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

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Speaker 1: Gavin Grimm's name is well known in the fight for

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Speaker 1: transgender rights. His legal battle began when he was just

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Speaker 1: a fifteen year old high school sophomore and a Virginia

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Speaker 1: school board barred him from continuing to use the boys

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Speaker 1: bathroom because he was transgender. Grim told MSNBC how being

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Speaker 1: a transgender teenager in that position made him feel it

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Speaker 1: can already be very difficult to get through life and

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Speaker 1: avoid being bullied and stigmatized and discriminated against. And then

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Speaker 1: to have a school board set this precedent for your

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Speaker 1: school saying the student should not be treated the same

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Speaker 1: way as other students, It's very difficult. It's very frustrating.

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Speaker 1: His legal case against the school board wound its way

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Speaker 1: through the courts, and finally, last August, the Fourth Circuit

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Speaker 1: Court of Appeals said the school board had discriminated against

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Speaker 1: Grim on the basis of sex by prohibiting him from

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Speaker 1: using the bathroom that aligned with his gender identity. This week,

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Speaker 1: the Supreme Court refused to take the school board's appeal,

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Speaker 1: sealing the legal victory for now twenty two year old Grimm.

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Speaker 1: Joining me as Catherine Frankie, a professor at Columbia Law School.

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Speaker 1: How much of a victory is this for transgender students

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Speaker 1: in this country? Well, even though the courts decided not

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Speaker 1: to decide this case, what it is is a huge

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Speaker 1: victory for trans PIDs, but for trans people more generally

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Speaker 1: and for the idea of federal laws prohibiting gender identity

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Speaker 1: based discrimination. Because with the Supreme Court essentially said by

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Speaker 1: refusing to take this case, is that we decided this

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Speaker 1: case already in Bostok last year. The Court ruled there

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Speaker 1: that federal laws prohibiting sex discrimination include protections against gender

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Speaker 1: identity and sexual orientation based discrimination. And that case, the

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Speaker 1: Bostok case resolves the Gavin Grim case as well in

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Speaker 1: Gavin's favor. Didn't Justice Corsett say that the decision didn't

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Speaker 1: apply to bathrooms? He did, He said, we don't have

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Speaker 1: to decide that today. He didn't say didn't apply, but

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Speaker 1: that that issue was not before us. But I think

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Speaker 1: the rule that the Court established in that case applies

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Speaker 1: to the bathroom issue equally as it says to employment

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Speaker 1: and educational opportunity on the basis of sex equality. And

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Speaker 1: so the Court but for two members who dissented from

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Speaker 1: the denial of granting sert in this case agreed that

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Speaker 1: the Bostock case applies to educational equality just as much

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Speaker 1: as employment based equality. Tell us a little bit about

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Speaker 1: Gavin Graham and his seven year legal battle. Well, Gavin,

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Speaker 1: you know, was a high school student who, as he

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Speaker 1: says in his legal papers and he said in the

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Speaker 1: media many times, is a boy like any other boy,

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Speaker 1: and wanted to be able to use the boy's bathroom

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Speaker 1: like all the other boys did. And what the school

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Speaker 1: wanted to do was permit him to use the women's

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Speaker 1: room or to use a gender neutral bathroom that was

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Speaker 1: one that was basically designated only for him. And you know,

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Speaker 1: if we did that to students of color and said, well,

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Speaker 1: you can use the colored bathroom, not the white bathroom,

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Speaker 1: or we'll make a special bathroom just for you, but

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Speaker 1: you can't use the white bathroom, I think we would

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Speaker 1: all understand that to be discrimination. And what the courts

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Speaker 1: now saying is that discrimination. Also when we create either

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Speaker 1: segregated or separate facilities for trans kids, they should be

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Speaker 1: treated like all the other kids with the same gender identity.

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Speaker 1: The Supreme Court had agreed to hear an earlier appeal

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Speaker 1: in the case four years ago, but then dismissed it.

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Speaker 1: Explain what happened there, well, I think what the court

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Speaker 1: wanted to do was have the issue right then, if

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Speaker 1: you will. In the lower courts, there was a lot

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Speaker 1: of litigation around trans kids equality claims when it came

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Speaker 1: to bathrooms and other aspects of their education, and I

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Speaker 1: think the courts saw themselves as perhaps reaching the issue

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Speaker 1: a little too soon a few years ago, so they

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Speaker 1: wanted to issue to percolate a little bit more in

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Speaker 1: the lower court, and with the boss Doc decision last terms,

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Speaker 1: they now recognize that this issue has already been decided

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Speaker 1: and there's nothing more for them to say about it

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Speaker 1: other than what they said in Bostoc. Let's take a

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Speaker 1: step back for a moment. Will you explain the Fourth

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Speaker 1: Circuit's decision and how they came to that decision. They

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Speaker 1: based it on sex discrimination. There's several different ways to

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Speaker 1: think about why gender identity based discrimination is a form

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Speaker 1: of sex discrimination. And Gavin argued all of these different

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Speaker 1: ways of thinking about the issues that it's a kind

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Speaker 1: of sex stereotyping. If we assume that only real women

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Speaker 1: are those were also women identified biologically by a doctor

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Speaker 1: at birth, or only real men are those whose birth

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Speaker 1: certificates also say mail. And what Gavin was arguing is

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Speaker 1: that there are lots of different ways of being male,

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Speaker 1: his gender identity is one of them, and to choose

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Speaker 1: as real males who can use male bathrooms only those

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Speaker 1: who were identified at male at birth as a form

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Speaker 1: of sex discrimination. And the Fourth Circuit embraced that argument

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Speaker 1: as well as the kind of argument that we saw

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Speaker 1: in the box Star case, that any kind of discrimination

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Speaker 1: against a person on the basis of their gender identity

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Speaker 1: is necessarily a form of sex discrimination. Really reading and

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Speaker 1: updating our sex discrimination laws to conform to where we're

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Speaker 1: now thinking about sex based identity. I think this is

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Speaker 1: the third time that the Supreme Court has left in

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Speaker 1: place lower court rulings supporting transgender rights for students. So

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Speaker 1: the issue is now settled on the Fourth Circuit and

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Speaker 1: I believe the Seventh and eleven Circuits as well. But

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Speaker 1: there's no national precedence set by the Court refusing to

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Speaker 1: take the appeal. If the Justice has really wanted to

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Speaker 1: settle the issue, wouldn't they have taken the case and

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Speaker 1: decided it that's right, and so the fact that the

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Speaker 1: Court did not take the case and did not issue

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Speaker 1: even a unsigned opinion does mean that we have different

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Speaker 1: rules coming out of different circuits. But it does also

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Speaker 1: send a pretty strong message that the Court didn't think

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Speaker 1: there was a significant legal claim in the appeal raised

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Speaker 1: in the appeal in this case. But they could have

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Speaker 1: done what they've been doing in the religious liberty cases.

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Speaker 1: Is even in a paragraph or a couple of sentences

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Speaker 1: said this case was already decided in Bostok and that

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Speaker 1: the lower court should apply the Bostok decision, or lower

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Speaker 1: courts generally should, so they could have gone that extra mile,

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Speaker 1: but for whatever reason they chose not to this time.

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Speaker 1: Are there any circuits still considering the transgender bathroom issue

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Speaker 1: or other issues related to transgender students. Well, I think

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Speaker 1: the bathroom issue is pretty resolved at this point. We

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Speaker 1: have the federal government having issue regulations that interpret sexty

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Speaker 1: quality protections under Title nine to transgender claims like Gavin's.

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Speaker 1: But the next wave of cases that we will see

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Speaker 1: may make their way to the Supreme Court deal with

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Speaker 1: the issues of transgender athletes and particularly male the female

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Speaker 1: trans kids who are competing in girls sports. And this

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Speaker 1: issue has been pushed rather aggressively by conservative Christian legal

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Speaker 1: organizations like Alliance Defending Freedom and others, and they are

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Speaker 1: making the claim that allowing trans girls to compete in

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Speaker 1: girls sports amounts to discrimination against fifth gendered girls. And

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Speaker 1: we're seeing a split in the circuits on those cases

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Speaker 1: as they move their way through the federal courts, and

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Speaker 1: that issue may come before the Supreme Court in the

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Speaker 1: next couple of years, so I would keep an eye

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Speaker 1: on that. Let me ask you this, more than half

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Speaker 1: the states have introduced bills that restrict the rights of

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Speaker 1: transgender people. So which way is the trend going here? Well,

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Speaker 1: the states are the sort of training ground, if you will,

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Speaker 1: for bills to be introduced every two years in the

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Speaker 1: new legislative sessions in order to motivate a conservative base.

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Speaker 1: So a few years ago with bathrooms, this year it's

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Speaker 1: about trans students wanting to compete in athletics. Every two years,

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Speaker 1: members of the LGBT community are used as a way

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Speaker 1: to motivate a conservative base to get out the vote,

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Speaker 1: either in the mid term or the national presidential elections.

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Speaker 1: And unfortunately it's those trans students today. But it was

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Speaker 1: also trans kids who wanted to use bathrooms that it

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Speaker 1: conformed to their gender identity, like Gavin a couple of

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Speaker 1: years ago. And I think the Supreme Court, in not

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Speaker 1: taking the Grim case, has sent a message to those

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Speaker 1: legislatures that those bills amount to a form of educational

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Speaker 1: based discrimination on the basis of sex. So, just to clarify,

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Speaker 1: you think that the trend is courts recognizing the rights

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Speaker 1: of transgender people, Absolutely, the trend is towards the courts

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Speaker 1: recognizing trans right and that the fact that we've had

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Speaker 1: conservative members of the Supreme Court doing so and taking

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Speaker 1: the lead, I think send a very important signal that

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Speaker 1: we've reached the tipping point on this issue. That doesn't

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Speaker 1: mean that bills prohibiting trans rights won't continue to get

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Speaker 1: introduced in state legislatures, because, as I've said, it does

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Speaker 1: motivate a conservative base, But those bills will be found

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Speaker 1: to be either unconstitutional or discriminatory under a federal and

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Speaker 1: state laws that prom him its sex discrimination. Where do

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Speaker 1: you see the next area of litigation outside of student rights, Well,

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Speaker 1: I think there's one remaining question that will have to

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Speaker 1: wait to see how the Supreme Court resolves it. That

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Speaker 1: maybe an area where there are limits on trans rights,

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Speaker 1: and that has to do with people who have religious

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Speaker 1: objections to recognizing transgender identity or to using the pronouns

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Speaker 1: that trans people prefer. And there are a few cases

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Speaker 1: moving through the lower courts now where, for instance, teachers

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Speaker 1: have religious objections to using the pronoun that trans kids

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Speaker 1: to ask them to use, and some or courts are saying, well, yeah,

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Speaker 1: there are religious exemptions from compliance with laws that prohibit

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Speaker 1: transgender based discrimination. And we'll have to see how the

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Speaker 1: court balances religious liberty rights against the rights to equality

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Speaker 1: for trans people. The Supreme Court has just chosen religious

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Speaker 1: rights over gay rights in the Philadelphia Foster Care case.

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Speaker 1: So if this issue gets to the Supreme Court, how

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Speaker 1: do you think it would turn out. Well, I am

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Speaker 1: the director of the Law Rights and Religion Projects at

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Speaker 1: Columbia Law School, and we just issued a report on

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Speaker 1: Monday called We the People of Faith, and in that

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Speaker 1: report we noted how the Supreme Court this year has

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Speaker 1: completely reorganized our religious liberty law in such a way

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Speaker 1: that religious liberty rights are supreme over all other rights,

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Speaker 1: whether it's rights to equality, rights to reproductive liberty, and

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Speaker 1: really any other rights, and so I worry with this

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Speaker 1: new doctrine when religious liberty claims are used as a

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Speaker 1: way to not have to respect the equality rights of

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Speaker 1: trans people. The Supreme Court may respect religious liberty over

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Speaker 1: sex equality in those cases, but they haven't had that

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Speaker 1: case yet, so we'll see. Thanks Catherine. That's Katherine Frankie

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Speaker 1: of Columbia Law School. Facebook CEO Mark Zuckerberg was grilled

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Speaker 1: by Democratic Congresswoman Fromila Jaya Paul about the company's acquisition

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Speaker 1: of Instagram during the Big Tech Antitrust hearings last July.

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Speaker 1: Facebook cloned a popular product, approached the company you identified

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Speaker 1: as a competitive threat, and told them that if they

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Speaker 1: didn't let you buy them up, there would be consequences.

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Speaker 1: Were there any other companies that you use the same

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Speaker 1: tactic with while attempting to buy them? Congressman, I want

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Speaker 1: to respectfully disagree with the characterization. I think it was

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Speaker 1: it was clear that this was a space that we

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Speaker 1: were going to compete in one way or another. This week,

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Speaker 1: Facebook scored a victory when a federal judge dismissed antitrust

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Speaker 1: cases filed by the Federal Trade Commission and a coalition

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Speaker 1: of states that sought to unwind the social media giant,

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Speaker 1: forcing it to sell off Instagram and WhatsApp. But Facebook's

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Speaker 1: victory maybe short lived because the judge has given the

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Speaker 1: FTC thirty days to fix its complaint. Joining me is

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Speaker 1: Jennifer Rey, Bloomberg Intelligence Senior litigation analyst. So Jen tell

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Speaker 1: us about the judge's decision. Well, the ruling in the

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Speaker 1: case of the FTCs lawsuit against Facebook was really somewhat

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Speaker 1: narrow because what the judge decided here was that the

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Speaker 1: FTC had failed to reach their very first element that

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Speaker 1: they have to prove to prove a violation of Section

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Speaker 1: two of the Sherman Necks, and that first element is

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Speaker 1: that they have to show that a company has monopoly power. Now,

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Speaker 1: there a couple ways to do that, but one of

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Speaker 1: the ways to do it, which the FTC chose to

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Speaker 1: use is to say they have a certain market share

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Speaker 1: that shows dominance, and usually six six is enough to

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Speaker 1: establish that the company has monopoly power, and that's what

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Speaker 1: they claimed Facebook had in the market for personal social

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Speaker 1: working services. So the problem that the judge had with

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Speaker 1: it was that the market definition was difficult. He accepted

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Speaker 1: the market definition but then said it wasn't really very

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Speaker 1: clear where the contours of that market are. But he

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Speaker 1: also had a big problem with this sixty percent allegation

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Speaker 1: because he said, I don't even fully understand what the

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Speaker 1: relevant market is. And the FTC has said Facebook has

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Speaker 1: sixty percent, But they need to do better than just

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Speaker 1: make an allegation. They have to somehow supply for me

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Speaker 1: how they got to that sixt or how they're measuring

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Speaker 1: that sixty And they didn't do that, So they didn't

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Speaker 1: do enough. What they've given me is too speculative and

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Speaker 1: too conclusory to go forward with this case. So, yes,

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Speaker 1: this is a blow to the FTCs case. But the

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Speaker 1: judge also said, but what I'm doing is dismissing this

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Speaker 1: without prejudice. Well, who else is in the market with Facebook? Well,

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Speaker 1: you know, this is part of the problem. The FTC said, Really,

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Speaker 1: there isn't anybody that once upon a time Instagram was

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Speaker 1: in that market, but then Facebook acquired Instagram. But then,

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Speaker 1: on the other hand, that contradicts the assertion that Facebook

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Speaker 1: has a sixty share because that suggests that somebody else

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Speaker 1: is out there that has a share, And the FTC

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Speaker 1: didn't talk about any other competitors. So the judge had

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Speaker 1: an issue with that as well and wanted more clarity

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Speaker 1: on that, And you're right. When we think about social media,

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Speaker 1: we think about Facebook, and the FTC did argue that

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Speaker 1: entities like linked In don't apply, or very interest driven

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Speaker 1: social networking like a site like straba don't apply because

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Speaker 1: they're different from Facebook, but they didn't really talk about

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Speaker 1: who else is in that market. As an average person

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Speaker 1: looking at it, I would say Facebook has a monopoly

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Speaker 1: on social media because who else is doing that? Right?

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Speaker 1: And you know what soon? I think that's why the

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Speaker 1: next time the FTC files is complaint, it will stick,

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Speaker 1: it will surpass emotion to dismiss, and the case will

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Speaker 1: go forward. And the reason is because it is fairly

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Speaker 1: undisputed that Facebook probably has a monopoly in personal social

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Speaker 1: networking services, and really all the judge wants from them

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Speaker 1: is a little bit more to explain how they get

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Speaker 1: to that six share, and maybe when FTC dives in

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Speaker 1: a little bit more to file a new complaint, maybe

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Speaker 1: they do go up. Maybe they actually flesh this out

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Speaker 1: a little bit more and conclude that there's higher than

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Speaker 1: a sixty shared here. But because it is fairly undisputed

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Speaker 1: and you can't really think of any real true competitors

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Speaker 1: that are like Facebook or other places consumers could go

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Speaker 1: that want an experience like Facebook. I think the next

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Speaker 1: time the FTC files this complaint will manage to survive

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Speaker 1: emotion to dismiss. So they have to file within thirty days.

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Speaker 1: Is that enough time for them to get all this together?

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Speaker 1: You know? I think it should be, because they really

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Speaker 1: don't have to do very much to get over the

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Speaker 1: standards for emotion to dismiss. You know, they just have

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Speaker 1: to say something that suggests that a claim for relief

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Speaker 1: is plausible, So they don't have to do much. They

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Speaker 1: just have to do a little bit more than what

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Speaker 1: they did. You know, I'm assuming that if they think

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Speaker 1: they need more time, they'll ask the court for more time,

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Speaker 1: and I believe the court would give them more time.

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Speaker 1: Facebook share sword after this decision, pushing the company's market

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Speaker 1: value to more than one trillion dollars. But how much

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Speaker 1: of a victory is this if the FTC can refile,

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Speaker 1: You see, I don't see it nearly as as big

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Speaker 1: a victory as some of the headlines are suggesting. And

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Speaker 1: I'll tell you it's not just because they can refile.

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Speaker 1: And I do believe they can fix this complaint sufficiently

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Speaker 1: to get this case going. But also because the judge

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Speaker 1: made the determination in this that he was willing to

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Speaker 1: think of the acquisitions of Instagram and WhatsApp as potentially

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Speaker 1: violating the law, that he's going to let them go

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Speaker 1: forward if they can fix this monopoly power issue, he

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Speaker 1: would let them go forward to challenge those acquisitions. They

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Speaker 1: had also challenged some conduct by Facebook relating to not

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Speaker 1: allowing some interoperability, and that he said they couldn't go

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Speaker 1: forward and challenge. But the bigger part of it, the

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Speaker 1: more important part of it to Facebook, they can go

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Speaker 1: forward and challenge. So the risk isn't gone. And I

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Speaker 1: think it's not quite as big a victory for Facebook

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Speaker 1: as some may think. Now. In the litigation by the

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Speaker 1: Coalition of States, the judge criticized the States for waiting

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Speaker 1: years after the Instagram and What's App deals to challenge

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Speaker 1: the acquisition. But I mean, didn't the FTC do the

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Speaker 1: same thing. Yes, So it's really a weird little procedural

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Speaker 1: law that doesn't apply to the FTC but does apply

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Speaker 1: to the States, And it's called the doctrine of latches,

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Speaker 1: And really what that means is that it's generally unfair

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Speaker 1: to a company to go after them for something that

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Speaker 1: happened many years ago, and that the States knew. It

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Speaker 1: wasn't like it was something they recently learned, but it

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Speaker 1: was very highly publicized at the time that Facebook acquired

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Speaker 1: Instagram and acquired What's Happen that Face, and the States

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Speaker 1: actually alleged that at the time of those acquisitions they

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Speaker 1: were anti competitive um and that they've had many years

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Speaker 1: to go after these deals and they haven't done that,

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Speaker 1: and that the doctor and the latches would then apply

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Speaker 1: UM and it's just been too many years and they

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Speaker 1: can't bring their suit. But that particular law doesn't apply

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Speaker 1: to federal suits, so it doesn't fly to the FEC

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Speaker 1: suit that could also just appeal this. The States can appeal.

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Speaker 1: The FTC won't appeal. They'll refile, but the States can appeal.

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Speaker 1: Can the States refile, No, because the whole case was dismissed,

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Speaker 1: so it's a little complicated. They can refile an entirely

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Speaker 1: new suit, but this suit is dead. Their concurrent suit

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Speaker 1: is dead. They can't refile the complaints. The suit of

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Speaker 1: the FTC versus Facebook is still alive. Cord isn't the

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Speaker 1: only thing that Facebook has to worry about. There is

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Speaker 1: also Congress. Tell us what Congress has been doing, absolutely,

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Speaker 1: and I think it's been a long run. That's the

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Speaker 1: bigger risk because Congress can actually act more quickly, I believe,

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Speaker 1: than the time it will take for all of these

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Speaker 1: lawsuits to play out. Because even if the FTC ultimately wins,

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Speaker 1: Facebook would probably appeal, This could be dragged on for

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Speaker 1: years and years. But there really seems to be pretty

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Speaker 1: strong by partisan interest in some kind of legislation that

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Speaker 1: will ultimately tame or contain all of the four big

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Speaker 1: tech platforms, including Facebook. So you have from the House

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Speaker 1: builds that have been proposed that are very targeted to

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Speaker 1: big tech um and you have built in the Senate

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Speaker 1: some that are targeted to big tech, but others that

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Speaker 1: are just generally targeted to reforming antitrust laws. And most importantly,

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Speaker 1: making these kinds of lawsuits like the FTCs brought against

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Speaker 1: Facebook much easier to win in court for plaintiffs, not

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Speaker 1: just for government plaintiffs, but for private parties that might

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Speaker 1: want to bring a suit, because the hurdle right now

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Speaker 1: is that it is as we see from this current

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Speaker 1: decision against the SEC. It can be really hard to

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Speaker 1: win these monopolization suits. So you know, there are proposals

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Speaker 1: to change the law, and I do think they have traction,

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Speaker 1: and I do think they can They can get somewhere

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Speaker 1: and possibly get enacted UM. The House build you know,

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Speaker 1: really would impose um new structures, new business models on

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Speaker 1: these companies, new ways of doing business. I mean, they're

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Speaker 1: quite intrusive in what they're looking for. I don't believe

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Speaker 1: the most drastic measure ers in those bills can ultimately

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Speaker 1: be enacted in the law. I mean, there will be

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Speaker 1: a long process of amending and changing and revising the

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Speaker 1: current bills has written. There's been a lot of compromise

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Speaker 1: will be needed, I think, just to get them past

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Speaker 1: the House, and then of course they have to go

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Speaker 1: to the Senate, where there might even be a big

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Speaker 1: or hurdle to some of the more drastic measures actually

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Speaker 1: getting enough votes to pass UM. And the Senate process

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Speaker 1: and the House process also have to get reconciled because

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Speaker 1: they have competing bills that are similar but different, and

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Speaker 1: they'll all have to get reconciled. So you know, we're

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Speaker 1: a long way from legislation as well. But I do

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Speaker 1: think that process will play out. I think something will

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Speaker 1: come of it, some new anti trust reforms and anti

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Speaker 1: trust laws that may impact Facebook and other big tech

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Speaker 1: companies UM, and I do think that can probably happen

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Speaker 1: before these lawsuits can play out. And so let's turn

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Speaker 1: to Google for a moment. So it's the Department of

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Speaker 1: Justice that's investigating Google. Where does that stand? Right? So

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Speaker 1: the Department of Justice has an ongoing investigation. Now it's

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Speaker 1: been ongoing for quite a long time, longer than a year,

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Speaker 1: and one lawsuit has already been brought. It's a fairly

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Speaker 1: traditional and standard antitrust lawsuits. And that's through the alleges. Uh,

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Speaker 1: it's still in the beginning stages, but it alleges that

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Speaker 1: Google entered various unlawful exclusionary agreement that blocked out other

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Speaker 1: UM rivals for search. So, in other words, it would

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Speaker 1: pay Apple to be the default search engine on Apple

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Speaker 1: iPhones UM and it makes its own phones, it makes

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Speaker 1: Android zones, and so it would install its own search

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Speaker 1: engine UM and Chrome as the default on those phones,

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Speaker 1: and that it had all sorts of agreements with o

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Speaker 1: e MS that they can't have the Android operating system

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Speaker 1: unless you install Google Search as the default. In that

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Speaker 1: case I think has some legs because exclusionary agreements under

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Speaker 1: the antitrust law have long been certain kinds have long

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Speaker 1: been held to be unlawful. If you block up through

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Speaker 1: those exclusionary agreements, a certain of a market off to

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Speaker 1: your rivals, usually something over So I think that it's

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Speaker 1: not a novel claim like the NTC Facebook cases. It's

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Speaker 1: a fairly traditional claim. I think there's some precedent that

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Speaker 1: will stand behind it that could allow a court to

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Speaker 1: rule in favor of the d o J. But at

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Speaker 1: the end of the day, the remedy which would likely

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Speaker 1: fit that kind of anti competitive conduct would be just

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Speaker 1: to simply eliminate these clauses and these exclusive agreements. I

401
00:22:26,520 --> 00:22:28,600
Speaker 1: don't think it would be as drastic as to break

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Speaker 1: the company up or make a divide out, you know,

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Speaker 1: take out take a search engine away from its Android

404
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Speaker 1: business and separate those out, because that would be overkill

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00:22:37,200 --> 00:22:41,000
Speaker 1: to fix that problem of that anti competitive conduct. But

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Speaker 1: the d o J may also go after a whole

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Speaker 1: different business that Google engages in, and this is called

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Speaker 1: ad tex and it's really the software services that are

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Speaker 1: used to connect up advertisers and publishers digital advertisers and

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Speaker 1: publishers online. So advertisers want to get their ads online,

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Speaker 1: publishers want to get those ads, and they want to

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Speaker 1: target them appropriately, and there's an auction process and it

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Speaker 1: all goes through this chain of software. And once upon

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Speaker 1: a time there were a lot of different rivals competing

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00:23:11,040 --> 00:23:13,520
Speaker 1: within that chain in different pieces of it, and fally,

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00:23:13,600 --> 00:23:17,240
Speaker 1: over time, Google acquired all of these different businesses so

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Speaker 1: that they could really control it, allegedly from start to finish,

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Speaker 1: and that allows them to favor their own products, to

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00:23:25,000 --> 00:23:30,840
Speaker 1: extract fees at every single level um theoretically increasing prices

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Speaker 1: for advertisers, increasing prices for publishers, and then increasing prices

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Speaker 1: for consumers. And the European Commission is looking into this.

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Speaker 1: They've just opened an investigation into this kind of conduct.

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Speaker 1: There is a private action already against Google in this space,

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Speaker 1: and there's also an action by lad by Texas UM

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00:23:49,800 --> 00:23:52,399
Speaker 1: and with several other states aligned with it in the

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Speaker 1: same space. But now it looks like from the reports

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Speaker 1: that the dj may also decide to file a suit

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00:23:58,560 --> 00:24:02,399
Speaker 1: alleging anti competitive monopolistic practices in that ad tech space

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Speaker 1: as well. Let me ask you this Jen what's the

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Speaker 1: point of the state attorneys general filing these suits and

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Speaker 1: the federal government. It seems like there's a lot of overlap,

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Speaker 1: and perhaps it's unnecessary or is there a good reason.

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Speaker 1: You know, there is a lot of overlap, and and

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Speaker 1: really I think the state attorneys general have have had

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Speaker 1: for a very long time the authority on behalf of

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Speaker 1: the consumers in their states to enforce the any trust laws,

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00:24:33,000 --> 00:24:35,680
Speaker 1: and they often have done so. And they may have

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Speaker 1: different interests or a different approacher or strategy than the

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Speaker 1: FCC or d o J. They generally will work with

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Speaker 1: them on the investigation and ultimately often the suits all

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Speaker 1: get consolidated UM. But they want to have their own

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Speaker 1: suit June. Because let's say they have a consolidated suit

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Speaker 1: with the FCC or d o J and there's a

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Speaker 1: settlement drawn um and the states don't agree, as happened

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Speaker 1: in Microsoft, they don't like that littlement uh and and

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Speaker 1: they want to continue to pursue the case or they

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00:25:03,240 --> 00:25:05,840
Speaker 1: want to pursue a different settlement. Well, then it behooves

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00:25:05,840 --> 00:25:08,320
Speaker 1: them to have their own independent case ongoing so that

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Speaker 1: they can either continue to litigate and not accept the settlement.

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Speaker 1: That's been agreed to by the FCC or d o

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Speaker 1: J or try to get their own settlement that they

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Speaker 1: think is better for them. Final question, do you have

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Speaker 1: any reaction to Lena Khan becoming the Chair of the

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Speaker 1: Federal Trade Commission. I do. I was very surprised by that.

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Speaker 1: I did expect her to be appointed as an SEC commissioner.

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Speaker 1: The surprise was that she was appointed chair. I mean,

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Speaker 1: there is no doubt she is, you know, incredibly intelligent

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Speaker 1: and competent and really is one of the pioneers of

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Speaker 1: what they called the you know, the new brandis movement

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00:25:45,840 --> 00:25:48,720
Speaker 1: in anti trust, pushing for changes in reform in the

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00:25:48,760 --> 00:25:53,480
Speaker 1: anti trust law um in our economy, which has been

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Speaker 1: deemed to be the insufficient to deal with today's sort

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Speaker 1: of digital markets. But she is young. Um, she's thirty two,

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Speaker 1: and I don't believe has a lot of management experience

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Speaker 1: under her belt. And the SEC is a large agency

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Speaker 1: and the chair position does entail quite a bit of management,

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Speaker 1: So I was surprised by that. I do think it

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Speaker 1: means we're going to see a pretty aggressive FTC UM

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Speaker 1: and we know that they have an investigation right now

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Speaker 1: on going of Amazon, so I think it likely with

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Speaker 1: Lena Con installed as chair who will drive policy for

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Speaker 1: the Commission, that there's a good chance we'll see this

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Speaker 1: year or maybe even in one queue f twenty two

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Speaker 1: a lawsuit filed against Amazon because because y'all we already

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Speaker 1: know that Lena Con, you know it has been widely

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Speaker 1: critical of Amazon. Thanks for being on the show as always, Jim.

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Speaker 1: That's Bloomberg Intelligence Senior Litigation analyst Jennifer Ree. For more

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00:26:49,200 --> 00:26:51,080
Speaker 1: of Jen's analysis, you can go to b I go

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00:26:51,320 --> 00:26:53,880
Speaker 1: on the Bloomberg terminal. And that's it for the edition

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

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00:26:56,480 --> 00:26:59,359
Speaker 1: the latest legal news on our Bloomberg Law Podcast. You

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00:26:59,400 --> 00:27:03,200
Speaker 1: can find them on Apple Podcasts, Spotify, and at www

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00:27:03,320 --> 00:27:08,040
Speaker 1: dot Bloomberg dot com, slash podcast, slash Law. I'm June Grasso,

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00:27:08,160 --> 00:27:09,639
Speaker 1: and you're listening to Bloomberg