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SCOTUS Low Approval & NFL Antitrust Exemption | Bloomberg Law

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793 segments

0:02

This is Bloomberg Law with June Graasso

0:05

from Bloomberg Radio.

0:08

In recent years, the Supreme Court has

0:11

gotten what you might call bad grades

0:13

from the public, and it's gotten worse

0:16

since the last term. Americans are now

0:19

more displeased with the court than at

0:21

any time in the last 26 years. According

0:24

to the latest Gallup poll, only 33% of

0:28

the public approves of the job the

0:30

Supreme Court is doing, a record low.

0:33

Joining me is Bloomberg Supreme Court

0:35

reporter Greg Store. Greg, tell us about

0:38

the latest polls.

0:40

>> There were several new polls that came

0:42

out after the court's term ended, and by

0:44

far the worst of them was the Gallup

0:46

poll that showed the Supreme Court's

0:48

approval rating plummeting to 33%. That

0:52

is easily the lowest since Gallup

0:54

started surveying about the court in

0:57

2001. The number went down 9 percentage

1:01

points from 42% when they took it in

1:04

September. So really a big decline

1:07

there. The other polls were not as

1:09

stark, but for example, a Marquette Law

1:12

School poll showed the court down two

1:14

percentage points from a year earlier.

1:17

So, it's consistent with the notion that

1:19

at best the Supreme Court is treading

1:21

water.

1:21

>> In the Gallup poll, was it a slide among

1:25

Republicans that brought that number

1:27

down?

1:28

>> It was a slide mostly among Republicans.

1:31

The court's approval ratings were

1:33

already really low among Democrats and

1:36

independents. But among Republicans,

1:39

support dropped 21 percentage points

1:41

since September. It was 79% in

1:43

September, fell to 58%. With a plus or

1:46

minus margin of error of four percentage

1:48

points, that's definitely a big big

1:50

drop.

1:50

>> A huge drop. And you would think that

1:52

the way the Supreme Court ruled this

1:55

term on Republican priorities like

1:59

narrowing agency power, enhancing gun

2:03

rights, eliminating campaign spending

2:06

restrictions. The Republicans would be

2:08

happy with the court. Well, one big

2:10

reason sure seems to be Donald Trump and

2:13

the way he's reacted. The court, of

2:15

course, ruled against him on a couple

2:16

big issues, including tariffs and his

2:18

ability to fire Lisa Cook and his

2:20

birthright citizenship restrictions. And

2:23

Donald Trump was extremely aggressive,

2:26

lashing out at even those justices he

2:29

appointed like Amy Coney Barrett and

2:30

Neil Gorsuch. If you recall, after the

2:32

tariff decision, he said, among other

2:35

things, that they are an embarrassment

2:36

to their families. So, Republicans of

2:39

course do respond very strongly across

2:42

the board to things Donald Trump says

2:43

and sure seems like his criticisms of

2:47

the Supreme Court drag the court down

2:49

with Republicans.

2:51

>> Tell us about some of the factors that

2:53

have made this Supreme Court so

2:57

unpopular with Democrats and

3:00

independents.

3:01

>> There have been a lot of forces over the

3:03

years that have been dragging the court

3:05

down. This is not just a one-year thing.

3:07

This has been happening over the course

3:08

of a couple of decades. And of course,

3:10

we're seeing institutions in general

3:12

have their approval ratings falling. But

3:14

you have a combination of a court that

3:16

seems more partisan, and indeed they are

3:18

more partisan in the sense that it's the

3:20

Republican justices who are now the most

3:22

conservative and the Democratic justices

3:24

who are the most liberal. You have

3:26

things like the ethical controversies

3:27

that we had a few years ago that were

3:29

very much in the news. Clarence Thomas

3:31

accepting trips uh paid for by a

3:33

Republican mega donor. You have the way

3:37

the court acquired this conservative

3:40

supermajority with Republicans holding

3:42

one seat open after Antinine Scalia died

3:44

and then rushing to fill another one

3:46

when Ruth Bader Ginsburg died. So

3:48

there's kind of a perfect storm. Oh, I

3:50

haven't even mentioned overturning Roie

3:52

Wade, which obviously was a decision

3:54

that was highprofile and among many

3:56

people extremely unpopular. So a

3:59

combination of factors have kind of

4:01

gotten us to this point. So there were

4:03

two decisions where the Supreme Court

4:05

went against President Trump on the

4:07

tariffs and birthright citizenship

4:10

in the sea of decisions where they, you

4:13

know, helped move forward his agenda on

4:16

the regular docket and on the shadow

4:18

docket. Some people are pointing to

4:20

that, even Justice Kagan are pointing to

4:22

those two as well. We're holding the

4:23

line here. Well, I did think that

4:25

Justice Kagan's remarks this summer were

4:28

very interesting because after the

4:31

ruling that overturned Roie Wade three

4:33

years ago, she pretty much called into

4:36

question the court's legitimacy in a

4:37

couple public appearances, saying that

4:39

when the court is overturning cases

4:41

isn't being consistent, that it can call

4:44

into question its own legitimacy. So,

4:46

the fact that she was in at least in

4:48

some sense standing up for the court

4:51

this summer, I did think was notable.

4:53

Having said that, she was very strongly

4:56

in descent from a number of the

4:57

decisions you mentioned where the

4:58

conservative majority uh moved the law

5:01

in a particular direction in a way that

5:03

conservatives have been hoping for for

5:05

quite a long time.

5:06

>> Is anybody else buying that argument

5:08

that, you know, oh well, we held the

5:11

line on these two cases where if they

5:13

hadn't held the line, it would have been

5:16

shocking.

5:17

You know, Jude, I I hate to say this as

5:19

somebody who covers the Supreme Court,

5:21

spends all my waking hours or at least

5:23

my work hours thinking about how to

5:24

communicate what the Supreme Court is

5:26

doing. But the truth is, a lot of

5:28

Americans don't pay attention to what

5:30

the Supreme Court is doing unless it's

5:32

one of these mega cases like overturning

5:34

Roie Wade or deciding a presidential

5:36

election or something like that. So, you

5:39

know, people often have impressions of

5:42

the court. They've heard a little bit.

5:44

If you look at these polls, it's kind of

5:45

remarkable how little people have heard

5:48

about some cases that I think

5:49

everybody's heard about, first rate,

5:51

citizenship, tariffs, things that you

5:52

you mentioned. Uh so, you know, what

5:56

people think of the court may be in a

5:58

lot of cases more impressionistic than

6:00

something that is really tied to

6:02

particular decisions that that came out.

6:05

>> And in your story, you write that the

6:07

justices have said in public that they

6:10

don't consider polls.

6:12

>> Yeah. They've said that over and over in

6:14

a variety of different contexts. So, one

6:16

thing I mentioned in the story was in

6:18

the Dobs ruling which overturned Roie

6:20

Wade. Uh, Justice Alo mentioned that

6:23

the, as he put it, the judicial branch

6:25

derives its legitimacy not from

6:27

following public opinion, but from

6:29

deciding by its best lives whether

6:31

legislative enactments of the popular

6:33

branches of government comport with the

6:35

Constitution. Other justices have said

6:37

similar things. On the other hand, we

6:39

discussed Justice Kagan talking about

6:41

the court's legitimacy. The court and I

6:44

would venture to say all the justices

6:46

understand that their legitimacy is

6:49

really important as a country, as a

6:52

republic. We need people, both average

6:55

people and other members of the

6:57

government to accept Supreme Court

6:58

decisions even if they don't agree with

7:00

them. We need people to be like Al Gore

7:03

who can say after the Bush v.Gore your

7:05

decision. I disagree strongly, but I

7:07

accept it. Otherwise, you know, we run

7:10

the risk of chaos where despite what the

7:13

Supreme Court says, people say we are

7:16

going to go off in our own direction,

7:18

interpret the Constitution our own way.

7:21

>> I know they say that they don't care

7:22

about the polls in public, but I have

7:24

this feeling like some of them must be a

7:27

little bit upset about the fact that

7:28

they're at record lows and that, you

7:30

know, the public is seeing them as

7:32

politicians in robes. I mean they come

7:34

out and defend themselves and you see

7:36

you know Justice Roberts trying to

7:38

emphasize the number of unanimous

7:41

decisions and also talk about we don't

7:44

overturn president as much as some past

7:46

justices. I mean it seems like they're

7:48

doing a lot of explaining. It is

7:51

certainly the case that if you went to

7:52

any of the nine of them and said you're

7:54

acting like a politician, they would uh

7:57

tell you in very strongly worded terms

7:59

why they don't think they're a

8:00

politician, why they are just

8:02

interpreting statutes and interpreting

8:04

the Constitution the way they think they

8:05

should be interpreted.

8:07

>> I am puzzled by one of the polls that

8:10

found that a majority approved of the

8:12

decisions the court made while not

8:14

approving of the court itself. One thing

8:17

that to me is fascinating about these

8:19

polls is that even as the court is

8:23

becoming less popular, its decisions at

8:26

least in this last term were actually

8:28

quite popular. So if you look at the

8:30

Marquette poll, they asked about 13

8:32

recent Supreme Court decisions and a

8:35

majority of people said the justices had

8:37

made the right decision in 11 of those

8:39

cases. So there is when you ask people

8:42

about the particular issues the Supreme

8:44

Court is deciding there is some support

8:46

for what the Supreme Court is doing even

8:48

as the court as a whole as an

8:49

institution goes down in the public

8:52

mind.

8:53

>> There have been calls for a long time

8:55

from liberal groups to either add

8:58

members to the court packing the court

9:00

or set term limits. Do you think that

9:03

come 2028 in the presidential election,

9:07

we're going to be hearing more about

9:09

making changes to the court in some way?

9:11

>> Yeah, I expect very much we will hear a

9:14

lot about this on the Democratic side.

9:16

We already have Pete Buddhajudge and Kla

9:18

Harris as two prospective candidates who

9:21

are pushing the idea of of adding seats

9:24

to the Supreme Court. Uh others are

9:27

talking about things like term limits

9:30

and you of course right now it's just

9:32

talk because Democrats are not in a

9:34

position to do that but you don't have

9:35

to squint too hard into the future to

9:37

imagine a world where Democrats might

9:39

have control of both Congress and the

9:41

White House. And then the question would

9:43

be will they do something about the

9:45

Supreme Court now that they they have

9:47

that power? And you know we may see a

9:50

dividing line among Democrats some who

9:52

will say we need to do something now.

9:54

this is a thing that will, you know,

9:56

make an instant change adding seats to

9:58

the Supreme Court and others who say,

10:00

"Look, if we do it when we have the the

10:03

power to do it, as soon as Republicans

10:05

get back in power, they're going to do

10:07

it and that's not good for anybody."

10:09

>> You talked to Jesse Wegman of the

10:11

Brennan Center and he said, "This court

10:13

is not going to change its behavior. It

10:16

was instituted precisely for this

10:18

behavior." And the way I think you solve

10:20

this is structurally, which is what

10:22

we've been talking about. I mean, last

10:24

term the conservative majority certainly

10:27

changed the law. Are any cases coming up

10:30

next term that might give them the same

10:32

kind of opportunities?

10:34

>> We don't yet have the boundary pushing

10:36

cases that we had last term. So, I would

10:39

say birthright citizenship, tariffs,

10:42

Lisa Cook, all of those were Donald

10:44

Trump doing something that a couple

10:47

years ago nobody was really thinking a

10:50

president might be able to do. And we

10:52

don't yet have those cases, but we

10:54

might. You know, so many of these uh

10:56

cases at the lower court level get up to

10:59

the Supreme Court through the emergency

11:01

or shadow docket and can present that

11:04

sort of issue. That's what happened with

11:06

with Lisa Cook. So, it is certainly

11:09

possible. You know, for the most part,

11:11

we have seen, the way I think about it

11:13

is we have seen this court do most or

11:17

all of the things that Ronald Reagan

11:19

would have wanted that the kind of

11:21

Reagan revolution, the notion of let's,

11:24

you know, get back to, you know,

11:26

originalist interpretation of the

11:27

Constitution. Let's bolster the power of

11:30

the presidency and, you know, reduce the

11:32

role of race in our in our government.

11:35

all those things that are long-standing

11:37

conservative priorities, the court has

11:39

been willing to do those things. It's

11:40

where Donald Trump has sort of created

11:42

his own priorities that maybe aren't

11:44

things that the Reagan folks would have

11:46

thought of. That's where the court is

11:48

sometimes drawing that line.

11:49

>> Finally, there was a rumor that Justice

11:52

Alo was going to retire last term and he

11:56

has said that he is not retiring this

11:59

term at least.

12:01

>> He did say that. I can only tell you

12:02

what words he used. This was in an

12:04

interview with the editorial features

12:06

editor of the Wall Street Journal. So,

12:07

sort of a friendly audience. Uh, Justice

12:10

Alo told them, obviously, I'm here for

12:13

another term. And the reason that we're

12:15

talking about this now is normally if a

12:18

Supreme Court justice is going to

12:20

retire, he or she does that at the end

12:22

of a term. It's the least disruptive for

12:24

the court. You know, if you leave in the

12:27

middle of the term, then you end up

12:28

with, you know, maybe only an eight

12:30

justice court. And so when Justice Alo

12:32

didn't retire at the end of this this

12:34

last term, normally one would think,

12:36

okay, he's going to stick around for

12:37

another term. But because there is at

12:40

least the prospect that Democrats could

12:42

take over the Senate in the November

12:45

midterm election, there has been some

12:48

talk that if that happened, maybe

12:51

Justice Alo, who's very conservative,

12:53

might say, or at least come under

12:54

pressure to say, "I'm going to retire

12:56

now so that the lame duck Congress with

12:59

the Republican controlled Senate, can

13:01

confirm my successor." These comments

13:04

seem to preclude that. Obviously, things

13:06

can change, but he at least sounded from

13:09

what I can read in this story as

13:11

somebody who's not at all planning on

13:13

leaving in November.

13:15

>> Thanks so much for taking the time,

13:16

Greg. That's Bloomberg Supreme Court

13:18

reporter Greg Store. Coming up next is

13:21

the NFL breaking antitrust law in its

13:24

negotiations with streaming services.

13:27

This is Bloomberg.

13:31

It's a tough time for football fans who

13:34

live outside their favorite team's home

13:36

market. The rise of streaming services

13:39

has ended the era when sports fans could

13:42

easily follow their favorite teams on a

13:45

handful of broadcast and cable channels

13:48

without buying special subscriptions.

13:51

But the NFL has signed deals with

13:53

multiple services, creating a

13:56

bewildering schedule and a steep cost to

13:59

watch games at home, as fans have to

14:02

subscribe to multiple streaming services

14:04

in addition to a traditional cable or

14:07

satellite bundle. During a judiciary

14:09

subcommittee hearing in June, Republican

14:12

Congressman Jim Jordan described the

14:15

challenge football fans face trying to

14:17

watch their favorite team. Here's what

14:20

the fan deals with today in our report.

14:23

A Green Bay Packers fan who lives in

14:25

Dallas, Texas, grew up in Green Bay,

14:26

loves the Packers, wants to watch the

14:28

Packers, grew up in Dallas, Texas. For

14:29

the 2026 season, the Packers are

14:31

scheduled to play eight games on Fox,

14:33

two games on Amazon Prime Video, two

14:35

games on Netflix, two games on NBC, one

14:37

game on ESPN, one game on CBS, and one

14:39

unscheduled game that is left to be

14:41

determined by the NFL. The fan will need

14:43

access to Amazon Prime Video, Netflix,

14:45

NBC, and ESPN to see the seven games

14:47

scheduled for those services for the

14:50

nine games scheduled for Fox and CBS.

14:52

The fan will likely need Fox and CBS

14:53

because some of the games will be on

14:55

broadcast television in Dallas. The fan

14:57

will also likely need Sunday Ticket just

14:58

to watch some subset of the nine Fox CBS

15:00

games because the fan will not know

15:03

which games will and will not be on

15:04

broadcast until the NFL and relevant

15:06

networks release the broadcast maps the

15:08

week of the games. That's what they got

15:10

to navigate. That's what they got to

15:12

navigate.

15:13

>> The Justice Department has opened an

15:15

antitrust investigation into whether the

15:18

NFL is breaking antitrust law in its

15:21

negotiations with streamers and driving

15:24

up the costs for consumers. My guest is

15:27

an expert in antitrust, Harry First, a

15:30

professor at NYU Law School. Harry, some

15:33

of our Bloomberg reporters looked into

15:35

this and so for a Philadelphia Eagles

15:38

fan living outside of Pennsylvania to

15:41

get all the games the Eagles are in,

15:44

they would need Sunday Ticket at $378,

15:49

YouTube at $83,

15:51

Peacock at $33, Fox One at $20, and

15:56

Prime Video at $9 for a grand total of

16:00

$523. $3. Yet the NFL claims that 87% of

16:06

its games are primarily shown on free

16:09

overthe-air broadcast TV.

16:12

>> I mean, I assume that that's true, you

16:15

know. Yeah. So, if you want to just want

16:17

to watch the Eagles, I mean, you know,

16:19

it's going to be on free overtheair

16:21

television. But if you want to watch

16:23

away games, you know, if you want to

16:25

just sit there on a Sunday and watch

16:27

every game out of your market, you're

16:29

going to have to pay for it. if you want

16:30

to watch every time the the Eagles play,

16:34

you know, in LA, it's not going to be on

16:37

channel 10 in Philadelphia. So, yes, if

16:41

you fly to LA, it'll be there for free,

16:43

too, but not exactly free. So, I don't

16:46

know the the number, it's one of those

16:49

numbers that will convince no one.

16:51

Obviously, a lot of people are buying

16:53

this Sunday ticket to watch out of

16:55

market football games because they just

16:57

love sitting there watching their team

16:59

wherever they are and other teams, you

17:01

know, cuz there are teams all around the

17:03

country that you can't see on

17:05

overthe-air TV unless you pay extra for

17:08

it. The investigation is reportedly

17:11

focused on this antitrust loophole in

17:13

the Sports Broadcasting Act that allows

17:16

the NFL and other leagues to negotiate

17:20

media deals collectively on behalf of

17:23

their teams. And that's the same

17:25

loophole that the congressional

17:27

subcommittee was looking into in June.

17:29

>> So the lawyer in me doesn't like to call

17:31

them loopholes, likes to call them

17:34

exemptions. you know, in 1961. Yes. It's

17:38

interesting to try to think about and

17:40

I'm not certain I fully understand why

17:44

the over there broadcasters went along

17:46

with this cuz they were, I think,

17:49

relatively more powerful than the NFL in

17:52

1961, which was, you know, not the

17:55

juggernaut we know today. So they

17:58

allowed the NFL to pull all their TV

18:03

rights free of any antitrust issues. the

18:07

law was in some ways less settled then

18:09

and you know maybe it was a little less

18:12

clear but they clearly would have had

18:13

some problems and there had been

18:15

litigation and I think everyone thought

18:17

it was in their best interest to to

18:19

negotiate with a single source have this

18:23

brand NFL football which then I guess

18:26

the TV networks could sell to

18:28

advertisers cuz you know that's that's

18:31

their game. So in that sense it was a

18:34

good deal for those two powerful sides

18:37

you know who then got this through

18:39

Congress. I doubt that the fans showed

18:41

up for legislative hearings and um you

18:45

know in the end the fans didn't pay

18:47

directly because those are overtheair

18:51

quote unquote free broadcasts but you

18:54

know someone picks up the tab for the

18:55

advertising so consumers do pay. You had

18:59

the congressional hearing in June and of

19:01

course politicians on both sides

19:04

questioned

19:05

>> whether the deals now violate that law.

19:09

Do you think they violate that law?

19:12

>> Well, in a technical sense, the question

19:14

is whether the exemption applies to some

19:19

of the current deals. So if it's a deal

19:21

that involves broadcasting rights where

19:24

the broadcast is paid for by sponsors,

19:28

in other words, advertiser supported,

19:30

then that comes within the Sports

19:32

Broadcasting Act. But the current deals

19:35

that the NFL's negotiating are with, you

19:39

know, platforms are with streaming

19:40

platforms.

19:42

pretty hard to see how they're within

19:44

the wording of the exemption from the

19:48

Sports Broadcasting Act. So, the Sports

19:51

Broadcasting Act wouldn't give the NFL

19:54

an exemption. They'd have to go straight

19:56

under the antitrust laws. And then the

19:58

question is whether violates the

19:59

antitrust laws. And they got pretty much

20:03

socked in the Sunday ticket litigation

20:06

uh with a pretty clear binding from a

20:09

jury. So the pooling of rights

20:10

apparently keeps some of the teams from

20:14

negotiating separately to sell their

20:17

broadcasting rights to, you know, maybe

20:19

other streaming platforms or put them on

20:22

YouTube where, you know, you would just,

20:24

if you didn't want to get a whole

20:26

package, all you wanted to do was follow

20:28

the Eagles, you would want to get a

20:30

package just of Eagles games. But that

20:33

can't happen now. So, they would be in

20:36

for some litigation if they don't fall

20:39

within that exemption.

20:40

>> And why did the judge toss out that

20:43

almost $5 billion jury verdict against

20:46

the NFL in the Sunday ticket class

20:49

action lawsuit?

20:51

>> So, there are two answers to this. The

20:53

first answer that I uh often would give

20:56

in class was it's the zeros.

20:59

>> I get that. Now, that's not that's not a

21:01

legal answer, but this was probably the

21:04

largest plaintiff's verdict, certainly

21:07

in any trust, maybe in any plaintiff's

21:09

verdict, but $4.7 billion before

21:12

trembling is a lot of money. Now, that

21:17

can be a reason for knocking down the

21:21

amount, but that's not what the judge

21:23

did. He disqualified

21:25

two of their experts on damages that he

21:29

had actually qualified at the trial. So

21:33

it seems a little like let me find a

21:36

problem with this trial. And

21:38

interestingly he did not find a problem

21:41

with liability in itself. It was on the

21:43

damages I think. So that case has sort

21:46

of been has been sitting before the

21:48

court of appeals now for a while uh

21:51

waiting for a decision. So, um, what, so

21:54

the the Justice Department is launching

21:58

an investigation into whether the NFL

22:01

and the leagues are breaking antitrust

22:03

law in their negotiations with

22:05

streamers. Is that different from the

22:07

Sunday Ticket?

22:09

>> I don't know exactly which negotiations

22:11

they have in mind. I mean, the Sunday

22:14

Ticket litigation involves an agreement

22:16

to distribute and also they had it with

22:19

Direct TV first and then with YouTube

22:22

that if you wanted access to these

22:25

games, you would buy it and it would be

22:28

streamed on YouTube. Now there are other

22:31

they're licensing Netflix, Amazon. So

22:34

they're licensing a bunch of different

22:37

platforms, but the problem is the same

22:41

without regard to which platform it is.

22:44

It's the question of, you know, is the

22:46

NFL a single entity or are they a group

22:50

of however many teams, 32 teams all

22:53

coming together and agreeing that

22:57

they're going to sell their rights

22:58

jointly. pull their rights because each

23:01

one has the right, you know, the legal

23:04

right, the copyright to the games that

23:07

they're involved with. So, they're

23:08

pooling all the rights to make a single

23:11

product called NFL football. So, is that

23:16

coming together is an agreement and

23:18

that's section one of the Sherman Act.

23:20

Now, whether that's lawful or not is

23:22

something that the NFL presumably would

23:25

fight. these sports leagues haven't had

23:27

great track record in saying, "Gee,

23:29

we're coming together for your good."

23:31

So, I don't know. Now, when you say the

23:34

um the Justice Department is

23:36

investigating, the careful approach that

23:39

I would suggest is there are reports

23:42

that the Justice Department is

23:43

investigating. We really don't know what

23:45

they're doing. And frankly, I'm not

23:48

sure, you know, in looking back at the

23:50

antitrust history here, I don't think

23:52

the government has necessarily spent its

23:55

prosecutorial resources worrying about

23:58

competition in professional

24:01

sports. They've usually left it to the

24:05

people with money in the game, the

24:06

owners, fans, consumers, things like

24:10

that. So, why are they interested in

24:13

this? Uh, why do you think? Well, we

24:17

know the answer. The staff report, you

24:20

just mentioned the House NHS

24:22

subcommittee staff report starts out

24:24

with a quote from the president. There's

24:27

something very sad when they take

24:30

football away from many, many people. He

24:33

said that in May and I'm glad that he

24:36

has empathy for, you know, the cost of

24:39

living.

24:40

>> I'm going to refrain from making a

24:42

comment on that. Harry, this justice

24:44

department has not been, shall we say,

24:46

strong on antitrust enforcement. They

24:50

walked away from the ticket master live

24:52

nation trial and left it to the states

24:55

who then won. They also walked away from

24:58

the Paramount Warner Brothers Discovery

25:00

merger, leaving it to the states to sue.

25:04

Do you think they would really sue the

25:06

NFL? I don't really see any government

25:09

group doing anything here because

25:12

they're just going to rub some important

25:14

economic interest the wrong way. I mean,

25:16

I don't see Congress doing anything. The

25:19

House report didn't say, "Oh my god, we

25:22

have to repeal this statute." Or, "Oh my

25:25

god, we have to amend it." Or, "Oh my

25:27

god, we have to do something." No, they

25:29

said, "Oh my god, we've got to stand

25:31

here and look. We've got to keep watch."

25:33

And thank you very much. We're going on

25:35

recess. I mean, I don't know, maybe

25:37

they've got a big investigation going,

25:40

but there are a lot of big mergers going

25:42

on in the economy and although private

25:45

parties get involved in those

25:47

occasionally, that's really fallen to

25:49

the government to do something about not

25:52

that they're doing a lot about them, but

25:54

at least they've got to review them and

25:56

they're involved. So they have important

25:58

or stuff that demands government

26:00

attention maybe more than this because

26:03

we have private enforcement and the

26:06

private enforcement's been at work,

26:08

>> right? So there might be a private

26:10

antitrust suit

26:12

>> indeed. I mean that's you know that's

26:14

what Sunday Ticket litigation was and

26:16

you know would not be surprising if

26:19

there were.

26:19

>> So we shall see. Stay with me. Coming up

26:23

next on the Bloomberg Law Show,

26:25

Paramount is trying an interesting

26:27

tactic to try to get a resolution of the

26:30

antitrust case filed by 12 states to

26:33

block the Paramount Warner Brothers

26:35

Discovery merger. I'm June Grao and

26:38

you're listening to Bloomberg. Let's

26:40

turn now to the Paramount Warner

26:44

Brothers Discovery Merger. So 12 states,

26:48

Democratic le states led by California's

26:53

attorney general Rob Bont are suing to

26:56

block the merger. And David Ellison told

27:00

Paramount senior executives

27:03

last week that he's prepared to relocate

27:06

Paramount and Warner Brothers 2 if the

27:09

merger is successful. So, exiting

27:12

California, if the California AG doesn't

27:15

agree to negotiate a settlement in the

27:17

case, what do you think about a threat

27:20

like that to a state AG who's suing you?

27:23

>> I don't know how that helps him in any

27:26

particular way. First of all, it doesn't

27:28

really do anything about the litigation.

27:30

So, I assume that

27:32

California and the other states who have

27:35

filed would still have jurisdiction in

27:38

one way or the other over this merger

27:40

because they've got movie theaters. So,

27:43

I don't know how it affects that. So, it

27:46

seems just sort of like a political

27:48

threat. I guess he's he's threatening to

27:50

destroy Hollywood. I in some ways I I

27:52

feel like the the discussion of this is

27:56

that Ellison and the I don't know who's

27:58

advising him. They just don't seem to

28:00

want to see the antitrust issues and

28:02

they just don't want to see this as a

28:04

piece of real litigation. They're

28:07

entranced by Bont standing in front of

28:09

the Hollywood sign. And you know that's

28:12

that's theater, but it's not the

28:14

litigation. So it's just hard to know

28:17

what he thinks is going to move these

28:20

attorneys general, but moving is not

28:23

going to be moving these attorneys

28:25

general.

28:26

>> That only takes out one attorney

28:28

general. It doesn't take out the rest of

28:29

them.

28:29

>> Yeah. So, so then he's going to have Tis

28:32

James to negotiate with. Okay. Yeah. The

28:37

bottom line problem is this is a case

28:40

that as it's written is really hard to

28:43

settle. I mean, you either win or lose

28:45

this litigation. Maybe he doesn't want

28:47

to acknowledge that or something. And to

28:49

some extent, he's sort of talking past

28:51

litigation, but either they're going to

28:52

win or lose this litigation. I don't see

28:55

it settling. You know, maybe in the end

28:56

they'll just have to restructure this

28:58

deal.

28:59

>> What about Paramount has agreed to sign

29:02

contracts with the major theater chains

29:05

guaranteeing they'll release 30 movies a

29:07

year in cinemas if they acquire Warner

29:11

Brothers. Three-year agreement.

29:13

>> Great. So, first of all, this is not the

29:16

kind of thing that convinces any

29:18

legitimate any trust enforcer of

29:21

anything. So, any time you say it's a

29:24

three-year contract and any trust

29:26

enforcer says, "Okay, what about the

29:28

fourth year? You want to merge forever

29:31

and you're giving me something for three

29:33

years?" Uh, it's not all that good. All

29:36

right. Second is, so what's the deal?

29:38

You're promising 30 movies. Doesn't say

29:42

these are 30 you would not have made.

29:44

That was an earlier claim. 30 movies you

29:48

promise to distribute in these two major

29:51

chains. Great. Come look at my coalition

29:55

and ask whether they've got any movie

29:57

theaters that are not in these chains

30:00

and are not part of this deal. They'll

30:02

love this. So great, now you've hooked

30:05

up with the two major distributors for

30:08

exclusive distribution of your films. I

30:10

think I'll throw that in as another

30:13

count of any competitive behavior. I

30:16

really don't get it. You know, if he

30:18

said, "We promise to make deals with all

30:21

of the movie theaters in the United

30:23

States. You we'll give a 90-day window

30:26

that we won't put these movies online.

30:29

Anything we make that looks a little

30:31

different. I'm not sure what it gets in

30:33

particularly, but again, this is I don't

30:36

get it.

30:36

>> If you don't get it, then it's not

30:38

getable." Um,

30:41

so does it matter that the UK authority

30:44

gave the deal a go-ahad?

30:46

>> So I think that's a plus for the deal.

30:49

The UK authority was worried about

30:51

editorial controls and that's not part

30:54

of this complaint. So in some ways I

30:58

mean it's sort of ironic. This is not

31:01

what the states are complaining about.

31:03

They are not complaining about CNN being

31:06

run by CBS even though again Ellison

31:10

said oh that's what you're upset about

31:12

and Bont says not us go you look in the

31:15

complaint CNN isn't mentioned to me that

31:19

was one of the political things that was

31:22

pushing the merger and so it's it's

31:24

really ironic that Ellison wants to pin

31:27

that on the states the states want to

31:29

say not me we are so clever we are not

31:33

going there, folks.

31:35

>> Well, as you said last time we talked,

31:37

it was a well-drawn complaint by a

31:40

powerhouse antitrust lawyer that the

31:43

state of California hired. So, they

31:46

appeared to have made the right choices.

31:48

Always a pleasure, Harry. Thanks so

31:50

much. That's Professor Harry First of

31:52

NYU Law School. And that's it for this

31:55

edition of the Bloomberg Law Show.

31:56

Remember, you can always get the latest

31:58

legal news on our Bloomberg Law

32:00

podcasts. You can find them on Apple

32:02

Podcast, Spotify, and at

32:04

www.bloomberg.com/mpodcastlaw.

32:09

And remember to tune in to the Bloomberg

32:10

Law Show every week night at 1000 p.m.

32:13

Wall Street time. I'm June Graasso and

32:16

you're listening to Bloomberg.

Interactive Summary

The video features a discussion on several legal and antitrust issues. Initially, Bloomberg Supreme Court reporter Greg Stohr discusses the historic low approval ratings of the Supreme Court, analyzing reasons such as partisan polarization, ethical controversies, the overturning of Roe v. Wade, and the influence of Donald Trump. Subsequently, the program shifts to a discussion with antitrust expert Professor Harry First regarding the NFL's broadcasting business practices, the antitrust investigation into its streaming deals, and the ongoing legal challenges surrounding these arrangements. Finally, the discussion covers the antitrust lawsuit brought by 12 states against the proposed Paramount-Warner Brothers Discovery merger, with Professor First dismissing Paramount's proposed settlement tactics as ineffective.

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