November 7, 2025 • 42 mins
Key takeaways from Supreme Court arguments on Nov. 5 over the legality of the Trump administration's reciprocal and fentanyl-linked tariffs led Bloomberg Intelligence's Votes and Verdicts podcast this week. Holly Froum examined that while BI litigation and policy analysts discuss other important catalysts. Holly and Jen Rie analyzed litigation concerning a bidding war between Pfizer and Novo Nordisk for Metsera, a clinical-stage biotech company that makes anti-obesity drugs. Holly and Jen also discussed legal issues pertaining to Kimberly-Clark's $48 billion acquisition of Kenvue. Nathan Dean offered his views on paths being discussed to end the government shutdown.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:15):
Hello, and welcome to the Votes and Verdicts podcast, hosted
by the litigation and policy team at Bloomberg Intelligence, the
investment research platform of Bloomberg LP on the Bloomberg Terminal.
Bloomberg Intelligence has five hundred analysts and strategists working across
the globe and has focused on all major markets. Our
coverage includes over two thousand equities and credits. We have
(00:37):
outlooks on more than ninety industries and one hundred market industries,
currencies and commodities. This podcast series examines the intersection of
business policy and law, and today's our weekly check in
to look at the litigation and policy catalysts that we're
watching and that we think will impact companies and industries
(00:57):
and sectors and markets. Sames elliott Stein, I'm an analyst
with Bloomberg Intelligence covering litigation in the financial sector, and
I'm delighted today as always to be joined by several
of my Bloomberg Intelligence colleagues. As always, you can find
all of our research on the Bloomberg terminal at BIG
and you can find all of our litigation and policy
(01:19):
research on our dashboard, which is available on the terminal
at BI laws go just to time stamp. This episode
Today is Thursday, November sixth, twenty twenty five. It's about
three zero five pm on the East coast here in
the US. All right, So, probably the biggest case in
(01:41):
the news this week was the Supreme Courts oral argument
to address the legality of President Trump and the Trump
Administration's reciprocal tariffs and senten all link to tariffs. So
to discuss that case, which has been covered by bo
I from its inception, I'm going to bring in Holly
(02:03):
Frome since she's been covering that litigation for us. So, Holly,
how are you?
Speaker 2 (02:08):
I'm good? Thanks Elliott.
Speaker 1 (02:10):
Have you recovered from the two and a half hour
oral argument in the Supreme Court yesterday?
Speaker 2 (02:14):
It was pretty long.
Speaker 1 (02:15):
It was pretty long, but I think not quite as
long as the debt forgiveness oral argument in the Biden administration,
which I recalled going almost three hours and I felt
exhausted after. But in any event, on the tariffs, you
went into oral argument thinking that the Supreme Court would
(02:37):
strike down the reciprocal tariffs, the Liberation Day tariffs, but
might uphold the fentanyl link to tariffs, all of which
were imposed under the AIPA Statute, which is really the
issue in the case. What's your thoughts coming out of
the argument here.
Speaker 3 (02:56):
I think all of the terroriffs, the AEPA tariffs that
were challenging going to be struck down, and the reason
for that is because, you know, I thought that there
was a way that they could carve out some of
the terrorists based on whether the emergency declared was an
actual emergency, and they didn't seem to really.
Speaker 2 (03:14):
Touch on that at all.
Speaker 3 (03:15):
I think there was one question about an emergency, and
but you know, most of the judges didn't you know,
talk about emergency. So I don't think that this is
going to be based on those rounds, and so the
you know, the real I think that the heart of
the arguments were about whether the statute actually allows for
(03:36):
tariffs and if you know, that language could be construed
that way, and if they can, whether that would violate
the major questions Whether this would you know, the the
terroriffs because of their you know, huge economic effect, would
violate the major questions doctrine because the statute doesn't mention
(03:58):
the word terriffs, and it's not you know, it wouldn't
be a clear grant of power from Congress to the President,
and in which case that would, you know, violate the
medior questions doctrine. So I think it's going to be
decided on meteror questions doctrine grounds, and I think a
majority of judges are going to find that this violates
the mejor questions doctrine.
Speaker 1 (04:19):
So it sounds so right, So use the statute AIPA.
It doesn't mention tariffs in The argument by the challengers
is that because Congress didn't use that language in the statute.
You know, the statute didn't contemplate allowing the president to
(04:40):
impose tarriffs. And so the language that they're really focused
on is this language about regulating imports that is in
this statute, right, and so you know, the challenges are saying, well,
tariffs is not in there, and what's the what's the
administration's argument for why that language should incomp teriffs.
Speaker 2 (05:00):
Well, they say it's a very capacious phrase.
Speaker 3 (05:03):
So regulate imports is very capacious, and the statute itself
is very capacious because it gives the president all kinds
of powers. He can nullify imports under the you know,
the statute, he can block them entirely. So you know,
this power would be much more limited than the other
powers that he has under the statute.
Speaker 2 (05:24):
And so that's one of the arguments.
Speaker 3 (05:27):
The other arguments is they point to other cases where
other cases that the Supreme Court decided deciding issues about
tariffs and whether statutes allow them. And one of the statutes,
which is section two thirty two, they talk about this
Algonquin case where the Supreme Court said that the statute
which says that the president can adjust imports, allows him
(05:50):
to impose tariffs.
Speaker 4 (05:51):
And the.
Speaker 3 (05:54):
Government was arguing that that language is very similar to
regulate imports.
Speaker 2 (05:57):
If anything, it's more restrictive.
Speaker 3 (06:00):
So this regulated imports should be viewed as allowing him
to impose terroriffs.
Speaker 1 (06:05):
And so your view is that there's a there's at
least a majority of justices or at least five of
them who are going to rule against the administration on this. Uh.
I mean, I think the easy ones are the three
liberal justices right, who are skeptical of executive too much
executive power, especially in this administration. So where do you
(06:29):
think the challengers pick up the two additional justices.
Speaker 3 (06:33):
I think Gorsich had a problem with this. You know,
he talked about the major questions doctrine a lot, And
I think Roberts also had a problem with this. You know,
one of the arguments that the that the administration raised
was that in the context of foreign affairs, you know,
(06:53):
the president has given broad power and usually the major questions,
doctrine doesn't apply. And they brought up this case and more,
which I think, you know, the the judge who wrote that.
I think that Justice Roberts was the clerk of that
judge when that decision was written, and he said, well,
that's not what the case says. You know, the case
(07:15):
that case limited its application to the specific facts and so,
and the case didn't even talk about terrorists. So I
don't know how you're how you think that applies in
this situation. So, you know, he seems to think that
the media question is doctrine does apply in the context
of foreign affairs. I think, you know, I think it
(07:36):
was Gorsa you asked, or maybe it was I think
it was Gorsa you asked whether who questioned the government's
position that that it doesn't apply to the president, because
what the administration was saying was that it applies only
to executive agencies, not the president, which is you know,
most responsible to the to the you know, people who
(07:57):
elect him, so the media question doctrine shouldn't apply, and
I think that he was skeptical of that. So for
that reason, I think that Gorsicch and Roberts Uh will
join the three Leberal Justices, and I think I think
Coby Barrett will as well. But you know, she she
(08:18):
was I think she was more difficult to read than
the other two. So I think that, you know, they
do have a majority, and I think that Barrett will join.
Speaker 1 (08:27):
So interesting, and I guess a little bit of irony
if it gets struck down under the major Questions doctrine,
since that's really a doctrine that could only be sort
of uh, you know, it was only really invoked pretty
recently and because of the conservative majority on the Supreme
Court that in part is in place because of President
Trump's appointments in his last term. So what do you
(08:51):
expect in terms of timing of a decision? And then
if you're right and the APA terrorists gets struck down,
what does the administration doing response?
Speaker 3 (09:01):
So I think that the decision comes down in mid
December or by the end of December, and I think that, uh,
the administration will probably they've already started in these like
three oh one investigations and Section two thirty two investigations
to sort of recreate teriffs other ways, and so I
(09:23):
think they're going to start, You're going to see more
of that. But I think that, you know, a lot
of these can be recreated. I think even one judge
asked about this that all that. I think it was
Aldo who who said that all of these terrorists could
fall under Section three point thirty eight, except perhaps like
the vuentinal tariffs, but all this, theit terrorists could fall
(09:47):
under the President's Section three thirty eight paros, which allows
him to impose terris when a country is discriminating against
US commerce, and he can impose harris of up to
fifty percent.
Speaker 2 (10:00):
And I think Alito.
Speaker 3 (10:01):
Asks the plaintiffs, well, you know, doesn't that SESI allow
him to these impose these terroriffs. And I think that
the planifs sort of tried to distinguish it on the
basis that that requires discrimination, not just a trade deficit.
But I think that that's definitely a session he will use,
you know, if the terrorists are struck down, which we
think they.
Speaker 1 (10:20):
Will be so interesting, all right, that's uh, I mean
it was. It was such a fascinating argument, and it's
so fun when we get a case that really captures
the nation's attention. I mean, I suppose some more than others,
depending on what they buy and if their importers or not.
But uh yeah, I mean in theory, this affects all
consumers as well. All Right, Holly, let's keep you on
(10:42):
gen Re. Let's bring you in. So gen Re covers antitrust.
Holly covers all things consumer and industrial in terms of litigation,
but also some healthcare related cases if they don't involve patents.
So let's talk about Phizer versus Novo Nordisk and met Sarah.
(11:06):
I've only sort of, you know, read the headlines and
sort of skimmed the articles. I'm not in the weeds
like you guys are, but this is I found it
to be such an interesting case because as far as
I can tell, this is what's happened. And you'll correct
me if I'm wrong. I guess. In September, Pfizer made
a bid for met Sarah, which is a company. Metzara
(11:29):
is a company that makes drugs antiobesity drugs. Right, and Pfizer,
I guess, is trying to get into that space because
they're not really a player in it yet. In response,
Novo Nordisk, I guess, in October puts in a bid
from Metzarah that's higher than Phizer's. But Novo of course
(11:49):
does have antiobesity drugs as part of its portfolio, and
so you know, potentially there are I suppose anti trust
concerns there, and you know, Pfizer, I guess, is not
happy about that, and so they sue, and I guess Metsarah,
(12:10):
I guess right, approves the Novo offer, except the Novo offer.
Pfizer is not happy about that. They say it's a
breach of their agreement to buy met Sarah. They say
that it can't be a better offer because it raises
anti trust concerns. And then it also sues in addition
to its you know, breach of its agreement it's acquisition agreement,
(12:34):
it sues on anti trust grounds. And then there's also
anti trust reviews going on at the same time by
the FTC of both Pfizer and Novo, and so you know,
I guess there was a t ro o here in
a couple of days ago because Pfizer wanted to block
Novo's purchase of met Sarah. But Holly, why don't you
(12:56):
come in tell me what I got wrong about all that?
Maybe describe the case, you know, more accurately, and where
we are and where you see it going.
Speaker 3 (13:04):
I think you pretty much got it all right. I
don't know if I could do better. So, yeah, So
Pfizer and Metzara entered into this agreement in September, and
it was a murder agreement, and there was, you know,
a non solicitation clause, which I think is pretty standard.
So so Matsarah couldn't go out and solicit bids for
(13:26):
the company, but it could consider quote superior offers, and
a superior offer was one that offered to take over
you know, fifty percent or more of the shares of
the company or assets of the company.
Speaker 2 (13:44):
And I'm paraphrasing here, and.
Speaker 3 (13:46):
And it also had to, relative to Pfizer's transaction be
quote reasonably likely to be completed on the terms proposed,
taking into account all financial regulatory financing, I mean, condition, additionality,
legal and other aspects of the proposal.
Speaker 2 (14:03):
So Pfizer is challenged.
Speaker 3 (14:06):
So so what happened was on I believe it was
I don't remember the exact date. But Novo gave met
Sarah an offer with a higher UH for a higher amount.
Speaker 2 (14:19):
But it would have.
Speaker 3 (14:22):
So, so it was an upfront cash payment, and then
that was going to be distributed to its shareholders and
then UH it would get these like non voting shares
in return.
Speaker 2 (14:36):
Nova would get non voting shares in return.
Speaker 3 (14:38):
And then there was this lock up period between you know,
the time that the shares are distributed and when.
Speaker 2 (14:46):
The deal closes.
Speaker 3 (14:48):
So and so that Pfizer says A voids anti trust
review during that lockup period, so they don't have anti
trust review during the first step of this transaction, is
what Pfiser was saying.
Speaker 2 (15:04):
So what Peiser said was that, you know, so once Metzerah.
Speaker 3 (15:10):
Got this offer, it sent a or somehow notified Pfizer
because there's this you know, forty notice requirement in the
agreement that says that they have to Matzera has to
notify Pfizer if they get a superior company proposal, and
then there's you know, Pfiser has fortys to you know,
come back with a better offer. But if they don't,
(15:31):
then then Matzerah could terminate the agreement. And what happened
was I think the next day after they were notified.
So October thirty first, Pfiser files a lawsuit and the
lawsuit says that this is not a superior company proposal
or it's not a superior company offer because it's not
(15:53):
reasonably likely to be concluded or completed because it can't
pass antitrust review. And so it asked the court. So
it went to the court, and I think this same
day it applied for a TIRO contemporary straining order block
or asking the court to block met Sarah from terminating
the agreement. And what happened at the TIRO here, So
(16:16):
there was a TIRO hearing on I guess it was
November fourth, which was you know, the end of the
four day period. And then in between that time new
offers came in I think for both Novo and Metzara
and Pfizer, which extended that.
Speaker 2 (16:35):
You know period by one day.
Speaker 3 (16:37):
And then on November fifth, the judge complete when when
that period was closed, the judge heard the tierro or
completed the TIRO hearing and decided to uh deny the tierro.
And what the court said was one the company Pfizer
can't show a reprob harm because if met Sarah unlawfully
(17:00):
UH terminated the agreement. They can still come back and
ask the judge to order specific performance. And the other
reason is she seemed to think that they that there
was a problem because the provision that says, you know
that the determination as to whether this is a superior
(17:23):
company offer is met Sarah's determination, they just have to
have like a good faith belief that it's a superior
company offer, and so they have some discretion to determine
whether that's a good UH superior offer. And so she said,
you know, I don't think you can show that they
didn't have a good faith belief that it wasn't, and
(17:46):
so for that reason she denied the tro o. I
read that Pfizer plans to continue the lawsuit, but I
think that if they're going to do that, they're probably
going to have to amend the complaint.
Speaker 1 (17:58):
In what in what way?
Speaker 3 (17:59):
I think they're going to have to add fat because
based on the facts you know that they've pleaded, I
don't think or the allegations that they've pleded, I don't
think that they could show that the decision that uh Novo's.
Speaker 2 (18:10):
Offer was a superior company offer was that faith.
Speaker 3 (18:13):
I think they had, they would have to show somehow
that you know that met Sarah knew at the time
when it received that it wouldn't you know that. And
the problem is, I think part of the problem is
there's two steps to this transaction.
Speaker 2 (18:30):
So there's the first step where.
Speaker 3 (18:34):
Novo I think, gets the non voting shares and offers
a cash payment, and then there's a second step where
which would then have to have regulatory review.
Speaker 2 (18:48):
But even if they.
Speaker 3 (18:49):
Complete the first step, that's it's possible that that's like
a better offer than than than Plizors. So you know,
the question is whether that first step alone is a
better offer. Is a superior company off could be construed
as a superior company offer, And I think that's it's
possible that it can be even that even if the
(19:10):
deal doesn't close, So one part of the transaction has
been completed. So I think to plead a bad faith,
you know determination, they'd have to show somehow that you
know that part of the transaction was not you know,
not they knew that wasn't going to be completed, which
(19:32):
you know, I think that would be hard to do,
or they knew that they were just doing this to
sort of get a better offer from Pfizer, which you know,
even then, I'm not sure that that's bad faith. But
you know, I just think that they need more facts
or allegations, because based on the allegations alone that are
pleded right now, I don't think they would win.
Speaker 2 (19:52):
I don't think they do think they'd win an argument
that this is a bad faith determination.
Speaker 1 (19:57):
It gives met Sarah sort of that that discretion, right then,
I think it's very it's it's a high burden for
a pfisor to establish here. But but I mean it
is simply accepting a higher offer bad faith. That can't
be bad faith, right, That's that's business.
Speaker 2 (20:12):
Yeah, No, I don't think accepting a higher offer.
Speaker 3 (20:15):
I think, you know, that's the point of her decision,
is accepting a higher offer as good faith. That's actually
you know, abiding by your fiduciary duties as a board,
as a director or you know of a company or
board of a company.
Speaker 2 (20:27):
But I think you.
Speaker 3 (20:28):
Know, the the question is did they know, you know,
how could they show that this transaction wasn't superior, wasn't
reasonably likely to be completed?
Speaker 2 (20:39):
And to do that.
Speaker 3 (20:45):
If the court looks at the whole transaction, and not
just the first step. So if it's the whole transaction
that has to be completed, and I don't know what
it is, but if if it has to be the
whole transaction, then did they know when they received the
offer that they this would never be approved and that
the only purpose is to sort of, you know, get
get Pfizer to increase its offer.
Speaker 1 (21:07):
I see, I see, okay, so that's I see, that's
where the bad faith can potentially coming. So that so
that ties into the anti trust review right that you're
that's what you're talking about. So Jen, let's bring you
in because it sounds like, you know, FTC review of
these deals. I assume it's the FTC is going to
be critical from what I from. You know, what I've
(21:28):
a little I've read on all this is that the
FCC appears have blessed Phizer's offer but has some questions
about Novo's offer. Come in and you know, tell me
if that's right, tell me if that's wrong, and where
you see this going.
Speaker 4 (21:42):
Well, you know, the thing is, they're kind of multi
layered anti trust issues with this deal right now. And
you've got the standard when one company buys another and
they have to file under the Heart Scott Redino Act,
there's a waiting period and they get reviewed by Anti
trust and just and you know everybody knows about this
where you look at the products and our they have
horizontal overlaps and do they compete and are these markets concentrated?
(22:04):
So that's one issue, but a threshold issue to that,
to me, arises from this odd structure that Holly's just
talked about very well and in depth, where what Novo
Nordisks did is offer up a lot of money for
fifty percent non voting shares, with the money immediately converted
into dividends paid to shareholders because that avoids an HSR
(22:28):
filing and an HSR waiting period, and to me makes
this whole thing look really shady because it looks designed
to avoid having the FTC review. And the reason for
that is because under the Hart Scott Ridino Act, the
only deals that require filings are acquisitions of assets or
acquisitions of voting shares. Now, the plan here by Novo
(22:50):
is to get the fifty percent non voting shares pay
out this dividend. Shareholders get their money immediately right away
and probably somewhat irrevocably right and then later they would
try to convert those to voting shares and buy the
rest of the company and at that point file their
HSR right. So the problem with just the structure comes
(23:11):
before even a review of whether Novo and met Sarah
combined create anti trust problems, because what the FTC has
already said to Novo is that this might violate the
laws against what's called gun jumping, right and gun jumping.
Speaker 1 (23:26):
So they're concerned about they're concerned about the structure of
this transaction that's right to avoid the HSR review, not
that there's going to be, not because of anti competitive views.
Speaker 4 (23:37):
They will, so I think they have both. So I
think that they will also have a problem with a
Novo met Sarah combination, which I'll get into in a minute.
But the gun jumping thing is really a big deal
because what that is is it's a too much integration
and too much element of control by a buyer over
a seller before they've gotten anti trust approvals right. And
(23:59):
this is sort of this weird fine line that they
walk because a buyer always has a tiny little bit
of control over a seller once they've signed the purchase agreement.
But if they have too much it's gun jumping. And
here's the thing, even with just the fifty percent of
non voting shares, they still have some control over MET.
They being Novo, has some control over MET Sarah. They
(24:20):
have a cap on the capital expenditures, they have a
cap on employee retention programs, and they have some control
over this company's ability to compete and get their final
pipeline products through FDA approval quickly and get on the
market and compete with them and Elliott. The fine for
gun jumping is fifty one thousand dollars a day per
company per day of violation. So if they take a
(24:42):
year to get any trust review right, and it's one
hundred two thousand dollars a day, you're getting up into
the seventy millions of dollars for just the gun jumping fine.
Speaker 1 (24:51):
This gun jumping. I've never heard of this gun jumping thing.
I mean, I'm not you know, vers in the space
like you are. I mean, why does in Congress just
a man, Well, I mean I guess they just they
don't allow this kind of transaction and they have HSR.
Speaker 4 (25:05):
But I mean I've never seen this kind of transaction before.
Speaker 1 (25:10):
Oh really no, Okay, So why don't they amend the
statue to allow HSR review, you know, for transactions like this.
Speaker 4 (25:20):
Well, I mean amending things like anti trust laws is
a very difficult task for this Congress. I will tell
you that it has already been amended a little bit recently.
But you know that Congress would have to do something
like this. I don't know that there have been kind
of such significant efforts to avoid HSR. Now here's the
(25:41):
thing that's weird is that the FTC has the legal
authority to challenge a deal, whether HSRs filed or not.
All HSR does for the FTC is protects it by
giving it a waiting period, by legally preventing companies from
closing until the FTC's finished their review. The FTC goes
after deals that have closed because they didn't need to
(26:02):
VIOLATESR and has gotten them unwound. They do it, and
they can do it, and they could do that here
as well. But what they're saying is on top aside
from that, aside from their ability to go after the deal,
whether it's HSR filed or not, that they think this
could be a gun jumping violation.
Speaker 1 (26:19):
So interesting. Okay, all right, so you have this sort
of structural structure problem that the FTC is not happy about.
And what about the anti competitive review, So you.
Speaker 4 (26:29):
Know on that piece, you know, my feeling and looking
at it is that they would have a problem because
you've got two companies that essentially sell weight loss drugs
in our country Eli Lilly and Novo Nordisk, and all
of those drugs are expensive, and you know they are
very much needed by people who have diabetes and weight issues.
That is a concentrated market fifty percent share each essentially
(26:52):
might not be quite that when you have a third
that's about to come on the market, that is a
really good thing for consumers. And from an anti trust perspective,
three compete is always better than two, especially because we
understand Met Sarah's drug is supposed to be a really
good drug and better than maybe.
Speaker 2 (27:05):
What's already on the market for weight loss.
Speaker 4 (27:08):
So where an incumbent is trying to buy a nascent competitor,
a competitor that's going to come on the market and
might pose some serious competition to them, that violates the
antitrust laws. And I think that's what we have here
because Novo Nordics, by trying to buy Met Sarah either
takes it out as its own independent competitor, or takes
out Visor as a third competitor. One's Visor owned met Sarah,
(27:30):
so it's trying to prevent this third entity competing. Now,
what Nova would say is well, but that's not necessarily
the case. In pharmaceutical deals, the FTC defines markets very
very narrowly by mechanism of action. They think branded drugs
don't compete with generic drugs. If there's a drug that
(27:51):
treats the exact same thing, but one is a pill
and one is a patch, the FTC don't see them
as competing. And Nova would say, our drugs for weight
loss are different enough from Metzarah's, and you put go
to narrow markets.
Speaker 2 (28:02):
We don't overlap.
Speaker 4 (28:03):
But elliott I think that won't be the case here
because first it's not a hard and fast rule. The
FDC has defined in pharmaceutical cases some markets in a
more broad category, such as a therapeutic category. So we've
seen them define a market as an oral product to
treat moderate to severe psoriasis, every treatment for chronic refactory
(28:27):
refractory doubt, all treatments for thyroid I disease. That is
broader and it's in a category. And I think that's
probably what we'd see here, because markets are defined based
on consumer substitutability and consumer demand. If a product is
too expensive or doesn't work for consumer, what could they
turn to? And if there's something else they can turn to,
that product's in the relevant product market. And I think
(28:48):
you'd see a situation here where it is a broader
market defined.
Speaker 2 (28:51):
And you do have a problem.
Speaker 1 (28:53):
There are so many moving parts in this, in this
litigation between the two of you, and I don't know
who wants to take this, or maybe you both want
to take it, just not at the same time. What
are you looking for next in a litigation or in
the anti trust review?
Speaker 4 (29:11):
Well, I'll say they're still bidding, So just FYI the
bidding war stuff.
Speaker 1 (29:15):
Right, Yeah, every day it seems like one of the
companies up since bid.
Speaker 4 (29:19):
I mean this Metserah was originally going to be sold
for a grand total of something like seven million when
you put all the money together upfront, and then later
and I think now it's it's gotten up to ten billion,
and since then they've been bidding more so it's.
Speaker 2 (29:32):
More than ten billion.
Speaker 1 (29:34):
Well, you said seven seven billion.
Speaker 4 (29:36):
Yea to start and now it's more than ten billion.
Speaker 1 (29:40):
Good for them.
Speaker 4 (29:41):
So Holly mentioned that Pfizer said they were going to
continue the breach of contract case, right, and they have
an anti trust suit and I think they've standing to
bring that anti trust suit because they've been foreclosed from
the market by what Nobo was doing, and I think
that gives them standing. Normally, a competitor ca really go
after a merger between two other competitors, but I think
(30:03):
here they can. So that'll move forward, and then you know,
the FTC will open an investigation. If a no Vomit
Sarry deal goes forward, the FTC will open an investigation.
Speaker 1 (30:15):
So interesting, Well it sounds like we'll have some uncertainty
for a while. Yes, all right, let's talk about a
different case. Also, is the case that both of you
are covering. Actually it's not. This isn't necessarily a litigation
yet and it may not be, but it is related
to ongoing litigation. This is Kimberly Clark's acquisition for like
(30:38):
forty eight billion dollars of Kenview, which makes Thailand all
and has they spin off of Johnson and Johnson jen
You're looking at, you know, whether this raises anti trust issues,
and Holly, you've been covering Kenview litigation related to tail
and all for some time now. I don't know who
(30:59):
wants to take this one first. Jed, why don't we
start with you? Does this on its face raise any
antitrust concerns you think?
Speaker 4 (31:06):
I'll tell you that for the week, looking at two
deals at the same time started getting confusing. So you know,
people look at this deal and they go, oh, this
has got to be an anti trust problem. We've got
two huge consumer health product companies that are merging forty
eight billion.
Speaker 2 (31:20):
But here's the thing.
Speaker 4 (31:23):
What I said about the pharma space and met Sarah
is a complete opposite here. Once again, when you define
a relevant market, I don't think these companies compete all
that much. So here, if you look at consumer substitutability,
I think these markets are more likely. Did it be
defined very narrowly?
Speaker 2 (31:40):
Now?
Speaker 4 (31:41):
Think about we all know all the products these companies make.
Kimberly Clark makes a bunch of stuff for babies, like
huggies and pull ups and little swimmers. They make a
bunch of feminine and adult care products like Poise and Cotex,
and they make paper Kleenex, got cottonell stuff like that, right,
and then you have Kenview, which was spun off of
Johnson and Johnson in twenty twenty three, they spun out
(32:03):
their consumer health products business, so they have Johnson's Baby
So look.
Speaker 2 (32:07):
Both have a bunch of baby care products.
Speaker 4 (32:09):
But other than that, they have listerine, they have band aids,
they have neosporntylanol like you mentioned, emodium pepsid, neutrogina avino.
So when you think about those products, aside from some
baby products, they don't really compete in narrower markets. So
let's look at those baby products. Do they have a
problem a problem with baby and childcare? Well, if you
(32:30):
look at that category, yeah, they probably do in the
US and other countries because they compete. It's Procter and Gamble,
Kimberly Clark, and Johnson's, some private label few others.
Speaker 2 (32:40):
But when you talk about.
Speaker 4 (32:42):
The consumer substitutability, if somebody wants to buy diapers that
they're buying from Kimberly Clark and they don't want they're
too expensive, they need other diapers, they don't need Johnson's
Baby oil or Johnson's Baby wipes, because that's what Johnson sells,
so these products aren't substitutable substitutables. So with baby category
is too broad, so when you narrow it down Elliott,
(33:04):
they end up being very complimentary. And I don't really
think have significant overlaps. I have identified a few maybe
problematic overlaps in baby wipes in Brazil and in feminine
hygiene products in Australia and New Zealand, but these are
really non substantial divestitures that could be made to get cleared.
Speaker 2 (33:22):
So I don't think that'll get in the way.
Speaker 4 (33:24):
And I do think they'll be able to get past
an EU issue which the US doesn't have, which is
called conglomerate or portfolio effects, where they're more concerned about
having a giant portfolio and being able to have leverage
over retailers by virtue of this big portfolio. But I
think they'll get past it after an investigation. I took
(33:44):
a look at what the EU did with Procter and
Gamble when it bought Jillette, really similar issues, kind of
similar adjacencies, and they said, no, don't They don't think
it causes that conglomerate effect, and I don't think it
will hear so at the end of the day, I
think this is fine from any trust person. Active stakeholders
don't like it for the reason Holly's about to talk about.
Speaker 1 (34:04):
Though, Yeah, and and and that's sort of the bigger
question I have. I'm with with thail and All under
so much scrutiny, both in litigation and coming out of
the White House, who would want to take on that headache?
No pun intended. All Right, Holly, maybe maybe come in
and sort of give us a lay of the land
(34:24):
of all the litigation at least that can viewers facing
just so people understand what that's about.
Speaker 2 (34:29):
Okay, So you know you mentioned thailand All.
Speaker 3 (34:32):
There were these federal lawsuits that were you know, consolidated
in the Southern District of New York and the claims
were that thailan All is linked to autism and ADHD
when pregnant women take take it during pregnancy and causes
that in babies and so and there are also probably,
(34:55):
you know, we don't know how many state cases there
are where there are state cases as well. The federal lawsuits, though,
were dismissed after experts were barred from testifying. In twenty
twenty three and twenty twenty four, I believe that's on appeal,
and the appeal is actually the hearing on the appeal
is going to be in a couple of weeks.
Speaker 2 (35:17):
But we don't expect the judge to be reversed.
Speaker 3 (35:21):
Even though the President has come out and put out
a statement and his secretary Kennedy has put out a
statement that says that you know, you're you know, telling
pregnant women not to take Thailand all because of this risk.
Speaker 2 (35:35):
But I don't think that that changes anything in federal court.
Speaker 3 (35:37):
It's possible that it can impact, you know, ongoing cases
in state court, but even then I'm not sure.
Speaker 2 (35:42):
If it does.
Speaker 3 (35:44):
So, so you have these tile in all cases, and
then they also retain some liability for or potential liability
for cal compowder with regard to cases filed outside of
the US and Canada, and recently in the news there
were and I'm not following this case because it's not
(36:06):
a US case, but in the news there were there was.
Speaker 2 (36:10):
Reports that you know.
Speaker 3 (36:12):
I think a lawsuit has been filed on behalf of
three thousand people who claim that they got cancer from
from TALC in the UK, and the lawsuit has been
filed in the UK, so.
Speaker 2 (36:24):
There's that those are the prime primarily the two cases.
Speaker 3 (36:31):
And like I said, I'm not covering the Taele Compowder case,
but in in the the Tileal cases, I think that
the federal cases nothing changes. It's possible that, you know,
I think, you know what's likely to happen is that
more state cases are or more cases are filed in
state court.
Speaker 1 (36:50):
Got it? So, so maybe the dismissal of the litigation
in federal court, even though it's still subject to appeal,
or maybe that gave can really Clark some comfort and
but it would still obviously have to deal with state
court litigation and you know, sort of disparaging statements I
guess coming out out of the White House occasionally. All Right,
(37:14):
such interesting stuff. Thank you both. That was a lot
from both of you, and I know you guys have
been super busy this week with all of this. Let's
switch to DC quickly and check in with Nathan Dean,
our chief policy analyst down in DC. Nathan, are we
so interesting week?
Speaker 4 (37:31):
Right?
Speaker 1 (37:31):
Because we had some elections on Tuesday where the Democrats
did really well. We've been looking for a shutdown off
ramp for a while. It sounds like maybe we're getting closer.
Where do you think things stand as of today?
Speaker 5 (37:43):
So I think it was extremely helpful that Holly and
Jen went for forty or so minutes because we've had
a lot of news break in the last forty minutes.
Speaker 1 (37:50):
Oh Man, one have I missed?
Speaker 5 (37:51):
So Senator Thun just announced that he's going to have
he's the Senate Majority leader, the leader of the Republicans
in the Senate. He announced that he's going to hold
two votes tomorrow. The vote that just opens the government
through November twenty. First, this is the House pastcr that's
going to fail. The second vote is going to keep
the government open through January. But it's also going to
include three appropriations bills that would fund these agencies for
(38:15):
the rest of the year. And this is the agg Department,
Veteran Affairs, and then the Legislative Branch, so congressional staffers.
The idea here is is that Senator Bethune believes that
there's enough Democrats on board that they would go forth
with this, and that they would vote on it, and
then the House would have to come back and the
House would vote on this early next week. That's not
(38:35):
a guarantee. There are some Senate Democrats out there who
are willing to make a deal, and there are some
Senate Democrats out there who, after Tuesday's results, want to
fight a little bit more. There have been discussions about
adding back language of rehiring anybody who was laid off
(38:56):
during the shutdown. That Senator Mark Warner of Virginia's big ask.
There's been some talk about what to do for the
ACA subsidies, but we're generally getting to the point where
people are negotiating again. And the Senate has said the
Senator Thune just announced that he's going to keep the
Senate in through the weekend. And that's key because the
Senate's supposed to go on recess next week and they
(39:16):
would be out all next week. So if the Senate
stays to the weekend, there is I don't want to
there's optimism here. I mean, this is the best thing
that we that we can see. So there's optimism here
that potentially the Senate could have a deal this weekend,
the House would come back, the House would have a vote,
and then ultimately open this up through January. The big
(39:40):
question is what happens to the ACA subsidies now. In
talking with you know, Dwayne Wright and I have talked
about this multiple times. We don't think that there's ever
going to be a deal that includes dealing with the
ACA subsidies. It's feasible, especially if President Trump gets involved
and says, look, I want to do something here, because
a lot of Republicans out there it will say that
(40:02):
the safe subsidies or the rising premiums with the ACA
is a losing argument from them politically. So there is
possibility that something here can get done. But that's the
big question that remains is what happens with these ACA subsidies.
And you know, obviously there's a lot of questions here.
So if it doesn't get done, I still believe that
(40:24):
we'll see something before the Thanksgiving holiday season. The week
of the seventeenth. I think that's when they shut down
would end, just because the travel staff us are getting
more and more serious, and you know, the politicians are
going to respond to those.
Speaker 1 (40:40):
Yeah, I mean it sounds like on the travel stuff,
this Friday is potentially going to be a nightmare for
a lot of people. If they're reducing by up to
ten percent, you know, some of the flights at forty
major airports.
Speaker 5 (40:53):
Yeah, I mean I was supposed to fly to Miami
on Saturday, and I got the notification this morning that
I had the pleasure of rerouting to Houston and then
flying to Miami and so, but they offered a full
refund some of my family and I just said, eah,
not gonna happen this weekend.
Speaker 1 (41:11):
Yeah, But so, if Congress is listening, you are messing
with the Dean family vacations. And if that is not
motivation enough to do something, come on, everybody, let's get
it done.
Speaker 5 (41:21):
My daughter was saying some not so nice things about
the government, and we had to remind her that we're
still fortunate that we're getting paid and that a lot
of federal government workers aren't. But in all seriousness, the
snap benefits are hurting, the travel snaffoos are hurting. And
with my belief that enough Democrats are saying, look, we
(41:42):
had a blue wave on Tuesday. I mean, Virginia went blue,
New Jersey went blue. Georgia, the votes for the public
safety commissioners in Georgia, those were blue. There's a lot
of Democrats out there. Let's say, let's just cash in
the chips and let's take those winnings.
Speaker 1 (41:59):
Got it all right, Well, we'll see what happens I think.
With that, we'll wrap up this episode of Votes and Verdicts.
As always, thank you for listening. If you have any
questions about anything that we talked about on today's episode,
please don't hesitate to reach out to us at your
convenience with questions. As a reminder, you can find all
of our research on the Bloomberg terminal at big You
(42:19):
can go to our litigation and policy dashboard at BI
laws Go. We also want to thank our producer, Aditya Somani,
without whom this podcast would never publish on time. Thank
you for listening and have a great day.
Hello, and welcome to the Votes and Verdicts podcast, hosted
by the litigation and policy team at Bloomberg Intelligence, the
investment research platform of Bloomberg LP on the Bloomberg Terminal.
Bloomberg Intelligence has five hundred analysts and strategists working across
the globe and has focused on all major markets. Our
coverage includes over two thousand equities and credits. We have
(00:37):
outlooks on more than ninety industries and one hundred market industries,
currencies and commodities. This podcast series examines the intersection of
business policy and law, and today's our weekly check in
to look at the litigation and policy catalysts that we're
watching and that we think will impact companies and industries
(00:57):
and sectors and markets. Sames elliott Stein, I'm an analyst
with Bloomberg Intelligence covering litigation in the financial sector, and
I'm delighted today as always to be joined by several
of my Bloomberg Intelligence colleagues. As always, you can find
all of our research on the Bloomberg terminal at BIG
and you can find all of our litigation and policy
(01:19):
research on our dashboard, which is available on the terminal
at BI laws go just to time stamp. This episode
Today is Thursday, November sixth, twenty twenty five. It's about
three zero five pm on the East coast here in
the US. All right, So, probably the biggest case in
(01:41):
the news this week was the Supreme Courts oral argument
to address the legality of President Trump and the Trump
Administration's reciprocal tariffs and senten all link to tariffs. So
to discuss that case, which has been covered by bo
I from its inception, I'm going to bring in Holly
(02:03):
Frome since she's been covering that litigation for us. So, Holly,
how are you?
Speaker 2 (02:08):
I'm good? Thanks Elliott.
Speaker 1 (02:10):
Have you recovered from the two and a half hour
oral argument in the Supreme Court yesterday?
Speaker 2 (02:14):
It was pretty long.
Speaker 1 (02:15):
It was pretty long, but I think not quite as
long as the debt forgiveness oral argument in the Biden administration,
which I recalled going almost three hours and I felt
exhausted after. But in any event, on the tariffs, you
went into oral argument thinking that the Supreme Court would
(02:37):
strike down the reciprocal tariffs, the Liberation Day tariffs, but
might uphold the fentanyl link to tariffs, all of which
were imposed under the AIPA Statute, which is really the
issue in the case. What's your thoughts coming out of
the argument here.
Speaker 3 (02:56):
I think all of the terroriffs, the AEPA tariffs that
were challenging going to be struck down, and the reason
for that is because, you know, I thought that there
was a way that they could carve out some of
the terrorists based on whether the emergency declared was an
actual emergency, and they didn't seem to really.
Speaker 2 (03:14):
Touch on that at all.
Speaker 3 (03:15):
I think there was one question about an emergency, and
but you know, most of the judges didn't you know,
talk about emergency. So I don't think that this is
going to be based on those rounds, and so the
you know, the real I think that the heart of
the arguments were about whether the statute actually allows for
(03:36):
tariffs and if you know, that language could be construed
that way, and if they can, whether that would violate
the major questions Whether this would you know, the the
terroriffs because of their you know, huge economic effect, would
violate the major questions doctrine because the statute doesn't mention
(03:58):
the word terriffs, and it's not you know, it wouldn't
be a clear grant of power from Congress to the President,
and in which case that would, you know, violate the
medior questions doctrine. So I think it's going to be
decided on meteror questions doctrine grounds, and I think a
majority of judges are going to find that this violates
the mejor questions doctrine.
Speaker 1 (04:19):
So it sounds so right, So use the statute AIPA.
It doesn't mention tariffs in The argument by the challengers
is that because Congress didn't use that language in the statute.
You know, the statute didn't contemplate allowing the president to
(04:40):
impose tarriffs. And so the language that they're really focused
on is this language about regulating imports that is in
this statute, right, and so you know, the challenges are saying, well,
tariffs is not in there, and what's the what's the
administration's argument for why that language should incomp teriffs.
Speaker 2 (05:00):
Well, they say it's a very capacious phrase.
Speaker 3 (05:03):
So regulate imports is very capacious, and the statute itself
is very capacious because it gives the president all kinds
of powers. He can nullify imports under the you know,
the statute, he can block them entirely. So you know,
this power would be much more limited than the other
powers that he has under the statute.
Speaker 2 (05:24):
And so that's one of the arguments.
Speaker 3 (05:27):
The other arguments is they point to other cases where
other cases that the Supreme Court decided deciding issues about
tariffs and whether statutes allow them. And one of the statutes,
which is section two thirty two, they talk about this
Algonquin case where the Supreme Court said that the statute
which says that the president can adjust imports, allows him
(05:50):
to impose tariffs.
Speaker 4 (05:51):
And the.
Speaker 3 (05:54):
Government was arguing that that language is very similar to
regulate imports.
Speaker 2 (05:57):
If anything, it's more restrictive.
Speaker 3 (06:00):
So this regulated imports should be viewed as allowing him
to impose terroriffs.
Speaker 1 (06:05):
And so your view is that there's a there's at
least a majority of justices or at least five of
them who are going to rule against the administration on this. Uh.
I mean, I think the easy ones are the three
liberal justices right, who are skeptical of executive too much
executive power, especially in this administration. So where do you
(06:29):
think the challengers pick up the two additional justices.
Speaker 3 (06:33):
I think Gorsich had a problem with this. You know,
he talked about the major questions doctrine a lot, And
I think Roberts also had a problem with this. You know,
one of the arguments that the that the administration raised
was that in the context of foreign affairs, you know,
(06:53):
the president has given broad power and usually the major questions,
doctrine doesn't apply. And they brought up this case and more,
which I think, you know, the the judge who wrote that.
I think that Justice Roberts was the clerk of that
judge when that decision was written, and he said, well,
that's not what the case says. You know, the case
(07:15):
that case limited its application to the specific facts and so,
and the case didn't even talk about terrorists. So I
don't know how you're how you think that applies in
this situation. So, you know, he seems to think that
the media question is doctrine does apply in the context
of foreign affairs. I think, you know, I think it
(07:36):
was Gorsa you asked, or maybe it was I think
it was Gorsa you asked whether who questioned the government's
position that that it doesn't apply to the president, because
what the administration was saying was that it applies only
to executive agencies, not the president, which is you know,
most responsible to the to the you know, people who
(07:57):
elect him, so the media question doctrine shouldn't apply, and
I think that he was skeptical of that. So for
that reason, I think that Gorsicch and Roberts Uh will
join the three Leberal Justices, and I think I think
Coby Barrett will as well. But you know, she she
(08:18):
was I think she was more difficult to read than
the other two. So I think that, you know, they
do have a majority, and I think that Barrett will join.
Speaker 1 (08:27):
So interesting, and I guess a little bit of irony
if it gets struck down under the major Questions doctrine,
since that's really a doctrine that could only be sort
of uh, you know, it was only really invoked pretty
recently and because of the conservative majority on the Supreme
Court that in part is in place because of President
Trump's appointments in his last term. So what do you
(08:51):
expect in terms of timing of a decision? And then
if you're right and the APA terrorists gets struck down,
what does the administration doing response?
Speaker 3 (09:01):
So I think that the decision comes down in mid
December or by the end of December, and I think that, uh,
the administration will probably they've already started in these like
three oh one investigations and Section two thirty two investigations
to sort of recreate teriffs other ways, and so I
(09:23):
think they're going to start, You're going to see more
of that. But I think that, you know, a lot
of these can be recreated. I think even one judge
asked about this that all that. I think it was
Aldo who who said that all of these terrorists could
fall under Section three point thirty eight, except perhaps like
the vuentinal tariffs, but all this, theit terrorists could fall
(09:47):
under the President's Section three thirty eight paros, which allows
him to impose terris when a country is discriminating against
US commerce, and he can impose harris of up to
fifty percent.
Speaker 2 (10:00):
And I think Alito.
Speaker 3 (10:01):
Asks the plaintiffs, well, you know, doesn't that SESI allow
him to these impose these terroriffs. And I think that
the planifs sort of tried to distinguish it on the
basis that that requires discrimination, not just a trade deficit.
But I think that that's definitely a session he will use,
you know, if the terrorists are struck down, which we
think they.
Speaker 1 (10:20):
Will be so interesting, all right, that's uh, I mean
it was. It was such a fascinating argument, and it's
so fun when we get a case that really captures
the nation's attention. I mean, I suppose some more than others,
depending on what they buy and if their importers or not.
But uh yeah, I mean in theory, this affects all
consumers as well. All Right, Holly, let's keep you on
(10:42):
gen Re. Let's bring you in. So gen Re covers antitrust.
Holly covers all things consumer and industrial in terms of litigation,
but also some healthcare related cases if they don't involve patents.
So let's talk about Phizer versus Novo Nordisk and met Sarah.
(11:06):
I've only sort of, you know, read the headlines and
sort of skimmed the articles. I'm not in the weeds
like you guys are, but this is I found it
to be such an interesting case because as far as
I can tell, this is what's happened. And you'll correct
me if I'm wrong. I guess. In September, Pfizer made
a bid for met Sarah, which is a company. Metzara
(11:29):
is a company that makes drugs antiobesity drugs. Right, and Pfizer,
I guess, is trying to get into that space because
they're not really a player in it yet. In response,
Novo Nordisk, I guess, in October puts in a bid
from Metzarah that's higher than Phizer's. But Novo of course
(11:49):
does have antiobesity drugs as part of its portfolio, and
so you know, potentially there are I suppose anti trust
concerns there, and you know, Pfizer, I guess, is not
happy about that, and so they sue, and I guess Metsarah,
(12:10):
I guess right, approves the Novo offer, except the Novo offer.
Pfizer is not happy about that. They say it's a
breach of their agreement to buy met Sarah. They say
that it can't be a better offer because it raises
anti trust concerns. And then it also sues in addition
to its you know, breach of its agreement it's acquisition agreement,
(12:34):
it sues on anti trust grounds. And then there's also
anti trust reviews going on at the same time by
the FTC of both Pfizer and Novo, and so you know,
I guess there was a t ro o here in
a couple of days ago because Pfizer wanted to block
Novo's purchase of met Sarah. But Holly, why don't you
(12:56):
come in tell me what I got wrong about all that?
Maybe describe the case, you know, more accurately, and where
we are and where you see it going.
Speaker 3 (13:04):
I think you pretty much got it all right. I
don't know if I could do better. So, yeah, So
Pfizer and Metzara entered into this agreement in September, and
it was a murder agreement, and there was, you know,
a non solicitation clause, which I think is pretty standard.
So so Matsarah couldn't go out and solicit bids for
(13:26):
the company, but it could consider quote superior offers, and
a superior offer was one that offered to take over
you know, fifty percent or more of the shares of
the company or assets of the company.
Speaker 2 (13:44):
And I'm paraphrasing here, and.
Speaker 3 (13:46):
And it also had to, relative to Pfizer's transaction be
quote reasonably likely to be completed on the terms proposed,
taking into account all financial regulatory financing, I mean, condition, additionality,
legal and other aspects of the proposal.
Speaker 2 (14:03):
So Pfizer is challenged.
Speaker 3 (14:06):
So so what happened was on I believe it was
I don't remember the exact date. But Novo gave met
Sarah an offer with a higher UH for a higher amount.
Speaker 2 (14:19):
But it would have.
Speaker 3 (14:22):
So, so it was an upfront cash payment, and then
that was going to be distributed to its shareholders and
then UH it would get these like non voting shares
in return.
Speaker 2 (14:36):
Nova would get non voting shares in return.
Speaker 3 (14:38):
And then there was this lock up period between you know,
the time that the shares are distributed and when.
Speaker 2 (14:46):
The deal closes.
Speaker 3 (14:48):
So and so that Pfizer says A voids anti trust
review during that lockup period, so they don't have anti
trust review during the first step of this transaction, is
what Pfiser was saying.
Speaker 2 (15:04):
So what Peiser said was that, you know, so once Metzerah.
Speaker 3 (15:10):
Got this offer, it sent a or somehow notified Pfizer
because there's this you know, forty notice requirement in the
agreement that says that they have to Matzera has to
notify Pfizer if they get a superior company proposal, and
then there's you know, Pfiser has fortys to you know,
come back with a better offer. But if they don't,
(15:31):
then then Matzerah could terminate the agreement. And what happened
was I think the next day after they were notified.
So October thirty first, Pfiser files a lawsuit and the
lawsuit says that this is not a superior company proposal
or it's not a superior company offer because it's not
(15:53):
reasonably likely to be concluded or completed because it can't
pass antitrust review. And so it asked the court. So
it went to the court, and I think this same
day it applied for a TIRO contemporary straining order block
or asking the court to block met Sarah from terminating
the agreement. And what happened at the TIRO here, So
(16:16):
there was a TIRO hearing on I guess it was
November fourth, which was you know, the end of the
four day period. And then in between that time new
offers came in I think for both Novo and Metzara
and Pfizer, which extended that.
Speaker 2 (16:35):
You know period by one day.
Speaker 3 (16:37):
And then on November fifth, the judge complete when when
that period was closed, the judge heard the tierro or
completed the TIRO hearing and decided to uh deny the tierro.
And what the court said was one the company Pfizer
can't show a reprob harm because if met Sarah unlawfully
(17:00):
UH terminated the agreement. They can still come back and
ask the judge to order specific performance. And the other
reason is she seemed to think that they that there
was a problem because the provision that says, you know
that the determination as to whether this is a superior
(17:23):
company offer is met Sarah's determination, they just have to
have like a good faith belief that it's a superior
company offer, and so they have some discretion to determine
whether that's a good UH superior offer. And so she said,
you know, I don't think you can show that they
didn't have a good faith belief that it wasn't, and
(17:46):
so for that reason she denied the tro o. I
read that Pfizer plans to continue the lawsuit, but I
think that if they're going to do that, they're probably
going to have to amend the complaint.
Speaker 1 (17:58):
In what in what way?
Speaker 3 (17:59):
I think they're going to have to add fat because
based on the facts you know that they've pleaded, I
don't think or the allegations that they've pleded, I don't
think that they could show that the decision that uh Novo's.
Speaker 2 (18:10):
Offer was a superior company offer was that faith.
Speaker 3 (18:13):
I think they had, they would have to show somehow
that you know that met Sarah knew at the time
when it received that it wouldn't you know that. And
the problem is, I think part of the problem is
there's two steps to this transaction.
Speaker 2 (18:30):
So there's the first step where.
Speaker 3 (18:34):
Novo I think, gets the non voting shares and offers
a cash payment, and then there's a second step where
which would then have to have regulatory review.
Speaker 2 (18:48):
But even if they.
Speaker 3 (18:49):
Complete the first step, that's it's possible that that's like
a better offer than than than Plizors. So you know,
the question is whether that first step alone is a
better offer. Is a superior company off could be construed
as a superior company offer, And I think that's it's
possible that it can be even that even if the
(19:10):
deal doesn't close, So one part of the transaction has
been completed. So I think to plead a bad faith,
you know determination, they'd have to show somehow that you
know that part of the transaction was not you know,
not they knew that wasn't going to be completed, which
(19:32):
you know, I think that would be hard to do,
or they knew that they were just doing this to
sort of get a better offer from Pfizer, which you know,
even then, I'm not sure that that's bad faith. But
you know, I just think that they need more facts
or allegations, because based on the allegations alone that are
pleded right now, I don't think they would win.
Speaker 2 (19:52):
I don't think they do think they'd win an argument
that this is a bad faith determination.
Speaker 1 (19:57):
It gives met Sarah sort of that that discretion, right then,
I think it's very it's it's a high burden for
a pfisor to establish here. But but I mean it
is simply accepting a higher offer bad faith. That can't
be bad faith, right, That's that's business.
Speaker 2 (20:12):
Yeah, No, I don't think accepting a higher offer.
Speaker 3 (20:15):
I think, you know, that's the point of her decision,
is accepting a higher offer as good faith. That's actually
you know, abiding by your fiduciary duties as a board,
as a director or you know of a company or
board of a company.
Speaker 2 (20:27):
But I think you.
Speaker 3 (20:28):
Know, the the question is did they know, you know,
how could they show that this transaction wasn't superior, wasn't
reasonably likely to be completed?
Speaker 2 (20:39):
And to do that.
Speaker 3 (20:45):
If the court looks at the whole transaction, and not
just the first step. So if it's the whole transaction
that has to be completed, and I don't know what
it is, but if if it has to be the
whole transaction, then did they know when they received the
offer that they this would never be approved and that
the only purpose is to sort of, you know, get
get Pfizer to increase its offer.
Speaker 1 (21:07):
I see, I see, okay, so that's I see, that's
where the bad faith can potentially coming. So that so
that ties into the anti trust review right that you're
that's what you're talking about. So Jen, let's bring you
in because it sounds like, you know, FTC review of
these deals. I assume it's the FTC is going to
be critical from what I from. You know, what I've
(21:28):
a little I've read on all this is that the
FCC appears have blessed Phizer's offer but has some questions
about Novo's offer. Come in and you know, tell me
if that's right, tell me if that's wrong, and where
you see this going.
Speaker 4 (21:42):
Well, you know, the thing is, they're kind of multi
layered anti trust issues with this deal right now. And
you've got the standard when one company buys another and
they have to file under the Heart Scott Redino Act,
there's a waiting period and they get reviewed by Anti
trust and just and you know everybody knows about this
where you look at the products and our they have
horizontal overlaps and do they compete and are these markets concentrated?
(22:04):
So that's one issue, but a threshold issue to that,
to me, arises from this odd structure that Holly's just
talked about very well and in depth, where what Novo
Nordisks did is offer up a lot of money for
fifty percent non voting shares, with the money immediately converted
into dividends paid to shareholders because that avoids an HSR
(22:28):
filing and an HSR waiting period, and to me makes
this whole thing look really shady because it looks designed
to avoid having the FTC review. And the reason for
that is because under the Hart Scott Ridino Act, the
only deals that require filings are acquisitions of assets or
acquisitions of voting shares. Now, the plan here by Novo
(22:50):
is to get the fifty percent non voting shares pay
out this dividend. Shareholders get their money immediately right away
and probably somewhat irrevocably right and then later they would
try to convert those to voting shares and buy the
rest of the company and at that point file their
HSR right. So the problem with just the structure comes
(23:11):
before even a review of whether Novo and met Sarah
combined create anti trust problems, because what the FTC has
already said to Novo is that this might violate the
laws against what's called gun jumping, right and gun jumping.
Speaker 1 (23:26):
So they're concerned about they're concerned about the structure of
this transaction that's right to avoid the HSR review, not
that there's going to be, not because of anti competitive views.
Speaker 4 (23:37):
They will, so I think they have both. So I
think that they will also have a problem with a
Novo met Sarah combination, which I'll get into in a minute.
But the gun jumping thing is really a big deal
because what that is is it's a too much integration
and too much element of control by a buyer over
a seller before they've gotten anti trust approvals right. And
(23:59):
this is sort of this weird fine line that they
walk because a buyer always has a tiny little bit
of control over a seller once they've signed the purchase agreement.
But if they have too much it's gun jumping. And
here's the thing, even with just the fifty percent of
non voting shares, they still have some control over MET.
They being Novo, has some control over MET Sarah. They
(24:20):
have a cap on the capital expenditures, they have a
cap on employee retention programs, and they have some control
over this company's ability to compete and get their final
pipeline products through FDA approval quickly and get on the
market and compete with them and Elliott. The fine for
gun jumping is fifty one thousand dollars a day per
company per day of violation. So if they take a
(24:42):
year to get any trust review right, and it's one
hundred two thousand dollars a day, you're getting up into
the seventy millions of dollars for just the gun jumping fine.
Speaker 1 (24:51):
This gun jumping. I've never heard of this gun jumping thing.
I mean, I'm not you know, vers in the space
like you are. I mean, why does in Congress just
a man, Well, I mean I guess they just they
don't allow this kind of transaction and they have HSR.
Speaker 4 (25:05):
But I mean I've never seen this kind of transaction before.
Speaker 1 (25:10):
Oh really no, Okay, So why don't they amend the
statue to allow HSR review, you know, for transactions like this.
Speaker 4 (25:20):
Well, I mean amending things like anti trust laws is
a very difficult task for this Congress. I will tell
you that it has already been amended a little bit recently.
But you know that Congress would have to do something
like this. I don't know that there have been kind
of such significant efforts to avoid HSR. Now here's the
(25:41):
thing that's weird is that the FTC has the legal
authority to challenge a deal, whether HSRs filed or not.
All HSR does for the FTC is protects it by
giving it a waiting period, by legally preventing companies from
closing until the FTC's finished their review. The FTC goes
after deals that have closed because they didn't need to
(26:02):
VIOLATESR and has gotten them unwound. They do it, and
they can do it, and they could do that here
as well. But what they're saying is on top aside
from that, aside from their ability to go after the deal,
whether it's HSR filed or not, that they think this
could be a gun jumping violation.
Speaker 1 (26:19):
So interesting. Okay, all right, so you have this sort
of structural structure problem that the FTC is not happy about.
And what about the anti competitive review, So you.
Speaker 4 (26:29):
Know on that piece, you know, my feeling and looking
at it is that they would have a problem because
you've got two companies that essentially sell weight loss drugs
in our country Eli Lilly and Novo Nordisk, and all
of those drugs are expensive, and you know they are
very much needed by people who have diabetes and weight issues.
That is a concentrated market fifty percent share each essentially
(26:52):
might not be quite that when you have a third
that's about to come on the market, that is a
really good thing for consumers. And from an anti trust perspective,
three compete is always better than two, especially because we
understand Met Sarah's drug is supposed to be a really
good drug and better than maybe.
Speaker 2 (27:05):
What's already on the market for weight loss.
Speaker 4 (27:08):
So where an incumbent is trying to buy a nascent competitor,
a competitor that's going to come on the market and
might pose some serious competition to them, that violates the
antitrust laws. And I think that's what we have here
because Novo Nordics, by trying to buy Met Sarah either
takes it out as its own independent competitor, or takes
out Visor as a third competitor. One's Visor owned met Sarah,
(27:30):
so it's trying to prevent this third entity competing. Now,
what Nova would say is well, but that's not necessarily
the case. In pharmaceutical deals, the FTC defines markets very
very narrowly by mechanism of action. They think branded drugs
don't compete with generic drugs. If there's a drug that
(27:51):
treats the exact same thing, but one is a pill
and one is a patch, the FTC don't see them
as competing. And Nova would say, our drugs for weight
loss are different enough from Metzarah's, and you put go
to narrow markets.
Speaker 2 (28:02):
We don't overlap.
Speaker 4 (28:03):
But elliott I think that won't be the case here
because first it's not a hard and fast rule. The
FDC has defined in pharmaceutical cases some markets in a
more broad category, such as a therapeutic category. So we've
seen them define a market as an oral product to
treat moderate to severe psoriasis, every treatment for chronic refactory
(28:27):
refractory doubt, all treatments for thyroid I disease. That is
broader and it's in a category. And I think that's
probably what we'd see here, because markets are defined based
on consumer substitutability and consumer demand. If a product is
too expensive or doesn't work for consumer, what could they
turn to? And if there's something else they can turn to,
that product's in the relevant product market. And I think
(28:48):
you'd see a situation here where it is a broader
market defined.
Speaker 2 (28:51):
And you do have a problem.
Speaker 1 (28:53):
There are so many moving parts in this, in this
litigation between the two of you, and I don't know
who wants to take this, or maybe you both want
to take it, just not at the same time. What
are you looking for next in a litigation or in
the anti trust review?
Speaker 4 (29:11):
Well, I'll say they're still bidding, So just FYI the
bidding war stuff.
Speaker 1 (29:15):
Right, Yeah, every day it seems like one of the
companies up since bid.
Speaker 4 (29:19):
I mean this Metserah was originally going to be sold
for a grand total of something like seven million when
you put all the money together upfront, and then later
and I think now it's it's gotten up to ten billion,
and since then they've been bidding more so it's.
Speaker 2 (29:32):
More than ten billion.
Speaker 1 (29:34):
Well, you said seven seven billion.
Speaker 4 (29:36):
Yea to start and now it's more than ten billion.
Speaker 1 (29:40):
Good for them.
Speaker 4 (29:41):
So Holly mentioned that Pfizer said they were going to
continue the breach of contract case, right, and they have
an anti trust suit and I think they've standing to
bring that anti trust suit because they've been foreclosed from
the market by what Nobo was doing, and I think
that gives them standing. Normally, a competitor ca really go
after a merger between two other competitors, but I think
(30:03):
here they can. So that'll move forward, and then you know,
the FTC will open an investigation. If a no Vomit
Sarry deal goes forward, the FTC will open an investigation.
Speaker 1 (30:15):
So interesting, Well it sounds like we'll have some uncertainty
for a while. Yes, all right, let's talk about a
different case. Also, is the case that both of you
are covering. Actually it's not. This isn't necessarily a litigation
yet and it may not be, but it is related
to ongoing litigation. This is Kimberly Clark's acquisition for like
(30:38):
forty eight billion dollars of Kenview, which makes Thailand all
and has they spin off of Johnson and Johnson jen
You're looking at, you know, whether this raises anti trust issues,
and Holly, you've been covering Kenview litigation related to tail
and all for some time now. I don't know who
(30:59):
wants to take this one first. Jed, why don't we
start with you? Does this on its face raise any
antitrust concerns you think?
Speaker 4 (31:06):
I'll tell you that for the week, looking at two
deals at the same time started getting confusing. So you know,
people look at this deal and they go, oh, this
has got to be an anti trust problem. We've got
two huge consumer health product companies that are merging forty
eight billion.
Speaker 2 (31:20):
But here's the thing.
Speaker 4 (31:23):
What I said about the pharma space and met Sarah
is a complete opposite here. Once again, when you define
a relevant market, I don't think these companies compete all
that much. So here, if you look at consumer substitutability,
I think these markets are more likely. Did it be
defined very narrowly?
Speaker 2 (31:40):
Now?
Speaker 4 (31:41):
Think about we all know all the products these companies make.
Kimberly Clark makes a bunch of stuff for babies, like
huggies and pull ups and little swimmers. They make a
bunch of feminine and adult care products like Poise and Cotex,
and they make paper Kleenex, got cottonell stuff like that, right,
and then you have Kenview, which was spun off of
Johnson and Johnson in twenty twenty three, they spun out
(32:03):
their consumer health products business, so they have Johnson's Baby
So look.
Speaker 2 (32:07):
Both have a bunch of baby care products.
Speaker 4 (32:09):
But other than that, they have listerine, they have band aids,
they have neosporntylanol like you mentioned, emodium pepsid, neutrogina avino.
So when you think about those products, aside from some
baby products, they don't really compete in narrower markets. So
let's look at those baby products. Do they have a
problem a problem with baby and childcare? Well, if you
(32:30):
look at that category, yeah, they probably do in the
US and other countries because they compete. It's Procter and Gamble,
Kimberly Clark, and Johnson's, some private label few others.
Speaker 2 (32:40):
But when you talk about.
Speaker 4 (32:42):
The consumer substitutability, if somebody wants to buy diapers that
they're buying from Kimberly Clark and they don't want they're
too expensive, they need other diapers, they don't need Johnson's
Baby oil or Johnson's Baby wipes, because that's what Johnson sells,
so these products aren't substitutable substitutables. So with baby category
is too broad, so when you narrow it down Elliott,
(33:04):
they end up being very complimentary. And I don't really
think have significant overlaps. I have identified a few maybe
problematic overlaps in baby wipes in Brazil and in feminine
hygiene products in Australia and New Zealand, but these are
really non substantial divestitures that could be made to get cleared.
Speaker 2 (33:22):
So I don't think that'll get in the way.
Speaker 4 (33:24):
And I do think they'll be able to get past
an EU issue which the US doesn't have, which is
called conglomerate or portfolio effects, where they're more concerned about
having a giant portfolio and being able to have leverage
over retailers by virtue of this big portfolio. But I
think they'll get past it after an investigation. I took
(33:44):
a look at what the EU did with Procter and
Gamble when it bought Jillette, really similar issues, kind of
similar adjacencies, and they said, no, don't They don't think
it causes that conglomerate effect, and I don't think it
will hear so at the end of the day, I
think this is fine from any trust person. Active stakeholders
don't like it for the reason Holly's about to talk about.
Speaker 1 (34:04):
Though, Yeah, and and and that's sort of the bigger
question I have. I'm with with thail and All under
so much scrutiny, both in litigation and coming out of
the White House, who would want to take on that headache?
No pun intended. All Right, Holly, maybe maybe come in
and sort of give us a lay of the land
(34:24):
of all the litigation at least that can viewers facing
just so people understand what that's about.
Speaker 2 (34:29):
Okay, So you know you mentioned thailand All.
Speaker 3 (34:32):
There were these federal lawsuits that were you know, consolidated
in the Southern District of New York and the claims
were that thailan All is linked to autism and ADHD
when pregnant women take take it during pregnancy and causes
that in babies and so and there are also probably,
(34:55):
you know, we don't know how many state cases there
are where there are state cases as well. The federal lawsuits, though,
were dismissed after experts were barred from testifying. In twenty
twenty three and twenty twenty four, I believe that's on appeal,
and the appeal is actually the hearing on the appeal
is going to be in a couple of weeks.
Speaker 2 (35:17):
But we don't expect the judge to be reversed.
Speaker 3 (35:21):
Even though the President has come out and put out
a statement and his secretary Kennedy has put out a
statement that says that you know, you're you know, telling
pregnant women not to take Thailand all because of this risk.
Speaker 2 (35:35):
But I don't think that that changes anything in federal court.
Speaker 3 (35:37):
It's possible that it can impact, you know, ongoing cases
in state court, but even then I'm not sure.
Speaker 2 (35:42):
If it does.
Speaker 3 (35:44):
So, so you have these tile in all cases, and
then they also retain some liability for or potential liability
for cal compowder with regard to cases filed outside of
the US and Canada, and recently in the news there
were and I'm not following this case because it's not
(36:06):
a US case, but in the news there were there was.
Speaker 2 (36:10):
Reports that you know.
Speaker 3 (36:12):
I think a lawsuit has been filed on behalf of
three thousand people who claim that they got cancer from
from TALC in the UK, and the lawsuit has been
filed in the UK, so.
Speaker 2 (36:24):
There's that those are the prime primarily the two cases.
Speaker 3 (36:31):
And like I said, I'm not covering the Taele Compowder case,
but in in the the Tileal cases, I think that
the federal cases nothing changes. It's possible that, you know,
I think, you know what's likely to happen is that
more state cases are or more cases are filed in
state court.
Speaker 1 (36:50):
Got it? So, so maybe the dismissal of the litigation
in federal court, even though it's still subject to appeal,
or maybe that gave can really Clark some comfort and
but it would still obviously have to deal with state
court litigation and you know, sort of disparaging statements I
guess coming out out of the White House occasionally. All Right,
(37:14):
such interesting stuff. Thank you both. That was a lot
from both of you, and I know you guys have
been super busy this week with all of this. Let's
switch to DC quickly and check in with Nathan Dean,
our chief policy analyst down in DC. Nathan, are we
so interesting week?
Speaker 4 (37:31):
Right?
Speaker 1 (37:31):
Because we had some elections on Tuesday where the Democrats
did really well. We've been looking for a shutdown off
ramp for a while. It sounds like maybe we're getting closer.
Where do you think things stand as of today?
Speaker 5 (37:43):
So I think it was extremely helpful that Holly and
Jen went for forty or so minutes because we've had
a lot of news break in the last forty minutes.
Speaker 1 (37:50):
Oh Man, one have I missed?
Speaker 5 (37:51):
So Senator Thun just announced that he's going to have
he's the Senate Majority leader, the leader of the Republicans
in the Senate. He announced that he's going to hold
two votes tomorrow. The vote that just opens the government
through November twenty. First, this is the House pastcr that's
going to fail. The second vote is going to keep
the government open through January. But it's also going to
include three appropriations bills that would fund these agencies for
(38:15):
the rest of the year. And this is the agg Department,
Veteran Affairs, and then the Legislative Branch, so congressional staffers.
The idea here is is that Senator Bethune believes that
there's enough Democrats on board that they would go forth
with this, and that they would vote on it, and
then the House would have to come back and the
House would vote on this early next week. That's not
(38:35):
a guarantee. There are some Senate Democrats out there who
are willing to make a deal, and there are some
Senate Democrats out there who, after Tuesday's results, want to
fight a little bit more. There have been discussions about
adding back language of rehiring anybody who was laid off
(38:56):
during the shutdown. That Senator Mark Warner of Virginia's big ask.
There's been some talk about what to do for the
ACA subsidies, but we're generally getting to the point where
people are negotiating again. And the Senate has said the
Senator Thune just announced that he's going to keep the
Senate in through the weekend. And that's key because the
Senate's supposed to go on recess next week and they
(39:16):
would be out all next week. So if the Senate
stays to the weekend, there is I don't want to
there's optimism here. I mean, this is the best thing
that we that we can see. So there's optimism here
that potentially the Senate could have a deal this weekend,
the House would come back, the House would have a vote,
and then ultimately open this up through January. The big
(39:40):
question is what happens to the ACA subsidies now. In
talking with you know, Dwayne Wright and I have talked
about this multiple times. We don't think that there's ever
going to be a deal that includes dealing with the
ACA subsidies. It's feasible, especially if President Trump gets involved
and says, look, I want to do something here, because
a lot of Republicans out there it will say that
(40:02):
the safe subsidies or the rising premiums with the ACA
is a losing argument from them politically. So there is
possibility that something here can get done. But that's the
big question that remains is what happens with these ACA subsidies.
And you know, obviously there's a lot of questions here.
So if it doesn't get done, I still believe that
(40:24):
we'll see something before the Thanksgiving holiday season. The week
of the seventeenth. I think that's when they shut down
would end, just because the travel staff us are getting
more and more serious, and you know, the politicians are
going to respond to those.
Speaker 1 (40:40):
Yeah, I mean it sounds like on the travel stuff,
this Friday is potentially going to be a nightmare for
a lot of people. If they're reducing by up to
ten percent, you know, some of the flights at forty
major airports.
Speaker 5 (40:53):
Yeah, I mean I was supposed to fly to Miami
on Saturday, and I got the notification this morning that
I had the pleasure of rerouting to Houston and then
flying to Miami and so, but they offered a full
refund some of my family and I just said, eah,
not gonna happen this weekend.
Speaker 1 (41:11):
Yeah, But so, if Congress is listening, you are messing
with the Dean family vacations. And if that is not
motivation enough to do something, come on, everybody, let's get
it done.
Speaker 5 (41:21):
My daughter was saying some not so nice things about
the government, and we had to remind her that we're
still fortunate that we're getting paid and that a lot
of federal government workers aren't. But in all seriousness, the
snap benefits are hurting, the travel snaffoos are hurting. And
with my belief that enough Democrats are saying, look, we
(41:42):
had a blue wave on Tuesday. I mean, Virginia went blue,
New Jersey went blue. Georgia, the votes for the public
safety commissioners in Georgia, those were blue. There's a lot
of Democrats out there. Let's say, let's just cash in
the chips and let's take those winnings.
Speaker 1 (41:59):
Got it all right, Well, we'll see what happens I think.
With that, we'll wrap up this episode of Votes and Verdicts.
As always, thank you for listening. If you have any
questions about anything that we talked about on today's episode,
please don't hesitate to reach out to us at your
convenience with questions. As a reminder, you can find all
of our research on the Bloomberg terminal at big You
(42:19):
can go to our litigation and policy dashboard at BI
laws Go. We also want to thank our producer, Aditya Somani,
without whom this podcast would never publish on time. Thank
you for listening and have a great day.
Host
Elliott Stein
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
The Burden
The Burden is a documentary series that takes listeners into the hidden places where justice is done (and undone). It dives deep into the lives of heroes and villains. And it focuses a spotlight on those who triumph even when the odds are against them. Season 5 - The Burden: Death & Deceit in Alliance On April Fools Day 1999, 26-year-old Yvonne Layne was found murdered in her Alliance, Ohio home. David Thorne, her ex-boyfriend and father of one of her children, was instantly a suspect. Another young man admitted to the murder, and David breathed a sigh of relief, until the confessed murderer fingered David; “He paid me to do it.” David was sentenced to life without parole. Two decades later, Pulitzer winner and podcast host, Maggie Freleng (Bone Valley Season 3: Graves County, Wrongful Conviction, Suave) launched a “live” investigation into David's conviction alongside Jason Baldwin (himself wrongfully convicted as a member of the West Memphis Three). Maggie had come to believe that the entire investigation of David was botched by the tiny local police department, or worse, covered up the real killer. Was Maggie correct? Was David’s claim of innocence credible? In Death and Deceit in Alliance, Maggie recounts the case that launched her career, and ultimately, “broke” her.” The results will shock the listener and reduce Maggie to tears and self-doubt. This is not your typical wrongful conviction story. In fact, it turns the genre on its head. It asks the question: What if our champions are foolish? Season 4 - The Burden: Get the Money and Run “Trying to murder my father, this was the thing that put me on the path.” That’s Joe Loya and that path was bank robbery. Bank, bank, bank, bank, bank. In season 4 of The Burden: Get the Money and Run, we hear from Joe who was once the most prolific bank robber in Southern California, and beyond. He used disguises, body doubles, proxies. He leaped over counters, grabbed the money and ran. Even as the FBI was closing in. It was a showdown between a daring bank robber, and a patient FBI agent. Joe was no ordinary bank robber. He was bright, articulate, charismatic, and driven by a dark rage that he summoned up at will. In seven episodes, Joe tells all: the what, the how… and the why. Including why he tried to murder his father. Season 3 - The Burden: Avenger Miriam Lewin is one of Argentina’s leading journalists today. At 19 years old, she was kidnapped off the streets of Buenos Aires for her political activism and thrown into a concentration camp. Thousands of her fellow inmates were executed, tossed alive from a cargo plane into the ocean. Miriam, along with a handful of others, will survive the camp. Then as a journalist, she will wage a decades long campaign to bring her tormentors to justice. Avenger is about one woman’s triumphant battle against unbelievable odds to survive torture, claim justice for the crimes done against her and others like her, and change the future of her country. Season 2 - The Burden: Empire on Blood Empire on Blood is set in the Bronx, NY, in the early 90s, when two young drug dealers ruled an intersection known as “The Corner on Blood.” The boss, Calvin Buari, lived large. He and a protege swore they would build an empire on blood. Then the relationship frayed and the protege accused Calvin of a double homicide which he claimed he didn’t do. But did he? Award-winning journalist Steve Fishman spent seven years to answer that question. This is the story of one man’s last chance to overturn his life sentence. He may prevail, but someone’s gotta pay. The Burden: Empire on Blood is the director’s cut of the true crime classic which reached #1 on the charts when it was first released half a dozen years ago. Season 1 - The Burden In the 1990s, Detective Louis N. Scarcella was legendary. In a city overrun by violent crime, he cracked the toughest cases and put away the worst criminals. “The Hulk” was his nickname. Then the story changed. Scarcella ran into a group of convicted murderers who all say they are innocent. They turned themselves into jailhouse-lawyers and in prison founded a lway firm. When they realized Scarcella helped put many of them away, they set their sights on taking him down. And with the help of a NY Times reporter they have a chance. For years, Scarcella insisted he did nothing wrong. But that’s all he’d say. Until we tracked Scarcella to a sauna in a Russian bathhouse, where he started to talk..and talk and talk. “The guilty have gone free,” he whispered. And then agreed to take us into the belly of the beast. Welcome to The Burden.