WEBVTT - Missouri Lawsuit Against Google Could Shift Senate (Audio)

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. The Attorney General

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<v Speaker 1>of Missouri has spent his fourteen months in office pursuing

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<v Speaker 1>attention grabbing cases. Josh Harley's biggest target yet is Alphabet,

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<v Speaker 1>Google's parent. On February, Harley formerly launched a campaign for

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<v Speaker 1>the US Senate. He's running as the favorite to win

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<v Speaker 1>the Republican nomination, what's arguably the most important race in

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<v Speaker 1>the mid term elections. Joining me is Josh Brustein. He's

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<v Speaker 1>Bloomberg News technology reporter. Josh is Harley on a crusade

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<v Speaker 1>against the tech industry. Well, we'll see. He certainly seems

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<v Speaker 1>to think that it's useful for him to position himself

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<v Speaker 1>as a critic of Google um, which is interesting because

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<v Speaker 1>you have a Republican official who is making a case

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<v Speaker 1>to basically bring government action against a very successful, very

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<v Speaker 1>innovative private company. So what is Harley's investigation at this point?

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<v Speaker 1>Concentrating on as possible legal violations by Google. Yeah. So

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<v Speaker 1>there's two things that he's going to be looking at,

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<v Speaker 1>or that he's already looking at. The first is privacy. UM.

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<v Speaker 1>He wants to know whether Google is misusing uh personal

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<v Speaker 1>information and whether it's communicating to its users in a

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<v Speaker 1>way that's not completely honest. UM. The other thing is

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<v Speaker 1>an antitrust violation. That would be whether Google is abusing

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<v Speaker 1>its dominant power as a search engine to gain an

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<v Speaker 1>advantage over competitors. UM. The most obvious example of this

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<v Speaker 1>is UM. It's if you type Google. If you type

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<v Speaker 1>like a restaurant into Google, you'll you won't just send

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<v Speaker 1>you to website, You'll see some information right away. And

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<v Speaker 1>UM critics say that Google is basically cutting out companies

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<v Speaker 1>like Yelp by taking their information and just presenting it

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<v Speaker 1>to you right away without ever sending you to their site. So.

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<v Speaker 1>Google has had several encounters with antitrust claims, including the

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<v Speaker 1>e use record two point seven billion dollar fun which

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<v Speaker 1>is on appeal. Tell us about the FTCs investigation of Google. Yeah,

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<v Speaker 1>so the FTC looked into similar allegations starting in it

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<v Speaker 1>decided not to bring a lawsuit in twenty UM and

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<v Speaker 1>there was a number of UM settlements announced with Google,

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<v Speaker 1>where the Commission basically said, we've looked at these issues.

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<v Speaker 1>Google has agreed to make some changes in its behavior,

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<v Speaker 1>and other issues we think are just not UM are

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<v Speaker 1>just not relevant, and so we're satisfied. Now, that doesn't

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<v Speaker 1>mean that all of Google's critics were satisfied, and so

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<v Speaker 1>that's kind of the reflection of that is what we're

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<v Speaker 1>seeing in the Holly investigation. How much of an uphill

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<v Speaker 1>battle would a lawsuit this kind a lawsuit against Google

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<v Speaker 1>b in US courts? Yes, so it would be an

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<v Speaker 1>uphill battle. Uh. First of all, just practically Google has

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<v Speaker 1>much more resources in the Missouri Attorney General's office does,

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<v Speaker 1>and so just in terms of, you know, the actual battle,

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<v Speaker 1>that would be an issue. And Holly hopes to get

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<v Speaker 1>other states involved, which I think is really a big

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<v Speaker 1>factor into whether this proceeds. UM. The other thing is

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<v Speaker 1>just that American antitrust law is much more permissive than

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<v Speaker 1>European antitrust law, and so the fact that a European

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<v Speaker 1>court found something there doesn't mean that a U. S

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<v Speaker 1>court will find something here. Civil lawsuits, we know, take

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<v Speaker 1>a long time years perhaps, but a lawsuit doesn't have

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<v Speaker 1>to be a winner to damage a company. And you

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<v Speaker 1>wrote about Microsoft as an example. Yeah, it's interesting. Um,

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<v Speaker 1>Microsoft was the target of the most prominent antitrust case

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<v Speaker 1>brought against an American technology company. It started in these

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<v Speaker 1>In the end, it didn't really result in a major

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<v Speaker 1>finding against Microsoft. It made some adjustments. Um. But people,

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<v Speaker 1>both people who supported that case and those who criticize it,

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<v Speaker 1>say that a major outcome was that Microsoft was a

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<v Speaker 1>little bit careful going forward because of those lawsuits and

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<v Speaker 1>ended up getting out maneuvered by companies like Google that

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<v Speaker 1>was kind of an upstart at the time. So Holly

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<v Speaker 1>says he'll make a decision on whether to bring charges

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<v Speaker 1>this summer, when his Senate campaign will be in full swing.

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<v Speaker 1>How much of this is politically motivated? Well, whenever you

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<v Speaker 1>see an attorney general bring a high profile case, um,

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<v Speaker 1>it is there's a political calculation in there, especially when

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<v Speaker 1>that attorney general is also running for office. I do

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<v Speaker 1>think that one thing that we might see here is Holly,

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<v Speaker 1>whether or not this case goes forward, is kind of

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<v Speaker 1>testing out whether positioning himself against Google is a good

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<v Speaker 1>is a good thing to do, even as a senator

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<v Speaker 1>and that the end result of this might not be

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<v Speaker 1>a lawsuit, but it might be something that he tries

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<v Speaker 1>to do as a legislator. And I think that's something

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<v Speaker 1>to watch. He's been in office for fourteen months, He's

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<v Speaker 1>already running for a Senate seat. That's a pretty quick turnaround. Yeah,

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<v Speaker 1>And ironically, part of Holly's campaign for Attorney General was

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<v Speaker 1>him saying I'm not just going to use this as

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<v Speaker 1>a stepping stone to get to the next office. Um.

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<v Speaker 1>He had this now embarrassing commercial where he sort of

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<v Speaker 1>walks through a sea of ladders and says, I'm not

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<v Speaker 1>just a ladder climbing politician. So I'm sure you will

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<v Speaker 1>see that in some of the opposition as against him.

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<v Speaker 1>He is certainly open to criticism that he's um really

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<v Speaker 1>rising quite quickly. And tell us a little bit about

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<v Speaker 1>his race, how how pivotal it is. Yeah. So, um,

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<v Speaker 1>Holly is running against Claire mccaskell. She's a Democrat. Um,

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<v Speaker 1>she's been in term, She's been in office for two terms.

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<v Speaker 1>She uh is running in a state that went very

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<v Speaker 1>heavily for Trump and is seen as an unusually vulnerable

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<v Speaker 1>Democratic incumbent. Now the Democrats are trying to win the Senate.

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<v Speaker 1>To do so, they have to capture some Republican seats,

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<v Speaker 1>but they also have to defend their own seats, and

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<v Speaker 1>so if mccaskell loses, that will put the party in

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<v Speaker 1>a pretty tough spot. Are there other attorney generals state

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<v Speaker 1>attorney generals looking into possible charges against Google? Or is

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<v Speaker 1>he the only one? So this is the first anti

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<v Speaker 1>trust suit or it's not a suit yet, it's an

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<v Speaker 1>investigation that's been brought by a state attorney general since

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<v Speaker 1>the FTC decided against pursuing its own case. Now, Holly's

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<v Speaker 1>office says that there are other states that are very

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<v Speaker 1>involved and very excited about potentially joining on. We haven't

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<v Speaker 1>heard from any of those states. We will see if

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<v Speaker 1>we do. But at the moment, he's kind of out

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<v Speaker 1>there on his own and uh, Google says it's cooperating

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<v Speaker 1>with his investigation. Just in about thirty seconds. Do you

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<v Speaker 1>think a Google has much to worry about from him? Well,

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<v Speaker 1>I think that this case is probably not at the

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<v Speaker 1>top of the list for Google um to be worried about.

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<v Speaker 1>I do think that what the company is worried about

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<v Speaker 1>is it indicates a broader atmosphere of skepticism and hostility

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<v Speaker 1>towards Silicon Valley, and that can really build in unpredictable ways.

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<v Speaker 1>And that's what Google has to watch out for. Always

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<v Speaker 1>a pleasure to have you on. Thanks so much. That's

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<v Speaker 1>Josh brustin Bloomberg News technology reporter. President Trump declared the

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<v Speaker 1>opioid crisis and national public health emergency in October. There

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<v Speaker 1>are now more than four hundred lawsuits against the manufacturers

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<v Speaker 1>and distributors of opioid painkillers. Joining me is James Ferraro,

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<v Speaker 1>founder of the Ferraro Law Firm. He's representing plaintiffs in

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<v Speaker 1>about twenty four cases in several states. He's also the

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<v Speaker 1>author of the book Blindside, which recounts his decade long

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<v Speaker 1>courtroom battle against chemical giant DuPont Jim. There are more

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<v Speaker 1>than four hundred federal lawsuits consolidated in what's called a

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<v Speaker 1>multi district litigation nor MDL. Before Ohio federal judge Dan

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<v Speaker 1>Polster describe the complexity with so many theories and plaintiffs

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<v Speaker 1>with different interests, Well, you know, it is kind of

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<v Speaker 1>it looks like a quagmire on its face. In the

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<v Speaker 1>biggest problem with the litigation is that there are there's

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<v Speaker 1>so many uh uh manufacturers, distributors, then you know a

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<v Speaker 1>manufacturer level. You also have the generics then you know

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<v Speaker 1>so so you have a lot of targets. And then um,

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<v Speaker 1>you know then about half a dozen doctors that were

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<v Speaker 1>involved in promoting it. So you got a lot of targets.

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<v Speaker 1>And then on the other side you have claimants coming

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<v Speaker 1>out from all over the place, and there's several types.

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<v Speaker 1>There's these third party claimants sort of like unions for

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<v Speaker 1>their health funds where they spent a lot of money

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<v Speaker 1>on you know, addiction and treatment that type of thing.

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<v Speaker 1>And um, then you've got the governments, state governments that

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<v Speaker 1>are trying to recover for loss on Medicaid, medicare, the

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<v Speaker 1>and will just assist in their hospital, police and so

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<v Speaker 1>on and so forth. So there's a lot of elements

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<v Speaker 1>to it. And but the one thing that I think

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<v Speaker 1>there is one one part of the case that is

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<v Speaker 1>the kind of denominator for everyone, and that is where

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<v Speaker 1>does liability begin and where does liability end? And that

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<v Speaker 1>really is going to come down to the threshold on

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<v Speaker 1>where there's responsibility. For instance, these opiates, Um, they're perfectly

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<v Speaker 1>fine for end of life care. That's what they like

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<v Speaker 1>morphine and things of that nature. That's perfectly fine, and

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<v Speaker 1>it's legal, and that's what that it is supposed to

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<v Speaker 1>prescribe for that. The other side of spectrum, whether's you know,

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<v Speaker 1>pretty clear liabilities where they got overprescribed. You know, when

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<v Speaker 1>I was a kid and I got my wisdom teeth pulled,

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<v Speaker 1>I was prescribed extra strength pile and all. Now you

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<v Speaker 1>can get four thirty dair renewals for opiates when you

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<v Speaker 1>get your wisdom teeth pull which is obscene. Now that's

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<v Speaker 1>clear liability. So the thresholds can be somewhere between the

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<v Speaker 1>clear liability there and the end of life care and

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<v Speaker 1>one of the thresh hold dare to apply to everybody.

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<v Speaker 1>Let's move to some of the things happening in the

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<v Speaker 1>multi district litigation. The judge made news, at least in

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<v Speaker 1>legal circles when he told the lawyers he wanted to

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<v Speaker 1>put litigation efforts like discovery on hold so the lawyers

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<v Speaker 1>could engage in settlement discussions. Briefly, how did that unorthodox

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<v Speaker 1>move go? Well, you know what I mean, I think

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<v Speaker 1>the judge poles to what he's doing. What I think

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<v Speaker 1>is correct is to try to resolve the behavior which

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<v Speaker 1>in other words, get get the conduct change, because there's

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<v Speaker 1>a hundred fifty people a day dying in the United States,

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<v Speaker 1>and that's where he wants to go first, and I

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<v Speaker 1>think he's correct. After that, he wants to get into

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<v Speaker 1>the monetary components, you know, who gets, who is damaged

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<v Speaker 1>how much, and that to him is less important, maybe

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<v Speaker 1>not to the litigants but to Judge Posting. But I

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<v Speaker 1>think he is right on that you really need to

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<v Speaker 1>get the behavior changed first, cut off the bleeding and

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<v Speaker 1>um which is everyone's benefit, and then move into the

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<v Speaker 1>monetary components. The problem is, there's so many moving imparts,

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<v Speaker 1>and there's so many different like I talked about previously,

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<v Speaker 1>so many targets, and there's you know, it's just not

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<v Speaker 1>like tobacco. We have like, you know, four major tobacco

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<v Speaker 1>companies and you know, it's their product and it's just

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<v Speaker 1>you know, basically one on one, you know, But that's

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<v Speaker 1>not what we have here. Well, the companies want to

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<v Speaker 1>settlement that would resolve state lawsuits as well, and the

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<v Speaker 1>judge wants a deal addressing the company's business practices on

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<v Speaker 1>the roots of the crisis. Does that seem like an

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<v Speaker 1>overwhelming ask? It's a big ask. I mean it's I mean,

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<v Speaker 1>it's it's you know, it's it's not easy because there's

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<v Speaker 1>so many players that could come out of the woodwork.

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<v Speaker 1>I mean, where does it end. I mean, you know,

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<v Speaker 1>some of these some of the damages are going to

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<v Speaker 1>be easy to calculate. You know, for instance, you's got

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<v Speaker 1>like Medicare losses. You know, like how much was spent

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<v Speaker 1>on Medicare for opiates that were improperly prescribed and treatment

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<v Speaker 1>so on at the government level. You've got a lot

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<v Speaker 1>more than that. So now the judge all that that

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<v Speaker 1>wasn't moving forward as as quickly as he likes. So

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<v Speaker 1>he's cleared the way for the lawyers to start collecting evidence, etcetera.

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<v Speaker 1>He's giving both sides until marks sixteenth to come up

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<v Speaker 1>with a litigation plan. About a minute. Is that doable?

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<v Speaker 1>I mean it's it's doable in a litigation plan, A

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<v Speaker 1>general litigation plan is definitely doable in that amount of time.

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<v Speaker 1>I mean, there's no question. But he's got to get

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<v Speaker 1>the steering committee together and assign that out to all

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<v Speaker 1>the different firms, Like there's gonna who's gonna do discovery

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<v Speaker 1>on the corporate rapture? You know, for farm mine, who's

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<v Speaker 1>going to do it on you know, you know, the

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<v Speaker 1>cassion and so on and so forth. But the the

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<v Speaker 1>actual general plan I think you can get in place.

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<v Speaker 1>The execution of it, It's gonna take a lot longer

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<v Speaker 1>and about thirty seconds here has there have you seen

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<v Speaker 1>uh an md L that's been this complex before. This

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<v Speaker 1>will probably be the most complex MDL in history because

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<v Speaker 1>of all the moving targets that it's It certainly sounds

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<v Speaker 1>like a big task facing that Ohio judge and the

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<v Speaker 1>plaintiffs and defendants in this case. Thanks so much for

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<v Speaker 1>joining us. Jim, that's James Ferraro. He is a founder

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<v Speaker 1>of the Ferrara Law Firm, and his book is called Blindsided.

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<v Speaker 1>It's about his decade long courtroom battle against chemical giant

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<v Speaker 1>du Pont. Thanks for listening to the Bloomberg Law Podcast.

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<v Speaker 1>You can subscribe and listen to the show on Apple podcast,

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<v Speaker 1>SoundCloud and on Bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg