Episode Transcript
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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 focused on all major markets. Our coverage
includes over two thousand equities and credits, and we have
(00:36):
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 look at
the litigation and policy catalysts that we're currently watching and
that we think will impact companies across a number of
(00:56):
different sectors. My name's Elliott Stein. I'm an analyst with
Bloomberg Intelligence covering litigation in the financials sector, and I'm
delighted today as always to be joined by several of
my Bloomberg Intelligence colleagues. And as always, you can find
all of our research on the Bloomberg terminal at BI
go and more specifically on our Litigation and Policy Dashboard,
(01:18):
which is available at BI space laws Go. I'm going
to time stamp this today is July thirty. First, it's
three pm. Things move quickly, especially when we're talking about
things like tariffs, so it's important to time stamp this
and to get the conversation going. Let me bring in
(01:39):
one of my colleagues, Holly Frome, who covers a lot
of different litigation and policy issues in the consumer and
industrial sectors, but in particular, she's been covering the lawsuits
that have been challenging the Trump administration's tariffs and today,
just a few hours ago in the Federal Circuit, there
was an important hearing by all of the judges of
(02:01):
the Federal Circuit concerning a decision by the Court of
International Trade from late May that struck down President Trump's
reciprocal tariffs and also those concerning sentinel trafficking. But I
don't want to step on Holly's toes. I'll let her
talk about the hearing in these cases more specifically. So Holly,
(02:22):
why don't you come in and sort of tell us
what your takeaways are from the hearing today?
Speaker 2 (02:28):
Thanks Elliot.
Speaker 3 (02:29):
So, I think a group of the judges, especially during
the first part of the argument, seem to be concerned
about the government's argument that the emergency statute allows for teriffs.
This statue, you know, one of the judges said that
the statute doesn't mention the word tariffs. Another judge said that,
you know, if we assume that the president can impose
(02:52):
these tariffs, that would upset the entire you know, statutory
regime that imposes tariffs, that allows you know, Congress to
import tariffs.
Speaker 2 (03:01):
And another thing.
Speaker 3 (03:03):
They said, there there are a whole bunch of statutes
in the Code, in section nineteen of the Code that
allow for tariffs and specifically mentioned either the word tariffs
or duties. So this statute doesn't mention that that word
at all. And that's something that the court was focusing on,
and I think the government was just trying to say that,
(03:25):
you know, the regulated imports language has been construed to
allow a bunch of different things, and if you look
at regulated imports alongside of you know, the other actions
the emergency statue allows the president to take, this is
you know, sort of a lesser power than than the
powers he can use under that statute. So I think
(03:48):
that's one of the concerns that you know, that that
a group of the judges seem to be concerned about.
Speaker 1 (03:56):
And when you're talking about the statute in question. This
is IEPA, Right, International Economic Emergency Powers Act, that's right.
And the language you were talking about it has language
saying that president under certain circumstances, right, if there's like,
you know, an extraordinary event or an emergency of some sort.
Speaker 3 (04:16):
Yeah, the language is like an unusual an emergency that
poses an unusual and extraordinary threat to national security or
the economy.
Speaker 2 (04:25):
He can quote regulate importation.
Speaker 1 (04:28):
And that's the language that the government's hanging it's had on.
And so you don't think there's a majority of judges
at the hearing today that bought that argument from the government.
Speaker 3 (04:37):
I think that if they're going to find for the challengers,
it's going to be on that argument. In other words,
like I don't think that they're comfortable that any of
the judges were comfortable saying that the trade deficit is
not an emergency, which is something that I was saying,
that the trade deficit doesn't appear to be an emergency
that meets ayep as you know, requirements. I don't think
(05:00):
the judges are going to rest their their hat on that.
I think that if they're going to find for challengers,
they're going to find that AEP but doesn't authorize terraffs
at all, in which case both reciprocal tariffs and fentanyl
trafficking terrorifts are unlawful. When I was counting, I think
I counted about six judges who had this problem. And
there are I think ten that are I'm sorry, eleven
(05:26):
that are on that panel. So that would be a majority.
Speaker 1 (05:30):
So you think in some ways they might go, they
might go farther than the Court of International Trade and
essentially say that APA doesn't allow for terrifts at all.
I think so interesting. And so when do you expect
a ruin?
Speaker 2 (05:44):
I said, in August or early September.
Speaker 1 (05:47):
Okay, and inevitably this is destined for the Supreme Court
no matter what happens, right, yes, And so how do
you see that planet?
Speaker 3 (05:56):
I think, you know, nothing's changed my mind about you know,
the oral ar even today didn't change my mind about
what I think will happen at the Supreme Court. And
I think that the Supreme Court will be the only
court that finds that the trade deficit is not an emergency.
Uh So I think that they'll say that the reciprocal
terrorists are unlawful on those grounds. But nobody has challenged,
(06:19):
and even today, I think they were talking about other
ways to find pentanal trafficking tariffs unlawful. Besides finding that
it's not an emergency. No, nobody has said that the
fentanyl crisis is not an emergency. And for that reason,
I think that the Supreme Court, you know, is not
going to reach that issue. They're just going to decide
whether the tariffs deal with the fentinal crisis. And I
(06:44):
don't think they're going to want to allow courts to
or or they're gonna they're going to either approve or
disapprove of that reasoning.
Speaker 2 (06:53):
In which the the the.
Speaker 3 (06:55):
International Trade Court said that that the tariffs don't deal
with them. And I don't think that the Supreme Court
is going to want to allow courts to address whether,
you know, actions taken in response to emergencies deal with
the emergency. So I think they're going to reverse on
those grounds and reinstate the fentanyl trafficking terriffs.
Speaker 1 (07:17):
Interesting. So, then at the end of the day, whenever
this gets us to the Supreme Court, presumably towards the
end of this year, you think the Supreme Court will
strike down the so called reciprocal tariffs, but allow the
President to impose the fentanyl related teriffs, and thinks, so, okay, great,
(07:38):
all right, well we shall stay tuned. All right, let's
move on from tariffs. We'll stick with DC though. Let's
bring in Nathan Dean, who covers a whole slew of
policy issues for US out of Washington. Nathan, you wrote
yesterday that the odds of a government shut down dunt
(07:58):
dun duh at the end of September have increased to
forty percent. That's not an insignificant number. So tell us
what you're seeing and why you think that.
Speaker 4 (08:08):
Yeah, so, you know, I think you know, the general
expectation is when you get to one of these things,
you know, when the government runs out of money, which
is in this case, the fiscal year ends on September thirtieth,
you know, the general thought is you have a continuing resolution.
Because look, Congress is nowhere near finalizing its twelve appropriations bills.
I was actually just looking at the current status of it.
Ten of them have passed, sorry, two of them have
(08:30):
passed the House, obviously on bipartisan lines. The rest haven't
even come up for votes yet, and there's still just
past the committee level. Which means when Congress comes back
from their August recess, they essentially have like three or
four weeks to put all of this together to finalize
inappropriations bills. So it ain't gonna happen. So I think
the solution is what do you get when you have
a continuing resolution? Well, you get a kick of the can.
(08:54):
But this situation is a little bit different because the
Democrats spent all last week before the House left. The
Senate's still here, but the House was is gone. Before
they left. The Senate leadership and House leadership over the
Democratic Party spent some time talking about what to do
in terms of this funding fight, because there are a
lot of folks on the progressive side that want to
(09:17):
fight President Trump. And one of the easiest ways you
can do that is through the appropriations process, because you know,
the Republicans are dictating what the bills look like. They're
going to come in. They're going to say here's our
appropriations for next year, and you can essentially say to
President Trump, no, we're not going to play, We're going
to shut the government down. The challenge is is that politically,
(09:39):
every party that has been seen shutting the government down
for the last ten years has a political price for it.
Obviously not to the point where people are going to
remember this when they get to the November midterms, but
you know, when you're talking about momentum and momentum swings,
you know it's going to be a very difficult position
for the Democrats to be in if the Republicans come
to them say here's a continuing resolution that is clean ish,
(10:04):
you know, just call it clean clean ish, and it's
gonna be very difficult. Now, the one thing I would
throw in here is is that if the omb decides
to put additional recissions packages in play, that could fire
up the Democrats because if you recall, you know, Congress
has passed a nine billion dollar recissions package that takes
away funds from USAID rail stations of MPR for example.
(10:28):
Not that big of a deal when you talk about
a budget that's in the trillions, But because recissions avoids
the filibuster and is a majority vote in the House
and majority vote in the Senate, if the Republicans try
that again in September, political roadblocks from political rhetoric is
going to increase, and we're going to have to take
a closer look the last thing I'll say though, is
(10:48):
is that you know, just from the investment point of view,
you will see a lot of headline risk, and you'll
see headlines in the news that say, like shutdown may
spook markets or so forth like that. There is no
market impact to government shutdowns. In the thirty days shutdown
it occurred under the first Trump administration, the S and
P yes declined about three to four percent right after
(11:09):
the shutdown, but by the time the shutdown ended, it
was up like fifteen percent.
Speaker 1 (11:13):
The only thing that we actually something we want to
shut down why yeah.
Speaker 4 (11:17):
I mean, I'm well, for those of you in New York,
you may, but for me wants to take my kids
to the zoo, I'm gonna say no shutdown because it
means I can't get into the museums. But and I'll
say a little bit of the secret sauce here, just
you know, every time we get a shutdown, we do
get calls from people saying, look, we're trying to figure
out what impacts, if any, that were of this shutdown.
(11:39):
And I said, outside of small contractors and people who
are furloughed, it's very difficult because even large defense contractors,
you know, yes, they have their separate issues with impoundment
and you know recisions, but even large defense contractors are
usually funded on a two year basis. So if you're
thinking of like the Boeans, the Raytheons, the Lockey Martins
and so forth, studexos, you know, they're they're usually covered.
(12:02):
And the last thing on a shutdown is that you know,
a lot of traders don't get information from the FEDS,
like the Commitment of Traders report from the CFTC or
the Bureau of Statistics reports and so forth. All that stops,
and so you may have to learn how to trade
for a couple of days without having that info.
Speaker 1 (12:19):
Got it. So you think if there's like more recisions packages,
that increases the likelihood of a shutdown, Yeah, But if
there isn't, if we don't see those, then maybe it's not. Yeah.
Speaker 4 (12:30):
I mean, ultimately, the reason why one shuts the government
down is they want to get political gains from it.
And when Senator Schumer has this position where you know,
let's just continue to let policies play out and then
we'll develop a strategy in twenty twenty six, it's going
to be a tall task for him to come back
(12:51):
and say, right, I think it's going to be politically
advantageous to shut the government down right now. It certainly
would play up to the base. But what's the endgame strategy.
Let's say you shut the government down and President Trump says, okay,
we've got a government shutdown. Eighty five percent of the
government is now non essential, deemed non essential. Why do
they have to come back? You know, if they're not essential,
(13:12):
then why do they have to come back? And the
other thing I just point out here is that if
there's no endgame strategy here, how do you get out
of it? Because if you're seen folding two three weeks
later and you don't get anything in return, that's almost
as bad as you know, not doing it anything at all.
So I just again, I'm not seeing the road path
here for a shutdown, despite the fact that a lot
(13:33):
of Democratic congressmen and women have been going on Bloomberg
Television saying that they're going to welcome a shutdown.
Speaker 1 (13:39):
Alright, it makes for good, good talking points, good politics,
as you said, but at the end of the day,
risky path to follow. All right, thanks Nathan. All Right,
let's turn to anti trust. We have our two anti
trust analysts on this episode, we're going to start with
Jen ree Jan. Let's talk a couple of different issues. First,
(14:02):
the Dick Sporting Goods and its acquisition of foot Locker
for two and a half billion dollars back in May.
You put out a note last week saying you think
antitrust clearance might come by mid August. Why don't you
tell us what you're thinking? Is there?
Speaker 2 (14:22):
Sure? We go from government shut down to Dick's spoorting goods.
Speaker 1 (14:26):
It's a natural segue, a.
Speaker 2 (14:28):
Natural segue, you know. It is a little bit sticking
my neck out a little bit saying that I think
this probably could get clearance in August. And the reason
is because a deal like this would normally take something
from the signing in May that you mentioned to a
decision would normally take something more like eleven months. Yeah,
because you know, everybody knows what these companies do, and
(14:48):
you all know superficially that they compete. They both sell
athletic shoes. You know you could go to either one
to buy a pair of sneakers and ideal yeah, and
we do, right, And they sell related apparel. And when
you have retailers that merge, those reviews can take time
and The reason is because it's really like a thousand
mini mergers that have to be assessed because people aren't
going to drive from California do Illinois to buy the shoes,
(15:12):
and what the FTC's looking at our brick and mortar
stores not necessarily buying them buying something on the internet.
And so they're just drawing little circles all over the
country where these both of these companies have stores and
then asking what their market shas are and who else
competes and that kind of an assessment. Yeah, it takes
a long time. But here's the thing that's happened. These
(15:32):
companies did something recently called a poll and refile. Now,
what that is is when they decide to merge, they
have to notify that deal to the government. That's what
the law says, and once they do, the government has
thirty days to make their decision as to whether to
just clear the deal or to get into a very long,
in depth investigation the thing I'm talking about that can
take eleven months, and the companies are not voluntarily allowed
(15:55):
to give the FTC more time than those thirty days.
But one way they can give them an extra thirty
days is by pulling the notification, canceling it essentially and
refiling it because they're restarting that new thirty days now.
During the Biden administration, doing that didn't really mean anything, right,
It didn't mean much at all other than companies adding
thirty days.
Speaker 1 (16:14):
And the reason is.
Speaker 2 (16:14):
Because it was sort of wrote that the FTC and
DJ in that administration was just asking for more time
from companies and looking for these notifications and refilings, and
it didn't necessarily mean the company could get clearance after
that second filing. It didn't necessarily mean they'd get out
of that in depth investigation. But I think this FTC
(16:34):
now is different. I haven't seen I don't think a
pull and refile yet in this administration. But I think
by doing it, the companies probably got signals from the
FTC that maybe they just needed about another thirty days
to get comfortable with the two companies I know they
(16:55):
have said they don't really view themselves as being all
that competitive because they have a different demographic that shops
in their stores. One is a mall store always and
one is a non mall store always, So they say,
if you really dig in FTC, we don't compete as
much as you think we do and where we do compete,
there are a lot of other competitors regionals, Mom and pops,
(17:16):
et cetera. So it may be a very good sign
here that they could get cleared after that second thirty
days expires. And the other possibility I'm thinking about is
that this FTC has been very vocal about telling companies,
if you do have an overlap that could be problematic,
come to us early. Just walk right in as soon
(17:36):
as you file, show us where that overlap is, offer
up your remedy, your divestitures, and maybe we can't just
get this done fast. And it's possible that Dix did
something like that where they walked in said here are
the regions where we overlap, here's where there are to
other competitors, this is what we're willing to divest. Let's
just work on that for thirty days and make this
all go away. So either way, we're going to hear
(17:59):
in mid augustether this deal is cleared or whether an
in depth investigation is opened.
Speaker 1 (18:03):
Very interesting, and you know what, I never really it
never dawned on me that foot Locker is only in
malls and Dix is only not in malls. But yeah,
It's like one of those revelations like when you first realize,
you know, like the FedEx logo has that like a
arrow in it.
Speaker 2 (18:20):
Exactly, and you know, I started looking into it, and
they are actually a lot more small competitors to these
companies than you would think. Different regions have different companies,
but each region kind of has another sort of equivalent
to Dix and other you know, specialty shoe stores that
where you go in and you get fitted for the
right running shoes or the right basketball shoes. So you know,
I think competition maybe wrote more robust in a lot
(18:41):
of regions than people think.
Speaker 1 (18:43):
All right, good stuff. Let's the other thing I wanted
to ask you about, which you've talked about on this
podcast before. But now we're like really getting close to
sort of the d day that you expect. And this
is in the Justice Department's antitrust case against Google oversearch issues,
monopolization issues, and you'll expect a remedy pretty much any
(19:06):
day at this point.
Speaker 2 (19:08):
Yeah, really, I think early August. The judge that August,
it could be any time doesn't even have to be August.
Judges aren't held to what they.
Speaker 1 (19:15):
Say, well did he say which August.
Speaker 2 (19:17):
So but I do think it's going to be August.
I think it'll be in the first few weeks. And
that kind of was confirmed because just the other day
there was an order on the docket where the judge
asked Google to submit a brief by August first that
just explained some differences between some of its proposals in
its own remedy proposal, and so that suggests to me
he's really working on it hard now and he's kind
(19:38):
of on the detail and he's going to get something
out in you know, before middle August. So right, this
is about that liability decision against Google that came down
last year that it was paying third parties to set
Google as the default, essentially was illegal and was pushing
out other rival general search engines which weren't able to
(19:59):
gain scale because Google had these agreements and sort of
blocked up that position. And the DOJ really asked the
judge for a very long list of measures to be
imposed on Google, including the big one that we hear
about to force Google to sell Chrome. Now that's really
the big thing I think people are waiting to hear.
But aside from that, they are actually still also pretty
(20:20):
drastic the DJs asked Google to share user click and
query data with general search engine rivals, It's search index,
it's search text ad data with both rivals and advertisers,
to syndicate search results, and to employ choice screens for
Google's properties like Android and Chrome, and to be of
course prohibited from paying anything of value to these third
(20:42):
parties for these default positions or to favor Google Search.
And I think the same would probably extend to AI.
Google's AI product, Gemini as well. It cannot pay other
companies to set Gemini as the default or to exclude
rival AI chatbots. And then they want a technical committee
that would oversee this that would mostly be controlled the DOJ.
Speaker 1 (21:03):
When you say the DOJ, this is the Trump administration's DOJ, right.
Speaker 2 (21:07):
Okay, Yes, Now, the first set of remedies were proposed
by the Biden DOJ, and the Trump DOJ did revise those,
but only very very slightly. Really, they asked for pretty
much the exact same subset of measures. They dropped out
what they want. What the Biden administration wanted that DOJ
dropped was sort of pre approval for any AI investments
(21:29):
that Google makes.
Speaker 1 (21:30):
Okay, right, And I mean what just struck me was that,
you know, there've been these news reports of a couple
senior Justice Department officials and the Anti Trust Division who
were sort of forced to leave because I think they
want to be more aggressive on the M and A front,
right in terms of anti trust enforcement. But here we
have like a pretty aggressive, you know, position by the
(21:53):
Justice Department, at least with respect to Google's search. So
it does seem to be maybe a little bit of
an economy which you've talked about, I think many time
times and how it's going to be idiosyncratic, but somewhat
of a dichotomy between M and A enforcement and monopolization enforcement,
particularly in the tech sector. Yeah.
Speaker 2 (22:09):
I mean, I think that the administration probably wants to
look somewhat business friendly, and that plays out in the
M and A space, But with respect to these big
tech platforms, they have not been a friend to most
of the GOP that consider them to have censored conservative
viewpoints and promoted more liberal viewpoints, and so they have
a bone to pick with big tech and big tech platforms,
(22:31):
and I think that we're sort of seeing that play
out with all of these lawsuits where we have not
yet mostly brought by the Biden administration. But we haven't
yet seen any letup or any talks of settlement or
going easier on any of these companies yet, got.
Speaker 1 (22:45):
It, all right? Good stuff, all right, So, since we're
talking tech and anti trust, that's a good segue to
Justin and to talk about anti trust and everyone's favorite topic,
artificial intelligence. Last week, the Trump administration released its AI
Action Plan, and Justin you wrote following that that the
Trump AII plan reduces anti trust enforcement risk for companies
(23:08):
like Nvidia and Microsoft. And I know there were, you know,
they were among companies previously being investigated for potential anti
trust viorations. But maybe maybe you can tell us a
little bit more about your thinking and what it was
and that AI Action Plan specifically that really reduces risk
for these companies.
Speaker 5 (23:25):
Yeah, yeah, thanks Elliott. You know, I think I think
the introduction to the AI Action Plan that came out
last week probably frames the situation here really well. So
if everyone remembers drill, baby, drill, we're now moving into build, baby,
build when it comes to AI. That's a direct quote
from the second paragraph of the introduction to the AI
Action Plan that came out last week. But you know,
(23:46):
generally what we're seeing here is this, There is no
question that this set of policy directives issued by the
White House last week is really concerned with American dominance
in AI. It specifically calls that China, I think it's
and with foreign entities in general on their growth around
the AI issue. And look that it's light on actual
specifics about regulation should be and what programs might look like,
(24:10):
but it certainly is giving marching orders to executive agencies
to go forward, I think in several different ways. Whether
it be with energy infrastructure, whether it be with supply
chain management, government contracting, you name it. It's a directive to
go forward with the creation of regulation and programs that
are really fostering the growth of AI. And I think
the way that that relates to antitrust and what we're
(24:32):
seeing there is the following, and that is in the
sense that the plan itself says the FTC should review
investigations that were started under the Biden administration that could
really hamper or burden AI. Right, And that's really broad obviously, right,
what does that mean? But I think you know the
takeaway from that is that you know, it's not a
free pass for big tech. But when we're talking about
(24:54):
AI specifically. There seems to be a concern here that
that you know, that anti trust enforcement could really hard,
really take an unnecessary swipe at the growth of AI
dominance by the US, right, so that that's that's kind
of the gist of of the report itself. But you know,
(25:15):
I think companies specifically that are effected here though you know,
news broke last year that in the in the fall
that the FTC was investigating Microsoft. But you know that
that investigation super broad, right, not just AI we're talking
about here, and I think specifically that involved Microsoft's investment
in open Ai. Also we're looking at, you know, things
like cloud computing and software bundling, all that other stuff
(25:36):
that that might be a concern of Microsoft. I think
that stuff probably still goes on. Chair Ferguson's comments around
those investigations were very strong and supportive back in March.
It's really a carve out here, I think in many
ways for for AI.
Speaker 1 (25:47):
It welf interesting And so what are you sort of
looking for next? Because a lot of a lot of
these investigations, you know, are not you know, the developments
are not publicly disclosed. I mean, I suppose companies could
say something about them if it's favorable, But you know,
what are you looking for?
Speaker 5 (26:06):
Yeah, so, I think it's a lot of the reading
of the tea leaves here. I think, you know, the
reporting has certainly suggested that there's an uptick and lobbying
around these issues here. I think that's not necessarily surprising.
I think when I'm talking about looking at reading the
tea leaves, the comments last week by the President, right
just saying, hey, you know, I thought about breaking up Nvidia,
but you know, I opted against it when I realized
(26:28):
it'd be kind of hard, you know. I think things
like that obviously set the tone with where we're headed
with these reported investigations. You know. But again, the contours
of that are really interesting. You know, if we're not
talking about something like a breakup, are we still talking
about changes to the company's behavior. Are we still concerned
with the way they might be bundling some of their products.
Speaker 4 (26:48):
I don't know.
Speaker 5 (26:48):
I think it's fair to say that that relationship exists.
It's a strong relationship in the line of communication between
tech companies and the White House seems to be open,
But the actual contourst there. It's really a lot of
the reading of the tea leaves and you know, as
you implied Elliott, these investigations, they are confidential. And the
report itself, the AI Action Plan, it was really focused
(27:09):
on things that started to Underbiden. If they're investigations that
started under the Trump administration, at our chair ferguson the FTC,
it doesn't really encompass those. And we just don't know
and want to know if there's new investigations related to
tech or AI that could fall into that bucket of
things that are excluded.
Speaker 1 (27:25):
Got it, Well, we will rely on you to read
the tea leaves and tell us what they say.
Speaker 5 (27:32):
Yeah, absolutely good stuff.
Speaker 1 (27:34):
I think we're gonna leave it there. We will wrap
up this episode of Votes and Verdicts. Thank you so
much for listening. If you have any questions about any
of the matters that we discussed on this 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 BI go, or
(27:55):
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Thank you again for listening, and have a great day.