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

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Speaker 1: As your plans to testify.

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Speaker 2: Yeah, I would testify absolutely.

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Speaker 3: It's a scam.

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Speaker 4: It's a scam.

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Speaker 3: That's not a trial. That's not a tran that's a scam.

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Speaker 5: Donald Trump wants vowed to take the witness stand in

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Speaker 5: his hush money criminal trial, but the defense wrapped up

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Speaker 5: its case this week without jurors hearing from the former president.

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Speaker 5: Here's how Trump explained his reason for not testifying on

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Speaker 5: WABC radio on Wednesday.

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Speaker 3: Yeah, because he made rulings that makes it very difficult

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Speaker 3: to testify anything I did, anything I did in the past.

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Speaker 3: They can bring everything up, and you know what, I've

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Speaker 3: had a great pass but anything but the other thing

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Speaker 3: is and the main reason, and I don't even mind that.

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Speaker 3: In fact, I like talking about it, because we had

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Speaker 3: rigged cases.

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Speaker 5: The jury has heard a month of dramatic and sometimes

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Speaker 5: tawdry testimony from a tabloid publisher, a porn star, a

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Speaker 5: long time Trump aide, and his former fixer turned star witness.

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Speaker 5: As the prosecution tried to prove its case, charging Trump

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Speaker 5: with thirty four counts of falsifying business records. The defense

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Speaker 5: put on two witnesses, but their case mainly consisted of

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Speaker 5: cross examining the prosecution's witnesses to poke hold in the

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Speaker 5: case against Trump. Closing arguments our schedule for Tuesday, followed

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Speaker 5: by jury instructions, and then this Manhattan jury will begin

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Speaker 5: deliberating whether Trump falsified his company's records to hide a

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Speaker 5: hush money payment to porn star Stormy Daniels and influence

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Speaker 5: the twenty sixteen election. To get a conviction, the prosecution

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Speaker 5: must convince all twelve jurors beyond a reasonable doubt that

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Speaker 5: Trump falsified or caused the records to be falsified with

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Speaker 5: the intent to commit or conceal another crime. Any verdict

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Speaker 5: must be unanimous, but the defense only has to create

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Speaker 5: doubt in the mind of one juror to get a mistrial.

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Speaker 5: Joining me is criminal defense attorney Jeremy Saland he was

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Speaker 5: formerly a prosecutor in the Manhattan DA's office. Jeremy, let's

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Speaker 5: start with the cross examination of the prosecution's star witness,

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Speaker 5: Michael Cohen. The defense attorney was very aggressive. How effective

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Speaker 5: was he in undermining Cohen's credibility which sort of hangs

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Speaker 5: by a thread.

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Speaker 6: Anyway, I think that there was diminishing returns in the

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Speaker 6: times that Branche kept him on the stand, the lack

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Speaker 6: of what I thought was enough leading questions as opposed

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Speaker 6: to open ending questions from what I read. And I

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Speaker 6: also thought that there were times when he hits some

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Speaker 6: of the same points over and over, and that goes

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Speaker 6: back to the diminishing returns. And it's not just diminishing

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Speaker 6: returns in that you lose the jury they get the point,

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Speaker 6: but you also run the risk of opening certain doors.

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Speaker 6: The end of his cross examination went flat. It could

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Speaker 6: have been better, but at the same time, it exposed

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Speaker 6: Michael Cohen for who he was, which is a conniving, dishonest,

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Speaker 6: selfish person with an agenda to really hurt the former president.

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Speaker 6: Now I will say this though, and this shouldn't be

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Speaker 6: lost on anybody, when we think of John Gotti, I'm

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Speaker 6: not comparing the two of saying Donald Trump is John Gotti.

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Speaker 6: But who was the main cooperator in that case? It

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Speaker 6: was Sammy the Bull. So when we hear up beating

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Speaker 6: up Michael Cohen and we hear about the attacks on

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Speaker 6: Michael Cohen, you know he's not Sammy the Bull. And

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Speaker 6: if Sammy the Bull who was alleged to have committed

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Speaker 6: I believes nineteen some odd murders could cooperate and have credibility,

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Speaker 6: and there could be a finding of guilt against John

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Speaker 6: Gotti for that matter. How many people love the movie

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Speaker 6: Goodfellas that's based on Henry Hill. Henry Hill was a

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Speaker 6: cooperator who had a rap sheet in all sorts of

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Speaker 6: bad things, and people love Henry Hill. Well, at least

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Speaker 6: they loved Rayleiota in the movie. So let's have some

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Speaker 6: perspective here. You don't catch the main bad guy. You

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Speaker 6: don't get the kingpin. You don't get the main drug dealer,

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Speaker 6: you don't get the main mobster. Not saying it again,

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Speaker 6: that's who Donald Trump was. But you don't get him

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Speaker 6: or her unless you get the person who is next

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Speaker 6: in line, a lieutenant, a worker, the dealer, the guy

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Speaker 6: who cuts the drugs, the guy who counts the money.

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Speaker 6: You don't get that unless you have some of those

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Speaker 6: dirty hands. That's how you get the big boss.

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Speaker 5: The defense called two witnesses in their case. The last

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Speaker 5: one was lawyer Bob Costello, who I think they called

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Speaker 5: to damage Cohen's credibility even further, but he ended up

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Speaker 5: acting out on the witness stand, being disrespectful to the judge,

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Speaker 5: rolling his eyes, muttering on the stand, and at one

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Speaker 5: point it was incredible. The judge said to him, are

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Speaker 5: you staring me down right now? And the judge cleared

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Speaker 5: the courtroom.

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Speaker 6: Really disappointing if I'm Donald Trump's team in Donald Trump,

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Speaker 6: because you have a witness who objectively could have shared

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Speaker 6: some really valuable information about Michael Cohen, supposedly telling him

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Speaker 6: that Donald Trump wasn't aware that basically Donald Trump was

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Speaker 6: not in the noah on what was going on, but

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Speaker 6: it was lost in the petulance, sophomoric, amateur behavior from

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Speaker 6: a guy who served in his senior capacity at the

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Speaker 6: US Attorney's Office. This is not his first rodeo. What

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Speaker 6: he was thinking, he shot his own credibility in the foot.

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Speaker 6: You know, don't run your mouth, show respect to the court.

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Speaker 6: You may be a fed and you look down on

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Speaker 6: the state. Maybe that's a little desarrogance. I don't know,

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Speaker 6: but you're in a court of law and follow the

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Speaker 6: court's instructions. And as I tell every witness, every witness,

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Speaker 6: kill him with kindness. Looked the defense or prosecution in

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Speaker 6: the eyes, look the jury in the eyes, be respectful,

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Speaker 6: be the bigger person. That's what he did not do.

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Speaker 6: And I'm really surprised. I'm really surprised.

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Speaker 5: So the biggest news to come out of the trial

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Speaker 5: this week was no news. Actually Trump had vowed to

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Speaker 5: testify in his own defense, then started backing off. I

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Speaker 5: don't know that any defense lawyer would have encouraged him

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Speaker 5: to testify. So was that the right decision?

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Speaker 6: Unequivocally, absolutely, and any criminal defense attorney would say, especially

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Speaker 6: in a case like this where he has a chance

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Speaker 6: to have do I think he can get an acquittal

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Speaker 6: and know but going down on the limb here I

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Speaker 6: may be completely totally wrong. If I could read juries,

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Speaker 6: I would be charging a lot more. I think we

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Speaker 6: all would with it. None of us could read a

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Speaker 6: jury's mind. But every New Yorker knows the term hutz book,

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Speaker 6: and he did not have the hutzpur to get up there.

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Speaker 6: Despite his behavior and his demeanor. He would get eviscerated,

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Speaker 6: he would get hung out to dry. And if he

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Speaker 6: has a chance of beating this case, he would have

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Speaker 6: lost it if he ran his mouth, because he would

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Speaker 6: have opened up door after door. And as bad as

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Speaker 6: Costello was and as good. Frankly, as Michael Cohen was.

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Speaker 6: None of them, even on their worst day, would have

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Speaker 6: done what Donald Trump would have potentially done on that stand.

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Speaker 6: So it was a smart move, an intelligent move, common

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Speaker 6: sense move, not to get up and testify.

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Speaker 5: Looking at the prosecution's case, has the prosecution made out

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Speaker 5: its case?

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Speaker 4: Do you think I thought.

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Speaker 6: The evidence went in pretty well? There is an element

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Speaker 6: of common sense that is so critically important here. You know,

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Speaker 6: if I'm the prosecution, I'm arguing saying, you have Weifelberg's

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Speaker 6: handwriting on these notes. It's not just Michael Cohen. It's

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Speaker 6: not just Stormy Daniels. You have phone law, you have

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Speaker 6: other witnesses. You have Hope Hicks, who puts people in

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Speaker 6: certain places at certain times, who describes Michael Cohen not

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Speaker 6: as a giving, generous person that he's going to go

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Speaker 6: out on a limb here a man who I believe

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Speaker 6: made roughly a half a million dollars a year and

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Speaker 6: took a whole equity line of credit up and was

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Speaker 6: going to bear responsibility and take ownership for those dollars.

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Speaker 6: That seems pretty unlikely. So I think very much that

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Speaker 6: the evidence went well. Will the jury convict that's tough.

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Speaker 6: But all they need is want to remember. All they

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Speaker 6: need is want to hang in the defense.

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Speaker 5: Legally, the case gets complicated because the prosecution, as you know,

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Speaker 5: is out to make these misdemeanors of falsifying business records

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Speaker 5: into a felony, so it has to be done with

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Speaker 5: the intent to commit another crime. How tricky is that?

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Speaker 5: For prosecutors.

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Speaker 6: It's tricky because a couple things. When the jury gets

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Speaker 6: the case, a judge can instruct the jury on what's

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Speaker 6: called a lesser included offense, meaning the judge can tell

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Speaker 6: the jury, you can consider the felonies on the indictment,

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Speaker 6: but even if you don't find the felony, you could

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Speaker 6: find for the miss demeanor of that same falsifying business records.

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Speaker 6: That's what's called the lesser included defense, even though it's

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Speaker 6: not actually charged. Now, the question I would ask is,

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Speaker 6: if I'm the prosecution, do I ask the judge not

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Speaker 6: to submit that? If I'm the defense, do I ask

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Speaker 6: the judge to submit it or not to submit it?

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Speaker 6: Why do I ask that? Because in my view, a

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Speaker 6: conviction on the misdemeanor is a loss, and that's ed

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Speaker 6: on the face of Alvin Bragg. It's really all or nothing.

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Speaker 6: So it's either a conviction on the felony or an acquittal.

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Speaker 6: If I'm the defense, do I want to make the

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Speaker 6: jury make that decision and don't give them the sort

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Speaker 6: of compromise. It's either is or it isn't. So it's

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Speaker 6: an interesting question whether they're going to want the judge

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Speaker 6: to instruct the jury or it's all or nothing. That's

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Speaker 6: number one. The other difficulty is, you know, what is

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Speaker 6: that other crime? Now you don't have to prove that

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Speaker 6: crime beyond or reasonable doubt that you're trying to conceal

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Speaker 6: some election crime. So don't misconstrue that to prove this

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Speaker 6: secondary element to make it the felony, the intent to

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Speaker 6: commit or conceal this other crime, that you have to

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Speaker 6: actually prove beyond a reasonable doubt that other crime. But

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Speaker 6: you know, I see as much strong evidence as you

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Speaker 6: did about actual direct evidence of falsifying business records or

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Speaker 6: the circumstantial evidence, it was more difficult. So I see

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Speaker 6: the misdemeanor as an easy conviction, Frankreet, from what they've done.

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Speaker 6: The selony is going to be a little bit harder.

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Speaker 6: I think they did a good job, but I think

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Speaker 6: it's still going to be hard.

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Speaker 5: The jury instructions are always important. How much depends on

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Speaker 5: how the judge frames the instructions for that second crime.

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Speaker 6: Well, there was some argument back and forth if I

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Speaker 6: recall about whether there was two intents, and that's what

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Speaker 6: the defense was asking for. It the intent to defraud

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Speaker 6: and deceive, and you have to have the intent to

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Speaker 6: commit another crime. There's an expanded definition of intent, for example,

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Speaker 6: and that's in the actual jury instructions, where there's a

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Speaker 6: charge solely for intent as opposed to the intent you

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Speaker 6: will find in the charge for the particular crime, which

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Speaker 6: is the same across the board, which is basically it's

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Speaker 6: your objective and goal, which is an expanded version. So

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Speaker 6: this is a complicated case, but it's not. It's fairly straightforward.

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Speaker 6: And if the jury has problems, they can go back

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Speaker 6: and ask for the judge to reinstruct them. They can

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Speaker 6: go back and ask to hear the Tran script again,

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Speaker 6: and to listen to testimony again. But framing it has

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Speaker 6: to be done on the right way. I have confidence

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Speaker 6: that the court will. I have zero worry about that.

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Speaker 6: But people are people. This is an intelligent jury. These

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Speaker 6: are new Yorkers. They could find reasonable doubt, I'm sure,

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Speaker 6: and they could find proof beyond a reasonable doubt.

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Speaker 5: Has there been any real testimony or evidence on Trump's

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Speaker 5: intent or motivation.

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Speaker 6: The prosecution does not have to prove motive that is

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Speaker 6: not an element of the crime. As much as we

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Speaker 6: want to add that in as prosecutors and defense attorneys

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Speaker 6: may challenge or add their own motives, it's not a requirement. So,

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Speaker 6: for example, if your motive was to protect your family,

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Speaker 6: as the allegations were on the form of President's side,

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Speaker 6: as opposed to prosecution allegations, which was to fix or

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Speaker 6: protect the election, there is no requirement that that motive

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Speaker 6: be proved beyond a reasonable doubt. I will say, however,

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Speaker 6: if I'm the prosecution, I would say, even if you

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Speaker 6: believe that that was his motive that was to protect Millennia,

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Speaker 6: what I would say is they're not mutually exclusive. You

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Speaker 6: can want to protect your family and had the intention

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Speaker 6: of protecting your family, and there's the intent, not the motive.

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Speaker 6: But he also had the intent to protect himself in

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Speaker 6: the election and make sure this didn't get out to

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Speaker 6: protect the election. So it's a mixed band. And in

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Speaker 6: terms of the evidence coming in. This goes back to

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Speaker 6: that common sense. This goes back to why are they

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Speaker 6: paying for it? If you believe Trump had his hands

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Speaker 6: in it? You know, why is he paying for this

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Speaker 6: at this time, right before the election is about to hit,

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Speaker 6: as things were going sideways, and you have Hope Hicks

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Speaker 6: telling you that, you know, this could be really, really

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Speaker 6: detrimental to women voters. I think they did the job

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Speaker 6: they needed to do, even if not directly because you

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Speaker 6: don't hear from the Donald Trump, but circumstantially through all

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Speaker 6: the other evidence and testimony. This is not easy. And

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Speaker 6: you know, as much as all this want to pontificate

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Speaker 6: and say I believe ex or I believe why, I'm

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Speaker 6: not going down on a limb other than to say

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Speaker 6: that I do believe the case went in well. I

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Speaker 6: do believe that the prosecution proved their case. You know,

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Speaker 6: I don't think that Blanche and his team did the

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Speaker 6: job they needed to do. Michael Cohen kept his composure

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Speaker 6: up there. I thought they beat up Stormy Daniel a

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Speaker 6: little too much. I do think that the defense their

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Speaker 6: main way I think they'll take this down or tear

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Speaker 6: this apart is you can't believe Stormy Daniels. She's an extortionist, blackmailer,

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Speaker 6: and you can't believe you know a guy who's a thieving, malicious,

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Speaker 6: vengeful guy in Michael Cohen, who is a known liar,

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Speaker 6: and make it about the two of them, as opposed

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Speaker 6: to making about falsifying business records. And the prosecution has

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Speaker 6: to do the job and bring it solely back to

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Speaker 6: falsifying business records.

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Speaker 5: Next week is going to be very interesting and we

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Speaker 5: may even get a jury verdict before the end of

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Speaker 5: the week. Thanks so much, Jeremy. That's criminal defense attorney

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Speaker 5: Jeremy Salande. I'm June Grosso when you're listening to Bloomberg.

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Speaker 5: By a six to three vote down ideological lines, the

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Speaker 5: Supreme Court's conservatives upheld a Republican drawn congressional map in

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Speaker 5: South Carolina, rejecting a lower courts finding that lawmakers unconstitutionally

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Speaker 5: relied on race when drawing the map. In the majority opinion,

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Speaker 5: Justice Samuel Alito echoed the position he'd taken during the

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Speaker 5: oral arguments, saying the challengers had not shown that race,

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Speaker 5: rather than partis in politics, was the driving factor in

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Speaker 5: drawing the map and flood out rejecting the evidence the

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Speaker 5: three judge panel had found after trial, At.

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Speaker 1: Least as a practical matter, in a case in which

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Speaker 1: there is no direct evidence or virtually no direct evidence,

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Speaker 1: there is no way in which a plaintiff can disentangle

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Speaker 1: race and politics, except by providing an alternative map.

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Speaker 5: Just as Elena Kagan wrote a scathing descent for the

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Speaker 5: three Liberals, saying the majority's decision signals that state legislators

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Speaker 5: can now use race as a proxy to achieve partisan ends.

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Speaker 5: As she told South Carolina's attorney, you.

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Speaker 4: Think, well, the evidence showed that we were just doing politics.

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Speaker 4: The court said, no, the evidence showed that you were

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Speaker 4: doing race as a proxy for politics, and surely there

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Speaker 4: were good reasons to do race as a proxy for politics.

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Speaker 5: Here, with this decision, the court is making it much

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Speaker 5: more difficult for plaintiffs in the future to challenge maps

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Speaker 5: based on racial discrimination. Joining me is election law expert

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Speaker 5: Richard Brefald, a professor at Columbia Law School, rich explain

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Speaker 5: Alito's reasoning. In the majority opinion.

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Speaker 7: The majority concluded that the three judge court below the

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Speaker 7: district Court erred that there was clear error in finding

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Speaker 7: that the redistricting of District one in South Carolina was

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Speaker 7: done on the basis of race rather than on the

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Speaker 7: basis of party. The court recognized that racial jerry mannering

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Speaker 7: and partisan jury mannering often look alike. Said the burden

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Speaker 7: was on the plaintiffs to show that this was race

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Speaker 7: and not party. And then the court then kind of

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Speaker 7: carefully picked apart and quite to tail the findings of

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Speaker 7: the district court and concluded that the district court had

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Speaker 7: made a mistake in concluding based on the evidence that

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Speaker 7: this was racial rather than partisan.

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Speaker 5: I mean, the district had heard evidence right and made

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Speaker 5: these conclusions that the Republican lawmakers established a of seventeen

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Speaker 5: percent black voters for the first district. Alito said the

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Speaker 5: state had strong evidence that the seventeen percent figure was

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Speaker 5: simply a side effect of the legislature's partisan goal. What

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Speaker 5: evidence is he talking about.

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Speaker 7: Well, the thing is normally, when you're viewing a district

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Speaker 7: court's findings a fact, the burden is on the state

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Speaker 7: to show that the district court was completely wrong. And

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Speaker 7: here he seems to have put the burden more on

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Speaker 7: the plaintiffs, not just in the original case where they

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Speaker 7: persuaded the district court, but also in the Supreme Court

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Speaker 7: to show that the district court was right as opposed

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Speaker 7: to being reasonable. I mean, in some ways there's an

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Speaker 7: argument that he in applying with is theoretically a differential

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Speaker 7: standard to the district court. The Senative clearly erroneous. He

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Speaker 7: went much further and in some sense reviewed all the

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Speaker 7: facts himself and concluded that on his reading of the

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Speaker 7: facts and his reading of the expert testimony, the plaintiffs

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Speaker 7: had not made their case.

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Speaker 5: He also said that a party challenging a map's constitutionality

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Speaker 5: must disentangle race and politics if it wishes to prove

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Speaker 5: the legislature was motivated by race as opposed to partisanship,

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Speaker 5: and the challenges provided no direct evidence of a racial gerrymander.

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Speaker 5: Is he looking for a statement by a Republican lawmaker

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Speaker 5: or we're doing this because of race.

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Speaker 7: Mean, it basically said you could either do it by

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Speaker 7: direct evidence like a smoking gun statement, or by strong

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Speaker 7: circumstantial evidence. And hear what the plants were about the

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Speaker 7: show is, if you look at the numbers, there was

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Speaker 7: a huge movement of people in and out of this district.

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Speaker 7: The map makers dramatically move large numbers of people around.

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Speaker 7: In particular, they seem to be moving more black voters

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Speaker 7: out and more white voters in, and that in the end,

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Speaker 7: with all of the movement, that sixteen point eight percent

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Speaker 7: number was a number that the Republicans felt was low

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Speaker 7: enough so the district would continue to chill Republican His

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Speaker 7: view is that was really about partisanship. The plaintiff's view

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Speaker 7: and the district courts view was that no, that show

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Speaker 7: that they were engaged in a racial gerrymander. They moved

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Speaker 7: like one hundred and eighty thousand people around. What their

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Speaker 7: target was to keep the racial fraction the same, and

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Speaker 7: they did it by moving black voters in one direction

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Speaker 7: and white vote in a different direction.

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Speaker 5: Justice Kagan wrote a blistering dissent for the three liberals.

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Speaker 5: She said the majority was stacking the deck against the

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Speaker 5: challengers by presuming legislatures are acting in good faith. Go

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Speaker 5: right ahead, this court says to states today, it will

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Speaker 5: be easy enough to cover your tracks in the end.

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Speaker 5: Just raise a possibility of non race based decision making

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Speaker 5: and it will be dispositive. And she quotes from Alito's opinion,

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Speaker 5: taking him head on.

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Speaker 7: Yeah, I mean Alito begins with the basic premise that

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Speaker 7: whenever a law is challenged, their law has presumptively valid.

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Speaker 7: The burden is on the plaintiffs to show that it's invalid.

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Speaker 7: And that's the kind of judicial review one on one,

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Speaker 7: as you begin with the presumption of validity. But she's

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Speaker 7: saying he's taking it so far that he's using it

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Speaker 7: not at the opening stage of the case, but on

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Speaker 7: the appeal following a determination by the district court, a

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Speaker 7: lengthy trial with lots of testimony, lots of exhibits, lots

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Speaker 7: of depositions, the three judge panel that found the other way,

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Speaker 7: And so she's saying that in effect, he's putting such

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Speaker 7: a heavy thumb on the scale for the legislature that

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Speaker 7: he's making it almost impossible for plaintiffs to prevail in

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Speaker 7: a case, even after they prevail before the district court.

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Speaker 5: Is this decision raising the bar for winning a challenge

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Speaker 5: to a map based on racial gerrymandering.

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Speaker 7: I think it is. I mean, I think basically the

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Speaker 7: burden is now even heavier on the plaintiffs to disentangle

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Speaker 7: race from party and to show it was clearly race

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Speaker 7: and not party, as opposed to the intertwining that we

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Speaker 7: often see. So I do think although technically he's applying

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Speaker 7: the same standards as before, he is now playing them

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Speaker 7: in a much tougher way. He's also added a kind

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Speaker 7: of requirement that court had rejected as a requirement before,

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Speaker 7: which is that the plaintiffs produce an alternative map which

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Speaker 7: produces the same partisan results but with a different racial makeup,

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Speaker 7: to show that it really was race and not party

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Speaker 7: that was driving this. The Court in the past that

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Speaker 7: said having a map is helpful, but now he has

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Speaker 7: come very close to making it a requirement.

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Speaker 5: It is difficult to separate race from politics. But does

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Speaker 5: this give, as Elena Kagan said, state lawmakers an incentive

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Speaker 5: to use race as a proxy to achieve part as

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Speaker 5: it ends.

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Speaker 7: Yes, I think until now the Court has said that

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Speaker 7: although we won't hear parties in jerry mandering cases, we

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Speaker 7: will hear claims of racial gerrymandering. So it was one

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Speaker 7: way in which plaintiffs couldn't directly attack the partners in jerrymander,

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Speaker 7: but they could try and do that, or they could

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Speaker 7: show that it was also a racial gerrymander. Now the

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Speaker 7: Court has pretty much made that impossible, or made it

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Speaker 7: an even much much harder to be able to make

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Speaker 7: a racial gerrymanderin claim outside the context of party. I

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Speaker 7: suppose you could have a racial jerrymanderin claim in a

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Speaker 7: one party state, But in a situation where race and

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Speaker 7: party are so intertwined, it's going to be much harder

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Speaker 7: to make any kind of racial gerrymanderin claim.

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Speaker 5: So for anyone who thought that the Conservatives had changed

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Speaker 5: when the Court ruled that Alabama Republicans violated the Voting

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Speaker 5: Rights Act, is this proof that, no, it hasn't changed.

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Speaker 7: I think it shows the ongoing difficulty of dealing with

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Speaker 7: these districting disputes when race and party are so intertwined.

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Speaker 7: And yes, that case, the Alabama case was a case

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Speaker 7: where the court did different to the findings of the

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Speaker 7: lower court, and they're the point is didn't vide alternative

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Speaker 7: maps to show that the district could be done in

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Speaker 7: a different way. But I think in some ways that

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Speaker 7: it really does show the court's kind of impatience with

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Speaker 7: the effort to possibly outslank the court's unwillingness to hear

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Speaker 7: partisan jury mannering claims by hearing racial jury mannering claims

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Speaker 7: where if the plaintiffs win, the victory would be similar

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Speaker 7: to the victory to partisan jurry mentoring case. I think

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Speaker 7: they've just made that much harder. It's not impossible.

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Speaker 5: We've been talking about the constitutional challenge to South Carolina's

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Speaker 5: map based on the Equal Protection Clause, but didn't the

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Speaker 5: challengers also bring a claim based on the Voting Rights Act.

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Speaker 7: They'd bring a voting rightsack boat dilution claim, which they

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Speaker 7: won on, but the court said the lower court erred

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Speaker 7: on that as well, because the lower courts have applied

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Speaker 7: the same standard, and it's a different standard both dilution cases.

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Speaker 7: So if they were reversed and remanded, so if there's

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Speaker 7: going to be a trial on that, it would be

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Speaker 7: there different claim. I think they are somewhat different theories.

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Speaker 7: The theory of legal protection claim is that the state's

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Speaker 7: motivation was predominantly racial. Doesn't have to show that there

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Speaker 7: was an underrepresentation of black voters, but just that the

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Speaker 7: state was purposely drawing lines based on race. And whereas

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Speaker 7: both dilution you don't even have to show that race

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Speaker 7: was intentional. What you do have to show is that

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Speaker 7: as a result of the line drawing, black voters or

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Speaker 7: voters of color were underrepresented that it was more difficult

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Speaker 7: for them to win elections than otherwise.

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Speaker 5: Would you say that for the last decade or so,

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Speaker 5: the Roberts Court's decisions have made it harder for black

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Speaker 5: voters to challenge redistricting plans.

435
00:21:59,119 --> 00:22:01,920
Speaker 7: Well, the Roberts Court obviously famously got rid of Section

436
00:22:02,040 --> 00:22:05,560
Speaker 7: five of the Voting Rights Act, which required dates in

437
00:22:05,680 --> 00:22:08,679
Speaker 7: covered jurisdictions to get Justice carp and approval first, so

438
00:22:08,760 --> 00:22:11,480
Speaker 7: therefore actually putting the burden on plaintiffs to go ahead.

439
00:22:11,680 --> 00:22:14,399
Speaker 7: I think how they've handled vote dilution cases has been

440
00:22:14,440 --> 00:22:17,359
Speaker 7: a little inconsistent. As you point out, plaintiff is one

441
00:22:17,359 --> 00:22:20,119
Speaker 7: of vote dilution case from Alabama last year. This was

442
00:22:20,160 --> 00:22:22,919
Speaker 7: tecondally a constitutional case, so it's a little hard to

443
00:22:23,080 --> 00:22:26,600
Speaker 7: characterize sometimes plaintiffs in one, but certainly this one I

444
00:22:26,640 --> 00:22:29,400
Speaker 7: think is going to make it much harder for plaintiffs

445
00:22:29,480 --> 00:22:30,600
Speaker 7: to win cases like this.

446
00:22:31,520 --> 00:22:35,400
Speaker 5: As you know, the Republicans hold this razor thin majority

447
00:22:35,600 --> 00:22:39,720
Speaker 5: in the House, and the outcome of this case another

448
00:22:39,760 --> 00:22:43,680
Speaker 5: redistricting cases could help determine which party controls the House

449
00:22:43,720 --> 00:22:46,520
Speaker 5: for the next decade. As far as the cases that

450
00:22:46,560 --> 00:22:50,199
Speaker 5: have been decided so far, do the Republicans have an advantage?

451
00:22:50,240 --> 00:22:50,440
Speaker 3: Now?

452
00:22:51,000 --> 00:22:54,600
Speaker 7: My understanding is that the Republicans have gained slightly through

453
00:22:54,640 --> 00:22:58,320
Speaker 7: the registrict process because of a partisan gerrymander. They pushed

454
00:22:58,320 --> 00:23:01,960
Speaker 7: it in North Carolina the North Carolina Supreme Court change dance.

455
00:23:02,000 --> 00:23:05,360
Speaker 7: North Carolina Supreme Court had struck down a Republican gerrymander

456
00:23:05,400 --> 00:23:08,240
Speaker 7: in North Carolina, so the state was seven to six

457
00:23:08,320 --> 00:23:11,600
Speaker 7: Republican Democrat. Once the North Carolina Supreme Court changed over,

458
00:23:11,640 --> 00:23:14,359
Speaker 7: the legislature re redistricted, and it's now going to be

459
00:23:14,440 --> 00:23:16,480
Speaker 7: ten to three. So I think there was a big

460
00:23:16,520 --> 00:23:19,119
Speaker 7: Republican pick up in North Carolina. The rest of the

461
00:23:19,119 --> 00:23:21,200
Speaker 7: country I think is a little mixed. There may be

462
00:23:21,240 --> 00:23:24,440
Speaker 7: a Democratic pick up in Alabama. Maybe went in Louisiana

463
00:23:24,560 --> 00:23:27,159
Speaker 7: as a result of redistricting, But North Carolina was a

464
00:23:27,160 --> 00:23:28,399
Speaker 7: big win for the Republicans.

465
00:23:28,680 --> 00:23:32,320
Speaker 5: The Republicans were bold in North Carolina, while the Democrats

466
00:23:32,359 --> 00:23:33,840
Speaker 5: were timid in New York.

467
00:23:34,040 --> 00:23:35,760
Speaker 7: Not clear that New York is going to change right

468
00:23:35,960 --> 00:23:37,959
Speaker 7: in the end, the new Planet in New York tinkered

469
00:23:38,160 --> 00:23:41,320
Speaker 7: very slightly with the districts in a very very close election.

470
00:23:41,440 --> 00:23:43,760
Speaker 7: That might make a difference, But the New York re

471
00:23:43,760 --> 00:23:45,520
Speaker 7: redistricting did not make big changes.

472
00:23:45,760 --> 00:23:49,240
Speaker 5: Yeah, it's puzzling why the Democrats even bothered with all

473
00:23:49,280 --> 00:23:53,199
Speaker 5: the litigation. Thanks so much, rich that Professor Richard Ruffald

474
00:23:53,320 --> 00:23:56,440
Speaker 5: of Columbia Law School coming up next on the Bloomberg

475
00:23:56,520 --> 00:23:59,440
Speaker 5: Law Show. Why Google cut a check for the US

476
00:23:59,560 --> 00:24:02,680
Speaker 5: government and will it work? I'm June Grosso, and you're

477
00:24:02,720 --> 00:24:03,760
Speaker 5: listening to Bloomberg.

478
00:24:04,640 --> 00:24:08,640
Speaker 2: As alleged in our complaint, for fifteen years, Google has

479
00:24:08,640 --> 00:24:12,159
Speaker 2: pursued a course of anti competitive conduct that has allowed

480
00:24:12,200 --> 00:24:16,680
Speaker 2: it to halt the rise of rival technologies, manipulate auction

481
00:24:16,800 --> 00:24:21,199
Speaker 2: mechanics to insulate itself from competition, and force advertisers and

482
00:24:21,240 --> 00:24:23,240
Speaker 2: publishers to use its tools.

483
00:24:23,640 --> 00:24:27,920
Speaker 5: The Justice Department suit accusing Google of monopolizing the digital

484
00:24:27,960 --> 00:24:31,159
Speaker 5: advertising market is scheduled to go to trial before a

485
00:24:31,280 --> 00:24:35,440
Speaker 5: jury in September, but Google is trying to avoid trying

486
00:24:35,480 --> 00:24:38,960
Speaker 5: the case to a jury with a novel move cutting

487
00:24:38,960 --> 00:24:42,919
Speaker 5: the government a check. The search giant wants a judge,

488
00:24:42,960 --> 00:24:45,760
Speaker 5: not a jury, to decide the case and argues that

489
00:24:45,880 --> 00:24:48,800
Speaker 5: government has no right to a jury trial without a

490
00:24:48,800 --> 00:24:52,919
Speaker 5: claim for money damages. Joining me to discuss this novel

491
00:24:53,000 --> 00:24:57,240
Speaker 5: and perhaps feudal move is antitrust law expert Harry First,

492
00:24:57,280 --> 00:25:00,760
Speaker 5: a professor at NYU Law School, how has this been

493
00:25:00,840 --> 00:25:05,000
Speaker 5: done before, paying damages before a trial or a finding

494
00:25:05,000 --> 00:25:05,840
Speaker 5: of liability?

495
00:25:06,480 --> 00:25:09,000
Speaker 8: Not to my knowledge, it's a you know, you might

496
00:25:09,040 --> 00:25:11,840
Speaker 8: say a clever move, or you might say it's a

497
00:25:11,880 --> 00:25:15,639
Speaker 8: silly move, or you might say, when it's Google, who cares?

498
00:25:15,640 --> 00:25:18,919
Speaker 8: How many millions of dollars you may pay unnecessarily? So

499
00:25:19,240 --> 00:25:22,840
Speaker 8: I've never seen this before. Liligans don't usually pay out

500
00:25:22,880 --> 00:25:26,800
Speaker 8: money in advance of a trial, an advance of even losing,

501
00:25:27,119 --> 00:25:28,560
Speaker 8: So you got to have a lot of money to

502
00:25:28,640 --> 00:25:28,879
Speaker 8: do that.

503
00:25:29,480 --> 00:25:33,320
Speaker 5: The Google argument is that without a monetary damage's claim,

504
00:25:33,720 --> 00:25:36,679
Speaker 5: the government has no right to a jury trial. Is

505
00:25:36,720 --> 00:25:37,399
Speaker 5: that true?

506
00:25:37,880 --> 00:25:42,040
Speaker 8: Well, Google's argument is, let's see, should we call it silly,

507
00:25:42,160 --> 00:25:46,720
Speaker 8: ridiculous or desperate? I don't know. So if you are

508
00:25:46,880 --> 00:25:49,679
Speaker 8: not asking for money, go back to day one. You

509
00:25:49,800 --> 00:25:52,880
Speaker 8: file a complaint and all you're asking for is an injunction.

510
00:25:53,400 --> 00:25:56,879
Speaker 8: That is what's called a suit in equity and is

511
00:25:57,000 --> 00:26:00,320
Speaker 8: just handled by a judge. That's the way case have

512
00:26:00,400 --> 00:26:04,280
Speaker 8: been handled since common law period. If, on the other hand,

513
00:26:04,400 --> 00:26:07,159
Speaker 8: you go into court and you ask for money damages,

514
00:26:07,480 --> 00:26:11,919
Speaker 8: that has to be before a judge with under the

515
00:26:11,960 --> 00:26:15,679
Speaker 8: Seventh Amendment. If it's for more than twenty dollars I

516
00:26:15,680 --> 00:26:18,960
Speaker 8: think with a jury. So that's the distinction. Now, what

517
00:26:19,040 --> 00:26:21,960
Speaker 8: Google's trying to say is, oh, guess what, Now there's

518
00:26:21,960 --> 00:26:24,840
Speaker 8: no damages, so you don't get the jury trial. So

519
00:26:25,240 --> 00:26:28,840
Speaker 8: presumably the Justice Department will say to this check, thank you,

520
00:26:28,880 --> 00:26:30,920
Speaker 8: but no thank you. You know, we want to prove

521
00:26:30,920 --> 00:26:33,359
Speaker 8: our damages and will prove them anyway. So it is

522
00:26:33,400 --> 00:26:36,680
Speaker 8: still a suit for damages, and you can't get out

523
00:26:36,720 --> 00:26:39,479
Speaker 8: of it by sort of pre paying the damages and

524
00:26:39,560 --> 00:26:42,840
Speaker 8: now saying, guess what, it's not for damages. The suit

525
00:26:42,920 --> 00:26:43,840
Speaker 8: was always for damage.

526
00:26:44,320 --> 00:26:48,240
Speaker 5: The size of the payment hasn't been disclosed, but Google

527
00:26:48,240 --> 00:26:51,120
Speaker 5: said that after months of discovery, the Justice Department could

528
00:26:51,160 --> 00:26:53,959
Speaker 5: only point to estimated damages of less than a million.

529
00:26:54,520 --> 00:26:58,119
Speaker 5: Since the law allows the court to issue treble damages,

530
00:26:58,200 --> 00:27:02,760
Speaker 5: the speculation is that check is for about three million,

531
00:27:02,840 --> 00:27:05,600
Speaker 5: which is a drop in the bucket to Google.

532
00:27:06,080 --> 00:27:09,479
Speaker 8: Well, yeah, I mean originally they claimed at least one

533
00:27:09,520 --> 00:27:12,240
Speaker 8: hundred million, and what they're going to be able to

534
00:27:12,320 --> 00:27:15,280
Speaker 8: prove up a trial, it seems to me, is still

535
00:27:15,440 --> 00:27:18,560
Speaker 8: a question for trial. So I don't know what their

536
00:27:18,600 --> 00:27:22,280
Speaker 8: expert reports show or whether they have some additional evidence,

537
00:27:22,680 --> 00:27:24,960
Speaker 8: So I don't know what the amount is, and I think, frankly,

538
00:27:25,160 --> 00:27:28,080
Speaker 8: it doesn't really matter. The legal point is the case

539
00:27:28,720 --> 00:27:32,440
Speaker 8: was filed for damages. It is still a case for damages,

540
00:27:33,000 --> 00:27:36,879
Speaker 8: and paying them off doesn't and the case and doesn't

541
00:27:37,000 --> 00:27:39,639
Speaker 8: change the nature of the case. So I don't see

542
00:27:39,680 --> 00:27:42,560
Speaker 8: this as the gambit that's going to work. Their claim

543
00:27:42,680 --> 00:27:44,960
Speaker 8: is not moved, no matter how much the checks for,

544
00:27:45,200 --> 00:27:48,679
Speaker 8: and you're right, from anyone's point of view, whether it's

545
00:27:48,960 --> 00:27:52,199
Speaker 8: five million, ten million, one hundred million dollars, this is

546
00:27:52,280 --> 00:27:55,240
Speaker 8: not very much to Google, and that's really, frankly not

547
00:27:55,359 --> 00:27:58,680
Speaker 8: the point. So I think, you know, more significant are

548
00:27:58,800 --> 00:28:01,679
Speaker 8: the other arguments that Google tries to make, which is

549
00:28:01,720 --> 00:28:05,520
Speaker 8: that this shouldn't be a suit tried by a jury.

550
00:28:05,880 --> 00:28:09,320
Speaker 8: And that's a more straightforward argument. It's not yes, it's

551
00:28:09,359 --> 00:28:11,720
Speaker 8: a jury trial, but no, it's not a jury trial,

552
00:28:11,800 --> 00:28:14,200
Speaker 8: because I mean, it would sort of be like saying, well,

553
00:28:14,240 --> 00:28:16,840
Speaker 8: you asked for an injunction, so yeah, it's fine, We're

554
00:28:16,880 --> 00:28:18,960
Speaker 8: fine with an injunction. So now it's not a case

555
00:28:19,000 --> 00:28:21,040
Speaker 8: for anything. So I don't think that's going to work.

556
00:28:21,200 --> 00:28:24,520
Speaker 5: Google also argues that the government has said the case

557
00:28:24,600 --> 00:28:28,480
Speaker 5: is highly technical and outside the everyday knowledge of most

558
00:28:28,560 --> 00:28:32,080
Speaker 5: prospective jurors. Google said it's aware of no case in

559
00:28:32,119 --> 00:28:35,159
Speaker 5: American history where a civil suit brought by the United

560
00:28:35,160 --> 00:28:39,400
Speaker 5: States pressing only antitrust claims was tried to a jury.

561
00:28:40,000 --> 00:28:44,440
Speaker 8: You know, it's likely that that's correct, simply because the

562
00:28:44,680 --> 00:28:48,720
Speaker 8: Justice Department has almost never filed suit for damages and

563
00:28:48,960 --> 00:28:52,880
Speaker 8: so it's not a major claim. What would be an

564
00:28:53,000 --> 00:28:56,760
Speaker 8: interesting claim is if nobody had ever filed for a

565
00:28:56,840 --> 00:29:00,520
Speaker 8: jury trial, including private party. And that actually is true.

566
00:29:00,880 --> 00:29:04,400
Speaker 8: And in fact, this claim was made in the nineteen

567
00:29:04,520 --> 00:29:09,240
Speaker 8: eighties in litigation involving the sale of Japanese televisions in

568
00:29:09,240 --> 00:29:13,680
Speaker 8: the United States at allegedly predatory prices, and the defendant,

569
00:29:14,000 --> 00:29:18,160
Speaker 8: Japanese television manufacturers, made a strong effort to say there

570
00:29:18,280 --> 00:29:20,880
Speaker 8: is no right to a jury trial here because it's

571
00:29:20,920 --> 00:29:25,800
Speaker 8: too complex. The courts never quite got to that holding

572
00:29:26,120 --> 00:29:29,560
Speaker 8: for other reasons. They focused on other issues. But we've

573
00:29:29,560 --> 00:29:33,400
Speaker 8: seen the claim before, and courts are not all that

574
00:29:33,560 --> 00:29:36,640
Speaker 8: well disposed to it. In private cases, there are lots

575
00:29:36,640 --> 00:29:41,040
Speaker 8: of complicated cases patent infringement cases. Patents are complicated, A

576
00:29:41,040 --> 00:29:43,520
Speaker 8: lot of patent infringement cases. A large part of it

577
00:29:43,600 --> 00:29:48,120
Speaker 8: to try to juries trade secret cases, complex fraud cases.

578
00:29:48,320 --> 00:29:51,200
Speaker 8: There's a lot of complex cases. To say somehow anti

579
00:29:51,280 --> 00:29:56,320
Speaker 8: trust is beyond the realm is a little silly, particularly

580
00:29:56,440 --> 00:30:00,880
Speaker 8: after Google had a jury trial in the epic case. Now,

581
00:30:01,040 --> 00:30:03,920
Speaker 8: Google's right to say that this is unusual for the government,

582
00:30:04,160 --> 00:30:06,840
Speaker 8: but that's a knock on the government, but not on

583
00:30:06,960 --> 00:30:09,720
Speaker 8: the legal case. And there are reasons for that. But

584
00:30:09,760 --> 00:30:12,320
Speaker 8: the government clearly is the statutory right to sue for

585
00:30:12,360 --> 00:30:16,160
Speaker 8: treble damages. Congress gave that to them in nineteen ninety,

586
00:30:16,560 --> 00:30:19,800
Speaker 8: originally with single damages nineteen fifty five. I mean, it's

587
00:30:19,800 --> 00:30:25,840
Speaker 8: a specific statue. So, as I said, frivolous, bad argument, Harry.

588
00:30:25,520 --> 00:30:28,480
Speaker 5: Before we go any further, tell us about the government's

589
00:30:28,560 --> 00:30:30,240
Speaker 5: case against Google here.

590
00:30:30,880 --> 00:30:35,040
Speaker 8: Basically, it involves the advertising side of what Google does

591
00:30:35,080 --> 00:30:38,560
Speaker 8: and the auctions that it runs for those ads that

592
00:30:38,640 --> 00:30:42,400
Speaker 8: you see popping up every time you move online that

593
00:30:42,600 --> 00:30:45,479
Speaker 8: seem to say, hi, Harry, this is for you. You know,

594
00:30:45,640 --> 00:30:50,080
Speaker 8: search advertising, display advertising, and they run auctions. I forget

595
00:30:50,080 --> 00:30:54,080
Speaker 8: the number every second, but it's a huge volume of

596
00:30:54,240 --> 00:30:58,440
Speaker 8: advertising auctions, and they run the platforms and they provide

597
00:30:58,480 --> 00:31:02,440
Speaker 8: the tools for both the advertisers and the publishers of

598
00:31:02,520 --> 00:31:06,200
Speaker 8: these ads to figure out how much space there is

599
00:31:06,240 --> 00:31:08,920
Speaker 8: where these ads could go, what to charge, how to

600
00:31:09,200 --> 00:31:11,800
Speaker 8: auction them off, so that each side feels they're getting

601
00:31:11,840 --> 00:31:14,560
Speaker 8: the best deal, and you know, they sort of run

602
00:31:14,600 --> 00:31:18,760
Speaker 8: the show. And they also have the search engine that generates,

603
00:31:18,800 --> 00:31:21,200
Speaker 8: you know, a lot of the information, so they are

604
00:31:21,240 --> 00:31:25,400
Speaker 8: all over what people call the ad tech space, and

605
00:31:25,760 --> 00:31:29,000
Speaker 8: the Justice Department wants to separate out some of these

606
00:31:29,040 --> 00:31:34,160
Speaker 8: functions so that different platforms might arise that could compete

607
00:31:34,240 --> 00:31:37,760
Speaker 8: against Google without you know, having the same search engine

608
00:31:37,800 --> 00:31:40,440
Speaker 8: and having sort of the same tools that seem to

609
00:31:40,520 --> 00:31:45,280
Speaker 8: favor Google, and placement on Google websites rather than through

610
00:31:45,320 --> 00:31:49,160
Speaker 8: being so forth. So that's the real thumbnail sketch. But

611
00:31:49,360 --> 00:31:51,880
Speaker 8: you know, everything you read. The first thing you know

612
00:31:52,080 --> 00:31:54,880
Speaker 8: that people say is, well, this is a complicated market

613
00:31:54,920 --> 00:31:58,080
Speaker 8: to understand. But you know, again, this is what good

614
00:31:58,120 --> 00:32:02,320
Speaker 8: trial lawyers do. They break down complexity so that people

615
00:32:02,320 --> 00:32:04,240
Speaker 8: who have to decide the case. In this case, the

616
00:32:04,320 --> 00:32:06,360
Speaker 8: jury can follow it through. And that's going to be

617
00:32:06,400 --> 00:32:07,240
Speaker 8: their challenge.

618
00:32:07,720 --> 00:32:11,640
Speaker 5: You mentioned the Fortnite maker Epic Games case that was

619
00:32:11,720 --> 00:32:15,600
Speaker 5: one of the worst legal losses for Google. So Google's

620
00:32:15,640 --> 00:32:18,640
Speaker 5: been burned by a jury. Is that why maybe looking

621
00:32:18,680 --> 00:32:22,120
Speaker 5: for a judge to decide this case, although I would

622
00:32:22,200 --> 00:32:24,840
Speaker 5: think that it would be harder to try a case

623
00:32:24,920 --> 00:32:29,120
Speaker 5: before an experienced trial judge than before a jury.

624
00:32:29,560 --> 00:32:32,920
Speaker 8: Your question now has moved from are they making a

625
00:32:33,040 --> 00:32:38,000
Speaker 8: frivolous legal argument to are they making a smart tactical argument.

626
00:32:38,360 --> 00:32:40,560
Speaker 8: And you know, I'm not sure the answer to that.

627
00:32:40,960 --> 00:32:44,320
Speaker 8: Why do they prefer judge bring them to a jury.

628
00:32:44,880 --> 00:32:47,000
Speaker 8: And the only answer I can come up with is

629
00:32:47,200 --> 00:32:51,160
Speaker 8: just what you said. They don't want to present themselves

630
00:32:51,200 --> 00:32:53,560
Speaker 8: to a jury. They did that an epic which they

631
00:32:53,640 --> 00:32:57,120
Speaker 8: wanted to avoid desperately and were unable to and in

632
00:32:57,240 --> 00:32:59,520
Speaker 8: less than four hours the jury said, we know who

633
00:32:59,520 --> 00:33:02,760
Speaker 8: you are. You are a monopolist. You know at the

634
00:33:02,800 --> 00:33:06,560
Speaker 8: fancy junk you're a monopolis, and you've excluded competitors. They

635
00:33:06,600 --> 00:33:09,600
Speaker 8: didn't have much trouble with this. Now you could say, well,

636
00:33:09,640 --> 00:33:12,880
Speaker 8: one strategy is you make this soap complicated the jury

637
00:33:12,880 --> 00:33:14,960
Speaker 8: to just throw up their hands and say we can't

638
00:33:15,000 --> 00:33:17,920
Speaker 8: figure this out. On the other hand, a jury trials

639
00:33:18,040 --> 00:33:21,959
Speaker 8: incentive to both parties to present an understandable case. And

640
00:33:22,200 --> 00:33:26,080
Speaker 8: you know, the government chose this, and they actually chose

641
00:33:26,080 --> 00:33:29,320
Speaker 8: a difficult path. They have the burden of proof, and

642
00:33:29,480 --> 00:33:32,400
Speaker 8: they have to make this understandable to the jury, and

643
00:33:32,640 --> 00:33:34,440
Speaker 8: it's not going to be easy. I don't think it's

644
00:33:34,480 --> 00:33:38,240
Speaker 8: complicated industry. But you know, if they do it well,

645
00:33:38,280 --> 00:33:41,880
Speaker 8: the jury will understand it. And maybe that's exactly what

646
00:33:41,960 --> 00:33:45,520
Speaker 8: Google's afraid of. The jury will see. They're on both

647
00:33:45,560 --> 00:33:51,040
Speaker 8: sides of these transactions. Even Microsoft, the second largest company

648
00:33:51,360 --> 00:33:55,120
Speaker 8: in the United States by market cap but valued over

649
00:33:55,200 --> 00:33:57,400
Speaker 8: what now three trillion or two trillion, I lose a

650
00:33:57,440 --> 00:34:00,560
Speaker 8: trillion here or there, even they are having trouble in

651
00:34:00,640 --> 00:34:04,320
Speaker 8: this space. And you know, I think jurors will get it,

652
00:34:04,360 --> 00:34:07,200
Speaker 8: and I think Google's afraid that jurors will get it.

653
00:34:07,240 --> 00:34:10,280
Speaker 8: And obviously they're not so much afraid of the money

654
00:34:10,320 --> 00:34:13,840
Speaker 8: part here, since they said, hey, here, take our money please.

655
00:34:14,120 --> 00:34:16,960
Speaker 8: They're worried that the jury is going to find against

656
00:34:17,040 --> 00:34:21,080
Speaker 8: them that they've monopolized this market and then strong relief

657
00:34:21,160 --> 00:34:21,920
Speaker 8: is going to follow.

658
00:34:22,320 --> 00:34:24,800
Speaker 5: But if a jury would get it, wouldn't a judge

659
00:34:24,800 --> 00:34:27,440
Speaker 5: get it as well? And you know, get it faster

660
00:34:27,600 --> 00:34:29,719
Speaker 5: and with more background information.

661
00:34:30,080 --> 00:34:34,680
Speaker 8: I do wonder about that. Judge Brinkhama is a really

662
00:34:34,719 --> 00:34:39,400
Speaker 8: good district court judge. She's moved this case along pretty quickly.

663
00:34:39,520 --> 00:34:43,279
Speaker 8: She doesn't seem disposed to Google's efforts to get out

664
00:34:43,320 --> 00:34:46,400
Speaker 8: of her court. She hasn't dismissed the complaint, So I

665
00:34:46,480 --> 00:34:49,160
Speaker 8: wonder why they think they'd have a better chance with

666
00:34:49,200 --> 00:34:52,520
Speaker 8: her when it comes to tactics. These are judgment calls,

667
00:34:52,880 --> 00:34:55,520
Speaker 8: you know. Those lawyers may know things about their case,

668
00:34:55,960 --> 00:34:59,840
Speaker 8: may feel that she could understand better why they're on

669
00:35:00,160 --> 00:35:03,200
Speaker 8: both sides of the transaction, how these marketplaces work. I

670
00:35:03,200 --> 00:35:06,160
Speaker 8: don't know. That's a decision they have made, though they

671
00:35:06,440 --> 00:35:10,360
Speaker 8: really don't want twelve people judging their behavior.

672
00:35:10,840 --> 00:35:13,640
Speaker 5: Some of the plaintiff states that had joined the Justice

673
00:35:13,680 --> 00:35:17,120
Speaker 5: Department suit said the court to deny Google's motion for

674
00:35:17,200 --> 00:35:20,080
Speaker 5: some rejudgment allow the case to proceed to try out quote.

675
00:35:20,360 --> 00:35:24,160
Speaker 5: Google argues that it lacks monopoly power along every dimension

676
00:35:24,320 --> 00:35:27,319
Speaker 5: except the one that matters most under the law, whether

677
00:35:27,360 --> 00:35:30,000
Speaker 5: it has the power to control price or output.

678
00:35:30,480 --> 00:35:33,239
Speaker 8: And it does well, you know, just as in the

679
00:35:33,680 --> 00:35:37,200
Speaker 8: epic litigation with Fortnite. Yeah, don't look over here that

680
00:35:37,239 --> 00:35:40,280
Speaker 8: we have a monopoly. Look over there, that we compete

681
00:35:40,320 --> 00:35:43,719
Speaker 8: for lots of other advertising and so forth. And a

682
00:35:43,760 --> 00:35:46,360
Speaker 8: lot of this does turn on some sort of technical

683
00:35:46,400 --> 00:35:49,600
Speaker 8: concepts about how we define markets and what the market

684
00:35:49,640 --> 00:35:52,919
Speaker 8: share is. And the state's position is that we can

685
00:35:52,960 --> 00:35:56,120
Speaker 8: figure out whether someone is a monopoly not just by

686
00:35:56,200 --> 00:35:58,359
Speaker 8: defining a market and seeing whether they have.

687
00:35:58,480 --> 00:35:59,040
Speaker 6: Most of it.

688
00:35:59,480 --> 00:36:02,840
Speaker 8: We look see whether they can do what monopolists do.

689
00:36:03,480 --> 00:36:07,040
Speaker 8: So monopolist control price, they raise it, and they restrict output.

690
00:36:07,320 --> 00:36:09,720
Speaker 8: And that's what they want to show in their case,

691
00:36:09,920 --> 00:36:14,560
Speaker 8: that they control the output of advertising and these advertising services,

692
00:36:14,880 --> 00:36:16,480
Speaker 8: and that leads to higher prices.

693
00:36:16,680 --> 00:36:19,880
Speaker 5: There's a hearing on June first before Judge Brinkama, and

694
00:36:20,080 --> 00:36:22,839
Speaker 5: we should learn more then. Thanks so much, Harry. That's

695
00:36:22,840 --> 00:36:26,440
Speaker 5: Professor Harry First of NYU Law School. And that's it

696
00:36:26,480 --> 00:36:29,440
Speaker 5: for this edition of the Bloomberg Law Podcast. Remember you

697
00:36:29,480 --> 00:36:32,200
Speaker 5: can always get the latest legal news by subscribing and

698
00:36:32,280 --> 00:36:35,759
Speaker 5: listening to the show on Apple Podcasts, Spotify, and at

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00:36:35,840 --> 00:36:40,120
Speaker 5: Bloomberg dot com, slash podcast, slash Law. I'm June Grosso

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00:36:40,360 --> 00:36:41,839
Speaker 5: and this is Bloomberg