Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: I've been gathering the greatest hunters across all realities, and
Speaker 2: I started with the best cost a lot of credits
Speaker 2: to convince Mando.
Speaker 1: But this is the way.
Speaker 2: The plan, pure chaos and no one will sew it
Speaker 2: better than them.
Speaker 3: Fortnite is an online video game where players collaborate to
Speaker 3: survive in an open world environment, and the winner is
Speaker 3: really Epic Games, which makes billions of dollars every year
Speaker 3: from it. And this week Epic won its years long
Speaker 3: real world battle with Google over its app store, where
Speaker 3: it charges companies' fees when users make purchases.
Speaker 4: For games like Fortnite.
Speaker 3: In a major blow to the tech giant, a San
Speaker 3: Francisco jury found that Google's app store constitutes an illegal
Speaker 3: monopoly in violation of the anti trust laws. Google is
Speaker 3: vowing to appeal. Joining me is anti trust expert Harry First,
Speaker 3: a professor at NYU Law School.
Speaker 4: What did the jury decide exactly?
Speaker 3: Here?
Speaker 5: So, the jury decided basically that in a number of
Speaker 5: different ways, Google abused its power to keep its monopoly
Speaker 5: in the Google app stores or the distribution of Google
Speaker 5: apps and that they did a number of different ways,
Speaker 5: Agreements with the handset makers, agreements with developers, you know,
Speaker 5: making sure that Google Play appears on every Android phone,
Speaker 5: keeping developers from going off and developing their own app stores,
Speaker 5: and basically requiring everyone to sort of go through this funnel.
Speaker 6: You know.
Speaker 5: It's sort of like the old hourglasses. You know, it
Speaker 5: goes down into the middle and everything goes through. Google
Speaker 5: will play if you want to reach someone with an
Speaker 5: Android phone in their hands. So those little grains of sand,
Speaker 5: thirty percent of them go into Google's pocket.
Speaker 3: Yes, those are the commissions as high as thirty percent
Speaker 3: that Google takes from software developers. The jury deliberated for
Speaker 3: a little over three hours after a month long trial,
Speaker 3: and came back with the unanimous verdict.
Speaker 4: Was the evidence against Google. That's strong.
Speaker 5: Jurors take these cases very seriously. Jurors pay attention. They
Speaker 5: sit there and they listen hard. This is new to
Speaker 5: them in a sense. I mean maybe some of them
Speaker 5: have played video games on their phone, but they listen hard.
Speaker 5: And I took a look at the sheep with their findings,
Speaker 5: and it said, you're supposed to define what the market is,
Speaker 5: and instead of the sheet having a list of things
Speaker 5: with a checkbox. You know what it might be. It
Speaker 5: just had a box and you had to write it in.
Speaker 5: So they wrote in the exact right product market definition
Speaker 5: that the plaintiffs wanted. And to me, it's sort of
Speaker 5: a little tell that they're paying attention. I mean, this
Speaker 5: is a little bit technical language, and they were paying
Speaker 5: attention to what was going on. There were atmospherics in
Speaker 5: the case, of course, there always are, you know, testimony
Speaker 5: of how apparently Google made an offer to Epic to
Speaker 5: come back on board, We'll give you a lot of money.
Speaker 5: There was some question about how Google was dealing with
Speaker 5: its internal chats and whether they were trying to, you know,
Speaker 5: erase the evidence as they were making it. So those
Speaker 5: may have played a role. But I think that's a
Speaker 5: real indication of non technical experts saying, Okay, we understand
Speaker 5: what power is. You know what a monopoly is. We're
Speaker 5: not economists, but we can understand this evidence.
Speaker 3: And Google's it Epic, which seems to be on a mission,
Speaker 3: lost a similar challenge to Apple's Appstor two years ago,
Speaker 3: and both companies have asked the Supreme Court to review that.
Speaker 3: Does the judges verdict there contradict the jury's verdict here,
Speaker 3: or are the cases and the facts different.
Speaker 5: Yes, maybe or maybe yes. It depends, So you're doing.
Speaker 4: It again, Harry, you got me in one of those.
Speaker 6: I mean, this.
Speaker 5: Certainly is going to be one of Google's arguments when
Speaker 5: Google appeals this case to the Court of Appeals in
Speaker 5: the Ninth Circuit, saying, you know, you just affirmed this
Speaker 5: decision finding a very different statement of what the product
Speaker 5: market is, finding that Apple and Google compete in the
Speaker 5: distribution of gaming apps, and you were right in the
Speaker 5: Apple case, and this case can't stand. The jury made
Speaker 5: an error of law, you know, reflected no doubt the
Speaker 5: instructions that it was given, and the verdict can't stand.
Speaker 5: So I think that's going to be a key part.
Speaker 5: Now what did I say? Maybe yes, yes, maybe. Epic
Speaker 5: is still arguing, of course that the judge was wrong
Speaker 5: in the Apple case, but putting that to the side,
Speaker 5: we'll argue there's differences between what Google's doing and what
Speaker 5: Apple's doing, and the product market definition is different because
Speaker 5: other companies actually do distribute Android compatible applications, so it's
Speaker 5: not a product market definition constructed for one seller as
Speaker 5: it seems for Apple, since no one else can distribute
Speaker 5: applications that will work with the Apple operating system because
Speaker 5: Apple controls that, but Google doesn't quite control Android in
Speaker 5: the same way, although there are probably arguments over that.
Speaker 5: So they'll try to distinguish the facts of the case
Speaker 5: a little bit. But at heart it seems like a problem.
Speaker 3: The case isn't over because the judge has to decide
Speaker 3: what the remedy will be. Yet Epic didn't seek monetary
Speaker 3: damages from Google, only a change in app store policies.
Speaker 3: I mean, what's the range that the judge can order here?
Speaker 5: Well, you're being more specific about what Epic seeking than
Speaker 5: Epic was in its complaint. The remedy was stated very
Speaker 5: generally about adjunctive relief. So it's not one hundred percent
Speaker 5: clear what Epic wants, except to say that apparently whatever
Speaker 5: match was offered Match dot Com was offered and agreed
Speaker 5: to in its settlement. Presumably Google would have been glad
Speaker 5: for Epic to take the same settlement it didn't, so
Speaker 5: presumably it wants more than just that. Now, I'm not
Speaker 5: one hundred percent clear about exactly what it wants, except
Speaker 5: it certainly wants to be able to free itself from
Speaker 5: the Google payment system. It wants to be able to
Speaker 5: sell things in Fortnite through its own Fortnite app and
Speaker 5: not have to pay a commission to Google. But exactly
Speaker 5: how they want to achieve that technically, they don't seem
Speaker 5: to want to have some sort of a choice thing
Speaker 5: that's within Google's control. So it's not one hundred percent clear,
Speaker 5: But I would say this Epic did not invest so
Speaker 5: much money in this litigation without thinking that it could
Speaker 5: get something worth more. So whatever it wants, they must
Speaker 5: think it will be worth a lot of money to
Speaker 5: them going forward. Because Fortnite's big business, some.
Speaker 3: Analysts have been saying that the business model in apps
Speaker 3: that generates for Google and Apple close to two hundred
Speaker 3: billion dollars a year is in jeopardy. Jim Sweeney, the
Speaker 3: chief executive officer of Epic, said, the dominoes are going
Speaker 3: to start falling here. The end of thirty percent is
Speaker 3: in sight.
Speaker 4: Do you think it's as big as all that?
Speaker 5: Well? Maybe, I mean it's certainly Epic wants to argue
Speaker 5: that your business is about to end. You know, this
Speaker 5: may just be a dance towards the settlement. Hard to say,
Speaker 5: but you know, whatever it is. Apple and Google have
Speaker 5: already moderated some of their pricing for smaller developers, but
Speaker 5: the big money appears to be particularly with the games,
Speaker 5: which offers subscriptions and things that can be bought within
Speaker 5: the app itself, and there's a lot of money in that.
Speaker 5: So no doubt that's thirty percent is going to stick.
Speaker 5: But what it's going to be and who's going to
Speaker 5: control the payment I don't know. And part of the
Speaker 5: question is is this a settlement that's only sort of
Speaker 5: a one off for them or is it going to
Speaker 5: help other developers? And I guess that's yet to be seen.
Speaker 3: Google is defending two other anti trust cases by the
Speaker 3: Justice Department, one in DC over its search engine and
Speaker 3: another in Virginia over its ad tech business, and the
Speaker 3: Justice Department has been investigating Apple's app store practices since
Speaker 3: around twenty nineteen. So is it like an antitrust revolution
Speaker 3: against big tech? Looking at it from the viewpoint of
Speaker 3: a professor of antitrust.
Speaker 5: Well, from professor of antitrust, I think, gee, what took
Speaker 5: everyone so long catched up?
Speaker 6: You know?
Speaker 5: If you think about using anti trust against major economic powerhouses,
Speaker 5: and particularly in the tech space, it took two decades
Speaker 5: between Microsoft and filing cases against the major tech platforms.
Speaker 5: So in that sense, it's a revolution not taking place
Speaker 5: in the streets, it's taking place in courtrooms. So it's
Speaker 5: pretty amazing in that sense. And the ad tech case
Speaker 5: against Google that will also be tried before a jury
Speaker 5: because the Justice Department is asking for money damages because
Speaker 5: the federal government is an advertiser. So it's a way
Speaker 5: both to get money back for taxpayers, but also a
Speaker 5: way to have a case try before a jury instead
Speaker 5: of a judge. And this may be a little cautionary
Speaker 5: tale for Google.
Speaker 3: About that sort of a test of whether a jury
Speaker 3: makes a difference rather than a judge. Thanks so much, Harry.
Speaker 3: That's Professor Harry First of NYU Law School. This is Bloomberg.
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 7: Look, I screwed up, like I would CEO. I had
Speaker 7: a responsibility here. I had a responsibility to be on
Speaker 7: top of what was going on on the exchange. I
Speaker 7: wish I had done much better at that.
Speaker 3: Sam Bankman Freed accepted responsibility for ftx's collapse in his
Speaker 3: so called apology tour after its bankruptcy in November of
Speaker 3: twenty twenty two. But fast forward to a year later
Speaker 3: when he took the stand at his front trial, and
Speaker 3: it was a completely different story. Bankman Freed danced around
Speaker 3: the questions and appeared vague and evasive in a painstaking
Speaker 3: cross examination, so much so that his own lawyer says
Speaker 3: he was the worst witness he's ever seen. Joining me
Speaker 3: is Bloomberg Legal reporter Ava Benni Morrison, who spoke to
Speaker 3: attorney David Mills behind the scenes. Architect of Bankman Freed's
Speaker 3: defense at trial, Ava tell us about David Mills, who
Speaker 3: is he for.
Speaker 8: David Mills is a Stamford law professor, a longtime White
Speaker 8: Cole lawyer who is also best friends with Sam Bateman,
Speaker 8: Fred's parents, Barbara and Joe. They're also Stanford Lall professors,
Speaker 8: and he came into SBF case to be the legal strategist,
Speaker 8: though he was sort of directing the approach that trial
Speaker 8: attorney should take, suggesting different strategies in terms of dealing
Speaker 8: with the chargers, the defense, the kind of case that
Speaker 8: they would make at the trial.
Speaker 4: Law isn't his only career. He has quite an expansive resume.
Speaker 3: The's riot.
Speaker 8: He's a very interesting guy. On top of being an attorney,
Speaker 8: he's also a managing director at Fortress. He's also a
Speaker 8: general counsel at a quite reputable Silicon Valley design firm
Speaker 8: run by the very well known former chief designer Apple,
Speaker 8: Johnny Ives. He's also been advisor to the VC firm Benchmark,
Speaker 8: when it was trying to out the Uber CEO Travis
Speaker 8: Kalenick a few years ago. So he has his things
Speaker 8: in a lot of different pies, but he is relatively unknown.
Speaker 8: Most people outside of the industry don't really know who
Speaker 8: he is. People that I spoke to for this story
Speaker 8: that he's very humble. He likes to keep his head
Speaker 8: down and just do the work. He doesn't really seek
Speaker 8: the limeline at all.
Speaker 3: And he's done very well, although he won't talk about
Speaker 3: just how well. He donated at least ten million dollars
Speaker 3: to stand for law school, millions more to the NAACP
Speaker 3: Legal Defense Fund, and when SBF was jailed in the Bahamas,
Speaker 3: he flew there on his own private jet.
Speaker 4: But he's also been involved in a lot of pro.
Speaker 3: Bono efforts for criminal defendants, and when you interviewed him,
Speaker 3: he had a cap on with the number three, four,
Speaker 3: one nine representing the number of people he's helped to
Speaker 3: get out of prison.
Speaker 8: This is something he's probably most proud of. Was a
Speaker 8: major financial backer and driver of the effort to overturn
Speaker 8: California's three strikes law. That was a law that put
Speaker 8: people in prison for life on their third conviction, no
Speaker 8: matter how big or small that third conviction was. So
Speaker 8: he worked with students at Stanford Law in twenty twelve
Speaker 8: to change that law, which ended up getting thousands of
Speaker 8: people released from prison.
Speaker 3: He told you that he realized right away that it
Speaker 3: would be an uphill battle defending bankman freed because lawyers
Speaker 3: turned him down.
Speaker 8: He'd had a bit of an idea about FTX from
Speaker 8: Joe's and Beamon Fred's barber. They had informal conversations about
Speaker 8: how the crypto exchange was going. Joe thinking about going
Speaker 8: over and working for FDx full time, but when there
Speaker 8: was a run of a bank at FTX in November
Speaker 8: twenty twenty two, so called David essentially for advice. David's
Speaker 8: response was, Sam needs a lawyer right away. So David
Speaker 8: started calling around on different firms looking for someone to
Speaker 8: try and represent Sam Bankman Freeze, but he said a
Speaker 8: lot of people didn't want to touch the case. He
Speaker 8: described Sam a most hated person in America behind Donald Trump.
Speaker 8: He finally set it on two trial attorneys in New York,
Speaker 8: Mark Cohen and Christian Evidel, who ended up taking the
Speaker 8: case right through a trial.
Speaker 3: He doesn't believe the trial was fair. Tell us why.
Speaker 8: He said he believed that Sam is innocent because he
Speaker 8: didn't form the intent to do anything wrong, which is
Speaker 8: obviously a key element of proving fraud. He said that
Speaker 8: the pre trial motions, though the orders that the judge
Speaker 8: handed down before the trial even got started, really put
Speaker 8: the defense at had disadvantaged. They weren't allowed to haul
Speaker 8: a number of expert witnesses, so they couldn't really rely
Speaker 8: on the defense that Sam was acting on the advice
Speaker 8: of lawyers and doing a lot of the things that
Speaker 8: the prosecution said was wrong. He said, from that point
Speaker 8: on he realized the case was essentially unwinnable.
Speaker 3: And you and I have discussed Sam bekman Fried's decision
Speaker 3: to take the witness down. He said that after the
Speaker 3: prosecution's case, SBF really had no choice but to testify.
Speaker 8: He said, after those profile motions and hearing the damning
Speaker 8: testimony from some of Sam mcman fried's former friends and
Speaker 8: fellow executives that Sam really had no other choice but
Speaker 8: to testify himself. Mill said it was his idea and
Speaker 8: his strategy for Sam to get up there and say, yes,
Speaker 8: I did everything that you said I did, and I
Speaker 8: made all of these statements that yes, they were conflicting
Speaker 8: after FTX Pubs bankruptcy last year, but I was doing
Speaker 8: my best to look after customers and I was trying
Speaker 8: to save their money. But he didn't do that. He
Speaker 8: seemed to be okay and coherent and clear on direct examination,
Speaker 8: but when he was under cross examination, he came across
Speaker 8: as a little bit of basive. He was quibbling with
Speaker 8: the prosecutors questioning. It seemed like he wouldn't answer sort
Speaker 8: of simple questions about whether he says or he didn't.
Speaker 8: And Mills was pretty candid in his assessment of Sam
Speaker 8: under cross examination, saying he was probably the worst witness
Speaker 8: he's ever seen under.
Speaker 3: Cross I assume they prepped him, but did he talk
Speaker 3: about how they prepped him at all?
Speaker 8: I asked that question. I said, well, isn't it your
Speaker 8: job to Sam ahead of his trial for this very situation.
Speaker 8: He said that while there was a lot of preparation
Speaker 8: done for his direct examination, it was really difficult to
Speaker 8: prepare him adequately because he was in prison. His battle
Speaker 8: was revoked just before trial. There were a lot of
Speaker 8: issues around his lawyers getting proper access to him, and
Speaker 8: Mill also said that if he had all of the
Speaker 8: resources and money in the world, he would have hired
Speaker 8: a different lawyer who wasn't involved in the case to
Speaker 8: go through a mock cross examination with Sam, but they
Speaker 8: didn't do that. So he put it down to the
Speaker 8: lack of access to Sam in prison and the lack
Speaker 8: of money.
Speaker 3: Essentially, he told you that SBF went off script when
Speaker 3: he took the stand.
Speaker 4: What did he mean by that?
Speaker 8: Mills said that it was his strategy and he wanted
Speaker 8: Sam to get up there and admit to everything that
Speaker 8: the prosecution and the witnesses said that he did. They
Speaker 8: wanted him to just admit to all of the public
Speaker 8: statements for the tweets and the media interviews and all
Speaker 8: of those different things that were on the public record
Speaker 8: in the context of yes, I said these things, but
Speaker 8: I was trying the best in really difficult circumstances to
Speaker 8: do the best for customers, but he didn't do that. Instead,
Speaker 8: Sam got up there and said, time and time again,
Speaker 8: he couldn't recall things that the prosecution said that he
Speaker 8: had said that he couldn't recall certain conversations with witnesses.
Speaker 8: So there was a disconnect there between what Mills wanted
Speaker 8: him to do and what his strategy was and what
Speaker 8: Sam did.
Speaker 3: But Mills thinks that even if bankman Freed had performed
Speaker 3: better on the stand, the jury still would have found
Speaker 3: him guilty.
Speaker 8: Yes, Mills said that he thought a guilty verdict was inevitable,
Speaker 8: but the trial wasn't there. This circles back to Mills
Speaker 8: referring to the pretrial motions that essentially whittled down the
Speaker 8: defense case to a case that was very thin. He
Speaker 8: also thought that the testimony from Sam Batemanfried's former friends
Speaker 8: Gary Wong, Caroline Ellison, and the Shad Seeing were pretty
Speaker 8: powerful and it was difficult to go up against those.
Speaker 3: This really struck me, he said, I'm not going to
Speaker 3: get myself emotionally involved on a very deep personal level
Speaker 3: in a case like this again, And he's rethinking taking
Speaker 3: criminal law.
Speaker 8: Cases exactly He seems like someone who just throws absolutely
Speaker 8: everything into a case once he signs onto it.
Speaker 9: You know.
Speaker 8: He told us he often talks to his wife to
Speaker 8: almost get her permission and her support to take on
Speaker 8: a client because he just gives his entire life to it.
Speaker 8: So that's what he did in this case. And I
Speaker 8: think it had the added complexity of a friendship there.
Speaker 8: And he found the whole experience very demanding, very exhausting,
Speaker 8: and he just doesn't want to do another criminal law
Speaker 8: case like it again.
Speaker 4: So he's not going to be involved in the appeal.
Speaker 8: Then, that's what he said. He doesn't want to be
Speaker 8: involved in the appeal. He feels like he's done his
Speaker 8: bit and he's ready to just take it down a
Speaker 8: few notches and spend a bit more time with his family.
Speaker 3: Did the trial cause a breach in his friendship with
Speaker 3: Sam bankman Fried's parents.
Speaker 2: Yes.
Speaker 8: Mill thinks that this case and the verdict against Sam
Speaker 8: bankman Fred has certainly had an impact on his friendship
Speaker 8: with Barbara and Joe. Neil said that he took on
Speaker 8: this case out of the favor to Sam bankman Free's parents,
Speaker 8: as well as an interest in being involved in a
Speaker 8: really novel and high profile case. Mills said that he
Speaker 8: was concerned that parents who think that their child hasn't
Speaker 8: done anything wrong will look for someone to blame, and
Speaker 8: that he was in their line of sight. He also
Speaker 8: said that he didn't think their friendship would recover. He
Speaker 8: actually went to Barbara and Joe and asked them what
Speaker 8: they thought of Mills and his comments. They responded and
Speaker 8: said we loved David Mills and were eternally grateful for
Speaker 8: everything that he has done.
Speaker 3: For There are often fallouts from trials that the public
Speaker 3: doesn't see. Fascinating interview. Thank you so much, Ava. That's
Speaker 3: Bloomberg Legal reporter Ava, Benny Morrison. I'm June Grosso. When
Speaker 3: you're listening to Bloomberg.
Speaker 1: This is Bloomberg Law with June Grusso from Bloomberg Radio.
Speaker 10: Adherence to the rule of law is a bedrock principle
Speaker 10: of the Department of Justice, and our nation's commitment to
Speaker 10: the rule of law sets an example for the world.
Speaker 10: We have one set of laws in this country and
Speaker 10: they apply to everyone.
Speaker 3: In announcing one of the two federal criminal cases against
Speaker 3: Donald Trump, special counsel Jack Smith said that no one
Speaker 3: is above the law. It applies equally to everyone. However,
Speaker 3: the former president is claiming the law doesn't apply to him.
Speaker 3: Trump says he's entitled to absolute presidential immunity against criminal
Speaker 3: charges over his efforts to overturn earn the twenty twenty
Speaker 3: presidential election. The trial judge rejected Trump's claims of immunity,
Speaker 3: refusing to toss out the charges, and Trump has appealed
Speaker 3: to the DC Appellate Court, But in an effort to
Speaker 3: prevent delays in the case, the special counsel is trying
Speaker 3: to leapfrog the appellate court by asking the Supreme Court
Speaker 3: to step in to decide the issue. Joining me is
Speaker 3: Derek Muller, a professor at Notre Dame Law School. Derek
Speaker 3: tell us about this untested claim of absolute presidential immunity
Speaker 3: against criminal charges that Trump is making.
Speaker 6: Think about, you know, immunity from your actions as president.
Speaker 6: That is, you are engaged in your official capacity, you
Speaker 6: are engaged in executive functions, and the notion that you
Speaker 6: can be criminally prosecuted for that behavior, for the things
Speaker 6: that you're doing while you're conducting your job, and should
Speaker 6: be exempt from criminal prosecution as a result, and get
Speaker 6: a lot of turns on at what point does your
Speaker 6: behavior sort of flip from official executive behavior too unofficial behavior,
Speaker 6: political or individual behavior. Is there an immunity for crimes
Speaker 6: committed if you're purporting to them in your official capacity?
Speaker 6: How could that possibly be the case? And so on?
Speaker 3: The Special Council is asking the Supreme Court to step
Speaker 3: in using Scherai before judgment, which is essentially skipping the
Speaker 3: appellate court. It's unusual, But how unusual is it for
Speaker 3: the court to grant that kind of review?
Speaker 6: Pretty unusual, I mean, so I think you can think
Speaker 6: about it this as some layers. If you're asking the
Speaker 6: Supreme Court to have a petition for corcerari before judgment,
Speaker 6: you know, sometimes that might arise if there's just a
Speaker 6: sort of preliminary injunction or preliminary posture of the case
Speaker 6: where maybe you want the court to step in, and
Speaker 6: so that happens. It's not common, but it's not uncommon.
Speaker 6: It's a relatively infrequent occurrence for the Court to step in,
Speaker 6: but to sort of ask them to skip the Court
Speaker 6: of Appeals and go straight to the United States Supreme
Speaker 6: Court to resolve this matter before the DC Circuit has
Speaker 6: weighed in is more unusual.
Speaker 1: Now.
Speaker 6: On the one hand, you could say, well, I think
Speaker 6: this is a matter of presidential executive power. What has
Speaker 6: happened in some of the cases involving Richard Nixon. If
Speaker 6: we're dealing with executive power and criminal investigations and so on,
Speaker 6: and these are major issues that we expect the Supreme
Speaker 6: Court is going to have to weigh in on some point.
Speaker 6: So there's this notion up front that they'll weigh in,
Speaker 6: and so maybe we should just skip that stepping at
Speaker 6: the United States Supreme Court involved. It's extraordinary, true, but
Speaker 6: these are extraordinary circumstances. On the other hand, you have
Speaker 6: to think from the justices perspective about their willingness to
Speaker 6: sort of step in here and say, well, can we
Speaker 6: just let the process play out? Maybe if the DC
Speaker 6: Circuit is a good job, we don't really have to
Speaker 6: weigh in. We can just kind of agree with what
Speaker 6: they've said and just, you know, passively let the case
Speaker 6: kind of continue below without us having to weigh in.
Speaker 6: So there's just some questions about what the court might do.
Speaker 6: But again, it's understandable why the prosecution wants to move
Speaker 6: this as quickly as possible, and the.
Speaker 3: Trial judge has paused the case pending this appeal, although
Speaker 3: she said she wasn't throwing out all the dates.
Speaker 4: I did want to ask.
Speaker 3: You about the political overtones in the Special Council's request
Speaker 3: to the Supreme Court, because trials are delayed all the time,
Speaker 3: but if it's delayed in this case and he wins
Speaker 3: the presidency, then it'll never happen.
Speaker 6: I think the concern is if we have to go
Speaker 6: through a level of briefing in oral argument and waiting
Speaker 6: for an opinion at the DC Circuit, and then wait
Speaker 6: for another round of appeals to the United States Supreme Court,
Speaker 6: and do the same thing all over again, which we
Speaker 6: feel like is inevitable, that can really start to press
Speaker 6: upon that March fourth date. And so there is this
Speaker 6: effort to move things along as quickly as possible. And yeah,
Speaker 6: I figure right that we have this concern if you're
Speaker 6: the prosecutor, that if there's any delay, this thing gets
Speaker 6: pushed back, and then there's all kinds of additional complexities.
Speaker 6: You know, what happens if he's the nominee for the party,
Speaker 6: You know, can we realistically expect him to be facing
Speaker 6: criminal charges or sitting in a court room while he's
Speaker 6: supposed to be campaigning for president. That raises all kinds
Speaker 6: of unique and additional class. And so we want this
Speaker 6: to be resolved as early as possible. If he's guilty,
Speaker 6: something the voters ought to know. If it's not guilty,
Speaker 6: also something the voters want to know. So there is
Speaker 6: this effort to resolve as early as possible. But there's
Speaker 6: no question it has some political avalance to it. There's
Speaker 6: some political charge because whenever you're dealing with in the
Speaker 6: front running candidate for presidential nomination for major political party,
Speaker 6: whatever you do in any direction is going to have
Speaker 6: some kind of political ramifications and definitely some risks that
Speaker 6: we're going to see play out about how we balance
Speaker 6: those things.
Speaker 3: You mentioned US v. Nixon in nineteen seventy four. In
Speaker 3: that case, I believe it was sixty one days from
Speaker 3: start to finish.
Speaker 6: Yeah, So I mean, we can move things quickly, and
Speaker 6: it's no question that we can move things quickly in
Speaker 6: these processes for the United States Supreme Court. I think
Speaker 6: about bushfee Gore where they granted certain on December ninth,
Speaker 6: or argument December eleventh, decision December twelfth. I mean that's
Speaker 6: record pace to move it in three days, right at.
Speaker 3: The Special Council's request. If the DC Appellate Court has
Speaker 3: agreed to expedite its consideration of Trump's appeal, setting deadlines
Speaker 3: for briefs to be filed between December twenty third and
Speaker 3: January second, how does that play in here?
Speaker 6: But even then you then have to schedule oral argument,
Speaker 6: And while you have that as a firm date, you
Speaker 6: don't know how long it will take after oral argument
Speaker 6: to issue a decision. You can say that you'd like
Speaker 6: it as quickly as possible, and the DC Circuit can try,
Speaker 6: but you know it might take a couple of weeks,
Speaker 6: even working under the fastest of circumstances. So just looking
Speaker 6: at the calendar, it might not be teed up for
Speaker 6: Supreme Court review until mid to late January. And again,
Speaker 6: if you're looking at a March fourth trial date, that
Speaker 6: adds a tremendous amount of uncertainty and tremendous pressure on
Speaker 6: the Supreme Court to weigh in get on a truncated timeline. So,
Speaker 6: and it's the reason why you say it's an extraordinary
Speaker 6: request from Smith's team here to seek the Supreme Court review,
Speaker 6: But totally understandable when you're looking at the calendar and
Speaker 6: what it looks like, and that this is a major
Speaker 6: barrier to getting to that judgment. And if Trump is immune,
Speaker 6: the case goes away. And if he's not, then probably
Speaker 6: his strongest defense is gone and we're going to a
Speaker 6: jury trial.
Speaker 3: Normally, our responding gets a month to file a brief
Speaker 3: opposing an appeal, but on Monday, the Supreme Court agreed
Speaker 3: to speed up the part of the process where it
Speaker 3: decides whether to take the case. It's only giving Trump
Speaker 3: until December twentieth to respond to the Special Council's request.
Speaker 3: Does that indicate that the Justices are aware of the
Speaker 3: seriousness of the case, or that they're inclined to grant
Speaker 3: the Special Counsel's request?
Speaker 4: I mean, does it indicate anything at all?
Speaker 6: So I don't know if they're inclined to grant, but
Speaker 6: I think it certainly means they are not disinclined. I mean,
Speaker 6: this is a small but important victory for Smith's team here,
Speaker 6: because if the Court just says, no, we're just going
Speaker 6: to give you a month to respond, well, that pretty
Speaker 6: much settles it, right, It pretty much makes the decision
Speaker 6: for you. But by allowing expedited response to the petition
Speaker 6: for it a sacherari. All of the court's options open
Speaker 6: right whether to grant and then have it on a
Speaker 6: expedita basis, or to deny send it back to the
Speaker 6: DC Circuit allowed to proceed on the normal track. So
Speaker 6: this was sort of a necessary win for a Smith's team,
Speaker 6: But it certainly I don't think suggests a whole lot
Speaker 6: about the merits except that the Court is kind of
Speaker 6: keeping it to options open.
Speaker 3: The Supreme Court, of course, has a six to three
Speaker 3: conservative majority, but it has not been especially receptive to
Speaker 3: the cases that Trump has brought since he left the presidency.
Speaker 3: I mean, does a conservative majority lean toward no presidents
Speaker 3: above the law or does it lean in another direction.
Speaker 6: Whenever you're justice in the court, you realize that you
Speaker 6: are setting major precedents for presidential power executive authority immunities,
Speaker 6: not just for Donald Trump, but also for Joe Biden,
Speaker 6: whoever the next president is. Right, So there is I
Speaker 6: think this institutional concern from the Court, and that's a
Speaker 6: major question.
Speaker 3: Right.
Speaker 6: Once we've established that precedent about when former presidents can
Speaker 6: be prosecuted, it's going to have a lot of sway
Speaker 6: in the future. So I think the court's view, regardless
Speaker 6: of whether you're a conservative or more liberal, justice is
Speaker 6: going to be thinking about these issues from other kinds
Speaker 6: of hallmarks of executive power and what kinds of behavior
Speaker 6: conduct in office immunize you from future prosecutions. Where that
Speaker 6: immunity attaches and arises and where it doesn't.
Speaker 3: It would be a landmark decision. Thanks so much, Derek.
Speaker 3: That's Professor Derek Muller of Notre Dame Law School. I'm
Speaker 3: June Grosso and this is Bloomberg.
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 10: Hey everyone, it's Helen and I'm here with my beautiful
Speaker 10: model Lucy, and today we're creating an everyday makeup look
Speaker 10: using all.
Speaker 2: Clean its for our products.
Speaker 6: I'm Ayisha and I'm Melinda, and today we're going to
Speaker 6: be talking about five clean beauty brands you need to know.
Speaker 3: Hi. I'm Danil and today I'm going to share with
Speaker 3: you some of my top picks from my lipstick wardrobe
Speaker 3: and they're all clean. Sephora is just one of the
Speaker 3: companies promoting clean beauty products. How much does that matter
Speaker 3: to consumers like climate conscious gen zers and millennials well,
Speaker 3: the clean beauty market has grown from its roots in
Speaker 3: luxury and independent brands to take over shelves at mass
Speaker 3: market retailers like Target, and it's forecast to expand to
Speaker 3: fifteen point three billion dollars by twenty twenty eight. But
Speaker 3: just what is a clean beauty product? That's the question
Speaker 3: that's driving consumer led class actions against Sephora and Target
Speaker 3: and raising the legal risk for companies trying to capitalize
Speaker 3: on the demand for clean beauty. Joining me is Sean Collins,
Speaker 3: and attorney at Straddling. He advises companies on consumer litigation.
Speaker 3: What is a clean beauty product? Are there any parameters
Speaker 3: the public can rely on?
Speaker 9: No, there are, And that's probably the most first strading
Speaker 9: part about it. And this is not abnormal. I mean,
Speaker 9: the FTC and the regulatory bodies are always five to
Speaker 9: ten years behind where the marketplace is. But you know
Speaker 9: that is everybody's great frustration is that there is no
Speaker 9: legal definition for beauty. And so the FTC releases what
Speaker 9: they call guidelines, so you'll see if you google it
Speaker 9: FTC guidance on what it means to have a clean
Speaker 9: beauty product. And that guidance is not law. They are
Speaker 9: trying to create guardrails or boundaries that kind of give
Speaker 9: guidance to the skincare and beauty product lines out there
Speaker 9: in the world, so that they at least have an
Speaker 9: idea of what is permissible and what's not permissible. But
Speaker 9: it's not very helpful because if you're a skincare cosmetics company,
Speaker 9: you're just really kind of crossing your fingers and hoping
Speaker 9: that you don't do anything that will get the FTC's
Speaker 9: attention or maybe a state attorney general's attention.
Speaker 3: There are now consumer led class action lawsuits.
Speaker 4: Tell us a little bit about the lawsuit.
Speaker 9: Against the form the reality of lossuit against the Four,
Speaker 9: and the reason why you're seeing so many plaintiffs attorneys
Speaker 9: go after them is it's like anything in life, tall
Speaker 9: trees attract the most wins. The four is one of
Speaker 9: the most recognized beauty and skincare companies in the world.
Speaker 9: You know, you walk into any mall and even online
Speaker 9: they have huge e commerce present and so Planet's attorneys
Speaker 9: are coming after them and saying, you know, this is
Speaker 9: what the FTC guidance says, and you didn't do that,
Speaker 9: therefore you're in violation of the law. Now, what is
Speaker 9: the law. The law of Section five of the FTC Act,
Speaker 9: which is very broad and vague. It says you cannot
Speaker 9: advertise a product in an unfair, deceptive, or misleading mass.
Speaker 9: And so the question becomes, well, what does that mean?
Speaker 9: The FTC views it as well. If a consumer is
Speaker 9: looking at your label and they don't quite understand what
Speaker 9: you're saying to them on that label, that's unfair, deceptives leading.
Speaker 9: That's kind of the impetus for these lossits like the
Speaker 9: one you're saying against the four.
Speaker 3: So what do you tell your clients about promoting clean
Speaker 3: beauty products?
Speaker 9: I tell my clients, if you're advertising here in California
Speaker 9: and you're going to use that word clean or all natural,
Speaker 9: and you know that there might be an ingredient or
Speaker 9: more that could potentially not be classified as clean or
Speaker 9: all natural by the California Attorney General, you need to
Speaker 9: do to one or two things you have. They need
Speaker 9: a hedge with your language. Meaning most people like say
Speaker 9: one hundred percent natural. I always tell them, well, if
Speaker 9: it's not one hundred percent natural, you could say mostly natural,
Speaker 9: you know, something to that effect. And obviously you know
Speaker 9: the clients don't like that, especially the advertising department because
Speaker 9: they're like, no, we want to use all natural. And
Speaker 9: I say, look, I'm not going to tell you that
Speaker 9: you can't use all natural, but if you don't put
Speaker 9: an asterisk next to it or soften that language a
Speaker 9: little bit, there is the potential that a plant attorney
Speaker 9: could come after you.
Speaker 3: Well, as these cases proceed, we'll find out more about
Speaker 3: what courts consider to be clean beauty. Thanks so much, Sean.
Speaker 3: That's Sean Collins, a shareholder at Straddling And that's it
Speaker 3: for this edition of The Bloomberg Law Show. Remember you
Speaker 3: can always get the latest legal news on our Bloomberg
Speaker 3: Law podcasts. You can find them on Apple Podcasts, Spotify,
Speaker 3: and at www dot Bloomberg dot com, slash podcast slash Law,
Speaker 3: and remember to tune into The Bloomberg Law Show every
Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso
Speaker 3: and you're listening to Bloomberg