July 16, 2025 • 22 mins
Antitrust expert Harry First, a professor at NYU Law School, discusses the FTC and Justice Department clearing 3 deals worth more than $63 billion during the last week of June. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosso from Bloomberg Radio.
I see it as my job to scrutinize deals consistently
with the timeline Congress created and our antitrust laws. And
if we think that they are illegal and we think
that we can win in court, we're going to go
to court. But if we don't think that they are
(00:22):
illegal or we don't think we can win in court,
the FTC is going to get out of the way again.
I've heard this complain a lot from the business community
that in the previous administration, a deal would enter the
FTC and it would sort of disappear, and sometimes it
could disappear for months while, you know, novel ideas were floated,
different theories, and sometimes it sort of seemed like the
(00:44):
FTC was hoping that deals would die on the vine
while they waited for regulatory clearance. I want nothing to
do with that.
Speaker 2 (00:51):
Federal Trade Commission Chair Andrew Ferguson has repeatedly said that
if his agency can resolve issues with a proposed it
will get out of the way. And it appears that
both Trump's anti trust enforcers are getting out of the
way of multi billion dollar deals In the last week
of June. The FTC cleared candymaker mars thirty six billion
(01:14):
dollar acquisition of pringles maker Keleinova, It approved Omnicom's thirteen
point five billion dollar buyout of rival inter Public, which
will create the world's largest advertising agency, and the Department
of Justice cleared Hewlett Packard's fourteen billion dollar acquisition of
Juniper Networks. More than sixty three billion dollars in deals
(01:39):
cleared in the same week. Who better to explain what's
happening with the anti trust regulators than my guest, Harry First,
a professor at NYU Law School who specializes in anti trust. Harry,
the FTC and the Justice Department cleared three deals worth
more than sixty three billion dollars in the last week
(01:59):
of What does this tell you? Is it the change
in management?
Speaker 3 (02:04):
Well, there's certainly a change in management. The question that
everyone asked when management changed is what direction? So I
think people were looking at two big things. The one
where the cases against the dominant platforms, the big tech
platforms that were ongoing neared five of those, what would
they do with those? And the second is what were
(02:25):
they going to do with mergers? So on the first,
they've kept them going. They haven't dismissed anything. They're litigating
them just like they were before, in fact, emphasizing the
continuity of the position of departments taking in some ways
maybe not surprising given sort of the maybe populism streak
(02:45):
in the Trump administration, but in some way surprising because
you know, they have moved closer and closer to put
up or shut up. You know, you have to remedy
these things. So that's where we are with those. The
other side was the mergers, and out of the box,
they filed the case HP's acquisition of Juniper Networks, and
it was the first case they filed, and it looked
(03:08):
like a Biden complaint. I think people were saying, look,
what they're going to do is they'll they'll pull the
merger guidelines that were issued in twenty twenty three by
the Biden FTC and Justice Department widely viewed as pretty
aggressive in terms of enforcement. Yeah, maybe they're going to
pull those and pull back from merger enforcement. But what
(03:30):
we saw in that first case was they file the case,
they cite the twenty twenty three guidelines, they follow them,
They say, hey, this case is presumptively bad because it
increases concentration, and you know, they're trying to suppress a
more innovative firm. WHOA. That seems to me surprising, So
(03:51):
I thought, well, maybe it's something in the changeover. The
person has signed it, maybe doesn't understand what he's done,
or who knows. You know, we're not well supervised. But
they kept it going. And so the next question is, well,
what are they going to do with these cases? And
you're right now we're seeing a string of dismissals.
Speaker 2 (04:11):
Let's look closer at the Hewlett Packard acquisition of Juniper Networks.
What was the settlement like?
Speaker 1 (04:18):
There?
Speaker 3 (04:19):
The Justice Department announced the settlement. So on a Saturday
Hot news, Yeah, Saturday, June the twenty eighth, they announced
the settlement of HPE Juniper. This is a fourteen billion
dollar acquisition. So the settlement that they explain, and this
isn't over yet because the judge has to approve it
(04:39):
spins off some part of HPE that hasn't been mentioned.
It's some part that does networks for small business. So
it looks like small ball. You know, it's not even
clear how that's going to affect competition. Remember, they pleaded
that this was highly concentrated industry, anti competitive, strong head
to head competition between the two firms. What's the other part.
(05:03):
The other part is a compulsory license to the software
that Juniper has called missed. Now, a compulsory license means
actually the merge firm gets to keep it. They don't
have to get rid of it, they don't have to
divest it. All they have to do is license it,
for which they'll get some money, but non exclusively, so
(05:26):
they get to keep it. And then do they have
a potential licensee for this, No, they don't seem to
have anyone. They are going to appoint a trustee. So
who's going to take this license? Is as valuable? Isn't
it not explained? And they say maybe a second party
will show up. Well, a second party shows up, says
the decree with a bid of over eight million dollars,
(05:49):
they can have a license to eight million dollars. Might
be a second bid. Remember this acquisition is a fourteen
billion dollars acquisitions. So is a non exclusive life sense
to this software valuable? Will someone come up and take it?
Who might it be? No idea? So that's where we are.
(06:09):
Looks to me like we can call it, shall we say,
a really weak remedy for a case that's pleaded that
look very strong. So this is your insight into where
merger enforcement might be going. The first case out of
the box looks strong when it's pleaded. Looks to me
(06:31):
at the moment, Hey, maybe more information will turn up
pretty weak on the remedy that they go forward to
allow the merger to go forward. And this seems to
be the mantra that, you know, we've got these strong
guidelines on the books that look very pro enforcement. Maybe
we'll file a case and then have a weak remedy.
(06:52):
Or here's another good part, maybe we won't file a
case at all and just let these things go through.
Speaker 2 (07:02):
The Omnicon deal creates the world's largest advertising agency, and
they got FDC approval by agreeing to stop withholding online
ads for political reasons, so no economic concessions.
Speaker 3 (07:18):
You know. Another tactic is just to let it go through.
And in the advertising agency creates the largest advertising agency ever.
And for an administration that talks about how horrible concentration is,
you have to wonder exactly what's going on. There is
one more moler I guess interesting case in any trust
(07:39):
division allowing a merger to go forward. And it's a
cellular phone merger and it's T Mobile acquiring a smaller
company called US Cellular, and that they led through without anything.
But interestingly, they filed something that's called a closing statement
(08:00):
explaining why they closed the case. This is pretty rare
for the Justice Department to do or the FTC. They
don't usually explain why they don't do something, and there's
a lot of controversy about this, but this one they explained.
And I urge people to go and read it because
it's sort of funny. It's like, I think of you
remember the old Chinese fortune cookies.
Speaker 1 (08:20):
Oh yeah, you know, right.
Speaker 3 (08:21):
And you always thought you'd open one up whether the
fortune would be help I'm being held prisoner in a
Chinese fortune cookie factory. Well this was sort of like that,
because the closing statement was almost a statement about why
this merger was so any competitive and why it's so
needed to be stopped that we didn't do anything. And
(08:45):
what's also sort of great about it, and it is
from the closing statement, this is the Justice Department writing
the company. The Justice Department understood the unmet needs of customers. Okay,
this is the company that's going to be acquired, the
company that understood the un met needs of customers, right,
and they called their customers farm town, frugal and heartland families.
(09:09):
All right, it's just great. And these in some ways
would sound like you know, JD. Vans wrote this, and
they are the consumers you would think this administration purports
to want to protect. And instead what they're going to
be allowed to do is to join the Sprint network,
which presumably they decide not to do in the first
place when they signed up with US Cellular. And then
(09:31):
it goes on to lament the concentration in the cell
phone market. It's a big three and we don't seem,
you know, to be doing anything about this, we the
Justice Department. It is truly a curious document. Final curious
point on this Sprint T Mobile merger was supposed to
establish a fourth carrier, you know, through Dish. So Sprint
(09:55):
had to give Boost Mobile system to Dish to help
them stay I was a fourth carrier. No hint in
this statement that there's a fourth carrier that might emerge,
even though the Just Department is at this very moment
supervising the decree that they entered that purported to establish
(10:18):
or hope to establish a fourth carrier. So this is curious,
bizarre prisoner in the Fortune Cookie factory material. But again
it's sort of this why we see these problems, But hey,
I don't think we're going to do anything about it.
Speaker 2 (10:36):
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Professor Harry First of NYU Law School.
Why did antitrust enforces during the Biden administration stop making deals?
Early on Chrump's head of the FTC echoed the tough
cop messaging of his controversial predecessor, Lena Kahan.
Speaker 1 (10:59):
I think it's important to proceed like the FTC is
a vigilant cop on the beat. We're surveying the markets.
We're looking for competition problems, We're looking for violation of
the consumer protection laws, and if we think they're there,
we're going to go to court. But most importantly, if
we don't think that there are problems, it's really important
for the FTC to get out of the way.
Speaker 2 (11:19):
And those comps have cleared several multi billion dollar deals
without much fuss. I've been talking to anti trust law
expert Harry First, a professor at NYU Law School, Harry
is Ferguson's tough talk, just talk court, all talk.
Speaker 3 (11:38):
No, the idea that they're going to resolve it through,
you know, a deal is not all talk. Apparently, that
is action. You either don't do anything, you know, the
cell phone acquisition, or you do something weak the HP
Tuna Per Networks merger. I mean, you can always make
a deal if you're willing to give up a lot.
(11:59):
That's not hard to do. There was reason why the
Biden administration forcers said we're backing away from all these
deals because the remedies that had been agreed in so
many of these deals turned out to be ineffective. There
were studies of this that you know, you'd say, oh boy,
this will re establish competition in the market, and then
(12:21):
it didn't. And so what happened that people basically went
forward and we lost competition. You know, every once in
a while to be some good remedy. But basically the
argument was, you know, it's really hard to create competition
through these government decrees. The better thing is not to
let competition go away by allowing the merger. So, you know,
(12:43):
that was the basis of the policy in the Justice Department,
the FTC. Not that they didn't settle cases. They didn't,
and not all of them were actually effective. They weren't,
but the overall thrust was we're doing we're not settling,
And then parties were put together deals knowing that there
(13:06):
was a greater chance of litigation. Now it's gone the
other way, and you know, I think that this is
what a deal making the administration would want, And it
looks to me like that's where they're going always with
the ability to bring suit in a case that suits them,
(13:27):
because the twenty twenty frequentidelines have a lot of discretion
in them, and the flip side of we'll negotiate a
lot is but maybe not with you. So we have
yet to see with whom they are tough.
Speaker 2 (13:42):
That was my next question. Are there certain kinds of
deals you think they won't approve?
Speaker 3 (13:48):
Well, I think there's a push pull in both agencies
for actually following the law and saying, gee, this violates
the statue and maybe listening to their master. And you know,
I don't really understand why they didn't bring suit in
this T Mobile US cellular case. I don't know what's
going on there. So maybe someone was interested in having
(14:11):
it go forward. I don't know. So I think that
you know, there are a lot of serious anti trust
people in both agencies. People generally credit Gail Slater as being,
you know, a real anti trust person, not a hack
anti trust person, you know, but in the end, they
really do serve in this administration very much. I think
(14:34):
it's the will of those above them. Certainly that's true
for Andrew Ferguson, or at least how he perceives it.
And you know, maybe just some extent to Gail Slater,
but maybe this closing statement was the best she could
do to get her voice on the record that this
is a bad merger that should have been blocked.
Speaker 2 (14:54):
So Slater at Justice and Ferguson at the FTC, see,
are they in tune or do they have the same goals?
Speaker 3 (15:05):
Well, you know, I love the in tune idea. So
the question is what's the tune the no, no no. I
think that's a great question because if the tune is
what the piper calls, and the piper is the president,
Andrew Ferguson seems to be way in tune, and really,
just from what you read, I don't know him personally,
(15:27):
eager eager to please either the president or those with
the presidents here. And you know, he seemed to have
been running for chair strongly of the Federal Trade Commission
before he was appointed. And as you read what he writes, it's,
you know, very pro Trump. I mean, he came out
(15:49):
in favor of firing his Democratic colleagues on the Federal
Trade Commission. Really, why why does he do that? He's saying, okay,
and don't forget President, you can fire me too. Why
did you do that?
Speaker 2 (16:00):
So?
Speaker 3 (16:01):
I think gel Slator may be a little different. She
did advise jd Vance, you know, during the campaign apparently,
and she just seems to me to be more centered
as an any trust person. But you know, I don't
think in the end, you know, she's less subject to commands,
and she's in a in an organization where the lines
(16:22):
of command are much clearer. You know, there's deputy Attorney
General above her and the Attorney general above her, the
clear lines of authority. So she in the end will
you know, have to follow that tune. But she may
have more ability to maneuver, or maybe more willing to.
I just don't know, Harry.
Speaker 2 (16:42):
The first Trump administration was that good for deals.
Speaker 3 (16:48):
Generally, Yeah, I think generally Making Del Raheem, who was
head of any trust divisions, the people at the Federal
Trade Commission were sort of more shall we say, normal
anti trust enforcers in the mold of people who were
willing to take settlements and not so clearly politically in tune.
(17:11):
People thought that maybe making Delwraheem was a little more
politically in tune, and I'm not sure he did some
things that looked like that FTC not so much. Apparently
Trump threatened to fire the chair a couple of times.
So I think there was more independence, more if you
could call it that normalcy, and the ags were more normal.
(17:31):
I mean, Bill Barr was, for whatever you think of
him one way or the other. You know, he was
a sort of a normal lawyer and you know, not
a sick ephant to the president. So it was a
different time, it was things were done differently. I think
this administration, from all you can see, everything is just different.
Speaker 2 (17:52):
So do you think that deal makers are happy with
the Trump administration?
Speaker 3 (17:57):
Oh? Sure, yeah, I think they're they're glad to be
finished with the Biden administration. And Jonathan Canter and Lena Khan, yeah,
and feel that they're now in more of a let's
make a deal and maybe more able to bring political
pressure to bear if they can't make a deal, you know,
(18:19):
if staff resists and so forth, you know, they'll still
have to work through the staff. And you know, people
who are still there and haven't been laid off, fired
or left resigned. You know, staff knows what they're in for.
They've got new bosses.
Speaker 2 (18:35):
And are there any interesting cases that you're watching that
we haven't talked about.
Speaker 3 (18:40):
Well, this is something that the Justice Department filed recently
called a statement of interest, where they decide to poke
their nose into private any trust litigation and say what
the position in the United States is and the public
interest is. And they've chosen a case where the lead
(19:02):
plaintiff is a group called Children's Health Defense. So Children's
Health Defense is an anti vaxed group that had been
run by RFK Junior, and they filed private suit against
let's see Washington Post, Reuter's ap claiming that they've been
feeding information or agreeing and information and feeding it to
(19:27):
the platforms like Facebook so that these groups would be
deep platformed for misinformation. And the information apparently centers around
the idea that COVID vaccines were terrible COVID you know,
all the COVID conspiracy. It's an odd group of plaintiffs,
an odd piece of litigation because it's hard to see
(19:52):
what the anti trust injury is what you know, where
competition has been affected. But the Justice Department just thought
us statement of interest on the plaintiff side. And you know,
you look at all the things that the Justice Department
could do, and you say, so, why did you do
(20:12):
that in a case that I mean, I would say
in any trust case if it's marginal, that's sort of
a nice thing to call it. And part of the
problem that the Justice Department has in this statement of
interest is if you credit their theory a little bit
too much, they could cast a pall on what are
(20:33):
called standard setting organizations that help standardize interfaces in computers, telecommunications,
all sorts of technical things, because that involves sort of
similar behavior, except that as real economic consequences. So the
paper that they filed is to my reading, sort of
(20:55):
odd because they've got to make it a real legal brief.
On the other hand, you know, they talk about the
marketplace of ideas and discrimination and quote Clarence Thomas. So
this is an interesting case to watch because again, you know,
what are they doing by weighing in on this case.
There's a lot of work to do, and you know,
(21:18):
usually private plane ifs are left to pursue private cases,
they get treble damages if they win. But here just
the department feels the need to weigh in and say
this might be.
Speaker 1 (21:29):
A good case.
Speaker 2 (21:30):
It doesn't sound like you agree with them. Harry, thanks
so much, Always a pleasure to have you on. That's
Professor Harry First of NYU Law School. And that's it
for this edition of The Bloomberg Law Show. Remember you
can always get the latest legal news on our Bloomberg
Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
(21:53):
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm Jum Grosso
and you're listening to Bloomberg. Mmhmm
This is Bloomberg Law with June Grosso from Bloomberg Radio.
I see it as my job to scrutinize deals consistently
with the timeline Congress created and our antitrust laws. And
if we think that they are illegal and we think
that we can win in court, we're going to go
to court. But if we don't think that they are
(00:22):
illegal or we don't think we can win in court,
the FTC is going to get out of the way again.
I've heard this complain a lot from the business community
that in the previous administration, a deal would enter the
FTC and it would sort of disappear, and sometimes it
could disappear for months while, you know, novel ideas were floated,
different theories, and sometimes it sort of seemed like the
(00:44):
FTC was hoping that deals would die on the vine
while they waited for regulatory clearance. I want nothing to
do with that.
Speaker 2 (00:51):
Federal Trade Commission Chair Andrew Ferguson has repeatedly said that
if his agency can resolve issues with a proposed it
will get out of the way. And it appears that
both Trump's anti trust enforcers are getting out of the
way of multi billion dollar deals In the last week
of June. The FTC cleared candymaker mars thirty six billion
(01:14):
dollar acquisition of pringles maker Keleinova, It approved Omnicom's thirteen
point five billion dollar buyout of rival inter Public, which
will create the world's largest advertising agency, and the Department
of Justice cleared Hewlett Packard's fourteen billion dollar acquisition of
Juniper Networks. More than sixty three billion dollars in deals
(01:39):
cleared in the same week. Who better to explain what's
happening with the anti trust regulators than my guest, Harry First,
a professor at NYU Law School who specializes in anti trust. Harry,
the FTC and the Justice Department cleared three deals worth
more than sixty three billion dollars in the last week
(01:59):
of What does this tell you? Is it the change
in management?
Speaker 3 (02:04):
Well, there's certainly a change in management. The question that
everyone asked when management changed is what direction? So I
think people were looking at two big things. The one
where the cases against the dominant platforms, the big tech
platforms that were ongoing neared five of those, what would
they do with those? And the second is what were
(02:25):
they going to do with mergers? So on the first,
they've kept them going. They haven't dismissed anything. They're litigating
them just like they were before, in fact, emphasizing the
continuity of the position of departments taking in some ways
maybe not surprising given sort of the maybe populism streak
(02:45):
in the Trump administration, but in some way surprising because
you know, they have moved closer and closer to put
up or shut up. You know, you have to remedy
these things. So that's where we are with those. The
other side was the mergers, and out of the box,
they filed the case HP's acquisition of Juniper Networks, and
it was the first case they filed, and it looked
(03:08):
like a Biden complaint. I think people were saying, look,
what they're going to do is they'll they'll pull the
merger guidelines that were issued in twenty twenty three by
the Biden FTC and Justice Department widely viewed as pretty
aggressive in terms of enforcement. Yeah, maybe they're going to
pull those and pull back from merger enforcement. But what
(03:30):
we saw in that first case was they file the case,
they cite the twenty twenty three guidelines, they follow them,
They say, hey, this case is presumptively bad because it
increases concentration, and you know, they're trying to suppress a
more innovative firm. WHOA. That seems to me surprising, So
(03:51):
I thought, well, maybe it's something in the changeover. The
person has signed it, maybe doesn't understand what he's done,
or who knows. You know, we're not well supervised. But
they kept it going. And so the next question is, well,
what are they going to do with these cases? And
you're right now we're seeing a string of dismissals.
Speaker 2 (04:11):
Let's look closer at the Hewlett Packard acquisition of Juniper Networks.
What was the settlement like?
Speaker 1 (04:18):
There?
Speaker 3 (04:19):
The Justice Department announced the settlement. So on a Saturday
Hot news, Yeah, Saturday, June the twenty eighth, they announced
the settlement of HPE Juniper. This is a fourteen billion
dollar acquisition. So the settlement that they explain, and this
isn't over yet because the judge has to approve it
(04:39):
spins off some part of HPE that hasn't been mentioned.
It's some part that does networks for small business. So
it looks like small ball. You know, it's not even
clear how that's going to affect competition. Remember, they pleaded
that this was highly concentrated industry, anti competitive, strong head
to head competition between the two firms. What's the other part.
(05:03):
The other part is a compulsory license to the software
that Juniper has called missed. Now, a compulsory license means
actually the merge firm gets to keep it. They don't
have to get rid of it, they don't have to
divest it. All they have to do is license it,
for which they'll get some money, but non exclusively, so
(05:26):
they get to keep it. And then do they have
a potential licensee for this, No, they don't seem to
have anyone. They are going to appoint a trustee. So
who's going to take this license? Is as valuable? Isn't
it not explained? And they say maybe a second party
will show up. Well, a second party shows up, says
the decree with a bid of over eight million dollars,
(05:49):
they can have a license to eight million dollars. Might
be a second bid. Remember this acquisition is a fourteen
billion dollars acquisitions. So is a non exclusive life sense
to this software valuable? Will someone come up and take it?
Who might it be? No idea? So that's where we are.
(06:09):
Looks to me like we can call it, shall we say,
a really weak remedy for a case that's pleaded that
look very strong. So this is your insight into where
merger enforcement might be going. The first case out of
the box looks strong when it's pleaded. Looks to me
(06:31):
at the moment, Hey, maybe more information will turn up
pretty weak on the remedy that they go forward to
allow the merger to go forward. And this seems to
be the mantra that, you know, we've got these strong
guidelines on the books that look very pro enforcement. Maybe
we'll file a case and then have a weak remedy.
(06:52):
Or here's another good part, maybe we won't file a
case at all and just let these things go through.
Speaker 2 (07:02):
The Omnicon deal creates the world's largest advertising agency, and
they got FDC approval by agreeing to stop withholding online
ads for political reasons, so no economic concessions.
Speaker 3 (07:18):
You know. Another tactic is just to let it go through.
And in the advertising agency creates the largest advertising agency ever.
And for an administration that talks about how horrible concentration is,
you have to wonder exactly what's going on. There is
one more moler I guess interesting case in any trust
(07:39):
division allowing a merger to go forward. And it's a
cellular phone merger and it's T Mobile acquiring a smaller
company called US Cellular, and that they led through without anything.
But interestingly, they filed something that's called a closing statement
(08:00):
explaining why they closed the case. This is pretty rare
for the Justice Department to do or the FTC. They
don't usually explain why they don't do something, and there's
a lot of controversy about this, but this one they explained.
And I urge people to go and read it because
it's sort of funny. It's like, I think of you
remember the old Chinese fortune cookies.
Speaker 1 (08:20):
Oh yeah, you know, right.
Speaker 3 (08:21):
And you always thought you'd open one up whether the
fortune would be help I'm being held prisoner in a
Chinese fortune cookie factory. Well this was sort of like that,
because the closing statement was almost a statement about why
this merger was so any competitive and why it's so
needed to be stopped that we didn't do anything. And
(08:45):
what's also sort of great about it, and it is
from the closing statement, this is the Justice Department writing
the company. The Justice Department understood the unmet needs of customers. Okay,
this is the company that's going to be acquired, the
company that understood the un met needs of customers, right,
and they called their customers farm town, frugal and heartland families.
(09:09):
All right, it's just great. And these in some ways
would sound like you know, JD. Vans wrote this, and
they are the consumers you would think this administration purports
to want to protect. And instead what they're going to
be allowed to do is to join the Sprint network,
which presumably they decide not to do in the first
place when they signed up with US Cellular. And then
(09:31):
it goes on to lament the concentration in the cell
phone market. It's a big three and we don't seem,
you know, to be doing anything about this, we the
Justice Department. It is truly a curious document. Final curious
point on this Sprint T Mobile merger was supposed to
establish a fourth carrier, you know, through Dish. So Sprint
(09:55):
had to give Boost Mobile system to Dish to help
them stay I was a fourth carrier. No hint in
this statement that there's a fourth carrier that might emerge,
even though the Just Department is at this very moment
supervising the decree that they entered that purported to establish
(10:18):
or hope to establish a fourth carrier. So this is curious,
bizarre prisoner in the Fortune Cookie factory material. But again
it's sort of this why we see these problems, But hey,
I don't think we're going to do anything about it.
Speaker 2 (10:36):
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Professor Harry First of NYU Law School.
Why did antitrust enforces during the Biden administration stop making deals?
Early on Chrump's head of the FTC echoed the tough
cop messaging of his controversial predecessor, Lena Kahan.
Speaker 1 (10:59):
I think it's important to proceed like the FTC is
a vigilant cop on the beat. We're surveying the markets.
We're looking for competition problems, We're looking for violation of
the consumer protection laws, and if we think they're there,
we're going to go to court. But most importantly, if
we don't think that there are problems, it's really important
for the FTC to get out of the way.
Speaker 2 (11:19):
And those comps have cleared several multi billion dollar deals
without much fuss. I've been talking to anti trust law
expert Harry First, a professor at NYU Law School, Harry
is Ferguson's tough talk, just talk court, all talk.
Speaker 3 (11:38):
No, the idea that they're going to resolve it through,
you know, a deal is not all talk. Apparently, that
is action. You either don't do anything, you know, the
cell phone acquisition, or you do something weak the HP
Tuna Per Networks merger. I mean, you can always make
a deal if you're willing to give up a lot.
(11:59):
That's not hard to do. There was reason why the
Biden administration forcers said we're backing away from all these
deals because the remedies that had been agreed in so
many of these deals turned out to be ineffective. There
were studies of this that you know, you'd say, oh boy,
this will re establish competition in the market, and then
(12:21):
it didn't. And so what happened that people basically went
forward and we lost competition. You know, every once in
a while to be some good remedy. But basically the
argument was, you know, it's really hard to create competition
through these government decrees. The better thing is not to
let competition go away by allowing the merger. So, you know,
(12:43):
that was the basis of the policy in the Justice Department,
the FTC. Not that they didn't settle cases. They didn't,
and not all of them were actually effective. They weren't,
but the overall thrust was we're doing we're not settling,
And then parties were put together deals knowing that there
(13:06):
was a greater chance of litigation. Now it's gone the
other way, and you know, I think that this is
what a deal making the administration would want, And it
looks to me like that's where they're going always with
the ability to bring suit in a case that suits them,
(13:27):
because the twenty twenty frequentidelines have a lot of discretion
in them, and the flip side of we'll negotiate a
lot is but maybe not with you. So we have
yet to see with whom they are tough.
Speaker 2 (13:42):
That was my next question. Are there certain kinds of
deals you think they won't approve?
Speaker 3 (13:48):
Well, I think there's a push pull in both agencies
for actually following the law and saying, gee, this violates
the statue and maybe listening to their master. And you know,
I don't really understand why they didn't bring suit in
this T Mobile US cellular case. I don't know what's
going on there. So maybe someone was interested in having
(14:11):
it go forward. I don't know. So I think that
you know, there are a lot of serious anti trust
people in both agencies. People generally credit Gail Slater as being,
you know, a real anti trust person, not a hack
anti trust person, you know, but in the end, they
really do serve in this administration very much. I think
(14:34):
it's the will of those above them. Certainly that's true
for Andrew Ferguson, or at least how he perceives it.
And you know, maybe just some extent to Gail Slater,
but maybe this closing statement was the best she could
do to get her voice on the record that this
is a bad merger that should have been blocked.
Speaker 2 (14:54):
So Slater at Justice and Ferguson at the FTC, see,
are they in tune or do they have the same goals?
Speaker 3 (15:05):
Well, you know, I love the in tune idea. So
the question is what's the tune the no, no no. I
think that's a great question because if the tune is
what the piper calls, and the piper is the president,
Andrew Ferguson seems to be way in tune, and really,
just from what you read, I don't know him personally,
(15:27):
eager eager to please either the president or those with
the presidents here. And you know, he seemed to have
been running for chair strongly of the Federal Trade Commission
before he was appointed. And as you read what he writes, it's,
you know, very pro Trump. I mean, he came out
(15:49):
in favor of firing his Democratic colleagues on the Federal
Trade Commission. Really, why why does he do that? He's saying, okay,
and don't forget President, you can fire me too. Why
did you do that?
Speaker 2 (16:00):
So?
Speaker 3 (16:01):
I think gel Slator may be a little different. She
did advise jd Vance, you know, during the campaign apparently,
and she just seems to me to be more centered
as an any trust person. But you know, I don't
think in the end, you know, she's less subject to commands,
and she's in a in an organization where the lines
(16:22):
of command are much clearer. You know, there's deputy Attorney
General above her and the Attorney general above her, the
clear lines of authority. So she in the end will
you know, have to follow that tune. But she may
have more ability to maneuver, or maybe more willing to.
I just don't know, Harry.
Speaker 2 (16:42):
The first Trump administration was that good for deals.
Speaker 3 (16:48):
Generally, Yeah, I think generally Making Del Raheem, who was
head of any trust divisions, the people at the Federal
Trade Commission were sort of more shall we say, normal
anti trust enforcers in the mold of people who were
willing to take settlements and not so clearly politically in tune.
(17:11):
People thought that maybe making Delwraheem was a little more
politically in tune, and I'm not sure he did some
things that looked like that FTC not so much. Apparently
Trump threatened to fire the chair a couple of times.
So I think there was more independence, more if you
could call it that normalcy, and the ags were more normal.
(17:31):
I mean, Bill Barr was, for whatever you think of
him one way or the other. You know, he was
a sort of a normal lawyer and you know, not
a sick ephant to the president. So it was a
different time, it was things were done differently. I think
this administration, from all you can see, everything is just different.
Speaker 2 (17:52):
So do you think that deal makers are happy with
the Trump administration?
Speaker 3 (17:57):
Oh? Sure, yeah, I think they're they're glad to be
finished with the Biden administration. And Jonathan Canter and Lena Khan, yeah,
and feel that they're now in more of a let's
make a deal and maybe more able to bring political
pressure to bear if they can't make a deal, you know,
(18:19):
if staff resists and so forth, you know, they'll still
have to work through the staff. And you know, people
who are still there and haven't been laid off, fired
or left resigned. You know, staff knows what they're in for.
They've got new bosses.
Speaker 2 (18:35):
And are there any interesting cases that you're watching that
we haven't talked about.
Speaker 3 (18:40):
Well, this is something that the Justice Department filed recently
called a statement of interest, where they decide to poke
their nose into private any trust litigation and say what
the position in the United States is and the public
interest is. And they've chosen a case where the lead
(19:02):
plaintiff is a group called Children's Health Defense. So Children's
Health Defense is an anti vaxed group that had been
run by RFK Junior, and they filed private suit against
let's see Washington Post, Reuter's ap claiming that they've been
feeding information or agreeing and information and feeding it to
(19:27):
the platforms like Facebook so that these groups would be
deep platformed for misinformation. And the information apparently centers around
the idea that COVID vaccines were terrible COVID you know,
all the COVID conspiracy. It's an odd group of plaintiffs,
an odd piece of litigation because it's hard to see
(19:52):
what the anti trust injury is what you know, where
competition has been affected. But the Justice Department just thought
us statement of interest on the plaintiff side. And you know,
you look at all the things that the Justice Department
could do, and you say, so, why did you do
(20:12):
that in a case that I mean, I would say
in any trust case if it's marginal, that's sort of
a nice thing to call it. And part of the
problem that the Justice Department has in this statement of
interest is if you credit their theory a little bit
too much, they could cast a pall on what are
(20:33):
called standard setting organizations that help standardize interfaces in computers, telecommunications,
all sorts of technical things, because that involves sort of
similar behavior, except that as real economic consequences. So the
paper that they filed is to my reading, sort of
(20:55):
odd because they've got to make it a real legal brief.
On the other hand, you know, they talk about the
marketplace of ideas and discrimination and quote Clarence Thomas. So
this is an interesting case to watch because again, you know,
what are they doing by weighing in on this case.
There's a lot of work to do, and you know,
(21:18):
usually private plane ifs are left to pursue private cases,
they get treble damages if they win. But here just
the department feels the need to weigh in and say
this might be.
Speaker 1 (21:29):
A good case.
Speaker 2 (21:30):
It doesn't sound like you agree with them. Harry, thanks
so much, Always a pleasure to have you on. That's
Professor Harry First of NYU Law School. And that's it
for this edition of The Bloomberg Law Show. Remember you
can always get the latest legal news on our Bloomberg
Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
(21:53):
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm Jum Grosso
and you're listening to Bloomberg. Mmhmm
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