00:19:53,119 --> 00:19:56,560 Speaker 8: they thought of Mills and his comments. They responded and 355 00:19:56,600 --> 00:19:59,479 Speaker 8: said we loved David Mills and were eternally grateful for 356 00:19:59,600 --> 00:20:01,120 Speaker 8: everything that he has done. 357 00:20:00,960 --> 00:20:04,360 Speaker 3: For There are often fallouts from trials that the public 358 00:20:04,400 --> 00:20:07,960 Speaker 3: doesn't see. Fascinating interview. Thank you so much, Ava. That's 359 00:20:07,960 --> 00:20:11,359 Speaker 3: Bloomberg Legal reporter Ava, Benny Morrison. I'm June Grosso. When 360 00:20:11,359 --> 00:20:12,359 Speaker 3: you're listening to Bloomberg. 361 00:20:15,640 --> 00:20:20,440 Speaker 1: This is Bloomberg Law with June Grusso from Bloomberg Radio. 362 00:20:21,720 --> 00:20:24,760 Speaker 10: Adherence to the rule of law is a bedrock principle 363 00:20:24,920 --> 00:20:28,520 Speaker 10: of the Department of Justice, and our nation's commitment to 364 00:20:28,560 --> 00:20:31,639 Speaker 10: the rule of law sets an example for the world. 365 00:20:33,160 --> 00:20:35,280 Speaker 10: We have one set of laws in this country and 366 00:20:35,320 --> 00:20:36,880 Speaker 10: they apply to everyone. 367 00:20:37,400 --> 00:20:40,720 Speaker 3: In announcing one of the two federal criminal cases against 368 00:20:40,760 --> 00:20:44,600 Speaker 3: Donald Trump, special counsel Jack Smith said that no one 369 00:20:44,680 --> 00:20:48,920 Speaker 3: is above the law. It applies equally to everyone. However, 370 00:20:49,080 --> 00:20:52,880 Speaker 3: the former president is claiming the law doesn't apply to him. 371 00:20:53,200 --> 00:20:57,880 Speaker 3: Trump says he's entitled to absolute presidential immunity against criminal 372 00:20:58,000 --> 00:21:01,080 Speaker 3: charges over his efforts to overturn earn the twenty twenty 373 00:21:01,119 --> 00:21:05,959 Speaker 3: presidential election. The trial judge rejected Trump's claims of immunity, 374 00:21:06,080 --> 00:21:09,600 Speaker 3: refusing to toss out the charges, and Trump has appealed 375 00:21:09,600 --> 00:21:12,439 Speaker 3: to the DC Appellate Court, But in an effort to 376 00:21:12,480 --> 00:21:16,040 Speaker 3: prevent delays in the case, the special counsel is trying 377 00:21:16,119 --> 00:21:20,040 Speaker 3: to leapfrog the appellate court by asking the Supreme Court 378 00:21:20,119 --> 00:21:23,040 Speaker 3: to step in to decide the issue. Joining me is 379 00:21:23,080 --> 00:21:26,560 Speaker 3: Derek Muller, a professor at Notre Dame Law School. Derek 380 00:21:26,600 --> 00:21:31,080 Speaker 3: tell us about this untested claim of absolute presidential immunity 381 00:21:31,359 --> 00:21:34,359 Speaker 3: against criminal charges that Trump is making. 382 00:21:34,760 --> 00:21:38,640 Speaker 6: Think about, you know, immunity from your actions as president. 383 00:21:38,720 --> 00:21:41,359 Speaker 6: That is, you are engaged in your official capacity, you 384 00:21:41,400 --> 00:21:45,600 Speaker 6: are engaged in executive functions, and the notion that you 385 00:21:45,720 --> 00:21:49,920 Speaker 6: can be criminally prosecuted for that behavior, for the things 386 00:21:49,920 --> 00:21:53,000 Speaker 6: that you're doing while you're conducting your job, and should 387 00:21:53,000 --> 00:21:56,720 Speaker 6: be exempt from criminal prosecution as a result, and get 388 00:21:56,720 --> 00:21:59,320 Speaker 6: a lot of turns on at what point does your 389 00:21:59,359 --> 00:22:03,800 Speaker 6: behavior sort of flip from official executive behavior too unofficial behavior, 390 00:22:03,800 --> 00:22:07,320 Speaker 6: political or individual behavior. Is there an immunity for crimes 391 00:22:07,320 --> 00:22:10,399 Speaker 6: committed if you're purporting to them in your official capacity? 392 00:22:10,400 --> 00:22:12,320 Speaker 6: How could that possibly be the case? And so on? 393 00:22:12,520 --> 00:22:15,600 Speaker 3: The Special Council is asking the Supreme Court to step 394 00:22:15,640 --> 00:22:20,159 Speaker 3: in using Scherai before judgment, which is essentially skipping the 395 00:22:20,200 --> 00:22:24,320 Speaker 3: appellate court. It's unusual, But how unusual is it for 396 00:22:24,400 --> 00:22:26,000 Speaker 3: the court to grant that kind of review? 397 00:22:26,320 --> 00:22:28,479 Speaker 6: Pretty unusual, I mean, so I think you can think 398 00:22:28,520 --> 00:22:30,960 Speaker 6: about it this as some layers. If you're asking the 399 00:22:31,000 --> 00:22:34,480 Speaker 6: Supreme Court to have a petition for corcerari before judgment, 400 00:22:34,640 --> 00:22:37,240 Speaker 6: you know, sometimes that might arise if there's just a 401 00:22:37,280 --> 00:22:40,320 Speaker 6: sort of preliminary injunction or preliminary posture of the case 402 00:22:40,320 --> 00:22:42,280 Speaker 6: where maybe you want the court to step in, and 403 00:22:42,320 --> 00:22:45,879 Speaker 6: so that happens. It's not common, but it's not uncommon. 404 00:22:46,240 --> 00:22:49,239 Speaker 6: It's a relatively infrequent occurrence for the Court to step in, 405 00:22:49,280 --> 00:22:51,800 Speaker 6: but to sort of ask them to skip the Court 406 00:22:51,800 --> 00:22:54,159 Speaker 6: of Appeals and go straight to the United States Supreme 407 00:22:54,240 --> 00:22:57,960 Speaker 6: Court to resolve this matter before the DC Circuit has 408 00:22:58,000 --> 00:22:59,879 Speaker 6: weighed in is more unusual. 409 00:23:00,160 --> 00:23:00,280 Speaker 1: Now. 410 00:23:00,320 --> 00:23:03,000 Speaker 6: On the one hand, you could say, well, I think 411 00:23:03,119 --> 00:23:06,240 Speaker 6: this is a matter of presidential executive power. What has 412 00:23:06,240 --> 00:23:09,320 Speaker 6: happened in some of the cases involving Richard Nixon. If 413 00:23:09,320 --> 00:23:13,040 Speaker 6: we're dealing with executive power and criminal investigations and so on, 414 00:23:13,160 --> 00:23:16,080 Speaker 6: and these are major issues that we expect the Supreme 415 00:23:16,119 --> 00:23:18,720 Speaker 6: Court is going to have to weigh in on some point. 416 00:23:18,880 --> 00:23:21,120 Speaker 6: So there's this notion up front that they'll weigh in, 417 00:23:21,160 --> 00:23:23,119 Speaker 6: and so maybe we should just skip that stepping at 418 00:23:23,119 --> 00:23:25,760 Speaker 6: the United States Supreme Court involved. It's extraordinary, true, but 419 00:23:25,800 --> 00:23:28,240 Speaker 6: these are extraordinary circumstances. On the other hand, you have 420 00:23:28,280 --> 00:23:31,159 Speaker 6: to think from the justices perspective about their willingness to 421 00:23:31,200 --> 00:23:32,879 Speaker 6: sort of step in here and say, well, can we 422 00:23:32,920 --> 00:23:35,520 Speaker 6: just let the process play out? Maybe if the DC 423 00:23:35,600 --> 00:23:37,240 Speaker 6: Circuit is a good job, we don't really have to 424 00:23:37,280 --> 00:23:38,840 Speaker 6: weigh in. We can just kind of agree with what 425 00:23:38,880 --> 00:23:41,760 Speaker 6: they've said and just, you know, passively let the case 426 00:23:42,080 --> 00:23:44,560 Speaker 6: kind of continue below without us having to weigh in. 427 00:23:44,720 --> 00:23:48,720 Speaker 6: So there's just some questions about what the court might do. 428 00:23:49,040 --> 00:23:52,080 Speaker 6: But again, it's understandable why the prosecution wants to move 429 00:23:52,119 --> 00:23:53,760 Speaker 6: this as quickly as possible, and the. 430 00:23:53,720 --> 00:23:57,600 Speaker 3: Trial judge has paused the case pending this appeal, although 431 00:23:57,640 --> 00:24:00,359 Speaker 3: she said she wasn't throwing out all the dates. 432 00:24:00,960 --> 00:24:01,960 Speaker 4: I did want to ask. 433 00:24:01,800 --> 00:24:05,960 Speaker 3: You about the political overtones in the Special Council's request 434 00:24:06,040 --> 00:24:10,199 Speaker 3: to the Supreme Court, because trials are delayed all the time, 435 00:24:10,760 --> 00:24:12,680 Speaker 3: but if it's delayed in this case and he wins 436 00:24:12,720 --> 00:24:15,600 Speaker 3: the presidency, then it'll never happen. 437 00:24:16,160 --> 00:24:18,119 Speaker 6: I think the concern is if we have to go 438 00:24:18,160 --> 00:24:21,080 Speaker 6: through a level of briefing in oral argument and waiting 439 00:24:21,119 --> 00:24:23,720 Speaker 6: for an opinion at the DC Circuit, and then wait 440 00:24:23,760 --> 00:24:26,480 Speaker 6: for another round of appeals to the United States Supreme Court, 441 00:24:26,560 --> 00:24:29,119 Speaker 6: and do the same thing all over again, which we 442 00:24:29,240 --> 00:24:32,200 Speaker 6: feel like is inevitable, that can really start to press 443 00:24:32,280 --> 00:24:34,879 Speaker 6: upon that March fourth date. And so there is this 444 00:24:34,960 --> 00:24:38,160 Speaker 6: effort to move things along as quickly as possible. And yeah, 445 00:24:38,200 --> 00:24:41,240 Speaker 6: I figure right that we have this concern if you're 446 00:24:41,240 --> 00:24:44,080 Speaker 6: the prosecutor, that if there's any delay, this thing gets 447 00:24:44,119 --> 00:24:46,960 Speaker 6: pushed back, and then there's all kinds of additional complexities. 448 00:24:47,000 --> 00:24:49,600 Speaker 6: You know, what happens if he's the nominee for the party, 449 00:24:49,640 --> 00:24:52,840 Speaker 6: You know, can we realistically expect him to be facing 450 00:24:52,920 --> 00:24:55,359 Speaker 6: criminal charges or sitting in a court room while he's 451 00:24:55,359 --> 00:24:58,080 Speaker 6: supposed to be campaigning for president. That raises all kinds 452 00:24:58,080 --> 00:25:01,879 Speaker 6: of unique and additional class. And so we want this 453 00:25:01,960 --> 00:25:04,160 Speaker 6: to be resolved as early as possible. If he's guilty, 454 00:25:04,200 --> 00:25:06,200 Speaker 6: something the voters ought to know. If it's not guilty, 455 00:25:06,400 --> 00:25:08,520 Speaker 6: also something the voters want to know. So there is 456 00:25:08,560 --> 00:25:11,160 Speaker 6: this effort to resolve as early as possible. But there's 457 00:25:11,200 --> 00:25:14,120 Speaker 6: no question it has some political avalance to it. There's 458 00:25:14,160 --> 00:25:17,639 Speaker 6: some political charge because whenever you're dealing with in the 459 00:25:17,680 --> 00:25:21,399 Speaker 6: front running candidate for presidential nomination for major political party, 460 00:25:21,840 --> 00:25:24,240 Speaker 6: whatever you do in any direction is going to have 461 00:25:24,359 --> 00:25:27,959 Speaker 6: some kind of political ramifications and definitely some risks that 462 00:25:27,960 --> 00:25:30,320 Speaker 6: we're going to see play out about how we balance 463 00:25:30,320 --> 00:25:30,840 Speaker 6: those things. 464 00:25:31,119 --> 00:25:35,439 Speaker 3: You mentioned US v. Nixon in nineteen seventy four. In 465 00:25:35,480 --> 00:25:38,520 Speaker 3: that case, I believe it was sixty one days from 466 00:25:38,600 --> 00:25:39,600 Speaker 3: start to finish. 467 00:25:40,119 --> 00:25:42,760 Speaker 6: Yeah, So I mean, we can move things quickly, and 468 00:25:42,800 --> 00:25:45,679 Speaker 6: it's no question that we can move things quickly in 469 00:25:45,720 --> 00:25:48,800 Speaker 6: these processes for the United States Supreme Court. I think 470 00:25:48,840 --> 00:25:52,119 Speaker 6: about bushfee Gore where they granted certain on December ninth, 471 00:25:52,240 --> 00:25:55,320 Speaker 6: or argument December eleventh, decision December twelfth. I mean that's 472 00:25:55,480 --> 00:25:58,159 Speaker 6: record pace to move it in three days, right at. 473 00:25:58,000 --> 00:26:01,520 Speaker 3: The Special Council's request. If the DC Appellate Court has 474 00:26:01,560 --> 00:26:06,200 Speaker 3: agreed to expedite its consideration of Trump's appeal, setting deadlines 475 00:26:06,200 --> 00:26:08,679 Speaker 3: for briefs to be filed between December twenty third and 476 00:26:08,840 --> 00:26:11,520 Speaker 3: January second, how does that play in here? 477 00:26:11,800 --> 00:26:14,560 Speaker 6: But even then you then have to schedule oral argument, 478 00:26:14,800 --> 00:26:16,760 Speaker 6: And while you have that as a firm date, you 479 00:26:16,800 --> 00:26:19,560 Speaker 6: don't know how long it will take after oral argument 480 00:26:19,560 --> 00:26:21,840 Speaker 6: to issue a decision. You can say that you'd like 481 00:26:21,880 --> 00:26:24,639 Speaker 6: it as quickly as possible, and the DC Circuit can try, 482 00:26:24,760 --> 00:26:26,560 Speaker 6: but you know it might take a couple of weeks, 483 00:26:26,640 --> 00:26:30,200 Speaker 6: even working under the fastest of circumstances. So just looking 484 00:26:30,240 --> 00:26:32,320 Speaker 6: at the calendar, it might not be teed up for 485 00:26:32,359 --> 00:26:35,360 Speaker 6: Supreme Court review until mid to late January. And again, 486 00:26:35,400 --> 00:26:37,119 Speaker 6: if you're looking at a March fourth trial date, that 487 00:26:37,119 --> 00:26:40,280 Speaker 6: adds a tremendous amount of uncertainty and tremendous pressure on 488 00:26:40,320 --> 00:26:43,679 Speaker 6: the Supreme Court to weigh in get on a truncated timeline. So, 489 00:26:43,880 --> 00:26:45,879 Speaker 6: and it's the reason why you say it's an extraordinary 490 00:26:45,920 --> 00:26:49,159 Speaker 6: request from Smith's team here to seek the Supreme Court review, 491 00:26:49,200 --> 00:26:51,760 Speaker 6: But totally understandable when you're looking at the calendar and 492 00:26:51,800 --> 00:26:53,879 Speaker 6: what it looks like, and that this is a major 493 00:26:54,160 --> 00:26:58,160 Speaker 6: barrier to getting to that judgment. And if Trump is immune, 494 00:26:58,480 --> 00:27:01,040 Speaker 6: the case goes away. And if he's not, then probably 495 00:27:01,119 --> 00:27:03,480 Speaker 6: his strongest defense is gone and we're going to a 496 00:27:03,560 --> 00:27:04,200 Speaker 6: jury trial. 497 00:27:04,800 --> 00:27:08,199 Speaker 3: Normally, our responding gets a month to file a brief 498 00:27:08,320 --> 00:27:12,280 Speaker 3: opposing an appeal, but on Monday, the Supreme Court agreed 499 00:27:12,320 --> 00:27:15,119 Speaker 3: to speed up the part of the process where it 500 00:27:15,240 --> 00:27:18,919 Speaker 3: decides whether to take the case. It's only giving Trump 501 00:27:19,040 --> 00:27:23,120 Speaker 3: until December twentieth to respond to the Special Council's request. 502 00:27:23,320 --> 00:27:27,920 Speaker 3: Does that indicate that the Justices are aware of the 503 00:27:27,960 --> 00:27:32,240 Speaker 3: seriousness of the case, or that they're inclined to grant 504 00:27:32,280 --> 00:27:34,119 Speaker 3: the Special Counsel's request? 505 00:27:34,480 --> 00:27:36,120 Speaker 4: I mean, does it indicate anything at all? 506 00:27:36,520 --> 00:27:38,359 Speaker 6: So I don't know if they're inclined to grant, but 507 00:27:38,440 --> 00:27:42,119 Speaker 6: I think it certainly means they are not disinclined. I mean, 508 00:27:42,480 --> 00:27:45,560 Speaker 6: this is a small but important victory for Smith's team here, 509 00:27:45,600 --> 00:27:48,040 Speaker 6: because if the Court just says, no, we're just going 510 00:27:48,119 --> 00:27:51,080 Speaker 6: to give you a month to respond, well, that pretty 511 00:27:51,119 --> 00:27:54,040 Speaker 6: much settles it, right, It pretty much makes the decision 512 00:27:54,200 --> 00:27:58,159 Speaker 6: for you. But by allowing expedited response to the petition 513 00:27:58,200 --> 00:28:02,040 Speaker 6: for it a sacherari. All of the court's options open 514 00:28:02,119 --> 00:28:04,119 Speaker 6: right whether to grant and then have it on a 515 00:28:04,160 --> 00:28:06,480 Speaker 6: expedita basis, or to deny send it back to the 516 00:28:06,520 --> 00:28:08,879 Speaker 6: DC Circuit allowed to proceed on the normal track. So 517 00:28:09,160 --> 00:28:11,880 Speaker 6: this was sort of a necessary win for a Smith's team, 518 00:28:11,920 --> 00:28:14,240 Speaker 6: But it certainly I don't think suggests a whole lot 519 00:28:14,320 --> 00:28:16,399 Speaker 6: about the merits except that the Court is kind of 520 00:28:16,440 --> 00:28:17,600 Speaker 6: keeping it to options open. 521 00:28:17,840 --> 00:28:19,880 Speaker 3: The Supreme Court, of course, has a six to three 522 00:28:20,000 --> 00:28:24,280 Speaker 3: conservative majority, but it has not been especially receptive to 523 00:28:24,400 --> 00:28:27,960 Speaker 3: the cases that Trump has brought since he left the presidency. 524 00:28:28,320 --> 00:28:33,040 Speaker 3: I mean, does a conservative majority lean toward no presidents 525 00:28:33,040 --> 00:28:35,719 Speaker 3: above the law or does it lean in another direction. 526 00:28:35,920 --> 00:28:37,960 Speaker 6: Whenever you're justice in the court, you realize that you 527 00:28:38,000 --> 00:28:43,880 Speaker 6: are setting major precedents for presidential power executive authority immunities, 528 00:28:44,120 --> 00:28:47,000 Speaker 6: not just for Donald Trump, but also for Joe Biden, 529 00:28:47,080 --> 00:28:49,960 Speaker 6: whoever the next president is. Right, So there is I 530 00:28:50,000 --> 00:28:52,440 Speaker 6: think this institutional concern from the Court, and that's a 531 00:28:52,440 --> 00:28:53,120 Speaker 6: major question. 532 00:28:53,440 --> 00:28:53,520 Speaker 3: Right. 533 00:28:53,680 --> 00:28:57,960 Speaker 6: Once we've established that precedent about when former presidents can 534 00:28:58,040 --> 00:29:01,200 Speaker 6: be prosecuted, it's going to have a lot of sway 535 00:29:01,280 --> 00:29:04,360 Speaker 6: in the future. So I think the court's view, regardless 536 00:29:04,400 --> 00:29:07,480 Speaker 6: of whether you're a conservative or more liberal, justice is 537 00:29:07,520 --> 00:29:10,080 Speaker 6: going to be thinking about these issues from other kinds 538 00:29:10,080 --> 00:29:14,160 Speaker 6: of hallmarks of executive power and what kinds of behavior 539 00:29:14,160 --> 00:29:18,600 Speaker 6: conduct in office immunize you from future prosecutions. Where that 540 00:29:18,640 --> 00:29:21,040 Speaker 6: immunity attaches and arises and where it doesn't. 541 00:29:21,240 --> 00:29:23,760 Speaker 3: It would be a landmark decision. Thanks so much, Derek. 542 00:29:23,960 --> 00:29:27,000 Speaker 3: That's Professor Derek Muller of Notre Dame Law School. I'm 543 00:29:27,080 --> 00:29:28,720 Speaker 3: June Grosso and this is Bloomberg. 544 00:29:32,160 --> 00:29:36,920 Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio. 545 00:29:42,320 --> 00:29:44,840 Speaker 10: Hey everyone, it's Helen and I'm here with my beautiful 546 00:29:44,880 --> 00:29:48,720 Speaker 10: model Lucy, and today we're creating an everyday makeup look 547 00:29:48,840 --> 00:29:49,640 Speaker 10: using all. 548 00:29:49,560 --> 00:29:51,000 Speaker 2: Clean its for our products. 549 00:29:51,440 --> 00:29:53,760 Speaker 6: I'm Ayisha and I'm Melinda, and today we're going to 550 00:29:53,760 --> 00:29:56,040 Speaker 6: be talking about five clean beauty brands you need to know. 551 00:29:56,800 --> 00:29:59,360 Speaker 3: Hi. I'm Danil and today I'm going to share with 552 00:29:59,440 --> 00:30:02,880 Speaker 3: you some of my top picks from my lipstick wardrobe 553 00:30:02,920 --> 00:30:06,000 Speaker 3: and they're all clean. Sephora is just one of the 554 00:30:06,040 --> 00:30:10,200 Speaker 3: companies promoting clean beauty products. How much does that matter 555 00:30:10,280 --> 00:30:14,920 Speaker 3: to consumers like climate conscious gen zers and millennials well, 556 00:30:15,000 --> 00:30:17,560 Speaker 3: the clean beauty market has grown from its roots in 557 00:30:17,680 --> 00:30:21,680 Speaker 3: luxury and independent brands to take over shelves at mass 558 00:30:21,720 --> 00:30:25,520 Speaker 3: market retailers like Target, and it's forecast to expand to 559 00:30:25,680 --> 00:30:29,640 Speaker 3: fifteen point three billion dollars by twenty twenty eight. But 560 00:30:30,240 --> 00:30:34,040 Speaker 3: just what is a clean beauty product? That's the question 561 00:30:34,120 --> 00:30:38,560 Speaker 3: that's driving consumer led class actions against Sephora and Target 562 00:30:38,960 --> 00:30:42,640 Speaker 3: and raising the legal risk for companies trying to capitalize 563 00:30:42,680 --> 00:30:46,240 Speaker 3: on the demand for clean beauty. Joining me is Sean Collins, 564 00:30:46,240 --> 00:30:50,480 Speaker 3: and attorney at Straddling. He advises companies on consumer litigation. 565 00:30:51,200 --> 00:30:54,760 Speaker 3: What is a clean beauty product? Are there any parameters 566 00:30:54,880 --> 00:30:56,760 Speaker 3: the public can rely on? 567 00:30:57,360 --> 00:31:00,440 Speaker 9: No, there are, And that's probably the most first strading 568 00:31:00,440 --> 00:31:03,320 Speaker 9: part about it. And this is not abnormal. I mean, 569 00:31:03,400 --> 00:31:07,080 Speaker 9: the FTC and the regulatory bodies are always five to 570 00:31:07,080 --> 00:31:09,960 Speaker 9: ten years behind where the marketplace is. But you know 571 00:31:10,040 --> 00:31:13,160 Speaker 9: that is everybody's great frustration is that there is no 572 00:31:13,520 --> 00:31:16,920 Speaker 9: legal definition for beauty. And so the FTC releases what 573 00:31:16,960 --> 00:31:19,600 Speaker 9: they call guidelines, so you'll see if you google it 574 00:31:19,760 --> 00:31:22,240 Speaker 9: FTC guidance on what it means to have a clean 575 00:31:22,320 --> 00:31:25,560 Speaker 9: beauty product. And that guidance is not law. They are 576 00:31:25,600 --> 00:31:29,360 Speaker 9: trying to create guardrails or boundaries that kind of give 577 00:31:29,480 --> 00:31:33,400 Speaker 9: guidance to the skincare and beauty product lines out there 578 00:31:33,440 --> 00:31:35,720 Speaker 9: in the world, so that they at least have an 579 00:31:35,840 --> 00:31:39,719 Speaker 9: idea of what is permissible and what's not permissible. But 580 00:31:39,960 --> 00:31:44,200 Speaker 9: it's not very helpful because if you're a skincare cosmetics company, 581 00:31:44,400 --> 00:31:47,040 Speaker 9: you're just really kind of crossing your fingers and hoping 582 00:31:47,120 --> 00:31:50,080 Speaker 9: that you don't do anything that will get the FTC's 583 00:31:50,080 --> 00:31:52,400 Speaker 9: attention or maybe a state attorney general's attention. 584 00:31:52,640 --> 00:31:56,800 Speaker 3: There are now consumer led class action lawsuits. 585 00:31:57,160 --> 00:31:59,560 Speaker 4: Tell us a little bit about the lawsuit. 586 00:31:59,120 --> 00:32:02,200 Speaker 9: Against the form the reality of lossuit against the Four, 587 00:32:02,280 --> 00:32:05,000 Speaker 9: and the reason why you're seeing so many plaintiffs attorneys 588 00:32:05,040 --> 00:32:07,560 Speaker 9: go after them is it's like anything in life, tall 589 00:32:07,600 --> 00:32:10,320 Speaker 9: trees attract the most wins. The four is one of 590 00:32:10,360 --> 00:32:15,680 Speaker 9: the most recognized beauty and skincare companies in the world. 591 00:32:15,720 --> 00:32:18,120 Speaker 9: You know, you walk into any mall and even online 592 00:32:18,160 --> 00:32:21,280 Speaker 9: they have huge e commerce present and so Planet's attorneys 593 00:32:21,320 --> 00:32:23,160 Speaker 9: are coming after them and saying, you know, this is 594 00:32:23,200 --> 00:32:25,760 Speaker 9: what the FTC guidance says, and you didn't do that, 595 00:32:25,960 --> 00:32:28,800 Speaker 9: therefore you're in violation of the law. Now, what is 596 00:32:28,840 --> 00:32:31,520 Speaker 9: the law. The law of Section five of the FTC Act, 597 00:32:31,760 --> 00:32:35,760 Speaker 9: which is very broad and vague. It says you cannot 598 00:32:35,920 --> 00:32:40,160 Speaker 9: advertise a product in an unfair, deceptive, or misleading mass. 599 00:32:40,200 --> 00:32:42,160 Speaker 9: And so the question becomes, well, what does that mean? 600 00:32:42,320 --> 00:32:45,040 Speaker 9: The FTC views it as well. If a consumer is 601 00:32:45,080 --> 00:32:47,760 Speaker 9: looking at your label and they don't quite understand what 602 00:32:47,840 --> 00:32:50,800 Speaker 9: you're saying to them on that label, that's unfair, deceptives leading. 603 00:32:51,280 --> 00:32:53,560 Speaker 9: That's kind of the impetus for these lossits like the 604 00:32:53,560 --> 00:32:54,720 Speaker 9: one you're saying against the four. 605 00:32:55,520 --> 00:32:58,360 Speaker 3: So what do you tell your clients about promoting clean 606 00:32:58,400 --> 00:32:59,360 Speaker 3: beauty products? 607 00:33:00,080 --> 00:33:03,040 Speaker 9: I tell my clients, if you're advertising here in California 608 00:33:03,120 --> 00:33:05,560 Speaker 9: and you're going to use that word clean or all natural, 609 00:33:05,720 --> 00:33:08,400 Speaker 9: and you know that there might be an ingredient or 610 00:33:08,480 --> 00:33:12,400 Speaker 9: more that could potentially not be classified as clean or 611 00:33:12,440 --> 00:33:15,240 Speaker 9: all natural by the California Attorney General, you need to 612 00:33:15,240 --> 00:33:16,840 Speaker 9: do to one or two things you have. They need 613 00:33:16,840 --> 00:33:19,680 Speaker 9: a hedge with your language. Meaning most people like say 614 00:33:19,720 --> 00:33:22,239 Speaker 9: one hundred percent natural. I always tell them, well, if 615 00:33:22,240 --> 00:33:26,360 Speaker 9: it's not one hundred percent natural, you could say mostly natural, 616 00:33:26,440 --> 00:33:28,480 Speaker 9: you know, something to that effect. And obviously you know 617 00:33:28,520 --> 00:33:31,400 Speaker 9: the clients don't like that, especially the advertising department because 618 00:33:31,400 --> 00:33:34,360 Speaker 9: they're like, no, we want to use all natural. And 619 00:33:34,400 --> 00:33:35,840 Speaker 9: I say, look, I'm not going to tell you that 620 00:33:35,920 --> 00:33:39,080 Speaker 9: you can't use all natural, but if you don't put 621 00:33:39,120 --> 00:33:42,680 Speaker 9: an asterisk next to it or soften that language a 622 00:33:42,680 --> 00:33:45,600 Speaker 9: little bit, there is the potential that a plant attorney 623 00:33:45,640 --> 00:33:46,320 Speaker 9: could come after you. 624 00:33:46,600 --> 00:33:49,840 Speaker 3: Well, as these cases proceed, we'll find out more about 625 00:33:49,880 --> 00:33:53,920 Speaker 3: what courts consider to be clean beauty. Thanks so much, Sean. 626 00:33:54,360 --> 00:33:58,000 Speaker 3: That's Sean Collins, a shareholder at Straddling And that's it 627 00:33:58,040 --> 00:34:00,640 Speaker 3: for this edition of The Bloomberg Law Show. Remember you 628 00:34:00,640 --> 00:34:03,120 Speaker 3: can always get the latest legal news on our Bloomberg 629 00:34:03,200 --> 00:34:06,840 Speaker 3: Law podcasts. You can find them on Apple Podcasts, Spotify, 630 00:34:07,000 --> 00:34:12,040 Speaker 3: and at www dot Bloomberg dot com, slash podcast slash Law, 631 00:34:12,440 --> 00:34:15,040 Speaker 3: and remember to tune into The Bloomberg Law Show every 632 00:34:15,080 --> 00:34:19,000 Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso 633 00:34:19,120 --> 00:34:20,719 Speaker 3: and you're listening to Bloomberg