WEBVTT - SCOTUS on Abortion Pill & SBF Sentencing 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.000 --> 0:00:13.440 On Tuesday, the Supreme Court justices took up the divisive 0:00:13.520 --> 0:00:17.040 issue of abortion for the first time since overturning the 0:00:17.120 --> 0:00:20.479 constitutional right to an abortion in twenty twenty two, but 0:00:20.600 --> 0:00:24.360 even some of the conservative justices who voted to overturn 0:00:24.560 --> 0:00:27.880 Roe v. Wade appeared wary of the legal attack on 0:00:28.000 --> 0:00:31.120 mifa pristone, a drug now used in more than half 0:00:31.160 --> 0:00:35.880 of the nation's abortions. Justices from across the ideological spectrum 0:00:36.159 --> 0:00:40.920 expressed skepticism that the anti abortion doctors challenging the FDA's 0:00:40.960 --> 0:00:45.000 loosening of regulations for mifa pristone have standing or the 0:00:45.040 --> 0:00:48.159 type of direct harm that gives them legal grounds to 0:00:48.159 --> 0:00:51.760 bring the suit. Here are Justices Katanji, Brown Jackson, and 0:00:51.840 --> 0:00:52.760 Neil Gorsich. 0:00:53.360 --> 0:00:56.160 I mean, it makes perfect sense for the individual doctors 0:00:56.320 --> 0:00:59.440 to seek an exemption, but as I understand that they 0:00:59.480 --> 0:01:03.400 already had that, and so what they're asking for here 0:01:03.560 --> 0:01:08.240 is that in order to prevent them from possibly ever 0:01:08.319 --> 0:01:12.280 having to do these kinds of procedures, everyone else should 0:01:12.280 --> 0:01:14.800 be prevented from getting access to this medication. 0:01:15.080 --> 0:01:19.000 So why isn't that plainly overbroad. 0:01:21.040 --> 0:01:24.800 We've had. One might call it a rash of universal 0:01:24.880 --> 0:01:30.240 injunctions or vacatures, and this case seems like a prime 0:01:30.280 --> 0:01:34.120 example of turning what could be a small lawsuit into 0:01:34.160 --> 0:01:42.440 a nationwide legislative assembly on an FDA rule or any 0:01:42.520 --> 0:01:43.800 other federal government action. 0:01:44.120 --> 0:01:47.600 Joining me is an expert in reproductive rights, Mary Ziegler, 0:01:47.640 --> 0:01:51.160 a professor at UC Davis Law School. Mary, just about 0:01:51.200 --> 0:01:54.120 everyone who listened to the oral arguments is of the 0:01:54.160 --> 0:01:59.040 opinion that a majority of the justices will turn away 0:01:59.160 --> 0:02:02.160 this challenge to mif A pristone. Is that your opinion 0:02:02.200 --> 0:02:02.640 as well? 0:02:03.280 --> 0:02:06.040 Yeah, it is. I think that it seemed that most 0:02:06.040 --> 0:02:08.840 of the justices were convinced that the plaintiffs in the 0:02:08.880 --> 0:02:10.040 case didn't outstanding. 0:02:11.000 --> 0:02:13.519 So the main issue, I mean, the real issue before 0:02:13.520 --> 0:02:17.640 we get to standing, was whether the FDA acted unlawfully 0:02:17.680 --> 0:02:21.120 when it relaxed the rules and expanded access to MiFi 0:02:21.160 --> 0:02:25.400 pristone back in twenty sixteen. Where did the justices stand 0:02:25.480 --> 0:02:26.400 on that issue? 0:02:27.560 --> 0:02:30.400 The argument, at least that the alliance for hippocratic medicine 0:02:30.400 --> 0:02:33.200 the plaintiffs wanted to make was twofold right one, that 0:02:33.240 --> 0:02:35.760 the FDA didn't have the authority either to approve mif 0:02:35.840 --> 0:02:39.120 pristone back in two thousand, or to lift subsequent restrictions 0:02:39.160 --> 0:02:42.679 on the drug in twenty sixteen or twenty twenty one, 0:02:43.000 --> 0:02:46.399 the argument being that the FDA hadn't been careful enough 0:02:46.440 --> 0:02:50.560 with the science to make all of those decisions, And 0:02:51.280 --> 0:02:53.880 there was a related argument on the twenty twenty one changes, 0:02:53.880 --> 0:02:58.120 which are what permitted abortion for reasons of telehealth. Their 0:02:58.320 --> 0:03:02.760 activists argued that the federal Comstock Act, which is in 0:03:02.880 --> 0:03:07.520 nineteenth century obscenity statute, prohibited the mailing of abortion related items, 0:03:07.520 --> 0:03:09.519 So the FDA couldn't have had the authority to approve 0:03:09.560 --> 0:03:13.640 telehealth because doing sowhat of violated federal law. So those 0:03:13.760 --> 0:03:16.280 were a lot of the arguments that in herey the 0:03:16.320 --> 0:03:19.680 court could consider. We don't imagine they'll be in a 0:03:19.720 --> 0:03:22.320 majority opinion because we think the plaintiffs will likely be 0:03:22.360 --> 0:03:24.480 held not to have standing, but some of those arguments 0:03:24.480 --> 0:03:26.960 seem to capture the interests of some of the conservative 0:03:27.080 --> 0:03:28.880 justices for down the road. 0:03:29.200 --> 0:03:34.640 Abortion opponents have looked at the Comstocked Act as a 0:03:34.680 --> 0:03:38.680 possible way to stop medication abortions. Do you think that 0:03:38.680 --> 0:03:41.400 that is a fight that will happen down the road 0:03:41.680 --> 0:03:42.040 in night. 0:03:42.160 --> 0:03:44.120 I mean, so in this case, you know, if these 0:03:44.120 --> 0:03:47.640 plaintiffs don't have standing, other plaintiffs could we know that, 0:03:47.640 --> 0:03:50.320 at least on the Comstock Act front, that both Justices 0:03:50.400 --> 0:03:53.600 Thomas and Alito signaled some interest in the idea that 0:03:53.640 --> 0:03:57.040 the Comstock Act bans mailing abortion pills and maybe other 0:03:57.280 --> 0:04:00.760 abortion related items as well. So I think, you know, 0:04:00.840 --> 0:04:02.680 whatever comes out of this case may not be a 0:04:02.720 --> 0:04:03.600 final resolution. 0:04:04.280 --> 0:04:07.600 So, as you said, the justice is from across the 0:04:07.640 --> 0:04:12.360 eyedelogical spectrum expressed doubt that the doctors and the organizations 0:04:12.360 --> 0:04:16.159 had standing to try to overturn the FDA changes. What 0:04:16.320 --> 0:04:18.880 do you think was the heart of that argument. 0:04:19.400 --> 0:04:22.400 The plaintiff's argument essentially was a speculative argument, right, So 0:04:22.440 --> 0:04:28.080 they said, there are complications that inevitably ensue when people 0:04:28.120 --> 0:04:31.719 take mitha pristone, and some percentage of those people with 0:04:31.800 --> 0:04:34.520 complications will end up in the emergency room. And then 0:04:34.520 --> 0:04:36.960 they said, it's reasonable to assume that some of those 0:04:37.000 --> 0:04:39.400 patients might end up in our emergency rooms and it 0:04:39.440 --> 0:04:41.240 may be the case that we have to treat them, 0:04:41.360 --> 0:04:44.400 and then that may cause us a conscience based injury. 0:04:44.520 --> 0:04:47.120 The problem with that, according to many of the justices 0:04:47.320 --> 0:04:50.320 was one, none of that may happen. This is all 0:04:50.400 --> 0:04:53.719 just possibilities, and two that it seemed that there was 0:04:53.760 --> 0:04:56.800 a mismatch. Is Justice Katanji Brown Jackson put it between 0:04:57.040 --> 0:05:00.520 the remedy the plaintiffs were seeking and the harm they suffered. 0:05:00.760 --> 0:05:03.800 She and Justice Scorsich asked, you know, if the problem 0:05:03.839 --> 0:05:06.400 here is that doctors may have to act against their conscience, 0:05:06.640 --> 0:05:09.560 why can't those doctors just get a conscience based objection. 0:05:09.720 --> 0:05:11.599 Why do they have to go all the way to 0:05:11.680 --> 0:05:14.800 taking a drug potentially off the market for all Americans. 0:05:14.880 --> 0:05:18.240 So there were clearly problems withithstanding from the beginning, and 0:05:18.279 --> 0:05:20.560 that's why we saw it being such a focal point 0:05:20.560 --> 0:05:21.200 at the argument. 0:05:21.520 --> 0:05:25.200 So just as Brett Kavanaugh asked only one question in 0:05:25.240 --> 0:05:28.080 the ninety minute argument, and he said, just to confirm 0:05:28.120 --> 0:05:31.040 on the standing issue, under federal law, no doctors can 0:05:31.080 --> 0:05:34.000 be forced against their consciences to perform or assist in 0:05:34.000 --> 0:05:38.120 an abortion. Correct. He asked this listener, general, it's unusual 0:05:38.240 --> 0:05:41.520 to have any justice just ask one question. Do you 0:05:41.520 --> 0:05:44.960 think he was trying to, you know, not give ammunition 0:05:45.080 --> 0:05:47.440 to opponents who've been focusing on him. 0:05:47.880 --> 0:05:50.320 I think Kavanaugh just thought this was an easy case. 0:05:50.360 --> 0:05:52.599 I mean, I think there was a signal that, you know, 0:05:52.800 --> 0:05:55.760 these doctors, if they had conscience based harms, they weren't 0:05:55.760 --> 0:05:58.400 going to be forced to do anything they didn't want 0:05:58.440 --> 0:06:01.360 to do because they already had protect actions under federal law, 0:06:02.200 --> 0:06:04.840 and that that made the kinds of injury they were 0:06:04.880 --> 0:06:09.160 talking about even more speculative. I don't think, you know, 0:06:09.360 --> 0:06:11.960 a lot of the justices seemed to think this was 0:06:12.000 --> 0:06:14.880 an easy case, and I think Kavanaugh may have been 0:06:15.080 --> 0:06:17.280 more unplugged from the argument for that reason. 0:06:17.880 --> 0:06:19.880 Now, there was also a claim we talked about the 0:06:19.880 --> 0:06:24.400 claims of the doctors, the for organizational standing, and Justice 0:06:24.440 --> 0:06:27.320 Elena Kagan said, you need a person who's your person? 0:06:27.839 --> 0:06:29.960 I thought it was sort of amusing when you know, 0:06:30.040 --> 0:06:32.840 he said, refer to the district court, and she said, 0:06:32.960 --> 0:06:35.240 I don't really care. I'm not sure I care all 0:06:35.279 --> 0:06:38.480 that much about the district court, sort of dismissing Judge 0:06:38.600 --> 0:06:42.520 kes Merrick. Did the organizational standing claim fall even worse 0:06:42.600 --> 0:06:44.320 than the claim of the doctors? 0:06:44.800 --> 0:06:47.320 I think so. I mean, I think even Justice Thomas 0:06:47.360 --> 0:06:51.560 seemed doubtful about the organizational standing claim, suggesting that it 0:06:51.640 --> 0:06:54.520 just proved way too much. So the argument that the 0:06:54.960 --> 0:06:58.560 organization had made was that it was expanding resources and 0:06:58.720 --> 0:07:01.440 time to fight for Christine that it would have liked 0:07:01.480 --> 0:07:04.479 to use on other pro life work. And several of 0:07:04.520 --> 0:07:07.120 the justices, again including Justice Thomas, who you would think 0:07:07.160 --> 0:07:08.960 would have been one of the most sympathetic to the point, 0:07:09.000 --> 0:07:11.400 has said, well, if that's true, then put in any 0:07:11.480 --> 0:07:14.760 social movement group, bring any lawsuit and say simply the 0:07:14.840 --> 0:07:18.239 fact that the lawsuit was an expensive resources they wouldn't 0:07:18.240 --> 0:07:20.960 otherwise need to bring, and that gives them standing. So 0:07:21.160 --> 0:07:24.440 there was arguably even more skepticism of that claim than 0:07:24.440 --> 0:07:25.960 the ones involving the doctors. 0:07:26.440 --> 0:07:29.840 The Conservatives sort of tore into the nationwide injunction, and 0:07:29.880 --> 0:07:33.160 we've heard this so many times about so just as 0:07:33.240 --> 0:07:36.120 Gorsig question whether a suit by a handful of individuals 0:07:36.160 --> 0:07:39.080 who've asserted a conscious objection was grounds for a federal 0:07:39.120 --> 0:07:43.040 court to topple the FDA changes nationwide, and he talked 0:07:43.040 --> 0:07:47.880 about the spike and universal injunctions. They've done this before. 0:07:48.040 --> 0:07:52.440 The justices have talked about the harm of universal injunctions, 0:07:52.440 --> 0:07:54.600 but yet they don't ever do anything about it. Do 0:07:54.640 --> 0:07:55.920 you think they might do something about it? 0:07:55.920 --> 0:07:59.440 In this case, it's possible. I mean, clearly Justice Gorsuch 0:07:59.520 --> 0:08:03.040 would like you know, I think there was sort of 0:08:03.040 --> 0:08:05.400 a soapbox moment where this is been a pet peeve 0:08:05.440 --> 0:08:07.960 of his, and he took an opportunity to hold this 0:08:08.080 --> 0:08:11.400 case up as an example of what's wrong with universal injunctions. 0:08:11.560 --> 0:08:13.840 I don't know if that's going to be too far 0:08:13.880 --> 0:08:17.320 afield from the issues at hand. Given that this ruling 0:08:17.400 --> 0:08:21.120 is likely to center on standing, Justice Corsich may write 0:08:21.120 --> 0:08:24.720 separately to complain about universal injunctions. I don't know if 0:08:24.760 --> 0:08:26.640 the majority is going to do anything in this case. 0:08:26.680 --> 0:08:28.760 I'd be sort of surprised if they did so. 0:08:29.120 --> 0:08:32.920 Mary. If, as everyone thinks, they take the off ramp 0:08:32.960 --> 0:08:35.640 and rule there's no standing here, I mean, does that 0:08:35.800 --> 0:08:40.400 leave the question open for other groups to try to 0:08:40.480 --> 0:08:42.720 challenge if a pristone. 0:08:42.360 --> 0:08:43.360 It potentially does. 0:08:43.400 --> 0:08:43.520 So. 0:08:43.559 --> 0:08:47.079 We know that in the trial court several conservative states 0:08:47.080 --> 0:08:50.120 have sought to intervene. The US Supreme Court allowed this 0:08:50.200 --> 0:08:53.400 case to proceed without joining those cases or those parties 0:08:53.640 --> 0:08:56.679 to the present matter. But they are before Judge Tasmeerk. 0:08:56.960 --> 0:08:59.680 If they don't end up having standing, it's not hard 0:08:59.679 --> 0:09:02.880 to manage that Other Conservatives will try to assert it. 0:09:03.040 --> 0:09:06.880 General Prelogger yesterday alluded to the possibility that, you know, 0:09:06.960 --> 0:09:10.760 she thought those other parties don't have standing either, and 0:09:10.800 --> 0:09:12.960 that was a point Justice Alito wanted to make a 0:09:13.000 --> 0:09:15.560 big deal about, essentially to say, well, if these people 0:09:15.559 --> 0:09:19.560 don't have standing and nobody has standing, isn't that a problem. 0:09:19.920 --> 0:09:22.720 But I don't think we know at this point that 0:09:22.800 --> 0:09:25.720 support would rule out other people potentially having standing. 0:09:26.320 --> 0:09:29.400 So this challenge to mitha pristone reached the Supreme Court 0:09:29.480 --> 0:09:33.720 so quickly, and it was a result of judge shopping. 0:09:34.120 --> 0:09:38.400 Do you think that with the judicial conference changes that 0:09:38.640 --> 0:09:41.640 this kind of a case would not be able to 0:09:41.640 --> 0:09:42.480 be judge shopped? 0:09:42.679 --> 0:09:45.440 It's interesting. I don't know. I mean, I would hope 0:09:45.559 --> 0:09:48.200 we have to see. I think how those changes play 0:09:48.240 --> 0:09:51.240 out in practice. That's certainly the outcome they're designed to achieve. 0:09:51.440 --> 0:09:52.880 But I guess I would say, we'll have to wait 0:09:52.920 --> 0:09:54.520 and see how they work in practice. 0:09:54.640 --> 0:09:58.080 And states have been stockpiling MiFi pristone in the event 0:09:58.120 --> 0:10:00.400 that the Supreme Court ruled against it. 0:10:00.840 --> 0:10:01.360 Yeah, they have. 0:10:01.520 --> 0:10:04.560 And they've been also stout filing missuprostal, another drug that 0:10:04.600 --> 0:10:07.240 would be used as an alternative you know, so methroprostone 0:10:07.240 --> 0:10:10.719 and mister prostal are used together now in medication abortions. 0:10:10.920 --> 0:10:14.280 Misuprostal on its own can also be used to produce 0:10:14.640 --> 0:10:18.280 a medication abortion, so there's a possibility that that would 0:10:18.320 --> 0:10:18.920 also occur. 0:10:19.400 --> 0:10:22.200 The Supreme Court is also going to hear a case 0:10:22.760 --> 0:10:26.520 from Idaho, where there's a total ban on all abortions 0:10:26.559 --> 0:10:29.760 except when necessary to save the mother's life. Why do 0:10:29.760 --> 0:10:31.000 you think they took that case. 0:10:31.480 --> 0:10:33.719 I don't know. I mean, I think it's likely they 0:10:33.720 --> 0:10:36.840 don't agree with the Biden administration's interpretation of the law. 0:10:37.000 --> 0:10:39.800 They've let Idaho's ban, which has some of the narrowest 0:10:39.840 --> 0:10:44.280 exceptions in the nation's stand while the litigation continues. I 0:10:44.280 --> 0:10:47.400 think they clearly think that there's something wrong with what 0:10:47.480 --> 0:10:49.960 the Biden administration is doing. The interesting question is what 0:10:50.480 --> 0:10:53.840 they think that this statute simply has nothing to do 0:10:53.960 --> 0:10:58.520 with abortion, or that they think it's likely that the 0:10:58.640 --> 0:11:01.240 language of the statute, which refer to an unborn child, 0:11:01.320 --> 0:11:04.200 actually limits in some ways what doctors, potentially even in 0:11:04.280 --> 0:11:07.319 blue states, could do. So I'm not sure which of 0:11:07.360 --> 0:11:08.880 those possibilities we'll see. 0:11:08.960 --> 0:11:11.720 Will that case be more of a test of the 0:11:11.840 --> 0:11:14.599 Dobbs decision than the Mifipress Stone cases. 0:11:15.000 --> 0:11:17.920 Yeah, it definitely will, in the sense that we're much 0:11:17.960 --> 0:11:20.720 more likely to see a ruin on the actual merits 0:11:20.720 --> 0:11:24.400 of the question rather than a decision on standing, which 0:11:24.440 --> 0:11:27.720 I mean, obviously, it's important that the court still recognizes 0:11:27.760 --> 0:11:30.240 guardrails on who can sue, but it doesn't give us 0:11:30.280 --> 0:11:32.480 much of a sense of the substance of abortion law 0:11:32.520 --> 0:11:34.880 post Dobbs in the same way that this other case could. 0:11:35.280 --> 0:11:38.000 Thanks for being on the show, Mary, that's Professor Mary 0:11:38.080 --> 0:11:41.480 Ziegler of UC Davis Law School. Coming up next on 0:11:41.520 --> 0:11:45.320 the Bloomberg Law Show, Can the Government beat Apple in 0:11:45.360 --> 0:11:49.520 its antitrust lawsuit? And later in the show, Sam Bankman 0:11:49.600 --> 0:11:53.439 Freed is facing decades in prison when he's sentenced tomorrow. 0:11:53.760 --> 0:11:57.760 I'm June Grosso and you're listening to Bloomberg. The Justice 0:11:57.800 --> 0:12:01.880 Department has filed a sweeping anti trust lawsuit against Apple, 0:12:02.360 --> 0:12:06.120 accusing the tech giant of engineering an illegal monopoly and 0:12:06.200 --> 0:12:11.560 smartphones that boxes out competitors, stifles innovation, and keeps prices 0:12:11.720 --> 0:12:16.600 artificially high. Attorney General Merrick Garland said the company's strict 0:12:16.640 --> 0:12:21.640 restrictions against third party technology forces consumers and developers to 0:12:21.800 --> 0:12:26.319 only use items under Apple's umbrella, including Apple Watches and 0:12:26.440 --> 0:12:30.720 Apple Pay. Apple says, we'll see you in court. Joining 0:12:30.720 --> 0:12:34.880 me is Jennifer Ree, Bloomberg Intelligence senior litigation analyst. Jen 0:12:35.040 --> 0:12:36.640 tell us a little about the lawsuit. 0:12:36.840 --> 0:12:40.280 Well, what the DOJ's alleging is generally that Apple is 0:12:40.400 --> 0:12:44.000 maintaining its monopoly position, or at least attempting to monopolize 0:12:44.000 --> 0:12:46.800 a couple different markets. They say, either a smartphone market 0:12:46.800 --> 0:12:49.480 in the US or a smaller market that they call 0:12:49.600 --> 0:12:52.240 premium smartphones in the US, which I guess are the 0:12:52.360 --> 0:12:56.000 more expensive smartphones essentially. And what the DOJ says is 0:12:56.040 --> 0:12:59.120 that Apple has monopoly power in these markets and that 0:12:59.240 --> 0:13:02.520 it uses its control in this power over the technologies 0:13:02.559 --> 0:13:05.760 that are needed for functionality with the iPhone, in other words, 0:13:05.760 --> 0:13:09.360 for other software or hardware to interoperate with it in 0:13:09.400 --> 0:13:12.880 a way that blocks out competitors but also locks in users. 0:13:13.200 --> 0:13:16.400 So the goal the DOJ says here is that Apple's 0:13:16.440 --> 0:13:18.280 trying to make it harder for people to switch to 0:13:18.320 --> 0:13:20.400 a non Apple smartphone in that way it can protect 0:13:20.440 --> 0:13:23.960 its monopolies. And they do lay out a few specific examples. 0:13:24.000 --> 0:13:26.400 Now they say it's really a course of conduct. But 0:13:26.440 --> 0:13:29.240 they lay out some very specific examples that they say 0:13:29.520 --> 0:13:33.480 achieve this for Apple. And one thing is prohibiting super apps. Now, 0:13:33.520 --> 0:13:36.360 these are apps that have broad functionality in a single app. 0:13:36.679 --> 0:13:41.000 Apparently they're very popular in Asia, and Apple prohibits these apps, 0:13:41.040 --> 0:13:43.000 and the Department of Justice says, well, it's because it 0:13:43.040 --> 0:13:45.960 would reduce the dependence on the iOS on the operating 0:13:46.000 --> 0:13:50.120 system that Apple runs. It also bans cloud streaming gay apps, 0:13:50.520 --> 0:13:53.560 and these kinds of cloud streaming game apps make it 0:13:53.600 --> 0:13:56.880 easier to switch because you don't really need sophisticated hardware 0:13:56.880 --> 0:13:59.800 to play the games if they're being streamed from the cloud. 0:13:59.840 --> 0:14:02.120 So it's kind of like examples like that. There are 0:14:02.160 --> 0:14:04.760 several others, and they align the suit with a very 0:14:04.800 --> 0:14:07.920 old suit in the nineteen nineties that was against Microsoft, 0:14:08.040 --> 0:14:11.000 where the company blocked middleware and its operating system that 0:14:11.040 --> 0:14:14.120 it thought would threaten its operating system monopoly. They're basically 0:14:14.120 --> 0:14:16.200 saying it's the same kind of conduct here. 0:14:16.440 --> 0:14:19.840 So Jen, what's surprising is there are people who are 0:14:20.480 --> 0:14:24.760 devoted Apple users and wouldn't use anything else and the iPhone. 0:14:24.800 --> 0:14:26.760 I have to say, I'm one, you know, I've had 0:14:26.760 --> 0:14:30.240 the iPhone forever. Aren't there those kinds of people too. 0:14:30.280 --> 0:14:31.960 There are so many people who just love. 0:14:31.880 --> 0:14:35.440 The iPhone listen absolutely, And this will be Apple's defense 0:14:35.720 --> 0:14:39.040 that what the Department of Justice is basically trying to 0:14:39.080 --> 0:14:41.600 do is make it just like Android, and right now 0:14:41.640 --> 0:14:43.800 people have a choice. You have an Android, which is 0:14:43.800 --> 0:14:46.360 a more open system phone, and then you have Apple, 0:14:46.440 --> 0:14:49.240 which is a closed ecosystem technically to give you more 0:14:49.240 --> 0:14:51.320 privacy and to give you more security. This is what 0:14:51.360 --> 0:14:53.760 Apple would say. And there are devotees and people who 0:14:53.800 --> 0:14:56.520 prefer Apple for that reason, and Apple saying, look, you're 0:14:56.520 --> 0:14:58.320 going to take away a choice if you make us 0:14:58.360 --> 0:15:00.720 open up the way Android is open. And this will 0:15:00.760 --> 0:15:03.800 be the basis for Apple's defense because in general, in 0:15:03.840 --> 0:15:07.280 these kinds of monopolization suits, if a company has legitimate 0:15:07.360 --> 0:15:10.960 pro competitive justifications for its decisions and its conduct and 0:15:11.000 --> 0:15:14.480 its contracts, then usually they're not deemed harmful under the 0:15:14.520 --> 0:15:18.000 antitrust laws. And Apple will say, we have these justifications. 0:15:18.280 --> 0:15:21.240 We do what we do because it enhances ease of use, 0:15:21.640 --> 0:15:24.760 it makes it seamless for consumers, it's more private, it's 0:15:24.760 --> 0:15:27.280 more secure, and the consumers that buy the iPhone can 0:15:27.320 --> 0:15:29.480 depend on us because of that, But what the Department 0:15:29.480 --> 0:15:32.360 of Justice has said is that's really just a pretext. 0:15:32.440 --> 0:15:34.240 You know, that's what Apple likes to put out there 0:15:34.240 --> 0:15:36.440 in the world. But in truth, if you look at 0:15:36.440 --> 0:15:38.960 some of their internal documents, some of what they do 0:15:39.120 --> 0:15:41.320 at least is simply meant to make it hard to 0:15:41.360 --> 0:15:44.120 switch and to maintain their monopoly. And so a judge 0:15:44.160 --> 0:15:45.680 is going to have to look at this evidence and 0:15:45.760 --> 0:15:48.040 soft that out. You know, which one is true? 0:15:48.160 --> 0:15:51.520 What would the government have to prove in a lawsuit? 0:15:51.920 --> 0:15:55.480 So in a monopolization lawsuit, it's really important to look 0:15:55.520 --> 0:15:58.840 at the conduct. It's really all about the market definition 0:15:58.960 --> 0:16:01.360 and all about the conduct. And I say that because 0:16:01.840 --> 0:16:03.400 if you are going to try to prove that a 0:16:03.440 --> 0:16:06.080 company's maintaining its monopoly, you have to first prove it 0:16:06.080 --> 0:16:08.120 has a monopoly. And there are a number of ways 0:16:08.160 --> 0:16:10.440 you can prove that. One of the easiest or most 0:16:10.520 --> 0:16:12.880 obvious ways is to show what market share they have 0:16:12.920 --> 0:16:15.240 in the market. And to do that, the market has 0:16:15.280 --> 0:16:18.040 to be defined. And so here the government has said 0:16:18.160 --> 0:16:21.320 it's a US market for smartphones or US market for 0:16:21.480 --> 0:16:25.000 premium smartphones, where they say Apple has shares it reach 0:16:25.120 --> 0:16:27.360 up to about seventy five percent. Now they're going to 0:16:27.400 --> 0:16:30.120 have to prove all that. They're going to have to demonstrate, 0:16:30.400 --> 0:16:33.800 probably through economic analysis, that these are proper markets, because 0:16:33.840 --> 0:16:36.080 Apple will say no, they are not. There isn't a 0:16:36.160 --> 0:16:39.240 separate market for premium smartphones, or it shouldn't be limited 0:16:39.280 --> 0:16:41.480 to just the US because June, when you change the 0:16:41.520 --> 0:16:44.160 market definition, you change the market shares, and if those 0:16:44.200 --> 0:16:46.480 market shares were to come down, Apple no longer has 0:16:46.520 --> 0:16:49.720 a monopoly, and the DJ has to prove that it does. Second, 0:16:49.760 --> 0:16:52.680 the second most important thing is to conduct, because under 0:16:52.800 --> 0:16:55.320 US laws, it is not illegal to have a monopoly. 0:16:55.520 --> 0:16:58.840 What is illegal is to engage in conduct that has 0:16:58.960 --> 0:17:02.520 really no legitimit business purpose other than to exclude your 0:17:02.600 --> 0:17:04.919 rivals in order to get to that monopoly or to 0:17:05.000 --> 0:17:07.680 keep that monopoly. So the main thing that's looked at 0:17:07.720 --> 0:17:10.440 in these lawsuits is the conduct. What is the conduct, 0:17:10.720 --> 0:17:13.119 what does it do, and what is its purpose. So 0:17:13.240 --> 0:17:15.760 here the DOJ is going to have to prove that 0:17:15.800 --> 0:17:19.760 Apple's decisions about the apps that it prevents about let's 0:17:19.800 --> 0:17:23.960 say it's smart watch not working well with non Apple smartphones, 0:17:24.359 --> 0:17:27.680 with respect to putting up some obstacles to the messaging 0:17:27.920 --> 0:17:30.280 in an I message between an Android phone and an 0:17:30.280 --> 0:17:32.440 Apple phone, some of the things that the DOJ has 0:17:32.440 --> 0:17:34.639 complained about here, they're going to have to show that 0:17:34.680 --> 0:17:38.520 these are anti competitive, that they're intended only to block 0:17:38.560 --> 0:17:42.600 out rivals and have no pro competitive legitimate business justifications, 0:17:42.960 --> 0:17:46.320 and that they actually harmed consumers if they can show that. 0:17:46.840 --> 0:17:50.320 But then Apple can show we have some legitimate business justifications. 0:17:50.359 --> 0:17:52.280 What the judge is asked to do is weigh the 0:17:52.320 --> 0:17:54.960 two against each other, not an easy task at all. 0:17:55.520 --> 0:17:59.480 Apple is expected to move to dismiss the lawsit I 0:17:59.480 --> 0:18:02.600 think with it in sixty days. Could it get some 0:18:02.680 --> 0:18:06.120 of the lawsuit dismissed, do you think? Or all of it? 0:18:07.000 --> 0:18:09.760 You know, it's really hard to get anti trust suits, 0:18:09.920 --> 0:18:14.880 especially monopolization suits dismissed, generally, because they're so fact based. Right, 0:18:14.960 --> 0:18:17.360 it's about the evidence and it's about the fact, and 0:18:17.440 --> 0:18:20.240 usually you can't do that in emotion. To dismiss an 0:18:20.240 --> 0:18:23.800 emotion to dismiss, depleting itself has to be insufficient. So 0:18:23.920 --> 0:18:27.200 I really doubt here. I don't even think the suit 0:18:27.200 --> 0:18:30.359 would be narrowed in emotion dismissed. It's possible that it would. 0:18:30.520 --> 0:18:33.600 I believe Apple would probably argue that it is under 0:18:33.640 --> 0:18:36.159 no duty under the anti trust laws to deal with 0:18:36.240 --> 0:18:39.520 its competitors or to make its products in a way 0:18:39.560 --> 0:18:42.840 that makes it easier for competitors to work with those products. 0:18:42.920 --> 0:18:46.600 But again, I think because it's such a fact based determination, 0:18:46.720 --> 0:18:48.159 the judge is going to say, look, we're going to 0:18:48.200 --> 0:18:50.320 have to collect some evidence and dig in, and that's 0:18:50.359 --> 0:18:52.879 basically how you get past that motion to dismiss as 0:18:52.920 --> 0:18:53.520 a plaintiff. 0:18:54.280 --> 0:18:58.440 You know, Apple seems to have unlimited resources to fight 0:18:58.560 --> 0:19:03.080 these legal challenges, But at what point does a challenge 0:19:03.119 --> 0:19:04.879 like this take its toll on Apple. 0:19:05.280 --> 0:19:07.800 I think Apple will fight, and they do have resources, 0:19:07.800 --> 0:19:09.199 and I think this is going to go for a 0:19:09.240 --> 0:19:12.080 long time. But the interesting thing about the toll that 0:19:12.119 --> 0:19:15.240 it takes, especially because Apple's facing so many other anti 0:19:15.280 --> 0:19:18.360 trust challenges around the world right now and also from 0:19:18.400 --> 0:19:22.120 private parties in the US, is that it does take resources. 0:19:22.200 --> 0:19:24.600 You know, as you fight the litigation the two three 0:19:24.680 --> 0:19:28.400 four years that it takes, it takes resources. It can 0:19:28.440 --> 0:19:30.800 take your eye off the ball in a sense in 0:19:30.960 --> 0:19:33.000 your own business that you do from day to day, 0:19:33.040 --> 0:19:36.280 and sometimes it can actually cause companies to become a 0:19:36.280 --> 0:19:39.840 little more cautious. Generally, in the decisions they're making in 0:19:39.880 --> 0:19:42.400 their business as they go forward to pull their competitive 0:19:42.400 --> 0:19:44.920 punches a little bit, you know, not sort of toe 0:19:45.000 --> 0:19:47.480 the line which can make them fall back in the 0:19:47.560 --> 0:19:49.199 market a bit. I mean, this is kind of what 0:19:49.320 --> 0:19:51.840 happened to Microsoft as it was fighting the Department of 0:19:51.960 --> 0:19:53.840 Justice in the nineteen nineties. 0:19:54.320 --> 0:19:58.880 But Apple has been effective in fighting off other antitrust challenges. 0:19:59.200 --> 0:20:01.960 They have been real effective over the years. And you know, 0:20:02.040 --> 0:20:05.040 the reason, I think is because, as I said, it's 0:20:05.240 --> 0:20:08.200 very hard for a plaintiff to win a monopolization suit 0:20:08.359 --> 0:20:11.720 when the defendants have legitimate and when I say legitimate, 0:20:11.720 --> 0:20:14.000 I mean something that's not just made up for the litigation, 0:20:14.119 --> 0:20:17.359 that's not a pretext, but a legitimate, pro competitive business 0:20:17.440 --> 0:20:20.480 justification for the conduct. We did this conduct because it 0:20:20.560 --> 0:20:23.280 made our business more efficient, because it made our product 0:20:23.359 --> 0:20:26.240 better for consumers. When you have reasons like that and 0:20:26.280 --> 0:20:28.960 they're backed up by the evidence, by your ordinary course, 0:20:29.000 --> 0:20:32.480 normal business documents, even if that conduct has excluded your 0:20:32.560 --> 0:20:35.960 rivals and caused some harm, usually it's considered legitimate and 0:20:36.040 --> 0:20:38.879 legal under the antitrust laws, and a plaintiff's going to lose. 0:20:38.880 --> 0:20:41.240 And I think it's been really for those reasons that 0:20:41.320 --> 0:20:44.560 Apple generally over the years has most of its cases, 0:20:45.080 --> 0:20:48.280 certainly in the Epic Games litigation against Apple, where Apple 0:20:48.520 --> 0:20:50.840 largely won most of it, they won all the federal 0:20:50.920 --> 0:20:53.560