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

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Speaker 1: A new dimension to the Federal Trade Commissions challenged to

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Speaker 1: Kroger's twenty four point six billion dollar acquisition of rival

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Speaker 1: grocer Albertson's. Kroger has filed a motion in federal court

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Speaker 1: in Ohio to stop the FTC from proceeding against it

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Speaker 1: in house in an administrative hearing, claiming that proceeding is unconstitutional.

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Speaker 1: Joining me is Bloomberg Intelligence. Senior litigation analyst Jennifer ree

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Speaker 1: Jen tell us about the FTC's objections to the Kroger

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Speaker 1: Albertson's deal.

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Speaker 2: Well, you know, essentially, the FDC is just saying this

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Speaker 2: is a merger of two competitors and in a market

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Speaker 2: that the FTC is defined, which is somewhat narrow. I

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Speaker 2: think that'll be a point of contention in the trial.

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Speaker 2: But they say these are traditional grocery stores, one traditional

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Speaker 2: grocery store buying another, and they really only compete with

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Speaker 2: other traditional grocery stores, so that leaves out specialty grocery

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Speaker 2: and club stores like Costco, and that in many many

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Speaker 2: regions in the United States, this merger will end up

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Speaker 2: leaving markets that are overly concentrated, you know, when they're

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Speaker 2: local markets like grocery, because people aren't going to drive

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Speaker 2: hundreds of miles just to go grocery shopping. It's like

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Speaker 2: thousands of little mini mergers that have to be assessed

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Speaker 2: across a map. And they look at these regions where

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Speaker 2: those stores compete, and they look at who the other

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Speaker 2: competitors are in the region, and they draw circles around

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Speaker 2: the ones they think will be too concentrated. And here,

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Speaker 2: they say, look too concentrated in many, many regions. And

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Speaker 2: even though the companies have offered to divest stores in

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Speaker 2: quite a few of these regions, the FTC says, not

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Speaker 2: good enough. It doesn't fix some of the other concerns

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Speaker 2: we have about the impact on labor. And also, we

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Speaker 2: are not in love with the buyer who you've chosen

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Speaker 2: for these stores. We are not so sure that buyer

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Speaker 2: can take these stores and be a viable competitor. And

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Speaker 2: that's what's needed in a divestge remedy.

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Speaker 1: So the SUP it's proposed to sell nearly six hundred

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Speaker 1: stores and lower grocery prices by one billion, How is

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Speaker 1: that going to work?

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Speaker 2: Well, you know, that's the thing you know, promises to

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Speaker 2: lower prices or promises not to increase prices don't really

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Speaker 2: hold much water. You know, the FTC is not going

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Speaker 2: to be a pricing regulator, so they're not going to

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Speaker 2: put something like that in a consent agreement to say

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Speaker 2: you must price at x, or you must lower your

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Speaker 2: prices by x, y or z. And when the companies

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Speaker 2: make promises like that, that's all they are. There's nothing

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Speaker 2: the FTC can do to hold them to that, so

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Speaker 2: it doesn't really mean very much, even though the companies

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Speaker 2: very well may have every intention to do that.

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Speaker 1: The trial is set to begin on August twenty sixth.

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Speaker 1: Is that an in.

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Speaker 2: House trial, No, so that trial is in a federal

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Speaker 2: court in Oregon. And this is the Federal Trade Commission

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Speaker 2: only seeking a preliminary or a temporary block on the

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Speaker 2: closing of the deal pending their in house process, which

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Speaker 2: is called up Part three. Basically, it's an administrative lock

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Speaker 2: hearing to actually determine this deal is illegal or not.

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Speaker 2: So this is just to seek a preliminary block to

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Speaker 2: allow the FTC to complete that internal process, which takes

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Speaker 2: quite a long time. It could be another year before

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Speaker 2: if they actually go through with that internal process. It

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Speaker 2: could be another year before there's a decision there.

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Speaker 1: So now Kroger sued the FTC. It's not about the

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Speaker 1: preliminary injunction, it's about trying to prevent the in house process.

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Speaker 1: So explain why they say the in house process should

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Speaker 1: be blocked.

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Speaker 2: So this is something new that's happening in these merger

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Speaker 2: deals in front of the FTC. And it's all because

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Speaker 2: about a year ago there was a Supreme Court decision

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Speaker 2: that opened the door to constitutional challenges to that in

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Speaker 2: house process. Companies have always objected to it because it

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Speaker 2: really basically kills deals because they take too long. So

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Speaker 2: when companies don't win at the preliminary injunction phase and

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Speaker 2: they have to face this internal process, a deal can't

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Speaker 2: last and the deal tends to fall apart or get abandoned.

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Speaker 2: So there's always been objections. But in the past when

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Speaker 2: companies have said this is unconstitutional, what the courts have

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Speaker 2: ruled is that, well, you have to bring that claim

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Speaker 2: in this process, in the administrative process, and then you'll

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Speaker 2: have an opportunity to appeal to the federal courts and

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Speaker 2: get to the federal courts after that. Well, that doesn't

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Speaker 2: work you know, that hasn't worked in the past because

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Speaker 2: that's too late, the deal has already been abandoned or

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Speaker 2: broken up. But last year the Supreme Court said, no,

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Speaker 2: that's incorrect. These companies have the right to challenge the

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Speaker 2: constitutionality of the process in a federal court early on,

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Speaker 2: before the process has even started. So what that's led

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Speaker 2: to June Since that decision, really many deals that have

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Speaker 2: been challenged have actually brought these counterclaims alleging that this

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Speaker 2: internal process by the FTC's on constitutional. Now, not many

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Speaker 2: of them have gone very far because either the companies

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Speaker 2: won at the preliminary junction, they closed their deal, a

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Speaker 2: litigation got dropped, or let's say, in the case of

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Speaker 2: Amgen and Horizon, the FDC settled the matter, and when

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Speaker 2: they settled the matter, the companies dropped their constitutional claims.

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Speaker 2: So there's not a lot of precedent. And the only

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Speaker 2: thing in that case, that particular merger that the Supreme

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Speaker 2: Court did decide was just that procedural timing issue that

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Speaker 2: they have the right to bring these arguments. So Kroger

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Speaker 2: and Albertsons have gone ahead and done that because they can,

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Speaker 2: and they are making an allegation that there are two

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Speaker 2: different reasons that that process is unconstitutional. One having to

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Speaker 2: do with the administrative law judge who will decide the

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Speaker 2: outcome having two layers of four cause protection from presidential removal,

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Speaker 2: and they say that violates one article in the Constitution.

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Speaker 2: And the other argument is that this is in the

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Speaker 2: adjudication of Kroger's private rights. They say it's Kroger's contracting rights,

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Speaker 2: which is a private right. And when a private right

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Speaker 2: is adjudicated, the Constitution says it must be in the

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Speaker 2: judicial branch and not in the executive branch.

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Speaker 1: The case that you were referring to was that a

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Speaker 1: case involving the FTC or the SEC.

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Speaker 2: So that was the case actually involving the FTC. Not

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Speaker 2: as well known as the SEC case which is called

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Speaker 2: Jarkazy and was talked about a lot. This was a

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Speaker 2: case called Axon. Axon was acquiring a company called Vivu,

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Speaker 2: and that case ultimately settled. So what happened there was

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Speaker 2: the Supreme Court decided the one element that I mentioned

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Speaker 2: that timing was okay that the companies can bring this

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Speaker 2: challenge before the administrative internal hearing has even started. But

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Speaker 2: on all the other constitutional claims, which were similar to

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Speaker 2: the claims Kroger's making. The Supreme Court remanded to the

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Speaker 2: district court and say, okay, you have to decide on

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Speaker 2: these claims. But then they settled, so those claims never

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Speaker 2: got decided on. The Jarkaesi case, which involved the Securities

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Speaker 2: and Exchange Commission, decided that where a plaintiff is seeking

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Speaker 2: monetary civil penalties or monetary damages, that the defendant has

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Speaker 2: the right to a trial by a jury. So that

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Speaker 2: automatically would pull a hearing out of an administrative agency

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Speaker 2: and put it in the judicial branch in a court.

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Speaker 1: Kroger sued in Ohio. Why in Ohio?

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Speaker 2: Well, I think they sued in Ohio because that's where

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Speaker 2: Kroger has its corporate headquarters. So that's why they picked Ohio.

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Speaker 2: It is the Sixth Circuit, and we don't have president there.

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Speaker 2: They may expect it to be a conservative circuit like

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Speaker 2: the Fifth Circuit. That's the one place where we do

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Speaker 2: have some precedent that would be helpful to them. I'm

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Speaker 2: guessing they believe that they'll get helpful president from the

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Speaker 2: Sixth Circuit too.

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Speaker 1: Well, shouldn't they have sued in the court that's holding

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Speaker 1: the preliminary injunction in Oregon.

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Speaker 2: Well, they may believe that that's not the best place for

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Speaker 2: them to sue, and they can sue wherever they're doing business.

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Speaker 1: I just wondered if the government might move to remove

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Speaker 1: the suit to the place where the case is being litigated.

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Speaker 2: They may, they may, but I doubt that they'll get

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Speaker 2: it transferred. I mean, they had the right to bring

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Speaker 2: it in Cincinnati, and I don't think they would get

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Speaker 2: it transferred over there. And I think now that I

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Speaker 2: think more about it, that it's definitely that they're not

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Speaker 2: all that happy with the pickup judge there and they

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Speaker 2: think they might be better off in front of a Sixth

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Speaker 2: Circuit Ohio judge.

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Speaker 1: So Kroger said that in the lawsuit against the FTC,

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Speaker 1: it said that in house review could take years. Is

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Speaker 1: that an exaggeration years?

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Speaker 2: You know, Judet really isn't. And I'll tell you why,

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Speaker 2: because the FDC subtly changed something also about two years ago.

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Speaker 2: It used to be that the Administrative law judge would rule,

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Speaker 2: would write a decision, and then the loser of that

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Speaker 2: decision could appeal to the commissioners, and the commissioners would vote,

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Speaker 2: and then the loser of that process could then appeal

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Speaker 2: to the federal courts. But the FTC changed it and

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Speaker 2: they said the ALJ no longer issues an opinion, They

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Speaker 2: just issue an advisory. Here's how they think the FDC

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Speaker 2: should rule, and then the commissioners decide. Well, if you

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Speaker 2: look at their situation, these are the very commissioners that

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Speaker 2: voted to sue Kroger and Albertons to begin with. So

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Speaker 2: we know how that's going to come out, right, and

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Speaker 2: that whole process, given the timing that is allotted in

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Speaker 2: the rules, the FTC's rules, can take about a year

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Speaker 2: and a half and it wouldn't be until that time

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Speaker 2: that the commissioners actually issued a final decision that the

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Speaker 2: companies could appeal to the federal court.

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Speaker 1: I mean, is there a drop dead date on this merger?

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Speaker 2: There is, but I think it's going to be changed.

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Speaker 2: It's October fifth or sixth, something like that. But at

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Speaker 2: this point the companies are going to have to push

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Speaker 2: it back because they made an agreement with a Colorado

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Speaker 2: State court. I should mention there are separate proceedings going

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Speaker 2: on in both the Colorado State Court and the Washington

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Speaker 2: State Courts, brought separately by the attorney generals of those states,

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Speaker 2: and in the Colorado Court there was going to be

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Speaker 2: a preliminary injunction process and a permanent injunction process, and

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Speaker 2: the companies convinced that court to do it all in

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Speaker 2: one and just a permanent injunction process. But the only

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Speaker 2: way they could get that was by promising they wouldn't

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Speaker 2: close the deal until a decision had been issued on that,

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Speaker 2: and that's not going to be done till about the

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Speaker 2: middle of October.

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Speaker 1: So they're facing basically five separate legal challenges. Do they

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Speaker 1: have to with them all for the margin to go forward?

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Speaker 2: I don't think so. I think that the state court judges,

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Speaker 2: in my view, are going to be nervous about the

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Speaker 2: idea of enjoining. Let's say they want to rule for

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Speaker 2: the ags of enjoining a nationwide deal that the FTC

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Speaker 2: can't manage to enjoin in federal court. So let's say

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Speaker 2: the parties win on this preliminary injunction process that's starting

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Speaker 2: later this month. I don't think those state ags would

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Speaker 2: go against that. They may enjoin it just for their state,

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Speaker 2: but not nationally. So I think the most important thing

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Speaker 2: happening here is this preliminary injunction process in Oregon, which

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Speaker 2: will be the very first one to start and the

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Speaker 2: very first one to get a decision. There is also

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Speaker 2: a private lawsuit. My guess is that'll ultimately settle, but

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Speaker 2: my guess is also that it won't be successful if

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Speaker 2: the FTC is not successful. So I really think if

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Speaker 2: they can be successful in the preliminary injunction process, they'll

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Speaker 2: probably ultimately down the road be able to get it closed.

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Speaker 1: The private laws a group of consumers suit over the

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Speaker 1: deal last year that was unsuccessful, right.

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Speaker 2: Right, I have to check that too. You know, these

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Speaker 2: suits are brought all the time, and they are honestly

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Speaker 2: never successful, never, because these judges are just going to

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Speaker 2: stay these matters and wait to see what happens in

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Speaker 2: the federal government, you see, right. So I believe that

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Speaker 2: matter at this point is stayed, but I don't think

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Speaker 2: that matter is ultimately going to impact whether this deal

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Speaker 2: closes or not.

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Speaker 1: I mean, is anti trust a red blue issue? Because

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Speaker 1: Republican attorneys general in Ohio, Iowa, Alabama, and Georgia slam

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Speaker 1: the challenge saying it was devoid of economic justification, and

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Speaker 1: they filed an amicus brief in Oregon.

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Speaker 2: It used to be more of a red blue issue

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Speaker 2: than it is today. I think there's a wing of

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Speaker 2: the Republican Party that actually is aligned with the idea

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Speaker 2: of aggressive anti trust enforcement and has liked what Lena

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Speaker 2: Khan has done. It doesn't surprise me, though, that for

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Speaker 2: the amicus brief there were no Democratic States Attorney generals

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Speaker 2: that joined, because I think for something like this, probably

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Speaker 2: it is a little bit more of the business friendly

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Speaker 2: approach versus the anti big business approach.

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Speaker 1: Does the FDC have a good case?

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Speaker 2: I think the FTC has a good case in terms

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Speaker 2: of the buyer that's been offered up for the remedy

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Speaker 2: has some weaknesses, and one can't be particularly certain or

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Speaker 2: feel comfortable that that company will actually be able to

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Speaker 2: compete or even has the incentive to compete with those

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Speaker 2: six hundred ors those stores for many years or even

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Speaker 2: in the short run. Where I think it gets a

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Speaker 2: little more difficult is with market definition, because the markets

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Speaker 2: have changed a lot over the years in grocery, as

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Speaker 2: they have in many many goods that you can buy

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Speaker 2: now online all over the place, and the SEC is

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Speaker 2: using the same market definition they have used for years

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Speaker 2: for grocery deals. They've not changed it at all. But

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Speaker 2: things are a little bit different today and they may

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Speaker 2: have defined the market a little narrowly. The judge could

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Speaker 2: agree that other stores should be included, such as whole

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Speaker 2: foods and health food stores, stores like Trader Joe's, Dollar stores, Costco.

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Speaker 2: All of these stores have been excluded. Walmart and Target

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Speaker 2: have been included where they are supercenters and sell groceries.

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Speaker 2: And if the judge agrees that the market should be

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Speaker 2: a little broader, what that will do is reduce the

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Speaker 2: number of regions in which this deal is considered anti

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Speaker 2: competitive and reduce the number of stores that might have

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Speaker 2: to be divested. And possibly if this number of stores

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Speaker 2: that have to be sold is reduced, it may be

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Speaker 2: a package that would be more manageable for this buyer.

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Speaker 2: I will tell you I still lean toward the sec

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Speaker 2: winning this case, but that would be the argument on

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Speaker 2: the other side, and it is a defensible argument.

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Speaker 1: Kroger sold ten and a half billion dollars of notes

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Speaker 1: yesterday to fund the acquisition. They think that they're going

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Speaker 1: to be successful.

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Speaker 2: Obviously they do. I have to tell you I was

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Speaker 2: a little bit surprised by that. I mean, essentially, given

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Speaker 2: with all of the lawsuits that are pending against this

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Speaker 2: deal and the fact that it looks like the FTC

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Speaker 2: pulled a pretty good judge and it will take some time.

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Speaker 2: If the companies lose this preliminary injunction and appeal, that's

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Speaker 2: going to take quite a lot of time, and it

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Speaker 2: means that this deal is going to have to hang

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Speaker 2: together for another you know, six months to a year

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Speaker 2: in order to get that appeal decision, if that's where

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Speaker 2: they think they can win. So I was a little

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Speaker 2: surprised by that.

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Speaker 1: And this may not surprise you. Kroger and Albertson have

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Speaker 1: so far spent more than eight hundred million dollars in

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Speaker 1: fees on lawyers, bankers and advisors. Eight hundred million.

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Speaker 2: That is so much.

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Speaker 1: You know, the deal's twenty four point six billion.

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Speaker 2: I mean, I know, well here, that's a lot of money.

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Speaker 2: When I practice law. It's definitely far more than I

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Speaker 2: think the defense of many of the deals that I

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Speaker 2: worked on. I will say, you know, as we mentioned,

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Speaker 2: they're facing five lawsuits and so that's possibly part of

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Speaker 2: the reason they need huge teams. You know, it's taking

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Speaker 2: a lot of time, a lot of attorney hours, it's

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Speaker 2: taking a lot of work, and most deals face If

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Speaker 2: it's DOJ, they faced one lawsuit because the DJ just

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Speaker 2: goes to federal court and seeks a permanent injunction. Or

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Speaker 2: if it's FTC, they're just facing two. They're facing the

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Speaker 2: preliminary injunction effort and then the internal trial called a

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Speaker 2: Part three. So I think that's part of the reason

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Speaker 2: these fees are so exorbitant.

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Speaker 1: So we'll see what happens. I mean, it seems like

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Speaker 1: we've been talking about Kroger Albertson's for years, and now

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Speaker 1: that I look it up, I see that we have

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Speaker 1: been talking about it for nearly two years. It was

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Speaker 1: first announced in October of twenty twenty two.

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Speaker 2: I know, I'm guessing a decision is going to be

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Speaker 2: coming out some point in October, you know, maybe toward

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Speaker 2: the end of October. That's just a guest because judges

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Speaker 2: don't really have time constraints on their decisions. And we

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Speaker 2: now know that companies have agreed not to close until

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Speaker 2: this Colorado process is over, which takes a little bit

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Speaker 2: of the pressure off the judge because they tend to

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Speaker 2: try to decide before an end date for a deal.

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Speaker 2: So I'm thinking sometime around the end of October.

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Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 1: this conversation with Bloomberg Intelligence senior litigation analyst Jennifer Ree,

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Speaker 1: and we'll discuss the FTC's first attempt to block a

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Speaker 1: fashion accessories deal. I'm June Grosso and you're listening to Bloomberg.

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Speaker 1: So let's go from groceries to something that I find

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Speaker 1: more interesting, luxury handbags or semi luxury handbag. So this

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Speaker 1: marks the first time the Biden administration has intervened on

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Speaker 1: antitrust grounds in the fashion accessories sector. Tapestry, the company

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Speaker 1: behind Coach, Kate Spade and Stuart Weitzman, would acquire Capri,

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Speaker 1: which controls Michael Core's Versace and Jimmy Cho in a

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Speaker 1: deal valued at eight and a half billion dollars tell

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Speaker 1: us more.

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Speaker 2: So, this, just like the Kroger Albersons deal, is really

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Speaker 2: a basic deal that combines two competitors, what we call

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Speaker 2: a horizontal deal, the typical type of deal that's often

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Speaker 2: challenged by the anti trust agencies. And one of these

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Speaker 2: companies has the Core's brand and another has the coach

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Speaker 2: in Kate's Bade brand, and what the FTC's claiming is

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Speaker 2: this creates too much concentration in a market that they're

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Speaker 2: calling affordable luxury handbags. So they think of a Kate's

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Speaker 2: Bade bag and a Cores bag and a coach bag

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Speaker 2: to be in this segment. They haven't defined it by

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Speaker 2: dollar amount, but they've defined it just by calling it

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Speaker 2: affordable luxury. And just like Kroger and Oppertons, I think

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Speaker 2: that's where the big fight is going to be in

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Speaker 2: this trial over this market definition, because it's a hard

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Speaker 2: market definition to put the boundaries around. You know, what

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Speaker 2: exactly is an affordable luxury handbag? Who else is in

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Speaker 2: that market? What is the competition? And that's obviously really

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Speaker 2: important to determine what the market concentration will be after

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Speaker 2: the company's merge.

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Speaker 3: What is included?

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Speaker 2: Would you include you know, higher level designer bags that

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Speaker 2: are sold used for a lower price. And I think

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Speaker 2: that's going to be a difficult part for the FTC now,

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Speaker 2: having said that, they issued new merger guidelines last year,

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Speaker 2: and what they've said is, hey, we no longer have

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Speaker 2: to define a market where we can prove that the

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Speaker 2: companies are each other's primary competitors, and if they really

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Speaker 2: just view each other as each other's main competitor and

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Speaker 2: don't pay that much attention to others. That's good enough,

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Speaker 2: and that's what they're claiming here. They're saying that in

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Speaker 2: their investigation, all the documents they collected support the idea

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Speaker 2: that these companies really don't pay attention to other competitors.

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Speaker 2: In other words, their price isn't constrained by other competitors.

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Speaker 2: That's how the judge will look at it. That's how

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Speaker 2: economists look at it. Only by each other, particularly in

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Speaker 2: outlet malls. So if one goes on sale, the other

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Speaker 2: goes on sale. If one raises their prices, the other

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Speaker 2: raises their prices. And what they're going to claim is

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Speaker 2: that this is good enough to show that you lose

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Speaker 2: that entire rivalry, that entire competitive dynamic if you allow

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Speaker 2: these two firms to merge.

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Speaker 1: So that's a rule that they made up. Yes, so hello,

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Speaker 1: are judges following that rule?

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Speaker 2: You're exactly right. These are guidelines written by the FPC,

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Speaker 2: and what they're meant to do is tell the market

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Speaker 2: how they're going to look at these deals and also

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Speaker 2: to help guide a judge. But they don't buying the judge.

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Speaker 2: So the past merger guidelines to judges usually use them.

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Speaker 2: They usually say align with them. Here's what the merger

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Speaker 2: guidelines say, and so we agree they don't have to.

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Speaker 2: And so this will be very interesting because we just

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Speaker 2: don't have a lot of precedent. We don't have litigation

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Speaker 2: yet where the fpc's tried to use these new guidelines

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Speaker 2: and get a judge to accept them, and it's up

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Speaker 2: to the judge and they may not.

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Speaker 1: My initial reaction is, why block a fashion deal. It's

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Speaker 1: not like there's no competition in the fashion industry.

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Speaker 2: Well, you know, this is exactly what the companies are arguing, Hey,

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Speaker 2: we have so much competition and.

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Speaker 1: There's easy entry into that market.

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Speaker 2: That is exactly what they're arguing, that there's easy entry,

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Speaker 2: that we always have to worry about entry because one

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Speaker 2: influencer carries some mom and pop bag and that bag

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Speaker 2: will blow up. And that's what they're going to argue.

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Speaker 2: And I think it's a pretty good argument. Honestly. You

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Speaker 2: know a lot of times people ask why would the

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Speaker 2: FDC or DOJ challenge this deal? That industry is not

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Speaker 2: that important or that's not a crucial industry. People don't

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Speaker 2: have to go out and buy a luxury you know,

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Speaker 2: affordable luxury handbag. That's not how they think of it.

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Speaker 2: They're looking at any industry in which a merger would

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Speaker 2: create undue concentration. It doesn't matter if it's affordable luxury

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Speaker 2: handbag or it's essential like food. If they believe the

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Speaker 2: antitrust laws are being broken by a deal, they're going

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Speaker 2: to challenge the deal. And that's what they believe here.

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Speaker 2: And as you said, this is really going to be

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Speaker 2: about the market and how it's defined, and who competes

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Speaker 2: and who doesn't, and how easy entry is, because I

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Speaker 2: think a lot of people view the market that way,

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Speaker 2: and we're very surprised by this challenge.

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Speaker 1: And affordable luxury is almost a contradiction in terms. I agree,

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Speaker 1: if it's affordable, then you don't consider it really luxury,

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Speaker 1: do you exactly?

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Speaker 2: You know, The interesting thing is the parties and I

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Speaker 2: don't blame them at all. Very early on, right after

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Speaker 2: this lawsuit was filed, as the judge to require the

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Speaker 2: FTC to provide a better definition exactly what do you

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Speaker 2: mean by affordable luxury? Put the boundaries around it, what

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Speaker 2: are the dollar amounts? And who are the other competitors

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Speaker 2: and I think it was a reasonable ask because they

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Speaker 2: need to defend themselves, and the judge said, no, that's

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Speaker 2: the kind of thing that can come out in the hearing.

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Speaker 1: Now, what happens next. There's a trial? Is that in house?

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Speaker 2: Yes, so there is a trial just like the Croker

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Speaker 2: Albertson zeal. There's a trial in federal court that's in

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Speaker 2: the Southern District of New York that'll be starting in September.

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Speaker 2: That's on the preliminary injunction. And then there is a

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Speaker 2: Part three that's the internal hearing that would start toward

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Speaker 2: the end of September. The companies ask the FTC to

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Speaker 2: push the date back. It used to be customary that

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Speaker 2: the part threes were always pushed back so that the

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Speaker 2: preliminary injunction could be decided first, because there's no point

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Speaker 2: in trying a Part three. If the companies lose the

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Speaker 2: preliminary junction, they usually abandon the deal. So why waste

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Speaker 2: the time starting the part three when that's usually what happens.

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Speaker 2: You want to wait and see what happens in the

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Speaker 2: preliminary injunction. But the FTC said no and June so interestingly,

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Speaker 2: they did the same thing with Kroger and Albertson, and

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Speaker 2: that internal process was supposed to start July thirty one.

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Speaker 2: But the Administrative law judge, who is the chief alj

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Speaker 2: the acronym for administrative law judge, and who actually is

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Speaker 2: aligned with the concept that the Part three should get

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Speaker 2: pushed back or stayed pending the preliminary injunction, used his

436
00:22:22,760 --> 00:22:25,119
Speaker 2: own powers that he has as alj to say, we

437
00:22:25,200 --> 00:22:27,520
Speaker 2: will start on July thirty first, but we're going to

438
00:22:27,560 --> 00:22:30,560
Speaker 2: do the introductory notices of appearance on the record, and

439
00:22:30,560 --> 00:22:32,919
Speaker 2: then I'm going to stay the entire trial until the

440
00:22:32,920 --> 00:22:36,320
Speaker 2: preliminary in junction process is over. Interesting the commissioners have

441
00:22:36,359 --> 00:22:38,960
Speaker 2: to decide whether to push back the start. He couldn't

442
00:22:38,960 --> 00:22:41,040
Speaker 2: do that, and they ruled against that. But what he

443
00:22:41,119 --> 00:22:43,800
Speaker 2: could do is stay the trial, and that's what he did.

444
00:22:43,840 --> 00:22:47,520
Speaker 2: I don't know that the administrative law judge that's overseeing

445
00:22:47,640 --> 00:22:51,000
Speaker 2: the Tapestry Capri deal, who is a new administrative law judge,

446
00:22:51,000 --> 00:22:51,680
Speaker 2: will do the same.

447
00:22:52,040 --> 00:22:54,679
Speaker 1: Who do you think has the advantage in the Tapestry Capri.

448
00:22:55,320 --> 00:22:58,000
Speaker 2: I think that one's really close. You know. My gut

449
00:22:58,040 --> 00:23:00,879
Speaker 2: reaction to it was exactly like you are, Oh, come on,

450
00:23:00,960 --> 00:23:03,439
Speaker 2: this is a really competitive market, and how do you

451
00:23:03,520 --> 00:23:06,040
Speaker 2: really define that market? I mean, this is this big

452
00:23:06,280 --> 00:23:09,280
Speaker 2: span of pricing and some people will buy a lower

453
00:23:09,400 --> 00:23:11,119
Speaker 2: end bag and some a higher end bag, and you

454
00:23:11,119 --> 00:23:13,959
Speaker 2: can buy us designer bags for those prices. And that

455
00:23:14,119 --> 00:23:17,200
Speaker 2: was my initial reaction. But you know what was telling

456
00:23:17,640 --> 00:23:20,399
Speaker 2: is that when the FTC voted to sue, it was

457
00:23:20,440 --> 00:23:23,800
Speaker 2: a five to zero vote, meaning the two Republicans also

458
00:23:23,880 --> 00:23:26,240
Speaker 2: voted to sue, and one made a statement that she

459
00:23:26,400 --> 00:23:29,000
Speaker 2: did so based on the evidence she'd seen showing that

460
00:23:29,000 --> 00:23:31,719
Speaker 2: these two companies were each other's primary competitors. And that

461
00:23:31,800 --> 00:23:34,400
Speaker 2: means to me there are probably a lot of documents

462
00:23:34,400 --> 00:23:37,199
Speaker 2: that support the FTC's case. So I'm very much in

463
00:23:37,240 --> 00:23:38,879
Speaker 2: the middle on this one. I will be going to

464
00:23:38,960 --> 00:23:41,800
Speaker 2: trial and I'll have a better feel after the trial,

465
00:23:42,119 --> 00:23:43,840
Speaker 2: but I'm really fifty to fifty on it.

466
00:23:44,160 --> 00:23:46,919
Speaker 1: Please come back after the trial, Jen and describe what

467
00:23:47,040 --> 00:23:51,120
Speaker 1: an almost luxury handbag is and how much it costs.

468
00:23:51,320 --> 00:23:54,480
Speaker 1: Before you go, let's talk Google and the remedies that

469
00:23:54,520 --> 00:23:58,919
Speaker 1: are possible there after that landmark decision that Google is

470
00:23:58,960 --> 00:24:02,359
Speaker 1: a monopolist, Google said it will appeal the decision, but

471
00:24:02,600 --> 00:24:06,440
Speaker 1: Judge A. Meta has ordered both sides to begin plans

472
00:24:06,480 --> 00:24:09,520
Speaker 1: for the second phase of the case, which will involve

473
00:24:09,560 --> 00:24:15,600
Speaker 1: the government's proposals for restoring competition, including a possible breakup request.

474
00:24:16,040 --> 00:24:20,000
Speaker 1: So the judge has asked the Justice Department in Google

475
00:24:20,080 --> 00:24:22,560
Speaker 1: to come up with a process for determining a fix

476
00:24:22,640 --> 00:24:26,320
Speaker 1: by September fourth. So you know, what is the Justice

477
00:24:26,359 --> 00:24:28,639
Speaker 1: Department considering here?

478
00:24:29,440 --> 00:24:32,800
Speaker 2: Oh, I think they're probably considering all options and probably

479
00:24:32,840 --> 00:24:35,760
Speaker 2: even getting creative coming up with things I'm sure I

480
00:24:35,960 --> 00:24:38,520
Speaker 2: haven't come up with. But they won, and they won

481
00:24:38,680 --> 00:24:43,000
Speaker 2: I think based on the opinion fairly resoundingly right. So

482
00:24:43,240 --> 00:24:45,480
Speaker 2: I think they will definitely seek some sort of a

483
00:24:45,520 --> 00:24:49,680
Speaker 2: structural breakup of the company. That could be breaking off Chrome.

484
00:24:49,720 --> 00:24:52,080
Speaker 2: It could be breaking off Android. It could be breaking

485
00:24:52,119 --> 00:24:55,879
Speaker 2: off a product that Google has that's called AdWords, that

486
00:24:56,240 --> 00:25:01,520
Speaker 2: basically is used for selling the text advertising that comes

487
00:25:01,600 --> 00:25:03,720
Speaker 2: up on a search page when you do a Google search.

488
00:25:04,440 --> 00:25:07,280
Speaker 2: It could be any of those three that they seek.

489
00:25:07,560 --> 00:25:12,080
Speaker 2: They could ask to ban the agreements that Google has

490
00:25:12,400 --> 00:25:14,440
Speaker 2: or the payments I should say that Google makes to

491
00:25:14,720 --> 00:25:18,000
Speaker 2: browser companies to set Google Search as the default, and

492
00:25:18,080 --> 00:25:20,840
Speaker 2: the payments that it makes to Android phone makers to

493
00:25:20,960 --> 00:25:23,640
Speaker 2: install the Google Search widget in front and center and

494
00:25:23,680 --> 00:25:26,960
Speaker 2: not install competitors search widgets, and any other kind of

495
00:25:26,960 --> 00:25:30,359
Speaker 2: agreements that has with other companies to install Google Search

496
00:25:30,359 --> 00:25:33,200
Speaker 2: as the default at key access points to the Internet.

497
00:25:33,960 --> 00:25:36,520
Speaker 2: I think they might now also ask for something called

498
00:25:36,560 --> 00:25:39,040
Speaker 2: like a choice screen. If somebody buys a new Android

499
00:25:39,040 --> 00:25:41,400
Speaker 2: phone and they set it up, you have a choice

500
00:25:41,440 --> 00:25:43,639
Speaker 2: screen that allows them to pick which search engine they

501
00:25:43,680 --> 00:25:46,000
Speaker 2: want to set as their default, rather than the phone

502
00:25:46,080 --> 00:25:48,840
Speaker 2: just coming with that default already set. And I think

503
00:25:48,920 --> 00:25:52,440
Speaker 2: also they may try to require Google to provide some

504
00:25:52,520 --> 00:25:55,639
Speaker 2: of the click data that it's developed collected over the

505
00:25:55,720 --> 00:25:57,840
Speaker 2: years through the millions and millions of searches that have

506
00:25:57,880 --> 00:26:01,160
Speaker 2: been done, because that is how it's engine has improved.

507
00:26:01,240 --> 00:26:03,399
Speaker 2: At least that's what the judge decided that it was

508
00:26:03,600 --> 00:26:06,639
Speaker 2: that search engines to get good need scale, and scale

509
00:26:06,640 --> 00:26:09,040
Speaker 2: comes from a lot of searches being done because that

510
00:26:09,080 --> 00:26:11,679
Speaker 2: improves the search engine because it learns from every search.

511
00:26:12,119 --> 00:26:14,480
Speaker 2: And the rivals like being in duc dot Go weren't

512
00:26:14,520 --> 00:26:17,200
Speaker 2: able to develop in the same way because they were

513
00:26:17,240 --> 00:26:20,160
Speaker 2: pushed out of the market by all of the default

514
00:26:20,200 --> 00:26:22,920
Speaker 2: positions that Google had paid for. So it may be

515
00:26:23,080 --> 00:26:26,960
Speaker 2: that the DJ asks for data to have to be

516
00:26:27,000 --> 00:26:28,879
Speaker 2: shared with these rivals to allow them to try to

517
00:26:28,880 --> 00:26:30,000
Speaker 2: improve their search engines.

518
00:26:30,640 --> 00:26:34,159
Speaker 1: It's going to be so interesting to see whether despite

519
00:26:34,240 --> 00:26:38,480
Speaker 1: all these fixes, people still want to Google. It is

520
00:26:38,520 --> 00:26:41,359
Speaker 1: a verb after all. Thanks so much, Jen for taking

521
00:26:41,440 --> 00:26:45,680
Speaker 1: us through all this antitrust. That's Bloomberg Intelligence senior litigation

522
00:26:45,800 --> 00:26:49,840
Speaker 1: analyst Jennifer Ree turning out of other legal news. The

523
00:26:49,920 --> 00:26:53,360
Speaker 1: Pregnant Workers Fairness Act has been more than a decade

524
00:26:53,359 --> 00:26:56,439
Speaker 1: in the making. It was first introduced in Congress in

525
00:26:56,520 --> 00:27:00,880
Speaker 1: twenty twelve and reintroduced in almost every legislate native session.

526
00:27:01,400 --> 00:27:05,240
Speaker 1: The act finally passed with bipartisan support in December of

527
00:27:05,320 --> 00:27:09,639
Speaker 1: twenty twenty two, but Texas Attorney General Ken Paxton sued

528
00:27:09,640 --> 00:27:14,000
Speaker 1: the Biden administration last year over the massive government funding

529
00:27:14,080 --> 00:27:18,000
Speaker 1: package that passed largely by proxy votes due to the

530
00:27:18,000 --> 00:27:23,720
Speaker 1: COVID nineteen pandemic. Paxton focused on the PWFA in particular,

531
00:27:24,240 --> 00:27:26,800
Speaker 1: saying that it put an undue burden on the state

532
00:27:26,920 --> 00:27:31,600
Speaker 1: government to accommodate its pregnant employees, and then in February,

533
00:27:31,880 --> 00:27:35,679
Speaker 1: a federal judge in Lubbock, Texas, ruled the PWFA was

534
00:27:35,800 --> 00:27:40,000
Speaker 1: unenforceable against the state government. That ruling is now being

535
00:27:40,040 --> 00:27:43,520
Speaker 1: appealed to the Fifth Circuit Court of Appeals. Joining me

536
00:27:43,600 --> 00:27:47,320
Speaker 1: is Dana Boulger, Senior staff attorney. At a Better Balance,

537
00:27:47,560 --> 00:27:50,480
Speaker 1: the Work and Family Legal Center tell us about the

538
00:27:50,520 --> 00:27:52,280
Speaker 1: Pregnant Worker's Fairness Act.

539
00:27:52,640 --> 00:27:57,000
Speaker 3: The Pregnant Worker's Fairness Act is a new federal law

540
00:27:57,280 --> 00:28:02,480
Speaker 3: that requires employers to provide pregnant and postpartum workers with

541
00:28:02,720 --> 00:28:07,800
Speaker 3: reasonable accommodations such as more frequent bathroom breaks or excused

542
00:28:07,800 --> 00:28:11,359
Speaker 3: absences to get pre needle care, or even to rush

543
00:28:11,400 --> 00:28:15,280
Speaker 3: to the emergency room for a pregnancy really complication. And

544
00:28:16,080 --> 00:28:20,200
Speaker 3: before the PWFA, pregnant workers across the country had no

545
00:28:20,440 --> 00:28:24,040
Speaker 3: affirmative touttle right to accommodations like these for ordinary pregnancy

546
00:28:24,080 --> 00:28:28,040
Speaker 3: needs or even for serious pregnancy complications. We had the

547
00:28:28,160 --> 00:28:32,960
Speaker 3: Americans with Disabilities Act, which similarly provides reasonable accommodations to

548
00:28:33,000 --> 00:28:36,160
Speaker 3: workers with disabilities. But again and again courts were telling

549
00:28:36,200 --> 00:28:38,760
Speaker 3: pregnant workers, you don't have a disability, so you don't

550
00:28:38,760 --> 00:28:41,880
Speaker 3: have a right to reasonable accommodation. Our organization A Better

551
00:28:41,920 --> 00:28:44,880
Speaker 3: Balance runs a free legal help line, and on that

552
00:28:45,040 --> 00:28:48,800
Speaker 3: health line, we were hearing from hundreds of workers who

553
00:28:48,800 --> 00:28:52,560
Speaker 3: were being denied even really basic accommodations that they needed,

554
00:28:52,680 --> 00:28:57,840
Speaker 3: like a school to sit on during the day. One worker, Rebecca,

555
00:28:58,160 --> 00:29:01,720
Speaker 3: had to occasionally do heavy lifting it work, and during

556
00:29:01,720 --> 00:29:04,200
Speaker 3: her pregnance she she had asked not to lift, but

557
00:29:04,240 --> 00:29:06,960
Speaker 3: her supervisor refused and told her that if she didn't,

558
00:29:07,080 --> 00:29:09,920
Speaker 3: she would lose her job. That put her, like so

559
00:29:10,120 --> 00:29:13,080
Speaker 3: many of the other pregnant workers that we were hearing from,

560
00:29:13,200 --> 00:29:18,200
Speaker 3: in the impossible position of choosing between jeopardizing her health

561
00:29:18,280 --> 00:29:21,400
Speaker 3: or losing her income, and she ultimately kept lifting and

562
00:29:22,400 --> 00:29:23,840
Speaker 3: miscarried shortly thereafter.

563
00:29:24,800 --> 00:29:27,600
Speaker 1: It was first introduced in twenty twelve, and then it

564
00:29:27,680 --> 00:29:32,520
Speaker 1: was reintroduced in almost every legislative session after that. Why

565
00:29:32,560 --> 00:29:35,240
Speaker 1: did it take so much to get this passed?

566
00:29:36,000 --> 00:29:38,600
Speaker 3: You know, this is a workplace civil rights law. I

567
00:29:38,640 --> 00:29:41,720
Speaker 3: wouldn't say that it's every day these days that Congress

568
00:29:41,800 --> 00:29:45,120
Speaker 3: is passing workplace rights laws. But it was over the

569
00:29:45,160 --> 00:29:48,560
Speaker 3: course of years and years of work that our organization

570
00:29:48,720 --> 00:29:52,840
Speaker 3: and others was able to bring on board organizations like

571
00:29:52,920 --> 00:29:56,360
Speaker 3: the Chamber of Commerce. The Chamber actually became a big

572
00:29:56,440 --> 00:30:00,200
Speaker 3: champion of the Pregnant Workers Farness Act. It actually did

573
00:30:00,240 --> 00:30:04,080
Speaker 3: the law to its Congressional score cards, so that Congress

574
00:30:04,080 --> 00:30:08,240
Speaker 3: people who voted for the PWFA would be scored positively

575
00:30:08,320 --> 00:30:12,280
Speaker 3: for doing so, and just generally bringing along the business

576
00:30:12,280 --> 00:30:16,520
Speaker 3: community on this law became a huge asset. Businesses came

577
00:30:16,600 --> 00:30:21,040
Speaker 3: to support the law because it provided a consistent national

578
00:30:21,080 --> 00:30:23,560
Speaker 3: standard for what they should do when a pregnant worker

579
00:30:23,640 --> 00:30:29,440
Speaker 3: needed an accommodation. It provided really key predictability to businesses,

580
00:30:29,680 --> 00:30:32,239
Speaker 3: and it helped boost employee morale and retention too.

581
00:30:33,120 --> 00:30:36,840
Speaker 1: Did Texas attack the entire statute?

582
00:30:37,320 --> 00:30:42,080
Speaker 3: Texas sued specifically over the Pregnant Workers Fairness Acts, But

583
00:30:42,960 --> 00:30:47,000
Speaker 3: the PWFA, as you're alluding to, was passed as part

584
00:30:47,040 --> 00:30:52,160
Speaker 3: of this massive three trillion dollar Appropriations Act, which included

585
00:30:52,320 --> 00:30:56,760
Speaker 3: other pieces of permanent legislation, not just the PWFA, and

586
00:30:56,880 --> 00:31:03,480
Speaker 3: Texas's argument and the court's ultimate holding said that Congress

587
00:31:03,520 --> 00:31:08,280
Speaker 3: passed the entire act unconstitutionally, not just the PWSA. So

588
00:31:08,320 --> 00:31:10,640
Speaker 3: the implications here are really far reaching.

589
00:31:10,720 --> 00:31:16,160
Speaker 1: And explain why the judge said that it was passed unconstitutionally.

590
00:31:16,200 --> 00:31:17,880
Speaker 1: What happened during the passage?

591
00:31:18,520 --> 00:31:23,120
Speaker 3: Though, the District Court held incorrectly in my view, that

592
00:31:23,160 --> 00:31:28,000
Speaker 3: the Constitution requires a physically present majority or a physically

593
00:31:28,000 --> 00:31:34,120
Speaker 3: present quorum to vote on legislation. Congress passed this Massive

594
00:31:34,160 --> 00:31:40,080
Speaker 3: Appropriations Act using a COVID era voting rule called proxy voting,

595
00:31:40,600 --> 00:31:45,120
Speaker 3: and under that a House member could designate another House

596
00:31:45,160 --> 00:31:49,360
Speaker 3: member to vote for them while they were not there

597
00:31:49,440 --> 00:31:52,480
Speaker 3: because of the public health emergency. And so when the

598
00:31:52,560 --> 00:31:56,920
Speaker 3: Act was passed, a number of House members voted via proxy,

599
00:31:57,400 --> 00:32:00,959
Speaker 3: and the District Court said that that was a constitutional

600
00:32:01,280 --> 00:32:05,560
Speaker 3: and basically read into the constitution a physical presence requirement

601
00:32:05,640 --> 00:32:06,600
Speaker 3: that simply isn't there.

602
00:32:07,000 --> 00:32:09,560
Speaker 1: I take it that other acts were passed in the

603
00:32:09,600 --> 00:32:11,600
Speaker 1: same way during the COVID era.

604
00:32:12,480 --> 00:32:14,840
Speaker 3: A number of other acts were passed over the couple

605
00:32:14,840 --> 00:32:17,760
Speaker 3: of years that this the voting rule was in place,

606
00:32:18,280 --> 00:32:21,880
Speaker 3: but never with so many members voting via proxy that

607
00:32:22,440 --> 00:32:26,920
Speaker 3: there wasn't a physically present majority there to vote on it.

608
00:32:27,000 --> 00:32:29,960
Speaker 3: So this Massive Appropriations Act was a little bit unique

609
00:32:29,960 --> 00:32:32,239
Speaker 3: and that so many people were voting via proxy at

610
00:32:32,240 --> 00:32:34,760
Speaker 3: that time. But I think it's really worth pointing out

611
00:32:34,840 --> 00:32:38,760
Speaker 3: that the number of House members that participated in this vote,

612
00:32:38,760 --> 00:32:41,040
Speaker 3: it was ninety nine percent of House members, I mean,

613
00:32:41,080 --> 00:32:44,160
Speaker 3: a huge participation rate. So this wasn't a situation where,

614
00:32:44,520 --> 00:32:47,600
Speaker 3: you know, some tiny fraction of members were voting. This

615
00:32:47,800 --> 00:32:51,440
Speaker 3: was a rigorous voting process that many people participated in.

616
00:32:51,680 --> 00:32:54,120
Speaker 1: Give us a little information about the judge.

617
00:32:54,560 --> 00:32:57,920
Speaker 3: Yeah, it's Judge Hendrix's. He's a Trump appointee.

618
00:32:58,360 --> 00:32:58,600
Speaker 2: You know.

619
00:32:58,800 --> 00:33:01,560
Speaker 3: The political ba is that this case I think are

620
00:33:01,560 --> 00:33:05,400
Speaker 3: actually quite interesting. He's a Trump appointee, and you know,

621
00:33:06,160 --> 00:33:09,840
Speaker 3: Texas is obviously no friend of the Biden administration, but

622
00:33:09,920 --> 00:33:15,120
Speaker 3: a really broad range of stakeholders weighed in in ancus

623
00:33:15,160 --> 00:33:18,479
Speaker 3: Brits in this case last week. So Mitch McConnell, of

624
00:33:18,520 --> 00:33:22,120
Speaker 3: all people, certainly no friend of the Biden administration and

625
00:33:22,440 --> 00:33:25,880
Speaker 3: also not a feminist firebrand in any way, actually filed

626
00:33:25,880 --> 00:33:27,960
Speaker 3: a brief in support of the Pregnant Workers Bar in

627
00:33:28,000 --> 00:33:31,880
Speaker 3: a fact arguing, yeah, so he I mean, he actually

628
00:33:31,960 --> 00:33:35,760
Speaker 3: voted for the PWFA, which was an overwhelmingly bipartisan piece

629
00:33:35,760 --> 00:33:40,800
Speaker 3: of legislation. But more than that, Senator McConnell objected to

630
00:33:41,240 --> 00:33:46,720
Speaker 3: the court's intrusion in Congress's authority to set its own

631
00:33:47,120 --> 00:33:48,440
Speaker 3: voting rules and procedures.

632
00:33:49,160 --> 00:33:51,960
Speaker 1: So was this decision and novel decision As.

633
00:33:52,080 --> 00:33:54,760
Speaker 3: Far as I'm aware, this is the first time that

634
00:33:54,960 --> 00:33:58,480
Speaker 3: the proxy voting was addressed by a judge in quite

635
00:33:58,480 --> 00:34:03,200
Speaker 3: this way. Publicans actually did challenge the proxy voting procedure

636
00:34:03,400 --> 00:34:05,520
Speaker 3: back in twenty twenty when it was adopted, and the

637
00:34:05,600 --> 00:34:09,520
Speaker 3: DC Circuit ultimately rejected the case, but on different grounds.

638
00:34:09,880 --> 00:34:12,640
Speaker 1: So now what happens now? What's the next step?

639
00:34:13,120 --> 00:34:16,360
Speaker 3: Briefing at the Fifth Circuit should wrap up in the

640
00:34:16,400 --> 00:34:20,040
Speaker 3: next couple months. We expect oral arguments and that the

641
00:34:20,080 --> 00:34:22,520
Speaker 3: Fifth Circuit will then decide the case.

642
00:34:22,920 --> 00:34:26,880
Speaker 1: The Fifth Circuit is the most conservative federal appellate court

643
00:34:26,960 --> 00:34:29,640
Speaker 1: in the country, and we saw how many of its

644
00:34:29,719 --> 00:34:33,560
Speaker 1: cases were overturned at the Supreme Court this past term.

645
00:34:34,000 --> 00:34:38,320
Speaker 1: Are you confident that Judge Hendrick's decision will be overturned

646
00:34:38,440 --> 00:34:39,520
Speaker 1: or are you concerned?

647
00:34:40,280 --> 00:34:43,680
Speaker 3: I mean, I'm certainly hopeful that the Fifth Circuit will

648
00:34:43,719 --> 00:34:47,759
Speaker 3: look at, frankly, all the really unlikely bedfellows who came

649
00:34:47,800 --> 00:34:51,640
Speaker 3: together in Amica's support in this case to raise the alarm,

650
00:34:52,000 --> 00:34:55,120
Speaker 3: and that bill reverse the District Court's decision. It's worth

651
00:34:55,200 --> 00:34:59,680
Speaker 3: noting that, in addition to Senator McConnell, a group of bipartisans,

652
00:35:00,400 --> 00:35:04,680
Speaker 3: high ranking national security officials actually files an anarchist brief

653
00:35:04,680 --> 00:35:08,200
Speaker 3: in this case as well, and they argue that the

654
00:35:08,440 --> 00:35:12,480
Speaker 3: District Court's novel reading of the quorum clause to require

655
00:35:12,520 --> 00:35:17,959
Speaker 3: physical presence could actually hamstring our national security at moments when,

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00:35:18,200 --> 00:35:21,880
Speaker 3: for example, DC is under attack, or there's a national

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00:35:21,920 --> 00:35:26,040
Speaker 3: public health emergency, or air traffic is shut down. And

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00:35:26,280 --> 00:35:29,480
Speaker 3: it's at those moments of attack on the United States

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00:35:29,480 --> 00:35:32,439
Speaker 3: that Congress actually most needs to act and shouldn't be

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00:35:33,080 --> 00:35:36,239
Speaker 3: paralyzed from doing so simply because all the members can't

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00:35:36,239 --> 00:35:38,440
Speaker 3: physically convene together in a single location.

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00:35:39,120 --> 00:35:42,279
Speaker 1: Now the court's injunction, does it just apply to the

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00:35:42,280 --> 00:35:44,200
Speaker 1: state of Texas exactly.

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00:35:44,520 --> 00:35:48,000
Speaker 3: It says that the EEOC and the Department of Justice

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00:35:48,160 --> 00:35:52,479
Speaker 3: cannot enforce the Pregnant Workers Fairness Act against the State

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00:35:52,520 --> 00:35:56,160
Speaker 3: of Texas. So essentially it's really weakened, quite profoundly the

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00:35:56,239 --> 00:36:00,640
Speaker 3: rights of Texas state government employees to really under the

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00:36:00,680 --> 00:36:03,840
Speaker 3: Pregnant Workers standisac But it's important for pregnant workers across

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00:36:03,880 --> 00:36:06,480
Speaker 3: the country elsewhere to know that their rights are very

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00:36:06,520 --> 00:36:07,359
Speaker 3: much still in place.

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00:36:07,640 --> 00:36:10,680
Speaker 1: I've lost track of how many times Texas has sued

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00:36:10,719 --> 00:36:11,799
Speaker 1: the Biden administration.

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00:36:12,480 --> 00:36:15,200
Speaker 3: Yeah, Texas has certainly taken the lead in trying to

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00:36:15,239 --> 00:36:19,560
Speaker 3: attack the rights of workers across the country, including pregnant workers.

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00:36:19,880 --> 00:36:24,319
Speaker 3: I think it's really notable here that so many conservatives

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00:36:24,320 --> 00:36:28,319
Speaker 3: themselves have aligned against Texas in this suit. I mean,

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00:36:28,320 --> 00:36:30,719
Speaker 3: first of all, you don't have any other states attorney's

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00:36:30,760 --> 00:36:33,640
Speaker 3: general joining Texas in this case, which is quite striking.

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00:36:34,320 --> 00:36:38,200
Speaker 3: And then of course you have Senator McConnell and former

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00:36:38,560 --> 00:36:42,560
Speaker 3: national security officials that served in Republican administrations saying whoa

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00:36:42,600 --> 00:36:46,000
Speaker 3: wo woe. Stop. This is extreme, this will hamstring the

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00:36:46,000 --> 00:36:47,960
Speaker 3: federal government. This case needs to go.

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Speaker 1: Thanks so much, Dana. That's Dana Bolger, senior staff attorney

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Speaker 1: at a Better Balance the Work and Family Legal Center.

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Speaker 1: And that's it for this edition of the Bloomberg Law Podcast.

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Speaker 1: Remember you can always get the leaf its legal news

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00:37:00,840 --> 00:37:04,879
Speaker 1: by subscribing and listening to the show on Apple Podcasts, Spotify,

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Speaker 1: and at Bloomberg dot com, slash podcast, Slash Law. I'm

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Speaker 1: June Grosso, and this is Bloomberg