Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. The Attorney General
Speaker 1: of Missouri has spent his fourteen months in office pursuing
Speaker 1: attention grabbing cases. Josh Harley's biggest target yet is Alphabet,
Speaker 1: Google's parent. On February, Harley formerly launched a campaign for
Speaker 1: the US Senate. He's running as the favorite to win
Speaker 1: the Republican nomination, what's arguably the most important race in
Speaker 1: the mid term elections. Joining me is Josh Brustein. He's
Speaker 1: Bloomberg News technology reporter. Josh is Harley on a crusade
Speaker 1: against the tech industry. Well, we'll see. He certainly seems
Speaker 1: to think that it's useful for him to position himself
Speaker 1: as a critic of Google um, which is interesting because
Speaker 1: you have a Republican official who is making a case
Speaker 1: to basically bring government action against a very successful, very
Speaker 1: innovative private company. So what is Harley's investigation at this point?
Speaker 1: Concentrating on as possible legal violations by Google. Yeah. So
Speaker 1: there's two things that he's going to be looking at,
Speaker 1: or that he's already looking at. The first is privacy. UM.
Speaker 1: He wants to know whether Google is misusing uh personal
Speaker 1: information and whether it's communicating to its users in a
Speaker 1: way that's not completely honest. UM. The other thing is
Speaker 1: an antitrust violation. That would be whether Google is abusing
Speaker 1: its dominant power as a search engine to gain an
Speaker 1: advantage over competitors. UM. The most obvious example of this
Speaker 1: is UM. It's if you type Google. If you type
Speaker 1: like a restaurant into Google, you'll you won't just send
Speaker 1: you to website, You'll see some information right away. And
Speaker 1: UM critics say that Google is basically cutting out companies
Speaker 1: like Yelp by taking their information and just presenting it
Speaker 1: to you right away without ever sending you to their site. So.
Speaker 1: Google has had several encounters with antitrust claims, including the
Speaker 1: e use record two point seven billion dollar fun which
Speaker 1: is on appeal. Tell us about the FTCs investigation of Google. Yeah,
Speaker 1: so the FTC looked into similar allegations starting in it
Speaker 1: decided not to bring a lawsuit in twenty UM and
Speaker 1: there was a number of UM settlements announced with Google,
Speaker 1: where the Commission basically said, we've looked at these issues.
Speaker 1: Google has agreed to make some changes in its behavior,
Speaker 1: and other issues we think are just not UM are
Speaker 1: just not relevant, and so we're satisfied. Now, that doesn't
Speaker 1: mean that all of Google's critics were satisfied, and so
Speaker 1: that's kind of the reflection of that is what we're
Speaker 1: seeing in the Holly investigation. How much of an uphill
Speaker 1: battle would a lawsuit this kind a lawsuit against Google
Speaker 1: b in US courts? Yes, so it would be an
Speaker 1: uphill battle. Uh. First of all, just practically Google has
Speaker 1: much more resources in the Missouri Attorney General's office does,
Speaker 1: and so just in terms of, you know, the actual battle,
Speaker 1: that would be an issue. And Holly hopes to get
Speaker 1: other states involved, which I think is really a big
Speaker 1: factor into whether this proceeds. UM. The other thing is
Speaker 1: just that American antitrust law is much more permissive than
Speaker 1: European antitrust law, and so the fact that a European
Speaker 1: court found something there doesn't mean that a U. S
Speaker 1: court will find something here. Civil lawsuits, we know, take
Speaker 1: a long time years perhaps, but a lawsuit doesn't have
Speaker 1: to be a winner to damage a company. And you
Speaker 1: wrote about Microsoft as an example. Yeah, it's interesting. Um,
Speaker 1: Microsoft was the target of the most prominent antitrust case
Speaker 1: brought against an American technology company. It started in these
Speaker 1: In the end, it didn't really result in a major
Speaker 1: finding against Microsoft. It made some adjustments. Um. But people,
Speaker 1: both people who supported that case and those who criticize it,
Speaker 1: say that a major outcome was that Microsoft was a
Speaker 1: little bit careful going forward because of those lawsuits and
Speaker 1: ended up getting out maneuvered by companies like Google that
Speaker 1: was kind of an upstart at the time. So Holly
Speaker 1: says he'll make a decision on whether to bring charges
Speaker 1: this summer, when his Senate campaign will be in full swing.
Speaker 1: How much of this is politically motivated? Well, whenever you
Speaker 1: see an attorney general bring a high profile case, um,
Speaker 1: it is there's a political calculation in there, especially when
Speaker 1: that attorney general is also running for office. I do
Speaker 1: think that one thing that we might see here is Holly,
Speaker 1: whether or not this case goes forward, is kind of
Speaker 1: testing out whether positioning himself against Google is a good
Speaker 1: is a good thing to do, even as a senator
Speaker 1: and that the end result of this might not be
Speaker 1: a lawsuit, but it might be something that he tries
Speaker 1: to do as a legislator. And I think that's something
Speaker 1: to watch. He's been in office for fourteen months, He's
Speaker 1: already running for a Senate seat. That's a pretty quick turnaround. Yeah,
Speaker 1: And ironically, part of Holly's campaign for Attorney General was
Speaker 1: him saying I'm not just going to use this as
Speaker 1: a stepping stone to get to the next office. Um.
Speaker 1: He had this now embarrassing commercial where he sort of
Speaker 1: walks through a sea of ladders and says, I'm not
Speaker 1: just a ladder climbing politician. So I'm sure you will
Speaker 1: see that in some of the opposition as against him.
Speaker 1: He is certainly open to criticism that he's um really
Speaker 1: rising quite quickly. And tell us a little bit about
Speaker 1: his race, how how pivotal it is. Yeah. So, um,
Speaker 1: Holly is running against Claire mccaskell. She's a Democrat. Um,
Speaker 1: she's been in term, She's been in office for two terms.
Speaker 1: She uh is running in a state that went very
Speaker 1: heavily for Trump and is seen as an unusually vulnerable
Speaker 1: Democratic incumbent. Now the Democrats are trying to win the Senate.
Speaker 1: To do so, they have to capture some Republican seats,
Speaker 1: but they also have to defend their own seats, and
Speaker 1: so if mccaskell loses, that will put the party in
Speaker 1: a pretty tough spot. Are there other attorney generals state
Speaker 1: attorney generals looking into possible charges against Google? Or is
Speaker 1: he the only one? So this is the first anti
Speaker 1: trust suit or it's not a suit yet, it's an
Speaker 1: investigation that's been brought by a state attorney general since
Speaker 1: the FTC decided against pursuing its own case. Now, Holly's
Speaker 1: office says that there are other states that are very
Speaker 1: involved and very excited about potentially joining on. We haven't
Speaker 1: heard from any of those states. We will see if
Speaker 1: we do. But at the moment, he's kind of out
Speaker 1: there on his own and uh, Google says it's cooperating
Speaker 1: with his investigation. Just in about thirty seconds. Do you
Speaker 1: think a Google has much to worry about from him? Well,
Speaker 1: I think that this case is probably not at the
Speaker 1: top of the list for Google um to be worried about.
Speaker 1: I do think that what the company is worried about
Speaker 1: is it indicates a broader atmosphere of skepticism and hostility
Speaker 1: towards Silicon Valley, and that can really build in unpredictable ways.
Speaker 1: And that's what Google has to watch out for. Always
Speaker 1: a pleasure to have you on. Thanks so much. That's
Speaker 1: Josh brustin Bloomberg News technology reporter. President Trump declared the
Speaker 1: opioid crisis and national public health emergency in October. There
Speaker 1: are now more than four hundred lawsuits against the manufacturers
Speaker 1: and distributors of opioid painkillers. Joining me is James Ferraro,
Speaker 1: founder of the Ferraro Law Firm. He's representing plaintiffs in
Speaker 1: about twenty four cases in several states. He's also the
Speaker 1: author of the book Blindside, which recounts his decade long
Speaker 1: courtroom battle against chemical giant DuPont Jim. There are more
Speaker 1: than four hundred federal lawsuits consolidated in what's called a
Speaker 1: multi district litigation nor MDL. Before Ohio federal judge Dan
Speaker 1: Polster describe the complexity with so many theories and plaintiffs
Speaker 1: with different interests, Well, you know, it is kind of
Speaker 1: it looks like a quagmire on its face. In the
Speaker 1: biggest problem with the litigation is that there are there's
Speaker 1: so many uh uh manufacturers, distributors, then you know a
Speaker 1: manufacturer level. You also have the generics then you know
Speaker 1: so so you have a lot of targets. And then um,
Speaker 1: you know then about half a dozen doctors that were
Speaker 1: involved in promoting it. So you got a lot of targets.
Speaker 1: And then on the other side you have claimants coming
Speaker 1: out from all over the place, and there's several types.
Speaker 1: There's these third party claimants sort of like unions for
Speaker 1: their health funds where they spent a lot of money
Speaker 1: on you know, addiction and treatment that type of thing.
Speaker 1: And um, then you've got the governments, state governments that
Speaker 1: are trying to recover for loss on Medicaid, medicare, the
Speaker 1: and will just assist in their hospital, police and so
Speaker 1: on and so forth. So there's a lot of elements
Speaker 1: to it. And but the one thing that I think
Speaker 1: there is one one part of the case that is
Speaker 1: the kind of denominator for everyone, and that is where
Speaker 1: does liability begin and where does liability end? And that
Speaker 1: really is going to come down to the threshold on
Speaker 1: where there's responsibility. For instance, these opiates, Um, they're perfectly
Speaker 1: fine for end of life care. That's what they like
Speaker 1: morphine and things of that nature. That's perfectly fine, and
Speaker 1: it's legal, and that's what that it is supposed to
Speaker 1: prescribe for that. The other side of spectrum, whether's you know,
Speaker 1: pretty clear liabilities where they got overprescribed. You know, when
Speaker 1: I was a kid and I got my wisdom teeth pulled,
Speaker 1: I was prescribed extra strength pile and all. Now you
Speaker 1: can get four thirty dair renewals for opiates when you
Speaker 1: get your wisdom teeth pull which is obscene. Now that's
Speaker 1: clear liability. So the thresholds can be somewhere between the
Speaker 1: clear liability there and the end of life care and
Speaker 1: one of the thresh hold dare to apply to everybody.
Speaker 1: Let's move to some of the things happening in the
Speaker 1: multi district litigation. The judge made news, at least in
Speaker 1: legal circles when he told the lawyers he wanted to
Speaker 1: put litigation efforts like discovery on hold so the lawyers
Speaker 1: could engage in settlement discussions. Briefly, how did that unorthodox
Speaker 1: move go? Well, you know what I mean, I think
Speaker 1: the judge poles to what he's doing. What I think
Speaker 1: is correct is to try to resolve the behavior which
Speaker 1: in other words, get get the conduct change, because there's
Speaker 1: a hundred fifty people a day dying in the United States,
Speaker 1: and that's where he wants to go first, and I
Speaker 1: think he's correct. After that, he wants to get into
Speaker 1: the monetary components, you know, who gets, who is damaged
Speaker 1: how much, and that to him is less important, maybe
Speaker 1: not to the litigants but to Judge Posting. But I
Speaker 1: think he is right on that you really need to
Speaker 1: get the behavior changed first, cut off the bleeding and
Speaker 1: um which is everyone's benefit, and then move into the
Speaker 1: monetary components. The problem is, there's so many moving imparts,
Speaker 1: and there's so many different like I talked about previously,
Speaker 1: so many targets, and there's you know, it's just not
Speaker 1: like tobacco. We have like, you know, four major tobacco
Speaker 1: companies and you know, it's their product and it's just
Speaker 1: you know, basically one on one, you know, But that's
Speaker 1: not what we have here. Well, the companies want to
Speaker 1: settlement that would resolve state lawsuits as well, and the
Speaker 1: judge wants a deal addressing the company's business practices on
Speaker 1: the roots of the crisis. Does that seem like an
Speaker 1: overwhelming ask? It's a big ask. I mean it's I mean,
Speaker 1: it's it's you know, it's it's not easy because there's
Speaker 1: so many players that could come out of the woodwork.
Speaker 1: I mean, where does it end. I mean, you know,
Speaker 1: some of these some of the damages are going to
Speaker 1: be easy to calculate. You know, for instance, you's got
Speaker 1: like Medicare losses. You know, like how much was spent
Speaker 1: on Medicare for opiates that were improperly prescribed and treatment
Speaker 1: so on at the government level. You've got a lot
Speaker 1: more than that. So now the judge all that that
Speaker 1: wasn't moving forward as as quickly as he likes. So
Speaker 1: he's cleared the way for the lawyers to start collecting evidence, etcetera.
Speaker 1: He's giving both sides until marks sixteenth to come up
Speaker 1: with a litigation plan. About a minute. Is that doable?
Speaker 1: I mean it's it's doable in a litigation plan, A
Speaker 1: general litigation plan is definitely doable in that amount of time.
Speaker 1: I mean, there's no question. But he's got to get
Speaker 1: the steering committee together and assign that out to all
Speaker 1: the different firms, Like there's gonna who's gonna do discovery
Speaker 1: on the corporate rapture? You know, for farm mine, who's
Speaker 1: going to do it on you know, you know, the
Speaker 1: cassion and so on and so forth. But the the
Speaker 1: actual general plan I think you can get in place.
Speaker 1: The execution of it, It's gonna take a lot longer
Speaker 1: and about thirty seconds here has there have you seen
Speaker 1: uh an md L that's been this complex before. This
Speaker 1: will probably be the most complex MDL in history because
Speaker 1: of all the moving targets that it's It certainly sounds
Speaker 1: like a big task facing that Ohio judge and the
Speaker 1: plaintiffs and defendants in this case. Thanks so much for
Speaker 1: joining us. Jim, that's James Ferraro. He is a founder
Speaker 1: of the Ferrara Law Firm, and his book is called Blindsided.
Speaker 1: It's about his decade long courtroom battle against chemical giant
Speaker 1: du Pont. Thanks for listening to the Bloomberg Law Podcast.
Speaker 1: You can subscribe and listen to the show on Apple podcast,
Speaker 1: SoundCloud and on Bloomberg dot com slash podcast. I'm June Brosso.
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