WEBVTT - Antitrust Lawsuit Against Google Expected 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grazzo from Bloomberg Radio. 0:00:05.960 --> 0:00:09.000 The Department of Justice and state attorneys general have been 0:00:09.039 --> 0:00:13.400 investigating Google's dominance over the one thirty billion dollar digital 0:00:13.440 --> 0:00:17.400 advertising market for about a year, and the Justice Department 0:00:17.480 --> 0:00:21.520 is drafting an antitrust lawsuit against the company. Joining me 0:00:21.600 --> 0:00:26.400 is Jennifer Ray, Bloomberg Intelligence Senior Litigation Analyst. So, Jen, 0:00:26.520 --> 0:00:30.160 do we know what charges the Justice Department is incorporating 0:00:30.320 --> 0:00:33.879 in its complaint. We really don't. The only thing that 0:00:33.920 --> 0:00:36.640 we have is just broadly that it sounds like, at 0:00:36.720 --> 0:00:39.320 least what's been reported in the news, that they're looking 0:00:39.400 --> 0:00:42.680 at advertising and I think that's not a surprise because 0:00:42.720 --> 0:00:46.080 in Europe, Google some of its conduct within its advertising 0:00:46.120 --> 0:00:50.960 realm has already been penalized in Europe for abuse of dominance, 0:00:51.120 --> 0:00:54.360 so that isn't surprising. But but it could be that 0:00:54.400 --> 0:00:57.720 they're also looking at other conducts. You know, these investigations 0:00:58.200 --> 0:01:01.600 really dive into the nitty retty of a company's business 0:01:01.720 --> 0:01:04.120 and really get into the weeds, and they could be 0:01:04.160 --> 0:01:07.399 looking at just about anything. There was a study done 0:01:07.480 --> 0:01:10.120 that gave a sort of a roadmap for what a 0:01:10.160 --> 0:01:14.440 complaint might look like, what do these studies authors suggest 0:01:14.680 --> 0:01:18.360 should be some of the components of the complaint right now? 0:01:18.440 --> 0:01:21.399 That study did focus on the advertising world, and you 0:01:21.440 --> 0:01:24.200 know what they really said is that at this point, 0:01:24.560 --> 0:01:28.119 through developing its own business and through acquiring other companies, 0:01:28.480 --> 0:01:32.800 Google is not only a major displayer of ads. Let's say, 0:01:32.800 --> 0:01:35.400 on on its own websites that it owns, like Google 0:01:35.440 --> 0:01:38.520 Maps or YouTube, or just through a search when somebody's 0:01:38.600 --> 0:01:42.240 using Google to search a topic, but it also controls 0:01:42.560 --> 0:01:44.880 a lot of the products that are needed, you know, 0:01:45.040 --> 0:01:47.520 sort of across the whole supply chain to link up 0:01:47.560 --> 0:01:50.760 an advertiser with a publisher. Let's say, you know, a 0:01:50.800 --> 0:01:53.640 third party website like The New York Times that wants 0:01:53.640 --> 0:01:56.800 to have ads displayed on its website. UM. And that 0:01:56.880 --> 0:01:59.240 because it has so much control of so many of 0:01:59.240 --> 0:02:01.400 the products need it is to link a publisher with 0:02:01.440 --> 0:02:04.960 an advertiser and get an appropriate ad put onto a 0:02:05.000 --> 0:02:07.920 website or connected to a search on the website, that 0:02:08.080 --> 0:02:12.480 it's able really to extract profits out of that chain 0:02:12.880 --> 0:02:15.000 and the prices that ought to be going to the 0:02:15.000 --> 0:02:18.440 publishers and the advertisers. Um. And they're just looking at 0:02:18.600 --> 0:02:23.960 the way that toole supply chain works from publisher to advertiser, 0:02:24.560 --> 0:02:30.000 and how Google might extract sort of let's say, extraordinary, uh, 0:02:30.200 --> 0:02:33.640 super competitive fees out of that supply chain. And they 0:02:34.080 --> 0:02:37.200 don't really make any suggestions with respect to what the 0:02:37.240 --> 0:02:40.400 remedies should be. Um. But but they just show how 0:02:40.480 --> 0:02:44.200 Google has market power and how some of its practices 0:02:44.240 --> 0:02:49.480 could be considered unreasonably exclusionary under our anti trust laws. 0:02:49.880 --> 0:02:53.240 Jen does Google have market power because it's the most 0:02:53.320 --> 0:02:57.959 popular search engine or doesn't have market power because it 0:02:58.080 --> 0:03:04.519 made acquisitions to increase its power? You know, June, It 0:03:04.639 --> 0:03:08.320 is probably a combination of both. Uh. Certainly, a company 0:03:08.360 --> 0:03:11.680 can gain market power by being desirable and again consumers 0:03:11.720 --> 0:03:14.160 like it, and so they gain all the business um, 0:03:14.200 --> 0:03:16.960 and they can gain a lawful monopoly in that way. Um. 0:03:17.000 --> 0:03:20.399 They can also gain market power by acquiring other entities. 0:03:20.720 --> 0:03:23.440 But the issue really is that it's just the market 0:03:23.480 --> 0:03:27.640 power alone isn't enough to violate the laws against illegal monopolization. 0:03:28.040 --> 0:03:31.000 There needs to be market power shown, and that's why 0:03:31.040 --> 0:03:33.560 in this paper they focused on how to show market power. 0:03:33.880 --> 0:03:36.440 But then they need to show that there's been some 0:03:36.480 --> 0:03:40.920 sort of a conduct that can essentially leverages that market power. 0:03:41.160 --> 0:03:44.640 And excludes rivals. There needs to be unreasonable conduct that's 0:03:44.680 --> 0:03:48.600 exclusionary that helps to maintain that market power. That's where 0:03:48.600 --> 0:03:51.600 it starts to cross the line. So what this paper 0:03:51.640 --> 0:03:54.160 did was it talked about the market power that Google 0:03:54.200 --> 0:03:57.360 has with certain ad products, and then some of the 0:03:57.440 --> 0:04:01.080 conducts that might help to maintain that market power, such 0:04:01.120 --> 0:04:06.200 as exclusionary contracts with certain third parties UM, a lack 0:04:06.240 --> 0:04:09.520 of interoperability with some of its functionality that might be 0:04:09.560 --> 0:04:12.200 needed for rivals. It's a way to keep the rivals 0:04:12.240 --> 0:04:14.920 out and to keep companies using their own product and 0:04:14.960 --> 0:04:18.279 maintaining their market power. So it's those two steps, and 0:04:18.279 --> 0:04:21.600 and having that market power by itself isn't necessarily unlawful. 0:04:22.360 --> 0:04:28.320 What has the US been investigating Google on? Well, it's 0:04:28.400 --> 0:04:32.200 likely that the US has been been investigating Google's um 0:04:32.400 --> 0:04:35.080 conduct and activity in an advertising market. And I say 0:04:35.080 --> 0:04:38.560 it's likely because we know that Google has already been 0:04:38.560 --> 0:04:42.360 found to have abused its dominance by the European Commission 0:04:42.360 --> 0:04:44.600 in a couple of different areas, and one of those 0:04:44.600 --> 0:04:49.200 areas is advertising. So it's kind of um handing some suggestions, 0:04:49.320 --> 0:04:51.760 so to speak, to the Department of Justice, which started 0:04:51.800 --> 0:04:55.480 looking at Google after the European Commission had already drawn 0:04:55.520 --> 0:04:59.799 its conclusions. Um Our laws from a nopolization are different 0:05:00.080 --> 0:05:03.800 from the European Commission's rules against the use of dominance, 0:05:04.040 --> 0:05:06.760 but there are a lot of similarities and the same 0:05:06.839 --> 0:05:09.839 kind of conduct can violate laws on both sides of 0:05:09.839 --> 0:05:13.320 the ocean. So if the conduct violated europe lause, there's 0:05:13.320 --> 0:05:16.400 a possibility it also violates US law. And it certainly 0:05:16.440 --> 0:05:18.360 seems like that would have been a good place for 0:05:18.400 --> 0:05:21.200 the Department of Justice to start. It doesn't mean that 0:05:21.240 --> 0:05:23.720 they stopped there, you know, you know, once they issued 0:05:23.839 --> 0:05:26.240 what's called the civil investigative demand, which is like a 0:05:26.320 --> 0:05:30.880 large subpoena. They're now getting into the company's documents, emails, 0:05:31.120 --> 0:05:33.599 text messages, things like that, and they're looking at the 0:05:33.680 --> 0:05:37.120 way they operate and do business and the decisions they make, 0:05:37.200 --> 0:05:40.599 and they could find some other area that Europe didn't 0:05:40.600 --> 0:05:44.040 focus on that they also believe, uh could be an 0:05:44.040 --> 0:05:47.640 example of Google, you know, exercising its dominance in an 0:05:47.640 --> 0:05:51.360 improper manner. So jan they're in the drafting stage right now, 0:05:51.400 --> 0:05:54.919 but doesn't seem likely that they will in fact file 0:05:55.000 --> 0:05:58.360 the lawsuit. Well, it makes it pretty likely that it's 0:05:58.360 --> 0:06:00.839 going to bring a lawsuit, it will have to complaint 0:06:01.400 --> 0:06:04.479 and get itself prepared to go to trial if it 0:06:04.520 --> 0:06:07.320 does believe that the law has been violated. Once that 0:06:07.480 --> 0:06:10.680 complaint is drafted, of course, there could be a settlement. 0:06:10.720 --> 0:06:13.479 I mean, this is what happens in most cases, not 0:06:13.680 --> 0:06:16.839 just when a company is being investigated for violating the 0:06:16.880 --> 0:06:19.560 antitrust laws, but also let's say when a merger is 0:06:19.640 --> 0:06:24.040 being investigated for potentially violating antitrust laws. The Department of 0:06:24.080 --> 0:06:27.320 Justice could conclude, yes, that it does, but then the 0:06:27.320 --> 0:06:30.040 companies can offer a settlement and I can get filed 0:06:30.080 --> 0:06:33.800 along with that complaint or after that complaint. So if 0:06:33.839 --> 0:06:37.360 the Department of Justice does draft a complaint get itself 0:06:37.360 --> 0:06:39.800 prepared to go to trial, there could be a settlement 0:06:40.160 --> 0:06:43.000 before it goes any farther than that, or in fact, 0:06:43.040 --> 0:06:45.960 that complaint could get filed in court and it could 0:06:45.960 --> 0:06:49.200 start litigation. Is it surprising at all that this might 0:06:49.240 --> 0:06:52.800 be happening during the pandemic or do you think that 0:06:52.880 --> 0:06:56.159 most of the work, most of the investigation was done 0:06:56.400 --> 0:07:00.360 well before. Well, I think the investigation was started well before. 0:07:00.480 --> 0:07:02.479 I mean, I mean, this was this was all happening 0:07:02.520 --> 0:07:04.960 and all in the cards and on the way when 0:07:04.960 --> 0:07:08.560 the pandemic pandemic happened, It just happened to occur, I 0:07:08.560 --> 0:07:11.560 think in the middle of this investigation. But the Department 0:07:11.560 --> 0:07:14.520 of Justice and the FTC for that matter, which is 0:07:14.680 --> 0:07:17.760 investigating Facebook, made it clear that their work is continuing, 0:07:18.160 --> 0:07:21.800 maybe from home, you know, and virtually, but it's continuing, 0:07:22.080 --> 0:07:24.840 and that they weren't really dropping anything. Um. And the 0:07:24.880 --> 0:07:28.920 Attorney General, Bill Bard, did stay back in December that 0:07:29.080 --> 0:07:31.760 he had hoped that the Department of Justice would be 0:07:31.800 --> 0:07:34.480 able to reach some sort of a decision with respect 0:07:34.560 --> 0:07:36.960 to what was going to happen with its investigation of 0:07:37.040 --> 0:07:40.080 Google by this year, he had said, by this summer, 0:07:40.120 --> 0:07:43.800 and maybe that possibly could get pushed back slightly due 0:07:43.840 --> 0:07:47.000 to delays from the pandemic. But it's really been business 0:07:47.000 --> 0:07:50.800 as usual, UM. With respect to the ongoing investigations that 0:07:50.920 --> 0:07:53.800 both the SEC and the Department of Justice, so the 0:07:53.840 --> 0:07:59.560 state attorneys general are also investigating Google. Is their investigation different? 0:07:59.760 --> 0:08:04.440 Is it parallel or is it different? It seems like 0:08:04.600 --> 0:08:07.600 from what's been reported that so far it's it's parallel 0:08:07.720 --> 0:08:10.920 as well as combined. UM. It seems that there is 0:08:10.960 --> 0:08:14.360 some sharing of information and documents between the state attorneys 0:08:14.360 --> 0:08:17.760 general and the Department of Justice, and that the the 0:08:17.800 --> 0:08:20.560 state attorneys general are also sort of looking on their 0:08:20.560 --> 0:08:24.400 own and I think that's pretty typical and investigations that 0:08:24.440 --> 0:08:29.920 are really big, and like this Google investigation, I suspect 0:08:29.960 --> 0:08:33.600 at the end it'll probably all get combined and come together. 0:08:34.080 --> 0:08:36.880 Um that the if the Department of Justice files the lawsuits, 0:08:36.880 --> 0:08:39.280 that the states will join into that lawsuit. Now they 0:08:39.280 --> 0:08:42.640 can also file their own independently if they want to 0:08:43.760 --> 0:08:46.120 go on different grounds or don't agree with the Department 0:08:46.120 --> 0:08:48.040 of Justice, but I think it more likely that they'll 0:08:48.080 --> 0:08:50.880 probably all end up coming together in the end. The 0:08:50.960 --> 0:08:56.439 FTC closed in investigation in into Google. Is there more 0:08:56.559 --> 0:09:00.480 evidence now or is it a change in administer rations. 0:09:01.559 --> 0:09:03.720 I don't think that it's a matter of more evidence. 0:09:03.760 --> 0:09:07.040 I think that was actually a pretty exhaustive investigation back then. 0:09:07.120 --> 0:09:09.000 But really what it is is a change in that 0:09:09.240 --> 0:09:11.559 It could be a change in many things. It could 0:09:11.600 --> 0:09:13.920 be a change in the competitive dynamic, a change in 0:09:13.960 --> 0:09:17.960 the industries with respected different companies having entered or exited, 0:09:18.320 --> 0:09:21.880 or perhaps acquisitions have small ocquisitions having been made since then. 0:09:22.240 --> 0:09:25.040 And in addition, it could be a change in conduct. 0:09:25.240 --> 0:09:28.160 You know, at that time they closed that investigation and 0:09:28.200 --> 0:09:33.080 there wasn't really any formal settlement with Google that require 0:09:33.120 --> 0:09:35.680 them in any legal sense to behave in a certain way. 0:09:36.240 --> 0:09:40.280 So Google has pretty much been free to behave and 0:09:40.360 --> 0:09:42.360 engage in its business in the way it's wanted to 0:09:42.480 --> 0:09:45.560 since then. And so it may be doing things differently 0:09:45.600 --> 0:09:49.080 now that do violate the law that at that time 0:09:49.120 --> 0:09:52.240 they simply weren't doing. For instance, June, A lot of 0:09:52.240 --> 0:09:55.760 times exclusive exclusive agreements can violate the law. You know, 0:09:55.840 --> 0:09:58.760 if if a company with the dominant position or that's 0:09:58.840 --> 0:10:02.719 vertically integrated, it say, has access to some input that 0:10:02.800 --> 0:10:07.800 it's it's competitors need um and it it it or 0:10:08.600 --> 0:10:12.439 it exclusively ties up an input that its competitors need, 0:10:12.559 --> 0:10:16.400 let's say, with exclusive agreements, and now these competitors simply 0:10:16.440 --> 0:10:18.920 can't operate because they need access and they can't get 0:10:18.960 --> 0:10:22.240 access because there's exclusivity just for let's say Google. You know, 0:10:22.440 --> 0:10:25.200 this can violate the law. And it's possible that Google 0:10:25.280 --> 0:10:27.520 has agreements like this that they didn't have back in 0:10:27.559 --> 0:10:31.880 two thousand thirteen. How significant would it be if the 0:10:32.000 --> 0:10:36.640 Justice Department decides to file a case against Google well, 0:10:36.679 --> 0:10:40.240 I think it's significant because, you know, it raises the 0:10:40.280 --> 0:10:44.800 prospect of potentially requiring a breakup of the company. Now 0:10:44.840 --> 0:10:48.280 I think that that's unlikely, but it's not outside the 0:10:48.320 --> 0:10:51.120 balance of possibilities that if the d o J does 0:10:51.160 --> 0:10:53.839 feel it needs to file a suit, UH, it has 0:10:53.880 --> 0:10:56.440 to seek a remedy, and that remedy could be something 0:10:56.480 --> 0:11:01.120 that impacts Google's business significantly, UM, be it a breakup 0:11:01.360 --> 0:11:05.440 or restricting the way it does its business. UM. You know, 0:11:05.480 --> 0:11:07.480 the d o J did try to break up Microsoft 0:11:07.559 --> 0:11:10.480 many years ago and they were unsuccessful, but they came close. 0:11:11.679 --> 0:11:15.400 And you know, both the Joe Simons from Sederal Trade 0:11:15.440 --> 0:11:19.560 Commission and UM the antitrust headed Department of Justice has 0:11:19.600 --> 0:11:21.760 said that they're all sorts of remedies they could seek, 0:11:22.080 --> 0:11:24.480 including breakup, and that they're not ruling that out. So 0:11:24.520 --> 0:11:27.679 it certainly raises the risks for Google if the d 0:11:27.760 --> 0:11:29.960 o J susan the company has to go to court. 0:11:30.280 --> 0:11:34.319 Has Google made any acquisitions in the last few years 0:11:34.320 --> 0:11:37.000 that they could divest you know, I don't know about 0:11:37.000 --> 0:11:40.079 the time frame and and specifically the last three years, 0:11:40.080 --> 0:11:42.600 but they have made acquisitions over let's say, the last 0:11:42.600 --> 0:11:46.440 ten years in this ad in I'll call it the 0:11:46.480 --> 0:11:49.720 ad intermediary space. You know, these all of these sort 0:11:49.720 --> 0:11:52.320 of business to business products that are needed to connect 0:11:52.360 --> 0:11:55.959 a publisher with an advertiser. One of those acquisitions, for instance, 0:11:56.040 --> 0:11:59.559 was double click um, which is one of these ad products. 0:11:59.840 --> 0:12:05.240 And it is certainly possible that one of the remedies 0:12:05.240 --> 0:12:08.440 the Department of Justice could seek would be the unwinding 0:12:08.920 --> 0:12:12.920 of the acquisition of one of these products needed along 0:12:12.960 --> 0:12:17.640 that supply chain. Are the House committees still investigating Google 0:12:17.800 --> 0:12:22.160 and the other tech companies. Yes, they are, and they 0:12:22.240 --> 0:12:25.640 had said that they had hoped to publish their findings 0:12:25.679 --> 0:12:29.640 I believe fairly soon, like even this month or next month, 0:12:29.720 --> 0:12:32.920 but that has been delayed due to the pandemic. Now, 0:12:33.000 --> 0:12:35.920 you know, the House Committee investigation, I think ultimately has 0:12:36.040 --> 0:12:38.319 a bit of a different role or goal in mind 0:12:38.600 --> 0:12:42.160 than the Department of Justice investigation. I think what they're 0:12:42.200 --> 0:12:45.120 looking at is whether or not there might be some 0:12:45.280 --> 0:12:49.920 new legislation or amendments to current legislation needed to deal 0:12:50.040 --> 0:12:53.720 with policing these big tech platforms and sort of this 0:12:53.840 --> 0:12:56.960 new digital economy that we live in. I think they've 0:12:57.040 --> 0:12:59.720 questioned whether or not the current antitrust laws that we 0:12:59.760 --> 0:13:02.679 have and the precedent that's been built up over the years, 0:13:02.800 --> 0:13:06.679 it's sufficient to tame the kind of behavior that the 0:13:06.800 --> 0:13:09.280 d o J may be looking at. So their goal 0:13:09.400 --> 0:13:12.520 is is more about the legislative goal than an enforcement coal. 0:13:12.800 --> 0:13:17.520 Thanks Jen, that's Bloomberg Intelligence Senior Litigation analyst Jennifer Ree. 0:13:17.800 --> 0:13:21.240 Bloomberg Law editor Jordan Rubin joins me now to discuss 0:13:21.320 --> 0:13:25.400 those historic live Supreme Court arguments that wrapped up last week. 0:13:26.040 --> 0:13:28.360 I would say overall it went very well, I think, 0:13:28.520 --> 0:13:31.880 possibly even better than people expected it to go. Obviously, 0:13:31.920 --> 0:13:36.200 there were probably one notable instance that got some people's 0:13:36.240 --> 0:13:40.360 intention of what sounded like a toilet flushing, But besides that, 0:13:40.440 --> 0:13:43.240 I think, you know, really the whole session went pretty well. 0:13:43.520 --> 0:13:45.880 The only problem that seemed to occur over and over 0:13:46.040 --> 0:13:49.480 was the justices forgetting to un mute their mute button. 0:13:49.559 --> 0:13:53.199 Some of the justices exactly, so they're sort of experiencing 0:13:53.240 --> 0:13:55.360 the same working from home issues that all of us 0:13:55.400 --> 0:13:58.400 are working on conference calls, people on muting. So kind 0:13:58.440 --> 0:14:00.640 of stuff is far from the core us just happens 0:14:00.679 --> 0:14:02.439 to be in a Supreme Court argument. But on the 0:14:02.480 --> 0:14:05.000 whole that didn't really detract too much from the substance 0:14:05.040 --> 0:14:07.599 of what was going on, and really, given all that 0:14:07.760 --> 0:14:10.320 could have gone wrong, it went pretty well. So you 0:14:10.360 --> 0:14:13.960 mentioned the one thing, the flush heard around the country 0:14:14.800 --> 0:14:18.760 in the middle of an argument, and the justices didn't 0:14:19.000 --> 0:14:22.040 say anything about it. They just kept going. It's been 0:14:22.080 --> 0:14:25.880 taken out of the permanent record, it's been taken out 0:14:25.880 --> 0:14:29.840 of the audio files as well as the transcript. Do 0:14:29.960 --> 0:14:34.000 we know any more about who did that? Well, as 0:14:34.040 --> 0:14:37.600 you can imagine, the Supreme Court isn't coming forward saying 0:14:37.640 --> 0:14:41.600 anyone in particular is responsible for the alleged flush. The 0:14:41.640 --> 0:14:44.920 flush in question. There's some speculation perhaps that it could 0:14:44.920 --> 0:14:48.160 have been Justice Brier, given the timing of it and 0:14:48.200 --> 0:14:51.440 how he was interacting during the rest of the argument, 0:14:51.480 --> 0:14:54.920 But we really don't know, and it's unclear whether there's 0:14:54.960 --> 0:14:59.560 going to be a serious congressional investigation into this uh incident. 0:15:00.320 --> 0:15:02.480 You know, there's some speculation. I think we look back 0:15:02.520 --> 0:15:05.200 on it kind of just as a funny thing that happened, 0:15:05.200 --> 0:15:08.160 showing that, you know, the justices are are human too, 0:15:08.160 --> 0:15:10.200 and if that's the worst thing that came out of 0:15:10.200 --> 0:15:12.840 this argument, I would say that kind of just underscores 0:15:12.840 --> 0:15:15.320 how much of a win the whole process was. So 0:15:15.400 --> 0:15:18.120 let's talk about some of the first Well, the first 0:15:18.160 --> 0:15:21.960 time we've heard Justice Clarence Thomas speak in ten arguments 0:15:21.960 --> 0:15:24.800 in a row. Oh yeah, that was certainly something that 0:15:25.200 --> 0:15:28.840 and certainly not everyone was expecting. The last time Justice 0:15:28.880 --> 0:15:32.520 Thomas asked questions that an argument was last term, and 0:15:32.560 --> 0:15:35.360 before that, it was many years before that, and so 0:15:35.600 --> 0:15:39.640 there was some speculation perhaps that because Justice Thomas's reasoning 0:15:39.680 --> 0:15:42.360 that he said in not questioning during the arguments is 0:15:42.400 --> 0:15:44.640 that he doesn't want to take away time from the 0:15:44.720 --> 0:15:47.960 lawyers making their arguments. But one notable thing about the 0:15:48.000 --> 0:15:50.840 way that the Court carried out these arguments was that 0:15:50.840 --> 0:15:54.280 the justices had turned to question in order. So really 0:15:54.320 --> 0:15:56.400 there was a set time for Justice Thomas and the 0:15:56.400 --> 0:15:59.160 rest of the justices to ask questions. And so it 0:15:59.200 --> 0:16:02.080 seems that in that setting he was more comfortable and 0:16:02.120 --> 0:16:05.440 perhaps didn't feel that he was detracting from the rest 0:16:05.480 --> 0:16:08.080 of the argument as opposed to just participating it, which 0:16:08.080 --> 0:16:11.240 he which he did, And the justices piggybacks off of 0:16:11.280 --> 0:16:14.560 his questions, saying, you know, following up on Justice Thomas's questions. 0:16:14.560 --> 0:16:17.360 So from their view, it seemed anyway that they thought 0:16:17.360 --> 0:16:20.240 of the questions he was asking, we're good ones. He 0:16:20.400 --> 0:16:24.240 also had what I consider one of the most memorable moments. 0:16:24.560 --> 0:16:27.320 Maybe that's because I'm a fan of the Lord of 0:16:27.320 --> 0:16:31.160 the Rings. He referred to Frodo Baggins in one of 0:16:31.200 --> 0:16:35.880 his questions. Yeah, certainly another thing that you know, if 0:16:35.920 --> 0:16:40.080 you had that one on your coronavirus pandemic Supreme Court argument, 0:16:40.120 --> 0:16:42.920 bingo card, you can cross that one off. To Justice 0:16:42.960 --> 0:16:46.440 Thomas referencing Frodo Baggins during the Supreme Court argument. That 0:16:46.440 --> 0:16:49.840 one came in the arguments over the electoral college, and 0:16:49.840 --> 0:16:53.080 that wound up spunning out all these hypotheticals of could 0:16:53.120 --> 0:16:55.880 you write in a candidate or as an elector could 0:16:55.880 --> 0:16:59.200 you wind up voting for Frodo Baggins over the person 0:16:59.240 --> 0:17:02.440 who your state actually essentially told you to vote for. 0:17:02.560 --> 0:17:05.880 And that was a fun hypothetical that the Justice Thomas 0:17:06.200 --> 0:17:08.919 came up with. So certainly by the end of the 0:17:08.960 --> 0:17:11.960 session when that argument took place, he was feeling comfortable 0:17:12.040 --> 0:17:13.840 enough to have a little fun with it. It sounds 0:17:13.880 --> 0:17:17.520 like so the first case that Justice has heard, which 0:17:17.560 --> 0:17:21.840 involved Booking dot Com and a trademark dispute that featured 0:17:21.880 --> 0:17:25.800 two women attorneys. Was that a first for the Supreme Court? 0:17:26.359 --> 0:17:28.720 It wasn't the first ever for the Supreme Court, but 0:17:28.760 --> 0:17:32.640 it's certainly a rarity. And if you were a uh, 0:17:32.680 --> 0:17:35.040 someone who doesn't follow the Supreme Court regularly and you 0:17:35.080 --> 0:17:37.800 tuned in for that argument, certainly you would be a 0:17:37.800 --> 0:17:42.280 bit misled into thinking that that's the normal representation of 0:17:42.520 --> 0:17:46.000 gender at the court. It's certainly Supreme Court arguments are 0:17:46.080 --> 0:17:49.679 a male dominated phenomenon. But you had the first argument 0:17:49.760 --> 0:17:53.680 kicking off in this historic session of two female advocates 0:17:53.800 --> 0:17:57.280 Erica Ross from the Solicitor General's Office representing the federal 0:17:57.320 --> 0:18:01.240 government and veteran Supreme Court at to get Lisa Black 0:18:01.880 --> 0:18:05.720 arguing for the company. And so you had really two 0:18:05.760 --> 0:18:09.480 great advocates to female advocates launching off this historic session, 0:18:09.880 --> 0:18:12.920 and they certainly did very well as the test subject, 0:18:13.000 --> 0:18:15.919 so to speak, for this new process. Any other first 0:18:15.960 --> 0:18:18.359 that you can think of Jordan's, well, there were some 0:18:18.520 --> 0:18:21.840 other advocates who are making their High Court debut interesting 0:18:21.920 --> 0:18:26.200 enough during this session. And you know, certainly your first 0:18:26.200 --> 0:18:29.399 Supreme Court argument is something that you'll remember, but certainly 0:18:29.440 --> 0:18:32.880 all the more during this pandemic, For example, in the 0:18:32.960 --> 0:18:37.919 mcgurd against Oklahoma case. Uh, the Oklahoma State Solicitor General 0:18:37.960 --> 0:18:41.000 Mith and Monston Connie was making his High Court debut 0:18:41.480 --> 0:18:44.040 in that elector's case that we were talking about, the 0:18:44.160 --> 0:18:46.560 Frodo bag Ins case, let's call it. You had an 0:18:46.600 --> 0:18:49.840 attorney Jason Harrow making his High Court debut in the 0:18:49.840 --> 0:18:52.680 Trump's Tobcoena cases. You had Carry Dunne from the Manhattan 0:18:52.720 --> 0:18:56.040 DA's office making a debut as well. So certainly it 0:18:56.080 --> 0:18:57.800 was first for them, and I'm sure it made it 0:18:58.119 --> 0:19:01.359 all the more interesting having that being one's first Supreme 0:19:01.400 --> 0:19:04.960 Court argumists. So, Jordan's which case did you find the 0:19:05.040 --> 0:19:11.600 most exciting? I choose the arguments over Trump's financial records. Well, certainly, 0:19:12.240 --> 0:19:14.199 you know you can't go wrong with that. These are 0:19:14.280 --> 0:19:17.920 historic cases, it's ones. These are arguments certainly that will 0:19:17.960 --> 0:19:21.000 be remembered for a long time. Going back to looking 0:19:21.000 --> 0:19:23.960 at cases for example, in the Nixon tapes case, this 0:19:24.080 --> 0:19:27.280 is certainly a case in line with that precedent, and 0:19:27.400 --> 0:19:31.359 so certainly just the fact of the historic issue before 0:19:31.400 --> 0:19:35.359 the court is exciting and its own right. Um, I'll 0:19:35.440 --> 0:19:38.600 go ahead and pick on a different case that maybe 0:19:38.680 --> 0:19:42.560 is a little lesser known and perhaps lesser watched out 0:19:42.560 --> 0:19:44.080 of the rest of the ones in this session. And 0:19:44.119 --> 0:19:46.920 that's the one I referenced a little earlier called McGirt 0:19:46.960 --> 0:19:50.320 against Oklahoma, And that's the case that we've talked about 0:19:50.359 --> 0:19:54.960 about whether essentially the eastern half of Oklahoma is technically 0:19:54.960 --> 0:19:58.280 sitting on Indian reservation land. And that's the case that 0:19:58.280 --> 0:20:01.959 has a lot of implications for criminal jurisdiction and civil 0:20:02.000 --> 0:20:06.000 and tax and regulatory implications. And there were four lawyers 0:20:06.080 --> 0:20:09.320 arguing in that case, as I mentioned, Solicitor General Monston 0:20:09.359 --> 0:20:11.919 Honey being one of those lawyers. And that was a 0:20:11.960 --> 0:20:15.960 really exciting argument in one with very interesting implications that 0:20:16.000 --> 0:20:19.040 I'll be very interested to see how the justices sort 0:20:19.040 --> 0:20:21.600 that case out. And what would you say was the 0:20:21.680 --> 0:20:25.960 dullest argument, the dullest argument? Oh wow, you know you can't. 0:20:26.119 --> 0:20:28.199 You can't say that about your children, right, you know 0:20:28.280 --> 0:20:33.560 you have to uh, the dullest argument, Well, probably, you know, 0:20:33.640 --> 0:20:38.760 aside from the the flush in a case involving robocalls, 0:20:38.840 --> 0:20:43.760 that probably was not the most exciting issue. Maybe, you know, 0:20:43.960 --> 0:20:46.320 trying to get more attention to the issue. Maybe that's 0:20:46.320 --> 0:20:48.600 why someone did the flush. I don't know, maybe that's 0:20:48.640 --> 0:20:51.199 the new theory that'll be out there, but that was 0:20:51.280 --> 0:20:54.879 probably on the lesser watch spectrum of all these cases. 0:20:54.920 --> 0:20:57.000 It did seem as though there was a mix of 0:20:57.119 --> 0:21:00.920 kind of high profile cases and lower profiles cases that 0:21:01.040 --> 0:21:04.280 the Court shows. It wasn't immediately clear in terms of 0:21:04.359 --> 0:21:06.560 every case that was put on for this session why 0:21:06.720 --> 0:21:09.600 the Supreme Court put it on for this session. Obviously, 0:21:09.720 --> 0:21:12.879 of something like the Trump's subpoena cases and the so 0:21:13.000 --> 0:21:17.080 called faithless electors cases about the Electoral College, obviously there's 0:21:18.080 --> 0:21:21.760 election implications in both of those cases and they're very important, 0:21:21.800 --> 0:21:24.640 So it's clear why the Court picked something like that. 0:21:24.720 --> 0:21:27.480 But for example, you know, the trademark case that we 0:21:27.520 --> 0:21:30.199 talked about, they kicked off the session. In terms of 0:21:30.200 --> 0:21:33.000 the significance of that case relative to some others that 0:21:33.000 --> 0:21:36.040 were pushed off the next term, it's not immediately clear, 0:21:36.080 --> 0:21:38.600 but it did give a nice kind of mix of 0:21:38.720 --> 0:21:42.000 different types of issues and cases to have throughout the session. 0:21:42.400 --> 0:21:45.680 You know, I would pick the trademark case as the dullest, 0:21:46.480 --> 0:21:49.280 and I think they picked it first because they wanted 0:21:49.359 --> 0:21:52.439 something that was going to be you know, lawyers who 0:21:52.520 --> 0:21:55.520 knew what they were doing, and a topic that was 0:21:55.920 --> 0:21:59.720 pretty dull it is, I think so, but it's also 0:21:59.760 --> 0:22:02.680 one that was I think somewhat accessible. You know, whether 0:22:02.760 --> 0:22:05.879 you can trade more this generic brand and so, you know, 0:22:06.000 --> 0:22:09.240 certainly not. You know, they're they're complicated aspects of every 0:22:09.240 --> 0:22:12.080 Supreme Court case, but for people who are turning into 0:22:12.080 --> 0:22:15.240 the first one, it had some fun hypotheticals in that 0:22:15.320 --> 0:22:18.840 case too, and so it was relatively accessible for a case. Also, 0:22:19.280 --> 0:22:22.320 there were only two lawyers arguing in that case, and 0:22:22.400 --> 0:22:24.480 in the first two days of the session, there was 0:22:24.520 --> 0:22:27.120 only one case on for each session, So it did 0:22:27.160 --> 0:22:30.160 seem like the justices wanted to focus on just maybe 0:22:30.200 --> 0:22:32.720 one case each day to kind of roll out this 0:22:32.800 --> 0:22:35.440 new platform, to see how it went, and not start 0:22:35.480 --> 0:22:38.639 off with these high level four lawyer arguments like we 0:22:38.680 --> 0:22:41.119 saw in the second week of the session. So at 0:22:41.160 --> 0:22:45.040 the beginning of these arguments, Chief Justice John Roberts was 0:22:45.119 --> 0:22:48.320