WEBVTT - Transgender Student Wins Civil Rights Battle 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:13.200 --> 0:00:15.760 Gavin Grimm's name is well known in the fight for 0:00:15.840 --> 0:00:20.480 transgender rights. His legal battle began when he was just 0:00:20.560 --> 0:00:24.000 a fifteen year old high school sophomore and a Virginia 0:00:24.079 --> 0:00:26.840 school board barred him from continuing to use the boys 0:00:26.880 --> 0:00:31.880 bathroom because he was transgender. Grim told MSNBC how being 0:00:31.920 --> 0:00:35.800 a transgender teenager in that position made him feel it 0:00:35.800 --> 0:00:38.400 can already be very difficult to get through life and 0:00:38.760 --> 0:00:42.440 avoid being bullied and stigmatized and discriminated against. And then 0:00:42.440 --> 0:00:45.360 to have a school board set this precedent for your 0:00:45.360 --> 0:00:47.919 school saying the student should not be treated the same 0:00:47.920 --> 0:00:51.720 way as other students, It's very difficult. It's very frustrating. 0:00:52.360 --> 0:00:55.120 His legal case against the school board wound its way 0:00:55.120 --> 0:00:58.840 through the courts, and finally, last August, the Fourth Circuit 0:00:58.880 --> 0:01:02.000 Court of Appeals said the school board had discriminated against 0:01:02.040 --> 0:01:05.160 Grim on the basis of sex by prohibiting him from 0:01:05.280 --> 0:01:08.919 using the bathroom that aligned with his gender identity. This week, 0:01:09.080 --> 0:01:12.280 the Supreme Court refused to take the school board's appeal, 0:01:12.720 --> 0:01:16.280 sealing the legal victory for now twenty two year old Grimm. 0:01:16.720 --> 0:01:20.360 Joining me as Catherine Frankie, a professor at Columbia Law School. 0:01:20.959 --> 0:01:25.160 How much of a victory is this for transgender students 0:01:25.319 --> 0:01:28.320 in this country? Well, even though the courts decided not 0:01:28.400 --> 0:01:31.280 to decide this case, what it is is a huge 0:01:31.360 --> 0:01:35.039 victory for trans PIDs, but for trans people more generally 0:01:35.040 --> 0:01:38.880 and for the idea of federal laws prohibiting gender identity 0:01:38.920 --> 0:01:43.000 based discrimination. Because with the Supreme Court essentially said by 0:01:43.000 --> 0:01:45.880 refusing to take this case, is that we decided this 0:01:45.959 --> 0:01:49.559 case already in Bostok last year. The Court ruled there 0:01:49.600 --> 0:01:54.279 that federal laws prohibiting sex discrimination include protections against gender 0:01:54.320 --> 0:01:58.920 identity and sexual orientation based discrimination. And that case, the 0:01:59.000 --> 0:02:02.560 Bostok case resolves the Gavin Grim case as well in 0:02:02.640 --> 0:02:07.920 Gavin's favor. Didn't Justice Corsett say that the decision didn't 0:02:07.920 --> 0:02:11.400 apply to bathrooms? He did, He said, we don't have 0:02:11.520 --> 0:02:14.480 to decide that today. He didn't say didn't apply, but 0:02:14.560 --> 0:02:17.200 that that issue was not before us. But I think 0:02:17.240 --> 0:02:20.480 the rule that the Court established in that case applies 0:02:20.600 --> 0:02:23.760 to the bathroom issue equally as it says to employment 0:02:23.960 --> 0:02:27.600 and educational opportunity on the basis of sex equality. And 0:02:27.680 --> 0:02:30.760 so the Court but for two members who dissented from 0:02:30.840 --> 0:02:34.440 the denial of granting sert in this case agreed that 0:02:34.480 --> 0:02:39.079 the Bostock case applies to educational equality just as much 0:02:39.120 --> 0:02:42.520 as employment based equality. Tell us a little bit about 0:02:42.639 --> 0:02:46.919 Gavin Graham and his seven year legal battle. Well, Gavin, 0:02:47.080 --> 0:02:49.800 you know, was a high school student who, as he 0:02:49.919 --> 0:02:52.400 says in his legal papers and he said in the 0:02:52.440 --> 0:02:55.680 media many times, is a boy like any other boy, 0:02:56.160 --> 0:02:58.679 and wanted to be able to use the boy's bathroom 0:02:58.760 --> 0:03:00.959 like all the other boys did. And what the school 0:03:01.000 --> 0:03:03.760 wanted to do was permit him to use the women's 0:03:03.840 --> 0:03:07.080 room or to use a gender neutral bathroom that was 0:03:07.160 --> 0:03:10.880 one that was basically designated only for him. And you know, 0:03:10.960 --> 0:03:13.800 if we did that to students of color and said, well, 0:03:13.840 --> 0:03:16.520 you can use the colored bathroom, not the white bathroom, 0:03:16.720 --> 0:03:19.880 or we'll make a special bathroom just for you, but 0:03:19.960 --> 0:03:22.200 you can't use the white bathroom, I think we would 0:03:22.240 --> 0:03:25.720 all understand that to be discrimination. And what the courts 0:03:25.800 --> 0:03:29.360 now saying is that discrimination. Also when we create either 0:03:29.400 --> 0:03:33.200 segregated or separate facilities for trans kids, they should be 0:03:33.200 --> 0:03:36.160 treated like all the other kids with the same gender identity. 0:03:36.560 --> 0:03:39.480 The Supreme Court had agreed to hear an earlier appeal 0:03:39.520 --> 0:03:42.360 in the case four years ago, but then dismissed it. 0:03:42.400 --> 0:03:45.000 Explain what happened there, well, I think what the court 0:03:45.040 --> 0:03:47.400 wanted to do was have the issue right then, if 0:03:47.400 --> 0:03:50.040 you will. In the lower courts, there was a lot 0:03:50.120 --> 0:03:54.240 of litigation around trans kids equality claims when it came 0:03:54.360 --> 0:03:57.960 to bathrooms and other aspects of their education, and I 0:03:57.960 --> 0:04:00.840 think the courts saw themselves as perhaps reaching the issue 0:04:00.880 --> 0:04:03.480 a little too soon a few years ago, so they 0:04:03.480 --> 0:04:06.080 wanted to issue to percolate a little bit more in 0:04:06.120 --> 0:04:09.600 the lower court, and with the boss Doc decision last terms, 0:04:09.840 --> 0:04:12.800 they now recognize that this issue has already been decided 0:04:12.840 --> 0:04:15.120 and there's nothing more for them to say about it 0:04:15.280 --> 0:04:17.880 other than what they said in Bostoc. Let's take a 0:04:17.880 --> 0:04:21.000 step back for a moment. Will you explain the Fourth 0:04:21.000 --> 0:04:24.920 Circuit's decision and how they came to that decision. They 0:04:24.960 --> 0:04:27.800 based it on sex discrimination. There's several different ways to 0:04:27.839 --> 0:04:31.560 think about why gender identity based discrimination is a form 0:04:31.920 --> 0:04:35.920 of sex discrimination. And Gavin argued all of these different 0:04:35.960 --> 0:04:38.360 ways of thinking about the issues that it's a kind 0:04:38.400 --> 0:04:43.320 of sex stereotyping. If we assume that only real women 0:04:43.320 --> 0:04:47.600 are those were also women identified biologically by a doctor 0:04:47.640 --> 0:04:51.360 at birth, or only real men are those whose birth 0:04:51.400 --> 0:04:55.560 certificates also say mail. And what Gavin was arguing is 0:04:55.600 --> 0:04:57.480 that there are lots of different ways of being male, 0:04:57.880 --> 0:05:01.200 his gender identity is one of them, and to choose 0:05:01.480 --> 0:05:05.480 as real males who can use male bathrooms only those 0:05:05.520 --> 0:05:08.120 who were identified at male at birth as a form 0:05:08.120 --> 0:05:11.719 of sex discrimination. And the Fourth Circuit embraced that argument 0:05:12.040 --> 0:05:14.039 as well as the kind of argument that we saw 0:05:14.040 --> 0:05:17.040 in the box Star case, that any kind of discrimination 0:05:17.080 --> 0:05:19.560 against a person on the basis of their gender identity 0:05:20.000 --> 0:05:23.960 is necessarily a form of sex discrimination. Really reading and 0:05:24.120 --> 0:05:27.320 updating our sex discrimination laws to conform to where we're 0:05:27.360 --> 0:05:30.280 now thinking about sex based identity. I think this is 0:05:30.320 --> 0:05:32.760 the third time that the Supreme Court has left in 0:05:32.800 --> 0:05:38.359 place lower court rulings supporting transgender rights for students. So 0:05:38.440 --> 0:05:41.120 the issue is now settled on the Fourth Circuit and 0:05:41.160 --> 0:05:44.359 I believe the Seventh and eleven Circuits as well. But 0:05:44.440 --> 0:05:48.320 there's no national precedence set by the Court refusing to 0:05:48.360 --> 0:05:51.440 take the appeal. If the Justice has really wanted to 0:05:51.480 --> 0:05:54.640 settle the issue, wouldn't they have taken the case and 0:05:54.720 --> 0:05:57.640 decided it that's right, and so the fact that the 0:05:57.680 --> 0:06:00.440 Court did not take the case and did not issue 0:06:00.560 --> 0:06:04.400 even a unsigned opinion does mean that we have different 0:06:04.480 --> 0:06:07.320 rules coming out of different circuits. But it does also 0:06:07.400 --> 0:06:10.120 send a pretty strong message that the Court didn't think 0:06:10.120 --> 0:06:13.640 there was a significant legal claim in the appeal raised 0:06:13.640 --> 0:06:16.000 in the appeal in this case. But they could have 0:06:16.040 --> 0:06:18.960 done what they've been doing in the religious liberty cases. 0:06:19.360 --> 0:06:22.640 Is even in a paragraph or a couple of sentences 0:06:22.680 --> 0:06:26.760 said this case was already decided in Bostok and that 0:06:26.839 --> 0:06:30.239 the lower court should apply the Bostok decision, or lower 0:06:30.240 --> 0:06:33.600 courts generally should, so they could have gone that extra mile, 0:06:34.120 --> 0:06:36.720 but for whatever reason they chose not to this time. 0:06:37.160 --> 0:06:41.479 Are there any circuits still considering the transgender bathroom issue 0:06:41.880 --> 0:06:46.120 or other issues related to transgender students. Well, I think 0:06:46.160 --> 0:06:48.760 the bathroom issue is pretty resolved at this point. We 0:06:48.839 --> 0:06:52.320 have the federal government having issue regulations that interpret sexty 0:06:52.360 --> 0:06:57.240 quality protections under Title nine to transgender claims like Gavin's. 0:06:57.560 --> 0:06:59.799 But the next wave of cases that we will see 0:07:00.080 --> 0:07:02.479 may make their way to the Supreme Court deal with 0:07:02.520 --> 0:07:06.640 the issues of transgender athletes and particularly male the female 0:07:06.680 --> 0:07:09.800 trans kids who are competing in girls sports. And this 0:07:09.880 --> 0:07:14.920 issue has been pushed rather aggressively by conservative Christian legal 0:07:15.000 --> 0:07:18.800 organizations like Alliance Defending Freedom and others, and they are 0:07:18.840 --> 0:07:22.880 making the claim that allowing trans girls to compete in 0:07:23.000 --> 0:07:28.080 girls sports amounts to discrimination against fifth gendered girls. And 0:07:28.120 --> 0:07:30.679 we're seeing a split in the circuits on those cases 0:07:30.680 --> 0:07:33.360 as they move their way through the federal courts, and 0:07:33.560 --> 0:07:36.160 that issue may come before the Supreme Court in the 0:07:36.160 --> 0:07:38.080 next couple of years, so I would keep an eye 0:07:38.120 --> 0:07:40.800 on that. Let me ask you this, more than half 0:07:40.840 --> 0:07:44.600 the states have introduced bills that restrict the rights of 0:07:44.800 --> 0:07:49.720 transgender people. So which way is the trend going here? Well, 0:07:49.760 --> 0:07:53.200 the states are the sort of training ground, if you will, 0:07:53.360 --> 0:07:56.520 for bills to be introduced every two years in the 0:07:56.560 --> 0:08:00.360 new legislative sessions in order to motivate a conservative base. 0:08:00.680 --> 0:08:03.960 So a few years ago with bathrooms, this year it's 0:08:04.000 --> 0:08:08.320 about trans students wanting to compete in athletics. Every two years, 0:08:08.400 --> 0:08:12.280 members of the LGBT community are used as a way 0:08:12.280 --> 0:08:15.720 to motivate a conservative base to get out the vote, 0:08:15.760 --> 0:08:19.320 either in the mid term or the national presidential elections. 0:08:19.360 --> 0:08:22.640 And unfortunately it's those trans students today. But it was 0:08:22.720 --> 0:08:25.480 also trans kids who wanted to use bathrooms that it 0:08:25.760 --> 0:08:28.480 conformed to their gender identity, like Gavin a couple of 0:08:28.520 --> 0:08:31.240 years ago. And I think the Supreme Court, in not 0:08:31.360 --> 0:08:34.440 taking the Grim case, has sent a message to those 0:08:34.559 --> 0:08:38.560 legislatures that those bills amount to a form of educational 0:08:38.600 --> 0:08:43.160 based discrimination on the basis of sex. So, just to clarify, 0:08:43.400 --> 0:08:47.480 you think that the trend is courts recognizing the rights 0:08:47.520 --> 0:08:51.600 of transgender people, Absolutely, the trend is towards the courts 0:08:51.640 --> 0:08:54.920 recognizing trans right and that the fact that we've had 0:08:54.960 --> 0:08:58.520 conservative members of the Supreme Court doing so and taking 0:08:58.559 --> 0:09:01.360 the lead, I think send a very important signal that 0:09:01.400 --> 0:09:04.320 we've reached the tipping point on this issue. That doesn't 0:09:04.400 --> 0:09:08.440 mean that bills prohibiting trans rights won't continue to get 0:09:08.480 --> 0:09:11.959 introduced in state legislatures, because, as I've said, it does 0:09:12.120 --> 0:09:16.120 motivate a conservative base, But those bills will be found 0:09:16.160 --> 0:09:20.720 to be either unconstitutional or discriminatory under a federal and 0:09:20.800 --> 0:09:24.000 state laws that prom him its sex discrimination. Where do 0:09:24.040 --> 0:09:29.840 you see the next area of litigation outside of student rights, Well, 0:09:29.880 --> 0:09:33.240 I think there's one remaining question that will have to 0:09:33.320 --> 0:09:35.760 wait to see how the Supreme Court resolves it. That 0:09:35.920 --> 0:09:39.040 maybe an area where there are limits on trans rights, 0:09:39.080 --> 0:09:41.640 and that has to do with people who have religious 0:09:41.640 --> 0:09:47.600 objections to recognizing transgender identity or to using the pronouns 0:09:47.600 --> 0:09:50.920 that trans people prefer. And there are a few cases 0:09:51.080 --> 0:09:54.199 moving through the lower courts now where, for instance, teachers 0:09:54.400 --> 0:09:58.000 have religious objections to using the pronoun that trans kids 0:09:57.960 --> 0:10:01.640 to ask them to use, and some or courts are saying, well, yeah, 0:10:01.720 --> 0:10:07.120 there are religious exemptions from compliance with laws that prohibit 0:10:07.160 --> 0:10:09.960 transgender based discrimination. And we'll have to see how the 0:10:10.000 --> 0:10:14.400 court balances religious liberty rights against the rights to equality 0:10:14.440 --> 0:10:18.679 for trans people. The Supreme Court has just chosen religious 0:10:18.760 --> 0:10:22.880 rights over gay rights in the Philadelphia Foster Care case. 0:10:23.440 --> 0:10:25.880 So if this issue gets to the Supreme Court, how 0:10:25.880 --> 0:10:28.240 do you think it would turn out. Well, I am 0:10:28.280 --> 0:10:30.959 the director of the Law Rights and Religion Projects at 0:10:30.960 --> 0:10:33.240 Columbia Law School, and we just issued a report on 0:10:33.320 --> 0:10:36.040 Monday called We the People of Faith, and in that 0:10:36.120 --> 0:10:39.640 report we noted how the Supreme Court this year has 0:10:39.760 --> 0:10:44.720 completely reorganized our religious liberty law in such a way 0:10:44.920 --> 0:10:48.439 that religious liberty rights are supreme over all other rights, 0:10:48.520 --> 0:10:52.520 whether it's rights to equality, rights to reproductive liberty, and 0:10:52.559 --> 0:10:55.360 really any other rights, and so I worry with this 0:10:55.440 --> 0:10:58.640 new doctrine when religious liberty claims are used as a 0:10:58.679 --> 0:11:01.599 way to not have to respect the equality rights of 0:11:01.640 --> 0:11:05.800 trans people. The Supreme Court may respect religious liberty over 0:11:05.920 --> 0:11:08.520 sex equality in those cases, but they haven't had that 0:11:08.640 --> 0:11:12.800 case yet, so we'll see. Thanks Catherine. That's Katherine Frankie 0:11:12.800 --> 0:11:18.320 of Columbia Law School. Facebook CEO Mark Zuckerberg was grilled 0:11:18.320 --> 0:11:23.080 by Democratic Congresswoman Fromila Jaya Paul about the company's acquisition 0:11:23.120 --> 0:11:27.000 of Instagram during the Big Tech Antitrust hearings last July. 0:11:27.679 --> 0:11:31.640 Facebook cloned a popular product, approached the company you identified 0:11:31.679 --> 0:11:34.199 as a competitive threat, and told them that if they 0:11:34.200 --> 0:11:37.079 didn't let you buy them up, there would be consequences. 0:11:37.679 --> 0:11:40.680 Were there any other companies that you use the same 0:11:40.720 --> 0:11:44.280 tactic with while attempting to buy them? Congressman, I want 0:11:44.280 --> 0:11:47.480 to respectfully disagree with the characterization. I think it was 0:11:47.800 --> 0:11:49.880 it was clear that this was a space that we 0:11:49.880 --> 0:11:53.559 were going to compete in one way or another. This week, 0:11:53.679 --> 0:11:57.440 Facebook scored a victory when a federal judge dismissed antitrust 0:11:57.559 --> 0:12:00.760 cases filed by the Federal Trade Commission and a coalition 0:12:00.800 --> 0:12:04.400 of states that sought to unwind the social media giant, 0:12:04.640 --> 0:12:08.640 forcing it to sell off Instagram and WhatsApp. But Facebook's 0:12:08.679 --> 0:12:11.680 victory maybe short lived because the judge has given the 0:12:11.760 --> 0:12:15.599 FTC thirty days to fix its complaint. Joining me is 0:12:15.679 --> 0:12:20.280 Jennifer Rey, Bloomberg Intelligence Senior litigation analyst. So Jen tell 0:12:20.360 --> 0:12:23.080 us about the judge's decision. Well, the ruling in the 0:12:23.120 --> 0:12:27.560 case of the FTCs lawsuit against Facebook was really somewhat 0:12:27.679 --> 0:12:30.920 narrow because what the judge decided here was that the 0:12:31.040 --> 0:12:34.679 FTC had failed to reach their very first element that 0:12:34.760 --> 0:12:37.400 they have to prove to prove a violation of Section 0:12:37.440 --> 0:12:39.720 two of the Sherman Necks, and that first element is 0:12:39.720 --> 0:12:42.679 that they have to show that a company has monopoly power. Now, 0:12:42.679 --> 0:12:44.400 there a couple ways to do that, but one of 0:12:44.440 --> 0:12:46.800 the ways to do it, which the FTC chose to 0:12:46.960 --> 0:12:49.840 use is to say they have a certain market share 0:12:50.120 --> 0:12:54.040 that shows dominance, and usually six six is enough to 0:12:54.200 --> 0:12:56.560 establish that the company has monopoly power, and that's what 0:12:56.640 --> 0:12:59.800 they claimed Facebook had in the market for personal social 0:13:00.080 --> 0:13:02.920 working services. So the problem that the judge had with 0:13:02.960 --> 0:13:06.760 it was that the market definition was difficult. He accepted 0:13:06.800 --> 0:13:09.160 the market definition but then said it wasn't really very 0:13:09.240 --> 0:13:12.040 clear where the contours of that market are. But he 0:13:12.160 --> 0:13:15.280 also had a big problem with this sixty percent allegation 0:13:15.600 --> 0:13:18.080 because he said, I don't even fully understand what the 0:13:18.120 --> 0:13:21.560 relevant market is. And the FTC has said Facebook has 0:13:21.600 --> 0:13:23.679 sixty percent, But they need to do better than just 0:13:23.720 --> 0:13:26.680 make an allegation. They have to somehow supply for me 0:13:26.760 --> 0:13:29.720 how they got to that sixt or how they're measuring 0:13:29.720 --> 0:13:33.000 that sixty And they didn't do that, So they didn't 0:13:33.040 --> 0:13:35.520 do enough. What they've given me is too speculative and 0:13:35.520 --> 0:13:38.920 too conclusory to go forward with this case. So, yes, 0:13:39.080 --> 0:13:41.720 this is a blow to the FTCs case. But the 0:13:41.840 --> 0:13:44.960 judge also said, but what I'm doing is dismissing this 0:13:45.040 --> 0:13:49.439 without prejudice. Well, who else is in the market with Facebook? Well, 0:13:49.640 --> 0:13:52.520 you know, this is part of the problem. The FTC said, Really, 0:13:52.559 --> 0:13:55.280 there isn't anybody that once upon a time Instagram was 0:13:55.320 --> 0:13:58.199 in that market, but then Facebook acquired Instagram. But then, 0:13:58.240 --> 0:14:01.120 on the other hand, that contradicts the assertion that Facebook 0:14:01.120 --> 0:14:04.719 has a sixty share because that suggests that somebody else 0:14:04.800 --> 0:14:07.760 is out there that has a share, And the FTC 0:14:07.880 --> 0:14:10.319 didn't talk about any other competitors. So the judge had 0:14:10.360 --> 0:14:13.240 an issue with that as well and wanted more clarity 0:14:13.280 --> 0:14:16.240 on that, And you're right. When we think about social media, 0:14:16.440 --> 0:14:19.440 we think about Facebook, and the FTC did argue that 0:14:19.600 --> 0:14:23.280 entities like linked In don't apply, or very interest driven 0:14:23.480 --> 0:14:26.520 social networking like a site like straba don't apply because 0:14:26.560 --> 0:14:29.800 they're different from Facebook, but they didn't really talk about 0:14:30.000 --> 0:14:32.800 who else is in that market. As an average person 0:14:32.880 --> 0:14:37.280 looking at it, I would say Facebook has a monopoly 0:14:38.560 --> 0:14:42.640 on social media because who else is doing that? Right? 0:14:42.720 --> 0:14:44.920 And you know what soon? I think that's why the 0:14:45.040 --> 0:14:47.960 next time the FTC files is complaint, it will stick, 0:14:48.280 --> 0:14:51.000 it will surpass emotion to dismiss, and the case will 0:14:51.000 --> 0:14:53.640 go forward. And the reason is because it is fairly 0:14:53.720 --> 0:14:57.680 undisputed that Facebook probably has a monopoly in personal social 0:14:57.760 --> 0:15:00.960 networking services, and really all the judge wants from them 0:15:01.040 --> 0:15:03.600 is a little bit more to explain how they get 0:15:03.600 --> 0:15:06.960 to that six share, and maybe when FTC dives in 0:15:07.000 --> 0:15:09.080 a little bit more to file a new complaint, maybe 0:15:09.120 --> 0:15:11.800 they do go up. Maybe they actually flesh this out 0:15:11.800 --> 0:15:13.880 a little bit more and conclude that there's higher than 0:15:13.880 --> 0:15:18.040 a sixty shared here. But because it is fairly undisputed 0:15:18.160 --> 0:15:20.640 and you can't really think of any real true competitors 0:15:20.640 --> 0:15:23.360 that are like Facebook or other places consumers could go 0:15:23.440 --> 0:15:26.200 that want an experience like Facebook. I think the next 0:15:26.200 --> 0:15:30.280 time the FTC files this complaint will manage to survive 0:15:30.280 --> 0:15:35.120 emotion to dismiss. So they have to file within thirty days. 0:15:35.440 --> 0:15:37.960 Is that enough time for them to get all this together? 0:15:38.760 --> 0:15:40.600 You know? I think it should be, because they really 0:15:40.640 --> 0:15:42.840 don't have to do very much to get over the 0:15:42.920 --> 0:15:45.360 standards for emotion to dismiss. You know, they just have 0:15:45.480 --> 0:15:48.320 to say something that suggests that a claim for relief 0:15:48.440 --> 0:15:51.240 is plausible, So they don't have to do much. They 0:15:51.320 --> 0:15:52.880 just have to do a little bit more than what 0:15:52.960 --> 0:15:55.400 they did. You know, I'm assuming that if they think 0:15:55.440 --> 0:15:57.680 they need more time, they'll ask the court for more time, 0:15:57.680 --> 0:15:59.640 and I believe the court would give them more time. 0:16:00.000 --> 0:16:03.640 Facebook share sword after this decision, pushing the company's market 0:16:03.720 --> 0:16:06.560 value to more than one trillion dollars. But how much 0:16:06.560 --> 0:16:09.680 of a victory is this if the FTC can refile, 0:16:10.000 --> 0:16:12.440 You see, I don't see it nearly as as big 0:16:12.440 --> 0:16:15.080 a victory as some of the headlines are suggesting. And 0:16:15.080 --> 0:16:17.400 I'll tell you it's not just because they can refile. 0:16:17.640 --> 0:16:20.320 And I do believe they can fix this complaint sufficiently 0:16:20.720 --> 0:16:23.760 to get this case going. But also because the judge 0:16:24.040 --> 0:16:26.680 made the determination in this that he was willing to 0:16:26.720 --> 0:16:31.560 think of the acquisitions of Instagram and WhatsApp as potentially 0:16:31.640 --> 0:16:33.560 violating the law, that he's going to let them go 0:16:33.680 --> 0:16:36.720 forward if they can fix this monopoly power issue, he 0:16:36.760 --> 0:16:39.640 would let them go forward to challenge those acquisitions. They 0:16:39.640 --> 0:16:42.600 had also challenged some conduct by Facebook relating to not 0:16:42.760 --> 0:16:46.280 allowing some interoperability, and that he said they couldn't go 0:16:46.360 --> 0:16:48.640 forward and challenge. But the bigger part of it, the 0:16:48.640 --> 0:16:50.720 more important part of it to Facebook, they can go 0:16:50.840 --> 0:16:53.720 forward and challenge. So the risk isn't gone. And I 0:16:53.760 --> 0:16:56.280 think it's not quite as big a victory for Facebook 0:16:56.320 --> 0:16:59.240 as some may think. Now. In the litigation by the 0:16:59.320 --> 0:17:04.000 Coalition of States, the judge criticized the States for waiting 0:17:04.119 --> 0:17:08.720 years after the Instagram and What's App deals to challenge 0:17:08.720 --> 0:17:11.800 the acquisition. But I mean, didn't the FTC do the 0:17:11.840 --> 0:17:15.640 same thing. Yes, So it's really a weird little procedural 0:17:15.760 --> 0:17:18.720 law that doesn't apply to the FTC but does apply 0:17:18.760 --> 0:17:20.920 to the States, And it's called the doctrine of latches, 0:17:21.359 --> 0:17:25.640 And really what that means is that it's generally unfair 0:17:25.680 --> 0:17:28.760 to a company to go after them for something that 0:17:28.840 --> 0:17:32.879 happened many years ago, and that the States knew. It 0:17:32.920 --> 0:17:35.199 wasn't like it was something they recently learned, but it 0:17:35.280 --> 0:17:38.120 was very highly publicized at the time that Facebook acquired 0:17:38.160 --> 0:17:41.240 Instagram and acquired What's Happen that Face, and the States 0:17:41.240 --> 0:17:43.959 actually alleged that at the time of those acquisitions they 0:17:44.000 --> 0:17:47.480 were anti competitive um and that they've had many years 0:17:47.520 --> 0:17:49.600 to go after these deals and they haven't done that, 0:17:50.040 --> 0:17:52.159 and that the doctor and the latches would then apply 0:17:52.760 --> 0:17:54.800 UM and it's just been too many years and they 0:17:54.800 --> 0:17:58.080 can't bring their suit. But that particular law doesn't apply 0:17:58.200 --> 0:18:00.879 to federal suits, so it doesn't fly to the FEC 0:18:01.080 --> 0:18:04.840 suit that could also just appeal this. The States can appeal. 0:18:05.440 --> 0:18:08.439 The FTC won't appeal. They'll refile, but the States can appeal. 0:18:08.680 --> 0:18:12.960 Can the States refile, No, because the whole case was dismissed, 0:18:13.040 --> 0:18:16.080 so it's a little complicated. They can refile an entirely 0:18:16.160 --> 0:18:19.160 new suit, but this suit is dead. Their concurrent suit 0:18:19.240 --> 0:18:22.040 is dead. They can't refile the complaints. The suit of 0:18:22.080 --> 0:18:26.520 the FTC versus Facebook is still alive. Cord isn't the 0:18:26.560 --> 0:18:29.639 only thing that Facebook has to worry about. There is 0:18:29.680 --> 0:18:33.960 also Congress. Tell us what Congress has been doing, absolutely, 0:18:34.000 --> 0:18:35.920 and I think it's been a long run. That's the 0:18:35.960 --> 0:18:40.040 bigger risk because Congress can actually act more quickly, I believe, 0:18:40.160 --> 0:18:42.760 than the time it will take for all of these 0:18:42.800 --> 0:18:46.280 lawsuits to play out. Because even if the FTC ultimately wins, 0:18:46.280 --> 0:18:48.879 Facebook would probably appeal, This could be dragged on for 0:18:49.000 --> 0:18:51.639 years and years. But there really seems to be pretty 0:18:51.640 --> 0:18:55.800 strong by partisan interest in some kind of legislation that 0:18:55.880 --> 0:18:59.760 will ultimately tame or contain all of the four big 0:18:59.800 --> 0:19:03.280 tech platforms, including Facebook. So you have from the House 0:19:03.359 --> 0:19:05.760 builds that have been proposed that are very targeted to 0:19:05.840 --> 0:19:10.280 big tech um and you have built in the Senate 0:19:10.600 --> 0:19:12.720 some that are targeted to big tech, but others that 0:19:12.720 --> 0:19:17.000 are just generally targeted to reforming antitrust laws. And most importantly, 0:19:17.160 --> 0:19:20.160 making these kinds of lawsuits like the FTCs brought against 0:19:20.200 --> 0:19:23.400 Facebook much easier to win in court for plaintiffs, not 0:19:23.480 --> 0:19:26.199 just for government plaintiffs, but for private parties that might 0:19:26.240 --> 0:19:28.880 want to bring a suit, because the hurdle right now 0:19:28.960 --> 0:19:31.359 is that it is as we see from this current 0:19:31.359 --> 0:19:34.520 decision against the SEC. It can be really hard to 0:19:34.560 --> 0:19:38.040 win these monopolization suits. So you know, there are proposals 0:19:38.040 --> 0:19:40.240 to change the law, and I do think they have traction, 0:19:40.359 --> 0:19:42.760 and I do think they can They can get somewhere 0:19:43.320 --> 0:19:47.800 and possibly get enacted UM. The House build you know, 0:19:47.920 --> 0:19:52.560 really would impose um new structures, new business models on 0:19:52.640 --> 0:19:54.920 these companies, new ways of doing business. I mean, they're 0:19:55.000 --> 0:19:58.720 quite intrusive in what they're looking for. I don't believe 0:19:58.840 --> 0:20:01.879 the most drastic measure ers in those bills can ultimately 0:20:02.119 --> 0:20:04.119 be enacted in the law. I mean, there will be 0:20:04.160 --> 0:20:08.320 a long process of amending and changing and revising the 0:20:08.359 --> 0:20:11.040 current bills has written. There's been a lot of compromise 0:20:11.080 --> 0:20:13.080 will be needed, I think, just to get them past 0:20:13.080 --> 0:20:14.879 the House, and then of course they have to go 0:20:14.960 --> 0:20:16.680 to the Senate, where there might even be a big 0:20:16.720 --> 0:20:19.640 or hurdle to some of the more drastic measures actually 0:20:19.680 --> 0:20:24.080 getting enough votes to pass UM. And the Senate process 0:20:24.119 --> 0:20:26.920 and the House process also have to get reconciled because 0:20:26.920 --> 0:20:30.080 they have competing bills that are similar but different, and 0:20:30.119 --> 0:20:33.120 they'll all have to get reconciled. So you know, we're 0:20:33.160 --> 0:20:36.119 a long way from legislation as well. But I do 0:20:36.200 --> 0:20:39.160 think that process will play out. I think something will 0:20:39.200 --> 0:20:42.160 come of it, some new anti trust reforms and anti 0:20:42.200 --> 0:20:45.280 trust laws that may impact Facebook and other big tech 0:20:45.320 --> 0:20:48.280 companies UM, and I do think that can probably happen 0:20:48.400 --> 0:20:52.680 before these lawsuits can play out. And so let's turn 0:20:52.720 --> 0:20:55.280 to Google for a moment. So it's the Department of 0:20:55.440 --> 0:21:00.840 Justice that's investigating Google. Where does that stand? Right? So 0:21:00.880 --> 0:21:04.280 the Department of Justice has an ongoing investigation. Now it's 0:21:04.280 --> 0:21:06.560 been ongoing for quite a long time, longer than a year, 0:21:06.640 --> 0:21:09.520 and one lawsuit has already been brought. It's a fairly 0:21:09.600 --> 0:21:13.720 traditional and standard antitrust lawsuits. And that's through the alleges. Uh, 0:21:13.800 --> 0:21:16.040 it's still in the beginning stages, but it alleges that 0:21:16.359 --> 0:21:22.200 Google entered various unlawful exclusionary agreement that blocked out other 0:21:22.560 --> 0:21:25.920 UM rivals for search. So, in other words, it would 0:21:25.920 --> 0:21:29.000 pay Apple to be the default search engine on Apple 0:21:29.040 --> 0:21:31.560 iPhones UM and it makes its own phones, it makes 0:21:31.600 --> 0:21:34.159 Android zones, and so it would install its own search 0:21:34.200 --> 0:21:37.439 engine UM and Chrome as the default on those phones, 0:21:37.760 --> 0:21:39.720 and that it had all sorts of agreements with o 0:21:39.840 --> 0:21:43.320 e MS that they can't have the Android operating system 0:21:43.640 --> 0:21:47.600 unless you install Google Search as the default. In that 0:21:47.760 --> 0:21:52.120 case I think has some legs because exclusionary agreements under 0:21:52.119 --> 0:21:55.000 the antitrust law have long been certain kinds have long 0:21:55.040 --> 0:21:57.880 been held to be unlawful. If you block up through 0:21:57.920 --> 0:22:01.480 those exclusionary agreements, a certain of a market off to 0:22:01.480 --> 0:22:05.160 your rivals, usually something over So I think that it's 0:22:05.160 --> 0:22:08.400 not a novel claim like the NTC Facebook cases. It's 0:22:08.400 --> 0:22:11.720 a fairly traditional claim. I think there's some precedent that 0:22:11.760 --> 0:22:14.200 will stand behind it that could allow a court to 0:22:14.400 --> 0:22:16.360 rule in favor of the d o J. But at 0:22:16.359 --> 0:22:19.119 the end of the day, the remedy which would likely 0:22:19.200 --> 0:22:22.280 fit that kind of anti competitive conduct would be just 0:22:22.359 --> 0:22:26.480 to simply eliminate these clauses and these exclusive agreements. I 0:22:26.520 --> 0:22:28.600