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

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Speaker 2: A Texas judge struck down the FTC's ban on non

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Speaker 2: compete agreements before the ban even went into effect, blocking

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Speaker 2: the agency's effort to make labor markets more competitive. Non

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Speaker 2: Compete agreements have become increasingly common, with an estimated twenty

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Speaker 2: percent of workers that's about thirty million Americans subject to them.

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Speaker 2: Last January, President Joe Biden chouted the FTC's overhaul of

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Speaker 2: the rules, saying non competes make it needlessly difficult for

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Speaker 2: average working Americans to get better jobs.

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Speaker 3: That's another thing to say you're working for a subway

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Speaker 3: and you can't walk across the street and go to

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Speaker 3: Jimmy John's and get a twenty cent raise. What tells

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Speaker 3: that all about other than keeping wages down?

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Speaker 2: Judge Ada Brown, a Trump appointee, said the FTC lacked

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Speaker 2: the authority to enact the non compete ban and tossed

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Speaker 2: it out. Joining me is William Kavasik, a professor at

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Speaker 2: GW Law School and the former chair of the FTC.

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Speaker 2: The judge said in her twenty seven page ruling that

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Speaker 2: the FTC's proposed rule was arbitrary and capricious, and would

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Speaker 2: cause irreparable harm. Can you tell us more about her decision?

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Speaker 4: Judge Brown had two grounds for suspending the implementation of

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Speaker 4: the rule vacating it. The first is the one you mentioned,

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Speaker 4: which is that the FDC lacked an adequate basis to

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Speaker 4: support the scope and the complete reach of the rule.

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Speaker 4: That is, the rule applies to a very broad range

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Speaker 4: of employment contracts. There are a couple of carbouts, but

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Speaker 4: the judge concluded that you lacked a sufficient evidentiary basis

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Speaker 4: to implement that rule, and therefore the rule itself is

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Speaker 4: arbitrary and caprecious. The seconds for rejecting the rule is

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Speaker 4: her conclusion that the FDC lacks the legal authority to

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Speaker 4: adopt rules involving competition policy. That is, substantive competition rules

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Speaker 4: are beyond the FDC's remit. This involved a fairly elaborate

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Speaker 4: and technical analysis the FDC's authority going back to nineteen

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Speaker 4: fourteen when Congress established the FDC Act and coming forward,

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Speaker 4: but her review of the original framework and its subsequent

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Speaker 4: evolution to the FTC simply lacks legal authority to adopt

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Speaker 4: and apply such a rule, so that on that basis

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Speaker 4: as well, the rule was suspended.

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Speaker 1: Do you agree with her reasoning.

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Speaker 4: On the second point. I do. It's always difficult to

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Speaker 4: decide when you have a good fit between the substantive

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Speaker 4: rule and the underlying basis. I think what's a matter

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Speaker 4: of concern is that, first, it's an extraordinarily broad rule

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Speaker 4: and unashamably it applies to the laws that forty eight

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Speaker 4: states that currently allow various forms of noncompete. It involves

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Speaker 4: the FTC emphasized hundreds of billions of dollars of wages.

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Speaker 4: There are tremendous economic stakes here. This is very clearly

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Speaker 4: a major extension of the FTC's oversight role in labor

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Speaker 4: related agreements. You would think that for a measure of

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Speaker 4: that art, you would have to have a fairly extensive

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Speaker 4: and careful review of the existing literature pro and con.

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Speaker 4: I would say, in many ways, the FDC took shortcuts

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Speaker 4: on that and tended to brush aside views that it

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Speaker 4: found to be incompatible with its policy preferences. And I

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Speaker 4: think that did create a real vulnerability with respect to

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Speaker 4: the arbitrary and capricious issue you argue about the FDC's

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Speaker 4: authority is ambiguous. There are certainly plausible arguments that the

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Speaker 4: FDC has the authority. My intuition is that given the

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Speaker 4: current direction of Supreme Court jurisprudence involving the grant of

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Speaker 4: authority to administrative agencies and the effort that administrative agencies

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Speaker 4: regulators to interpret their authority in a way to meet

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Speaker 4: new conditions and to stretch in some sense the application

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Speaker 4: of their authority, the current Supreme Court is skeptical about that.

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Speaker 4: The current Supreme Court says, if you want to do

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Speaker 4: bold thing and to apply the law in a broad way,

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Speaker 4: we want you to anchor that in a clear statement

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Speaker 4: of congressional purpose. That Congress to allow you to do

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Speaker 4: bold things has to say so. Clearly, the direction of

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Speaker 4: travel of this doctrine runs against the philosophy the interpretation

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Speaker 4: approach that the FDC is relying on. Here. Goodness knows

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Speaker 4: how the Supreme Court would ultimately evaluate the rule. I

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Speaker 4: haven't talked to them today, so I don't know exactly

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Speaker 4: what they'll do. But my inference from the current direction

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Speaker 4: of their jurisprudence and the attitude that's embedded in that

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Speaker 4: jurisprudence is that this rule would have a very difficult

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Speaker 4: time surviving review as it goes up to the court,

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Speaker 4: and that Judge Brown's ruling here that the Commission just

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Speaker 4: doesn't have authority to issue any rules involving competition is

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Speaker 4: quite likely to be sustained.

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Speaker 2: How about another agency doing this? The National Labor Relations

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Speaker 2: Board's top lawyer is moving ahead with an enforcement strategy

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Speaker 2: to make restrictive covenants illegal. General Counsel Jennifer Brusso says

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Speaker 2: such packs deny workers the ability to quit or change jobs,

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Speaker 2: which in turn interferes with exercising their organizing rights. Do

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Speaker 2: you think a rule by the NLRB would survive.

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Speaker 4: I'm less familiar June with the specific grant of authority

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Speaker 4: that the NLRB would be relying upon. Certainly in the

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Speaker 4: application of its adjudication function, that is, in the prosecution

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Speaker 4: of individual cases, it would be less likely to run

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Speaker 4: into the question whether it has rulemaking authority, which is

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Speaker 4: the issue in the FTC proceedings. The question for the

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Speaker 4: NLRB would be in its law enforcement capacity. Has it

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Speaker 4: appropriately interpreted the mandate the Congress gave it? And would

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Speaker 4: reviewing courts conclude that its interpretation of it's the law

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Speaker 4: enforcement mission encompasses the concerns that the NLARB the Solicitor

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Speaker 4: General has raised about noncompete. So the NLRB might be

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Speaker 4: in a position to challenge these I don't know if

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Speaker 4: they mean to do it by rulemaking. And I would

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Speaker 4: add that the FDC does have authority to challenge individual

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Speaker 4: non compete agreements using its law enforcement mandate. It has

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Speaker 4: a law enforcement mandate to prohibit unfair deceptive acts or

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Speaker 4: practices or unfair methods of competition that involves case by

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Speaker 4: case adjudication to challenge specific arrangements. That authority is not

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Speaker 4: endangered in the challenges that are present in the federal

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Speaker 4: courts now, the FDC can continue to do that. That

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Speaker 4: has the disadvantage that you go step by step and

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Speaker 4: you don't have the capacity necessarily to adopt a broad

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Speaker 4: based prohibition that applies across the country and condemns all

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Speaker 4: of the arrangements. It's a more laborious way to get

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Speaker 4: to the final destination that you wish to achieve. That

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Speaker 4: pass is still open to the FDC. That kind of litigation,

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Speaker 4: I assume is open to the NRB. That case by

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Speaker 4: case litigation approach is available. The district judge decision and

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Speaker 4: the FDC case deals with the effort in a single

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Speaker 4: rule to achieve what otherwise be attained through a collection

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Speaker 4: of cases over time.

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Speaker 1: How big a blow do you think this is to

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Speaker 1: the FTC.

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Speaker 4: I think it's a significant blow. When I look at

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Speaker 4: the whole span of the FTC's program since the Biden

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Speaker 4: administration began in twenty twenty one, I would characterize this

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Speaker 4: as the most significant initiative that they pursued. Most significant

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Speaker 4: measured by its purported economic impact, it's anticipated economic impact,

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Speaker 4: which is self described as being very broad, Most significant

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Speaker 4: in terms of its effort to move the doctrinal framework

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Speaker 4: of intervention outwards to gain acceptance for the idea that

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Speaker 4: the FTC has power to issue these competition rules and

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Speaker 4: include powerful prohibitions in them. And Third, symbolically, it is

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Speaker 4: held out as an example of the Biden FTC is

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Speaker 4: willing to take more risks, to be far more ambitious

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Speaker 4: than its predecessors are, and as such to bring a

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Speaker 4: new attitude toward the application of federal power to control commerce.

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Speaker 4: In all of these respects, I would say, in the

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Speaker 4: entire fleet of FTC initiatives, this is the flagship. And

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Speaker 4: if you are running a Navy. You don't want your

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Speaker 4: flagship to be sunk.

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Speaker 2: In a statement, FTC spokesperson Victoria Graham said, the agency

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Speaker 2: is seriously considering a potential appeal. Do you think they

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Speaker 2: should appeal this because it's going to the Fifth Circuit,

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Speaker 2: which is ultra conservative as a reputation for overturning Biden

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Speaker 2: administration rules, and then likely to the Supreme Court, where

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Speaker 2: As you mentioned, I don't think they'll find a receptive court.

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Speaker 4: I think they should. If I was guiding the strategy,

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Speaker 4: I would do it. One reason is that the FTC

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Speaker 4: has had some surprising success over the past year in

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Speaker 4: front of that very court. It was in the context

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Speaker 4: of a merger challenge to an acquisition by a Lumina

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Speaker 4: of the Grail Company. It was an appeal from an

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Speaker 4: FDC administrative decision. The parties opposing the FDC roise four

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Speaker 4: distinct constitutional and administrative law challenges to the FDC's authority.

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Speaker 4: The court basically brush the side all of the administrative

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Speaker 4: law and constitutional law challenges. It upheld the FDC's decision,

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Speaker 4: and in a sense, it showed that even in a

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Speaker 4: very difficult litigation environment, you can prevail. So it's not

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Speaker 4: a hopeless pursuit. And another reason I bring the case

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Speaker 4: is that I think it would demonstrate the conviction of

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Speaker 4: the agency to take on hard, difficult matters, notwithstanding the

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Speaker 4: possibility of failure in the court. You're ultimately going to

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Speaker 4: have to face a judiciary, perhaps ultimately the Supreme Court,

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Speaker 4: that has raised issues with this form of approach. My

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Speaker 4: suggestion was, have it out now, get the appellate decision,

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Speaker 4: take it up to the Supreme Court, and say we

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Speaker 4: need a basic decision about the frame work work of

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Speaker 4: FDC authority generally and about its application of its absurdive

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Speaker 4: authority in this instance. Let's not wait for another case

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Speaker 4: or another time. Let's bring it to ahead now, and

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Speaker 4: if the result is adverse, we go back to Congress

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Speaker 4: and say, if you want us to be active in

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Speaker 4: this area, give us a clearer mandate to do so.

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Speaker 2: There are non competes at the state level. Four states

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Speaker 2: have banned nearly all non competes, and at least eleven

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Speaker 2: more have thresholds protecting lower income, middle income hourly workers,

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Speaker 2: et cetera. Do you think we'll see more states passing

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Speaker 2: laws banning non competes.

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Speaker 4: I think we'll see an amendment of the legal framework.

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Speaker 4: And this is a respect in which the FDC's initiative,

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Speaker 4: despite the risk that I've been describing in the sense,

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Speaker 4: has achieved real success. It has drawn broad attention within

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Speaker 4: the United States. So the issue of non compete. It's

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Speaker 4: catalyzed reconsideration of the existing legal framework, which, with the

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Speaker 4: exception of a handful of states such as California, does

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Speaker 4: not prohibit these agreements or render them unenforceable. Most states

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Speaker 4: allow them to be evaluated by a reasonableness standard. The

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Speaker 4: FDC's initiative has inspired a new debate about whether or

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Speaker 4: not these kinds of restrictions are appropriate. So I think

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Speaker 4: we're going to see a rethink in many states that

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Speaker 4: allow these arrangements under a reasonableness standard, to rethink that approach,

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Speaker 4: perhaps to create presumptions against them, to apply prohibitions that

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Speaker 4: exist now on certain noncompetes more broadly. So we could

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Speaker 4: see in the state a restoration of bolder enforcement and

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Speaker 4: scrutiny regarding noncompete. And I think you point to a

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Speaker 4: result that the FDC probably had in mind in taking

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Speaker 4: a very bold approach here, which was to change the

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Speaker 4: policy debate to bring about indirect effects, including in the

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Speaker 4: state government.

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Speaker 2: Thanks for your insight, spill. That's Professor William Kovasik of

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Speaker 2: GW Law School coming up next. Why the Supreme Court's

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Speaker 2: workload is backloaded? Juan Grosso and you're listening to Bloomberg.

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Speaker 2: You might remember the end of the Supreme Court's term

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Speaker 2: in June, when in the space of a week, the

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Speaker 2: Republican super majority slashed the power of regulators, curbed the

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Speaker 2: SEC's use of in house judges, tossed a six billion

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Speaker 2: dollar opioid settlement, and allowed cities to evict the homeless

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Speaker 2: from public encampments. And then the justices added a day

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Speaker 2: to issue the blockbuster decision shielding former presidents from criminal

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Speaker 2: prosecution and giving Donald Trump an election year boost. So

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Speaker 2: why do we increasingly see the most controversial decisions handed

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Speaker 2: down the last week of the term. Justice Elena Kagan

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Speaker 2: told the group of judges and lawyers last month that

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Speaker 2: it's not planned that way.

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Speaker 5: You know, I read at the end of every year

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Speaker 5: all these theories about how we've sort of planned it

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Speaker 5: this way, and you know what I would say are

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Speaker 5: a little bit conspiracy theories and the truth of the matter, truly,

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Speaker 5: you know, this is really truly the case is that

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Speaker 5: we announce decisions when they're done.

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Speaker 2: More and more the Court's workload is bunched up toward

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Speaker 2: the end of the term, and the upcoming term appears

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Speaker 2: to be no exception, as the Justices are off to

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Speaker 2: a slow start. Joining me is Bloomberg Law Supreme Court

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Speaker 2: reporter Kimberly Strowbridge Robinson, who's investigated this. Kimberly start by

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Speaker 2: explaining how the Supreme Court's calendar works.

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Speaker 6: Yeah, so the Supreme Court has a pre long break

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Speaker 6: in the middle of the summer, which I think a

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Speaker 6: lot of the justices like it tends to break up

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Speaker 6: the workload, at least in the past, is broken up

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Speaker 6: the workload. But that means that when the Justices come

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Speaker 6: back to start off their terms in October, they really

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Speaker 6: have had to do some work beforehand to sort of

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Speaker 6: have enough cases that have already gone through briefing and

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Speaker 6: that are ready for arguments. So it really means that

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Speaker 6: in January, February, March, the Justices need to be granting

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Speaker 6: cases for their October, November, and December sittings. The problem

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Speaker 6: with that is that's also when the Court is still

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Speaker 6: hearing new cases and trying to get decisions together. So

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Speaker 6: it becomes a really busy time for the justices.

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Speaker 2: Argument sittings start again in the fall, famously on the

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Speaker 2: first Monday in October. How many cases have they lined

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Speaker 2: up so far?

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Speaker 6: Well, this term is starting off like many recent terms,

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Speaker 6: where the justices are really getting a pretty slow start.

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Speaker 6: You know, a full calendar, we think of full argument

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Speaker 6: calendar is about two cases a day where the justice

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Speaker 6: is here cases in the morning at ten and eleven.

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Speaker 6: We haven't really seen that for a few terms, and

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Speaker 6: so instead, you know, the justices are coming in under

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Speaker 6: their full calendar, and that just means that they're going

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Speaker 6: to have to make up those empty argument sittings in

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Speaker 6: the later sittings that they have in January, February, March, April.

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Speaker 6: And you know, again that's creating this backlog where right

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Speaker 6: as other work is sort of ram up, they're having

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Speaker 6: to go back and fill in for the deficits that

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Speaker 6: they had in the.

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Speaker 2: Fall, and they're hearing far fewer cases than they did

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Speaker 2: years ago.

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Speaker 6: Yeah, that's one thing. You know, even Justice Kagan, she

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Speaker 6: talked about when she clerked many decades ago, the court

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Speaker 6: was hearing you know, one hundred to one hundred and

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Speaker 6: fifty cases. Now the justices are hearing about sixty. So

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Speaker 6: it's been a really dramatic decrease, and it's been a

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Speaker 6: really steady one too. So I started covering the court

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Speaker 6: about a dozen years ago and the Court was hearing

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Speaker 6: about seventy five cases, and now it's closer to sixty

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Speaker 6: each year, So it keeps getting smaller and smaller. Nobody

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Speaker 6: really knows why. We know, the justices are aware of this,

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Speaker 6: but nobody has really been able to pin down why

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Speaker 6: it is that the court's hearing so fewer cases.

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Speaker 2: Justice Kagan said that even she doesn't understand why so

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Speaker 2: many CIRT petitions are being filed in the spring.

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Speaker 5: One part of it is a little bit unfathomable to me,

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Speaker 5: which is, for whatever reason, we seem to get a

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Speaker 5: lot of cert petitions that we take at a time

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Speaker 5: of the year where arguments are scheduled in March and April,

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Speaker 5: and those cases are just not realistically going to come

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Speaker 5: down until the end of June, and in fact, even

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Speaker 5: that is very it's a very crunched time period.

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Speaker 6: For some reason, a lot of the really significant petitions

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Speaker 6: seem to be coming into the court sort of in

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Speaker 6: the later months of its term, right when the Court

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Speaker 6: is really trying to get out all of its opinions,

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Speaker 6: usually when the justices are circulating opinions on its most

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Speaker 6: sort of consequential cases, and so it just really seems

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Speaker 6: like all the work is sort of bunching up in

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Speaker 6: the later months of the term, which you know, are

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Speaker 6: in the spring and early summer. And so she didn't

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Speaker 6: really have an explanation for it, but she said, you know,

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Speaker 6: for whatever reason, that just seems to be the case

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Speaker 6: that it makes for a really really busy March in

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Speaker 6: April sitting. And then she said something that I thought

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Speaker 6: was really candid was that, you know, she doesn't think

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Speaker 6: that the justices can really do their best work in

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Speaker 6: those months because there's so much going on. And she

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Speaker 6: sort of told the story of a previous justice talking about,

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Speaker 6: you know, one of his clerks coming to him and saying,

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Speaker 6: I can't make sense of this case. Then he would say, well,

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Speaker 6: when was it decided? Is it an April case? Than

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Speaker 6: if it is, then that would explain why the case

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Speaker 6: didn't really make any sense. So Justice Kagan was talking

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Speaker 6: about that seems to still be the case decades on.

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Speaker 2: Is there anything in the way they're handling cases or

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Speaker 2: a green cases that's changed over the years.

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Speaker 6: I think one thing that you know, advocates that I

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Speaker 6: talk to people who had clerked to the court, people

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Speaker 6: who argue with the court, if they say that it

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Speaker 6: seems like the court is taking bigger cases, meaning you know,

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Speaker 6: these cases that really grapple with big social issues that

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Speaker 6: are really important for the country, and those cases, you know,

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Speaker 6: they're hard cases. They take up a lot of the

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Speaker 6: court's time. They're more likely to be divided cases, which

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Speaker 6: means that there's more likely to be more opinions, more

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Speaker 6: to sense, more concurrences. All that just takes a lot

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Speaker 6: of time.

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Speaker 2: The number of conc hurring opinions has really shot up

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Speaker 2: in recent terms, it.

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Speaker 6: Has, you know, I think one of the best examples

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Speaker 6: of this from last term was the Second Amendment case

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Speaker 6: Brahemi about whether or not the federal government could spar

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Speaker 6: those with a domestic violence restraining order from owning guns.

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Speaker 6: And there we saw not only a majority and a descent,

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Speaker 6: but we saw many I think there were five concurrences,

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Speaker 6: and so you know, in a case that was eight

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Speaker 6: to one, to see seven different opinions was really striking.

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Speaker 6: But I think it's something that people think is going

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Speaker 6: to be happening more and more, as again we have

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Speaker 6: these more consequential cases where the justices be like, you know,

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Speaker 6: they really got to get it right and they got

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Speaker 6: to explain their reasoning.

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Speaker 2: Yeah, that seemed like they were each explaining their approach

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Speaker 2: to originalism or textualism or right despite agreeing. Now, you

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Speaker 2: spoke to someone who said that if the court returned

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Speaker 2: to hearing seventy five cases or more, the justices would probably.

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Speaker 1: Pick up the pace.

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Speaker 6: Yeah. I think the thinking there is that, you know,

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Speaker 6: if the court is taking fewer cases, and if a

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Speaker 6: larger majority of those cases are really high profile, that

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Speaker 6: all that's going to suck up a lot of time.

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Speaker 6: And if the court were to go back to a

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Speaker 6: time where it was sort of resolving circuit splits or

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Speaker 6: cases where it really doesn't matter what the outcome is,

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Speaker 6: it just there really needs to be some sort of

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Speaker 6: rule for lawyers. But they wouldn't spend so much time

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Speaker 6: on these concurring opinions. There wouldn't be so many dissenting opinions,

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Speaker 6: and it wouldn't create the kind of bottlenecks that we

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Speaker 6: sort of are guessing is happening at the court to

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Speaker 6: kind of push everything back. You know, we really saw

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Speaker 6: that this term when the justices, they used to be

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Speaker 6: sort of a hard deadline that they would not go

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Speaker 6: into July, that that was sort of a sacred time

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Speaker 6: for them to go off and take a break or

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Speaker 6: to do some sort of teaching assignments. But for the

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Speaker 6: second time and a few terms, they went into July.

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Speaker 6: And we think it's probably because of this effect of

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Speaker 6: having so few cases and such a high portion of

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Speaker 6: them being really high profile.

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Speaker 2: They have a form on vacation, but they have to

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Speaker 2: work during some of that time as well.

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Speaker 6: Yeah, especially now, you know, this is another thing that

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Speaker 6: Justice Kagan spoke about, as well as Justice Kavanaugh, Justice Thomas.

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Speaker 6: We're also speaking this summer, and they all said that

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Speaker 6: they feel really busy, you know, and they're granting sixty

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Speaker 6: or so cases, which isn't as many as before, but

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Speaker 6: they feel like they're working just as hard. And that's

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Speaker 6: because even in the summertime, when they typically wouldn't have

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Speaker 6: a lot of work to do, they're sort of inundated

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Speaker 6: with What we've come to know is the shadow dog

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Speaker 6: at these emergency requests, so they're definitely not on you know,

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Speaker 6: these vacations like they used to have.

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Speaker 2: Are there any big cases coming up next term?

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Speaker 6: So far, so I don't think we really see the

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Speaker 6: kind of high profile cases that we saw from last term,

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Speaker 6: which was just blockbuster after blockbuster after blockbuster. But there

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Speaker 6: are some big cases. I think the biggest one is

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Speaker 6: probably the United States versus her Many, which deals with

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Speaker 6: a Tennessee law that is a ban on gender affirming

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Speaker 6: care for minors. That's going to be a big one

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Speaker 6: and hasn't been set argument yet. There's also another Second

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Speaker 6: Amendment case that's sort of like the bump stock case

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Speaker 6: from last year, this one dealing with ghost guns.

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Speaker 4: You know.

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Speaker 6: The Biden administration says that if the Justices strike down

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Speaker 6: this rule that it could really undo federal gun regulations

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Speaker 6: because people can just take these kits and sort of

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Speaker 6: circumvent all federal laws. And then there's another, you know,

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Speaker 6: important environmental case. The justices have really been sort of

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Speaker 6: dismantling environmental cases under democratic presidential administration. So a few

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Speaker 6: big ones, but again nothing like we saw a last

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Speaker 6: term or a couple of terms ago with abortion and

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Speaker 6: affirmative action. But there's still a lot of time to go.

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Speaker 1: There might be election cases too, coming.

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Speaker 6: Up, right. I do think, you know that maybe part

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Speaker 6: of the reason that the Court has gotten off to

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Speaker 6: a slow start as well is that they do anticipate

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Speaker 6: that there will be some emergency election cases that will

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Speaker 6: be sort of making their way up to the justices

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Speaker 6: that will require them to really focus on that in

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Speaker 6: a short period of time. And actually we already see

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Speaker 6: that happening at the course. So it would be reasonable,

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Speaker 6: I think, for them to think that some of those

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Speaker 6: cases are going to come, but of course they don't

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Speaker 6: know what those are going to look.

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Speaker 2: Like, and of course there is a long way to go,

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Speaker 2: even before the first Monday in October. Thanks so much, Kimberly.

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Speaker 2: That's Bloomberg Law, Supreme Court reporter Kimberly Strawbridge Robinson and

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Speaker 2: turning out of one of those election cases on the

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Speaker 2: shadow docket that the Court decided on Thursday, an emergency

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Speaker 2: appeal was filed by Republicans in the swing state of Arizona,

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Speaker 2: and a divided court decided to allow Arizona to enforce

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Speaker 2: a state law that requires residents to provide proof of

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Speaker 2: citizenship to register to vote, but that will only be

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Speaker 2: allowed in state elections, not in federal elections. Here's elections

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Speaker 2: law expert Derek Muller, a professor at Notre Dame Law School.

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Speaker 7: So it's really five to four to allow this provision,

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Speaker 7: the sort of two track process to play out. So

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Speaker 7: if you can't prove your citizenship, you can still vote

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Speaker 7: in the congressional elections and the presidential elections. You just

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Speaker 7: can't vote in the state elections. And there was a

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Speaker 7: different majority. That was a six to three majority that

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Speaker 7: says no, Actually, these other provisions are also going to

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Speaker 7: be stayed. We're not going to have a split system

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Speaker 7: for dealing with presidential elections. We're not going to require

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Speaker 7: those who are unable to prove citizenship to come and

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Speaker 7: vote in person. You know, three justices would have allowed

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Speaker 7: all of these provisions to take effect. You know, six

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Speaker 7: of them said that those two couldn't take effect. But

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Speaker 7: you had a majority allowing one track of this take effect.

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Speaker 7: So the court comes without any reasons on this. It's

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Speaker 7: a very truncated briefing schedule. They're just trying to issue

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Speaker 7: an order that provides some guidance for election administration officials.

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Speaker 7: Whether or not they give reasons in the future is

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Speaker 7: a matter for another day.

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Speaker 2: What happened to the so called Percel principle where the

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Speaker 2: Supreme Court said, we don't make changes too close to

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Speaker 2: an election because it's too confusing for people. I mean,

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Speaker 2: this is very close to an election.

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Speaker 7: I mean the problem is like, where do you measure

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Speaker 7: when the change happens. So this lawsuit was first filed

437
00:23:57,520 --> 00:24:00,520
Speaker 7: in twenty twenty two. It was in May that a

438
00:24:00,560 --> 00:24:04,480
Speaker 7: federal court issued us an injunction prohibiting any of these

439
00:24:04,520 --> 00:24:07,040
Speaker 7: provisions from taking effect. Clan it goes on appeal the

440
00:24:07,080 --> 00:24:09,760
Speaker 7: Ninth Circuit. The Ninth Circuit says, no one of these

441
00:24:09,800 --> 00:24:12,000
Speaker 7: provisions can go into effect to the others are going

442
00:24:12,040 --> 00:24:14,160
Speaker 7: to be stayed. But then there's another Court of Appeals

443
00:24:14,200 --> 00:24:16,159
Speaker 7: later that comes on and says they're no, we're going

444
00:24:16,240 --> 00:24:18,960
Speaker 7: to stay all of them. So depending on where you look, right,

445
00:24:19,000 --> 00:24:21,400
Speaker 7: each court decision is always later than the last one.

446
00:24:21,680 --> 00:24:25,040
Speaker 7: It's always coming after the fact. So Purcell is guidance

447
00:24:25,080 --> 00:24:26,960
Speaker 7: to the courts don't change the rules too close to

448
00:24:26,960 --> 00:24:29,520
Speaker 7: the election. But the Supreme Court has to be able

449
00:24:29,520 --> 00:24:31,439
Speaker 7: to weigh in and say no, you court change the

450
00:24:31,520 --> 00:24:34,240
Speaker 7: rules too close to the election, So we're changing the change,

451
00:24:34,240 --> 00:24:36,159
Speaker 7: which brings a little bit of difficulty if you're an

452
00:24:36,200 --> 00:24:38,400
Speaker 7: election administrator, There's no question about it.

453
00:24:38,640 --> 00:24:41,800
Speaker 2: That's Professor Derek Muller of Notre Dame Law School. Coming

454
00:24:41,880 --> 00:24:45,399
Speaker 2: up next, federal charges in the overdose death of actor

455
00:24:45,480 --> 00:24:49,520
Speaker 2: Matthew Perry. I'm June Grosso and this is Bloomberg. Ten

456
00:24:49,640 --> 00:24:53,600
Speaker 2: months after the overdose death of friend stor Matthew Perry,

457
00:24:53,920 --> 00:24:58,399
Speaker 2: federal prosecutors have charged five people, including two doctors, in

458
00:24:58,480 --> 00:25:02,120
Speaker 2: connection with his death. The US Attorney Martina Strata said

459
00:25:02,119 --> 00:25:07,280
Speaker 2: the investigation revealed a broad, underground criminal network distributing large

460
00:25:07,280 --> 00:25:09,800
Speaker 2: amounts of ketamine to Perry and others.

461
00:25:10,080 --> 00:25:14,679
Speaker 8: These defendants took advantage of mister Perry's addiction issues to

462
00:25:14,840 --> 00:25:18,000
Speaker 8: enrich themselves. They knew what they were doing was wrong.

463
00:25:18,600 --> 00:25:22,320
Speaker 8: They knew what they were doing was risking great danger

464
00:25:22,400 --> 00:25:24,600
Speaker 8: to mister Perry, but they did it anyways.

465
00:25:24,760 --> 00:25:28,000
Speaker 2: Three of the defendants have already pleaded guilty, one of

466
00:25:28,000 --> 00:25:31,680
Speaker 2: the doctors Perry's live in assistant and a drug middleman.

467
00:25:32,080 --> 00:25:34,320
Speaker 2: The case will now focus on the two who have

468
00:25:34,440 --> 00:25:39,480
Speaker 2: pleaded not guilty, Josvin sanga An alleged drug trafficker known

469
00:25:39,520 --> 00:25:44,320
Speaker 2: as the Ketamine Queen, and doctor Salvador Placentia. His attorney

470
00:25:44,400 --> 00:25:47,840
Speaker 2: says the doctor gave ketamine to Perry, but insists he

471
00:25:47,880 --> 00:25:48,960
Speaker 2: did not break the law.

472
00:25:49,320 --> 00:25:50,200
Speaker 7: He was a patient.

473
00:25:50,320 --> 00:25:52,320
Speaker 5: He did receive ketamine treatment therapy.

474
00:25:52,960 --> 00:25:56,440
Speaker 2: Joining me is healthcare attorney Harry Nelson of Nelson Hardiman.

475
00:25:56,920 --> 00:25:59,800
Speaker 2: Harry tell us about ketamine and what it's used for.

476
00:26:00,440 --> 00:26:04,199
Speaker 9: It was originally developed as a tranquilizer for veterinarians, for

477
00:26:04,320 --> 00:26:08,399
Speaker 9: large animals like horses, but it's been used increasingly, you know,

478
00:26:08,440 --> 00:26:11,720
Speaker 9: for human beings as a sedative, and in the last

479
00:26:11,800 --> 00:26:15,040
Speaker 9: twenty five years or so, there's been a growing body

480
00:26:15,040 --> 00:26:19,199
Speaker 9: of research that it can be an effective alternative for

481
00:26:19,280 --> 00:26:23,399
Speaker 9: treatment resistant depression, meaning when people are not successful in

482
00:26:23,440 --> 00:26:27,080
Speaker 9: managing clinical depression with the sort of standard more conventional

483
00:26:27,119 --> 00:26:32,160
Speaker 9: treatments like SSRI, sterotonin reuptake inhibitors like prozac most famously,

484
00:26:32,480 --> 00:26:35,120
Speaker 9: and also for post traumatic stress disorders. Those are awful

485
00:26:35,160 --> 00:26:38,480
Speaker 9: label uses, but those are the widespread uses that have

486
00:26:38,640 --> 00:26:42,240
Speaker 9: really led to this massive growth in ketamine the last

487
00:26:42,320 --> 00:26:43,600
Speaker 9: couple of years, and.

488
00:26:43,560 --> 00:26:46,400
Speaker 2: Matthew Perry was being treated with ketamine.

489
00:26:47,080 --> 00:26:51,520
Speaker 9: Matthew Perry was getting ketamine infusion therapy, and then at

490
00:26:51,560 --> 00:26:54,720
Speaker 9: some point one of the doctors who has been arrested

491
00:26:54,760 --> 00:26:58,880
Speaker 9: here basically started allowing him to self administer the ketemine.

492
00:26:58,880 --> 00:27:02,640
Speaker 9: At least that's the allegation, and the self administration, it appears,

493
00:27:02,880 --> 00:27:06,320
Speaker 9: may have come in both the form of infusion at home,

494
00:27:06,480 --> 00:27:09,320
Speaker 9: meaning through like putting in and intervening this line, or

495
00:27:09,359 --> 00:27:11,720
Speaker 9: more commonly, what we've seen and what's grown in popularity

496
00:27:11,760 --> 00:27:14,560
Speaker 9: in the last few years has been ketamine taken by

497
00:27:14,800 --> 00:27:17,399
Speaker 9: a trophy, which is essentially like a lozenge, and so

498
00:27:17,520 --> 00:27:20,880
Speaker 9: people basically just suck on a ketamine lozenge and get

499
00:27:21,000 --> 00:27:23,199
Speaker 9: the same effect metabolized by doing so.

500
00:27:23,840 --> 00:27:27,640
Speaker 2: Is the prosecution out to prove a criminal network here?

501
00:27:28,080 --> 00:27:30,439
Speaker 9: You know, it's not clear from what we've seen so

502
00:27:30,520 --> 00:27:34,400
Speaker 9: far how much this was a coordinated criminal network as

503
00:27:34,400 --> 00:27:39,600
Speaker 9: opposed to various individuals being prosecuted for their own personal

504
00:27:39,720 --> 00:27:42,240
Speaker 9: violations of the laws. In the case of the doctors,

505
00:27:42,600 --> 00:27:45,600
Speaker 9: their writing of prescriptions and their instructions and their sort

506
00:27:45,600 --> 00:27:49,280
Speaker 9: of permissiveness about giving Matthew Perry the drug is leading

507
00:27:49,280 --> 00:27:51,440
Speaker 9: to one set of charges similar to you know, things

508
00:27:51,480 --> 00:27:54,240
Speaker 9: we've seen with doctors and other celebrities where essentially there's

509
00:27:54,240 --> 00:27:56,880
Speaker 9: like a gross negligence because they owe a duty, as

510
00:27:56,920 --> 00:28:00,600
Speaker 9: opposed to some of the hangers on and the who

511
00:28:00,680 --> 00:28:04,280
Speaker 9: are directly violating drug laws by handling controlled substances which

512
00:28:04,359 --> 00:28:07,720
Speaker 9: ketamine is a Schedule three controlled substance without any authorization

513
00:28:07,800 --> 00:28:10,440
Speaker 9: to do so, so they're effectively being charged as drug dealers.

514
00:28:10,760 --> 00:28:14,359
Speaker 2: So the two who have pleaded not guilty are the

515
00:28:14,400 --> 00:28:18,440
Speaker 2: alleged drug trafficker and one of the doctors who allegedly

516
00:28:18,920 --> 00:28:22,119
Speaker 2: taught Perry's live an assistant how to inject the drug

517
00:28:22,359 --> 00:28:24,200
Speaker 2: and injected it himself as well.

518
00:28:24,400 --> 00:28:25,200
Speaker 1: Does it seem like.

519
00:28:25,200 --> 00:28:29,440
Speaker 2: Prosecutors gave the deals to those who appeared less culpable, So.

520
00:28:29,400 --> 00:28:32,040
Speaker 9: It's clear that the government was looking for cooperation from

521
00:28:32,080 --> 00:28:36,760
Speaker 9: some of the people who were considered lower level participants.

522
00:28:36,880 --> 00:28:40,160
Speaker 9: It's always the case that the doctors are viewed as

523
00:28:40,200 --> 00:28:43,640
Speaker 9: the most serious target, I think in part to send

524
00:28:43,640 --> 00:28:46,800
Speaker 9: a message to other doctors, because doctors have a unique

525
00:28:46,800 --> 00:28:50,480
Speaker 9: privilege in terms of their proximity and access and ability

526
00:28:50,560 --> 00:28:53,360
Speaker 9: to put the drugs in the place where they caused

527
00:28:53,400 --> 00:28:56,440
Speaker 9: harm and where this tragedy happens. So I think the

528
00:28:56,480 --> 00:29:00,640
Speaker 9: focus in these cases is consistently to make an example

529
00:29:00,680 --> 00:29:03,560
Speaker 9: of the doctors, because as we see here, we have

530
00:29:03,760 --> 00:29:08,160
Speaker 9: these doctors who just completely go outside the requirements of

531
00:29:08,200 --> 00:29:12,360
Speaker 9: the law, outside the bounds of safe practice, and essentially

532
00:29:12,760 --> 00:29:15,720
Speaker 9: set up the circumstances in which this death occurred. So

533
00:29:15,800 --> 00:29:18,720
Speaker 9: that's always going to be the top level goal of prosecutors.

534
00:29:19,000 --> 00:29:22,920
Speaker 2: And they have text messages, and I think this helps

535
00:29:22,960 --> 00:29:26,680
Speaker 2: also to paint the doctors in a bad light. Because

536
00:29:27,240 --> 00:29:30,840
Speaker 2: the doctor who's pleaded not guilty texted the other doctor

537
00:29:31,080 --> 00:29:33,680
Speaker 2: about how much to charge, and he wrote, I wonder

538
00:29:33,680 --> 00:29:37,480
Speaker 2: how much this moron will pay, Let's find out. So

539
00:29:37,520 --> 00:29:42,760
Speaker 2: they charged him exorbitant amounts, like twelve dollars worth of ketamine.

540
00:29:42,840 --> 00:29:44,640
Speaker 2: They charged him two thousand dollars.

541
00:29:45,200 --> 00:29:47,920
Speaker 9: Look, it doesn't get any worse than that. We hold

542
00:29:48,040 --> 00:29:51,920
Speaker 9: doctors responsible for following the hippocratic oath right to take

543
00:29:51,960 --> 00:29:55,000
Speaker 9: care of patients, to do no harm. And it's a

544
00:29:55,240 --> 00:29:59,960
Speaker 9: tricky subject. Money and healthcare is inherently a fraught topic

545
00:30:00,200 --> 00:30:03,720
Speaker 9: because doctors are entitled to make a living. But when

546
00:30:03,720 --> 00:30:07,800
Speaker 9: you see the kind of naked greed here and the

547
00:30:07,880 --> 00:30:11,720
Speaker 9: dehumanizing language, you know, how much will this more on pay?

548
00:30:12,080 --> 00:30:15,520
Speaker 9: Where a doctor was so contemptuous of the patient he

549
00:30:15,640 --> 00:30:18,360
Speaker 9: was responsible for that he had a duty to. It's

550
00:30:18,400 --> 00:30:21,760
Speaker 9: really like heartbreaking, and I think it shows a level

551
00:30:21,960 --> 00:30:25,920
Speaker 9: of dehumanization and disregard for responsibility that is not likely

552
00:30:25,920 --> 00:30:27,840
Speaker 9: to sit well with a jury or a judge and

553
00:30:27,920 --> 00:30:31,440
Speaker 9: probably spells not just losing a license, but spending some

554
00:30:31,840 --> 00:30:34,200
Speaker 9: significant time and custody for this doctor.

555
00:30:34,680 --> 00:30:38,520
Speaker 2: Is the cause of death a possible defense because the

556
00:30:38,640 --> 00:30:41,800
Speaker 2: La County Medical Examiner's Office said that he died of

557
00:30:41,840 --> 00:30:48,000
Speaker 2: the acute effects of ketamine, but that contributing factors included drowning,

558
00:30:48,200 --> 00:30:49,720
Speaker 2: coronary artery.

559
00:30:49,400 --> 00:30:51,880
Speaker 1: Disease, and the effects of buff and orphan.

560
00:30:52,200 --> 00:30:52,400
Speaker 2: Yeah.

561
00:30:52,400 --> 00:30:54,880
Speaker 9: Buf and orphan is a drug that's become the most

562
00:30:54,920 --> 00:30:58,800
Speaker 9: popular and widespread sort of drug to keep people from

563
00:30:58,840 --> 00:31:02,720
Speaker 9: craving opioids. It's been used widely after prescription opioids and

564
00:31:02,800 --> 00:31:06,440
Speaker 9: other kind of opiod addictions. It basically sort of satisfies

565
00:31:06,480 --> 00:31:09,440
Speaker 9: that craving without getting people high, and it's safe people

566
00:31:09,480 --> 00:31:11,960
Speaker 9: don't die from it. But your question raises a really

567
00:31:12,040 --> 00:31:15,640
Speaker 9: interesting sort of set of possibilities. Matt Perry was known,

568
00:31:15,800 --> 00:31:18,360
Speaker 9: I think widely to be in really poor health as

569
00:31:18,360 --> 00:31:20,320
Speaker 9: a result of his drug use, which is often the case,

570
00:31:20,480 --> 00:31:23,320
Speaker 9: So the question is was that possibly a factor. Maybe

571
00:31:23,360 --> 00:31:25,840
Speaker 9: this isn't what actually killed him. First of all, when

572
00:31:25,880 --> 00:31:28,760
Speaker 9: we talk about the doctors and the responsibility that they played,

573
00:31:29,080 --> 00:31:33,160
Speaker 9: they owed separate duties, so they're falling below standards of practice.

574
00:31:33,240 --> 00:31:36,520
Speaker 9: So extremely is a problem for them irrespective of what happened.

575
00:31:36,680 --> 00:31:39,240
Speaker 9: But for everybody in this case who's charged, you know,

576
00:31:39,320 --> 00:31:41,800
Speaker 9: there's a fundamental principle that you learn when you start

577
00:31:41,880 --> 00:31:45,479
Speaker 9: law school and you take first year fourth which is

578
00:31:45,520 --> 00:31:48,440
Speaker 9: that you kind of take the person who's harmed as

579
00:31:48,480 --> 00:31:50,680
Speaker 9: you finds them. So you know, in law school there's

580
00:31:50,680 --> 00:31:53,880
Speaker 9: a classic case of the eggshell skull, right of a

581
00:31:53,920 --> 00:31:57,240
Speaker 9: person who has a very thin skull and an accident,

582
00:31:57,440 --> 00:31:59,680
Speaker 9: you know, someone hitting them on the head, a hit

583
00:31:59,720 --> 00:32:02,640
Speaker 9: which ordinarily would not have harmed a normal person. It's

584
00:32:02,640 --> 00:32:05,200
Speaker 9: sort of your bad luck that you've chose to hit

585
00:32:05,200 --> 00:32:07,760
Speaker 9: this person, and none of us knows, you know, what

586
00:32:07,840 --> 00:32:10,280
Speaker 9: are the vulnerabilities of the people around us. So for

587
00:32:10,360 --> 00:32:12,200
Speaker 9: all of these people who have been charged, you know,

588
00:32:12,240 --> 00:32:15,080
Speaker 9: a condition that Matthew Perry was in wasn't a risk

589
00:32:15,120 --> 00:32:17,360
Speaker 9: that they were taking, and they didn't have to know

590
00:32:17,440 --> 00:32:20,560
Speaker 9: exactly how bad his physical health was. And it doesn't

591
00:32:20,600 --> 00:32:23,800
Speaker 9: really matter if his death would have been preventable had

592
00:32:23,840 --> 00:32:25,760
Speaker 9: he been in better health. It sort of goes out

593
00:32:25,840 --> 00:32:26,280
Speaker 9: the window.

594
00:32:26,920 --> 00:32:30,720
Speaker 2: The doctor who pled not guilty to the charges. His

595
00:32:30,800 --> 00:32:33,920
Speaker 2: attorney says his clients sold ketamine to Perry, but he

596
00:32:34,000 --> 00:32:36,320
Speaker 2: insists he did not break the law. The attorney said

597
00:32:36,640 --> 00:32:40,640
Speaker 2: he was a patient. He did receive ketamine treatment therapy.

598
00:32:41,360 --> 00:32:44,160
Speaker 9: Right, So this is going to be probably the hardest case.

599
00:32:44,320 --> 00:32:48,600
Speaker 9: This case still involved the doctor who gave the ketamine

600
00:32:48,680 --> 00:32:51,880
Speaker 9: for self administration without monitoring, and part of what happened

601
00:32:51,880 --> 00:32:55,480
Speaker 9: here is something fundamentally unsafe, i e. A person taking

602
00:32:55,600 --> 00:32:58,200
Speaker 9: ketamine and getting into a hot tub where they were

603
00:32:58,360 --> 00:33:04,160
Speaker 9: susceptible of drowning just because ketamine causes disassociation. You're not sharp, right.

604
00:33:04,200 --> 00:33:06,200
Speaker 9: We have all these settings where you take over the

605
00:33:06,200 --> 00:33:08,600
Speaker 9: counter medication and the warning on the label says, don't

606
00:33:08,640 --> 00:33:11,680
Speaker 9: operate machinery, don't get behind the wheel of a car,

607
00:33:12,000 --> 00:33:14,760
Speaker 9: and so too. Here you have to wonder what this

608
00:33:14,880 --> 00:33:18,240
Speaker 9: doctor thought. I can certainly tell you. You know, in

609
00:33:18,360 --> 00:33:22,960
Speaker 9: advising practices they use ketamine. We consistently advise that people

610
00:33:23,000 --> 00:33:25,600
Speaker 9: should be monitored to make sure they're not having a

611
00:33:25,600 --> 00:33:29,840
Speaker 9: negative effect. Ketamine can have dangerous effects, most commonly disassociation

612
00:33:30,320 --> 00:33:33,320
Speaker 9: and panic attacks. And so we don't know exactly what

613
00:33:33,360 --> 00:33:35,440
Speaker 9: happened here yet, and I don't know if we ever will,

614
00:33:35,520 --> 00:33:39,040
Speaker 9: but I think the doctor still bears responsibility for unsafe

615
00:33:39,040 --> 00:33:42,480
Speaker 9: administration of ketamine and not making sure that it was

616
00:33:42,520 --> 00:33:44,800
Speaker 9: being used in the setting where there was oversight by

617
00:33:44,800 --> 00:33:47,479
Speaker 9: a person who was knowledgeable and able to do what

618
00:33:47,560 --> 00:33:49,040
Speaker 9: needed to be done if something went wrong.

619
00:33:49,240 --> 00:33:52,920
Speaker 2: Harry, I'm not clear on why the doctors didn't just

620
00:33:53,120 --> 00:33:57,960
Speaker 2: give him the ketamine infusion shots themselves and where the

621
00:33:58,000 --> 00:33:59,000
Speaker 2: drug dealer came into.

622
00:33:59,040 --> 00:34:02,880
Speaker 9: This sense, just from reading this case and looking at

623
00:34:02,880 --> 00:34:06,920
Speaker 9: the investigation is that Matthew Perry had a persistent and

624
00:34:07,360 --> 00:34:12,080
Speaker 9: significant interest in ketamine that went beyond what most doctors

625
00:34:12,080 --> 00:34:16,399
Speaker 9: who are responsibly prescribing and administering ketamine will do, and

626
00:34:16,480 --> 00:34:18,920
Speaker 9: so there was this constant pressure. And there are a

627
00:34:18,960 --> 00:34:22,720
Speaker 9: lot of questions. Because ketamine has been a relatively new treatment,

628
00:34:22,920 --> 00:34:25,960
Speaker 9: we are frequently getting questions from all kinds of practices

629
00:34:26,000 --> 00:34:29,480
Speaker 9: about how many times ketamine can be administered to the

630
00:34:29,520 --> 00:34:32,680
Speaker 9: same patient, you know, over what period of time. And

631
00:34:32,760 --> 00:34:35,600
Speaker 9: so it's my sense is that there was this constant

632
00:34:35,680 --> 00:34:38,959
Speaker 9: effort to find the drug. That looks more and more

633
00:34:39,160 --> 00:34:42,200
Speaker 9: like the way that people sort of behave around illegal drugs,

634
00:34:42,200 --> 00:34:45,440
Speaker 9: where someone who's addicted is constantly looking for a source

635
00:34:45,480 --> 00:34:48,000
Speaker 9: and a supply and not sort of counting on the

636
00:34:48,000 --> 00:34:51,960
Speaker 9: fact that routine prescribing through physicians and sticking up at

637
00:34:51,960 --> 00:34:55,040
Speaker 9: pharmacies and so on, or administration in doctors' offices is

638
00:34:55,040 --> 00:34:57,080
Speaker 9: going to take care of it. So I just think

639
00:34:57,320 --> 00:35:00,279
Speaker 9: there was clearly a pressure, you know, in the way

640
00:35:00,280 --> 00:35:03,399
Speaker 9: that the ketamine was procured that led to all these

641
00:35:03,400 --> 00:35:06,239
Speaker 9: different sources. This is not what good healthcare looks like.

642
00:35:06,520 --> 00:35:09,719
Speaker 9: This is what drug dealing and misuse of drugs looks like.

643
00:35:09,960 --> 00:35:12,560
Speaker 9: And so I think it's giving us a really troubling

644
00:35:12,600 --> 00:35:14,000
Speaker 9: picture of how this happened.

645
00:35:14,480 --> 00:35:17,920
Speaker 2: I know you had contact with investigators in this case.

646
00:35:18,680 --> 00:35:21,640
Speaker 2: Why do you think the FEDS brought this case instead

647
00:35:21,680 --> 00:35:22,320
Speaker 2: of the state.

648
00:35:22,800 --> 00:35:26,239
Speaker 9: We don't often see federal investigations in celebrity debts, right

649
00:35:26,320 --> 00:35:29,120
Speaker 9: that most of the federal investigations involved sort of broader

650
00:35:29,160 --> 00:35:33,239
Speaker 9: problems of controlled substance distribution on a wider scale, so

651
00:35:33,280 --> 00:35:35,799
Speaker 9: that this case was unusual in that respect. I think

652
00:35:35,880 --> 00:35:39,439
Speaker 9: what was happening here is that the media attention led

653
00:35:39,480 --> 00:35:44,120
Speaker 9: to enormous pressure on the DEA as the agency responsible

654
00:35:44,160 --> 00:35:48,200
Speaker 9: for controlled substances, and we have not seen a significant

655
00:35:48,239 --> 00:35:51,480
Speaker 9: number of DEA cases involving ketamine, and I think there

656
00:35:51,560 --> 00:35:55,000
Speaker 9: was a conscious decision to make an example of the

657
00:35:55,440 --> 00:35:58,759
Speaker 9: loose practices around ketamine in this case that led to

658
00:35:58,800 --> 00:36:02,480
Speaker 9: this unusual decision to go so deep on this investigation.

659
00:36:02,760 --> 00:36:05,960
Speaker 9: It's interesting because one of the other big cases that

660
00:36:06,000 --> 00:36:09,040
Speaker 9: we've been involved in recently, also involving a Federal Department

661
00:36:09,040 --> 00:36:13,759
Speaker 9: of Justice investigation driven by DEA concerns, was related to

662
00:36:14,120 --> 00:36:19,320
Speaker 9: websites during the pandemic loosening standards for ADHD meds like adderall.

663
00:36:19,600 --> 00:36:21,640
Speaker 9: We were kind of wondering, you know, there had been

664
00:36:21,680 --> 00:36:25,239
Speaker 9: a number of ketamine telemedicine sights that took off during

665
00:36:25,280 --> 00:36:28,640
Speaker 9: the pandemic, and a lot of wonder whether the Department

666
00:36:28,680 --> 00:36:30,560
Speaker 9: of Justice was also going to turn its attention to

667
00:36:30,600 --> 00:36:33,080
Speaker 9: ketymine and we did not see that same kind of response.

668
00:36:33,120 --> 00:36:36,840
Speaker 9: And I almost read this case and the federal resources

669
00:36:36,880 --> 00:36:40,520
Speaker 9: here as sort of a makeup in a way of

670
00:36:40,560 --> 00:36:44,319
Speaker 9: trying to devote attention to ketamine out of concern that

671
00:36:44,320 --> 00:36:47,440
Speaker 9: it's being misused and being given out to loosely, so

672
00:36:47,920 --> 00:36:50,279
Speaker 9: I'm not sure that's just my personal theory, but I'm

673
00:36:50,280 --> 00:36:51,320
Speaker 9: sure we'll learn more ahead.

674
00:36:51,640 --> 00:36:54,520
Speaker 2: It sounds like a very plausible theory to me. Thanks

675
00:36:54,520 --> 00:36:59,040
Speaker 2: so much, Harry. That's healthcare attorney Harry Nelson of Nelson Hardiman.

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Speaker 2: And that's it this edition of the Bloomberg Law Podcast.

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Speaker 2: Remember you can always get the latest legal news by

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00:37:04,800 --> 00:37:08,640
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,

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00:37:08,920 --> 00:37:12,240
Speaker 2: and at Bloomberg dot com, slash podcast, Slash Law.

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Speaker 1: I'm June Grosso, and this is Bloomberg