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Google Dodges An Antitrust Bullet & Calls for RFK Jr to Resign · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: In the biggest tech antitrust case in three decades, Google
0:13
Speaker 2: avoided a breakup after a DC federal judge ruled against
0:17
Speaker 2: the government's most severe proposals for remedies, including a forced
0:23
Speaker 2: sale of its Chrome browser. Judge on Metmeta had already
0:27
Speaker 2: found in August of twenty twenty four that Google illegally
0:32
Speaker 2: dominated the search market by paying more than twenty six
0:35
Speaker 2: billion dollars to Apple and other companies to make its
0:39
Speaker 2: search engine the default option on smartphones and web browsers.
0:44
Speaker 2: Tuesday's ruling was all about the fix, and Google will
0:49
Speaker 2: have to make some concessions, including sharing online search data
0:53
Speaker 2: with rivals and ending exclusive contracts for distribution. My guest
0:58
Speaker 2: is antitrust law expert Harry First, a professor at NYU
1:02
Speaker 2: Law School. So on its website, the Department of Justice says,
1:08
Speaker 2: Department of Justice wins significant remedies against Google, but this
1:13
Speaker 2: falls far short of the severe remedies that the government wanted.
1:19
Speaker 2: How much of a setback is it for the government
1:22
Speaker 2: in its attempt to curb the power of the biggest
1:25
Speaker 2: tech companies?
1:26
Speaker 3: Well, you know, people often talk about things as being
1:30
Speaker 3: a win win, and that's a good thing. So I
1:33
Speaker 3: think that the judge's decision is a win win, but
1:37
Speaker 3: not a good thing. So why is it a win
1:40
Speaker 3: win because the Justice Department and the States gets something
1:45
Speaker 3: and Google gets more by their not being more. So
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Speaker 3: I view it as win in sort of eight point
1:53
Speaker 3: type on the government's side, and win in sort of
1:57
Speaker 3: sixteen point type on Google. Said, so, here's what I mean.
2:02
Speaker 3: It's not a significant victory for the Justice Department. They
2:05
Speaker 3: did win some things, and you know, maybe that will
2:09
Speaker 3: help bring some competition into search. But I think Google
2:13
Speaker 3: won a lot by not losing very much. They get
2:17
Speaker 3: to keep Chrome. A lot of the remedies that the
2:20
Speaker 3: Department asked for and got even were cut down, circumscribed, diminished.
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Speaker 3: And you know, whether what the judge did will end
2:32
Speaker 3: up changing the search business, I doubt but who knows.
2:38
Speaker 3: But we've now passed the point where the question will
2:42
Speaker 3: be will we get competition? And the question will just
2:45
Speaker 3: be is Google complying with the decree. Of course, all
2:49
Speaker 3: of that comes after a round of appeals, So there's
2:55
Speaker 3: much more to this, But in terms of, you know,
2:58
Speaker 3: the overall feeling about what we've done. I think it's,
3:02
Speaker 3: you know, from a public point of view, a disappointment.
3:06
Speaker 2: So the big headline was zoeas will Google be forced
3:10
Speaker 2: to sell Chrome? We'll have to divest. So Google doesn't
3:14
Speaker 2: have to do that. Why did Judge Meta decide not
3:18
Speaker 2: to make Google divest Chrome?
3:20
Speaker 3: So this is a second point that pervades Judge Meta's decision.
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Speaker 3: Rightly in a legal sense, but I think not so
3:30
Speaker 3: correct from a policy point of view and really where
3:33
Speaker 3: the law ought to be. So this is in many
3:36
Speaker 3: ways a very conservative opinion. It's the judge expressing what
3:40
Speaker 3: judges often express is that they understand the limits of
3:46
Speaker 3: who they are, what the institution can do, and what
3:50
Speaker 3: they want to do on an ongoing basis. So they're
3:54
Speaker 3: conservative about this. And here the government's plaintiffs are asking
3:59
Speaker 3: them to do some pretty strong restructuring of one of
4:04
Speaker 3: the superstar firms in the United States. So you got
4:08
Speaker 3: to be a little modest. Now. The judge backs up
4:12
Speaker 3: his modesty with a lot of quotations from the Court
4:16
Speaker 3: of Appeals and recently from the Supreme Court in a
4:20
Speaker 3: different anti trust case opinion written by Justice Gorsuch, which
4:24
Speaker 3: counsels let's be careful a little bit. So the ask
4:29
Speaker 3: that Chrome be divested structural relief is something that the
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Speaker 3: DC Circuit itself. Remember, Judge Meta is a district court
4:38
Speaker 3: judge overseen by a Court of Appeals from the DC
4:41
Speaker 3: Circuit District of Columbia Circuit, so he's required to follow
4:47
Speaker 3: the law from that circuit. The law from that circuit
4:51
Speaker 3: on remedies is actually pretty conservative and cautious, and that
4:58
Speaker 3: stems from actually the Microsoft case, which is much the
5:02
Speaker 3: template for the complaint that the government filed and for
5:05
Speaker 3: the government's theories. So you know, they said, well, when
5:09
Speaker 3: it comes to structural relief, restructuring, reorganizing a company, you
5:13
Speaker 3: really need some strong proof before you do that. You
5:16
Speaker 3: need to watch out. And so he took those admonitions
5:21
Speaker 3: to heart and just didn't find enough to overcome that
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Speaker 3: sort of a presumption that you know, you don't do
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Speaker 3: this unless you really have to do it for effective relief.
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Speaker 3: And this then goes to the second part that maybe
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Speaker 3: the government didn't make an effective enough case for divesting
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Speaker 3: Chrome and maybe made it seem too easy. So stuck
5:47
Speaker 3: with all of that, he backed away from it.
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Speaker 2: How much did AI play into his decision, So that's.
5:55
Speaker 3: Maybe the real lead which we're now burying. I think
5:58
Speaker 3: his decision is all about it, frankly, and I think
6:02
Speaker 3: that he's betting, and many in the industry, and if
6:06
Speaker 3: you listen to some of the news shows, are just
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Speaker 3: simply betting that AI is going to replace search as
6:12
Speaker 3: we know it with something else that's not search as
6:17
Speaker 3: we know it, or maybe as you and I know it,
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Speaker 3: but just simply getting information, and that Google Search, that product,
6:25
Speaker 3: no matter what he does in this opinion, is going
6:29
Speaker 3: to be eclipsed by some AI product, and I think
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Speaker 3: that that permeates. I think that he views generative AI
6:39
Speaker 3: as coming to the rescue of competition.
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Speaker 2: Yeah. Some say it's already eroding Google's events.
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Speaker 1: Yea.
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Speaker 3: The data seemed to show. He mentions this in his
6:49
Speaker 3: opinion that searches on Safari have decreased. You know, people
6:54
Speaker 3: seem to be going directly to you know, chat, GPT
6:58
Speaker 3: or Perplexity or some of these other AI assistant things
7:03
Speaker 3: and just getting information that way. And this is the
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Speaker 3: destructive force of innovation, as the economist Joseph Schumpeter talked
7:13
Speaker 3: about many years ago. So maybe he's right, and you
7:17
Speaker 3: know that may mean that sort of didn't matter what
7:19
Speaker 3: he did so long as AI lives. But of course
7:24
Speaker 3: the worry is that we'll just replicate the current structure
7:29
Speaker 3: of the tech platform. Superstar firms will just control AI,
7:34
Speaker 3: and we won't have moved to new competition, but we'll
7:38
Speaker 3: have a different product.
7:40
Speaker 2: He's ordering Google to share data with rivals to open
7:44
Speaker 2: up competition in online search. Google has to share some
7:48
Speaker 2: of the data with competitors, but not some of its
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Speaker 2: most important data.
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Speaker 3: Would you say, well, here again, it's hard to say
7:56
Speaker 3: exactly what our important data. You could say all of
7:59
Speaker 3: the data are important, the more the more. But you know,
8:03
Speaker 3: this particularly involves the search index, which is something that
8:08
Speaker 3: Google has done really well, and the government in some
8:12
Speaker 3: ways didn't ask for as much as it could, which
8:14
Speaker 3: would have been a license to the index itself. What
8:17
Speaker 3: they wanted is some help with the data so competitors
8:21
Speaker 3: could build an index. And even with that, the judge
8:25
Speaker 3: cut down the kinds of data that will be required
8:29
Speaker 3: to be disclosed, and to me, even more importantly, the
8:35
Speaker 3: timing of the disclosure. So for some of these data
8:39
Speaker 3: it's a one time snapshot, which strikes me. As you know,
8:43
Speaker 3: the judge calls at a kickstart for competition. Yeah, like
8:46
Speaker 3: a kick in the rear. I don't know, you know,
8:49
Speaker 3: a one time thing for some very important parts of
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Speaker 3: some basic information to help them put together a better
8:57
Speaker 3: index of the web. There's an awful lot of information
9:00
Speaker 3: out there, and indexing it is critical for an effective
9:04
Speaker 3: search engine. And you know, when it comes to sort
9:07
Speaker 3: of this user side data to click and query. You
9:11
Speaker 3: know what we do when we get free search is
9:15
Speaker 3: create data that's worth a heck of a lot of
9:19
Speaker 3: money for which we don't get paid, we being you
9:23
Speaker 3: and me and all the other users. But these data
9:26
Speaker 3: here Again, the judge cuts down the request, gives some
9:31
Speaker 3: amount of the request, and then sort of puts on
9:36
Speaker 3: some limits yet to be decided about how often this
9:40
Speaker 3: will be disclosed more than once. Now it's not just
9:44
Speaker 3: a snapshot, but the cap yet to be determined by
9:49
Speaker 3: this technical committee that the decree is going to set up.
9:52
Speaker 3: So I don't know, it's you know, it's hard for
9:55
Speaker 3: me to say exactly, you know, will this enable competitors
9:59
Speaker 3: real to really get an effect of competing search engine
10:03
Speaker 3: or will it not quite be enough? And in some
10:05
Speaker 3: ways this goes to what I've always viewed as the
10:09
Speaker 3: underlying problem with these decrees is a judge trying to
10:13
Speaker 3: say what competitors need to succeed, instead of a judge saying,
10:19
Speaker 3: don't ask me, just come back, you know, Google, just
10:22
Speaker 3: come back and let me know whether there's competition or not.
10:26
Speaker 3: And if there isn't, we're going to have to do
10:28
Speaker 3: something more about it. You know, trying for judges or
10:32
Speaker 3: even the Justice Department, which apparently at least is still
10:35
Speaker 3: made up of some lawyers. You know, trying to design
10:38
Speaker 3: these remedies is tough, and you can feel it with
10:42
Speaker 3: what the judge is written in this opinion. It's hard
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Speaker 3: and trying to figure out what the effect is going
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Speaker 3: to be. And he says at the beginning, you know,
10:51
Speaker 3: I don't have a crystal ball. Other judges have used
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Speaker 3: that worry as well when being asked to predict effects
10:58
Speaker 3: in future markets.
11:00
Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue
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Speaker 2: this conversation with NYU law professor Harry First. Google has
11:07
Speaker 2: already said it's going to appeal. Will judge Meta's decisions
11:12
Speaker 2: stand up? I'm June Grosso. When you're listening to Bloomberg,
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Speaker 2: a federal judge ordered a shake up of Google's search
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Speaker 2: engine in an attempt to curb the power of an
11:22
Speaker 2: illegal monopoly, while rejecting the government's attempt to break up
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Speaker 2: the company and impose other restraints. The two hundred twenty
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Speaker 2: six page decision made by DC Federal Judge on Meta
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Speaker 2: will likely ripple across the technological landscape at a time
11:40
Speaker 2: when the industry is being reshaped by artificial intelligence, as
11:45
Speaker 2: companies like Chat, GPT and Perplexity try to upend Google's
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Speaker 2: long held position as the Internet's main gateway. Those innovations
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Speaker 2: and competition reshape the judge's approach to the remedies in
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Speaker 2: the nearly five year old anti trust case, Judge Meta wrote,
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Speaker 2: unlike the typical case, where the court's job is to
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Speaker 2: resolve a dispute based on historic facts, here the judge
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Speaker 2: is asked to gaze into a crystal ball and look
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Speaker 2: to the future. Not exactly a judge's forte. I've been
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Speaker 2: talking to anti trust law professor Harry First of NYU
12:22
Speaker 2: Law School. So, Harry, the judge is directing both sides
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Speaker 2: to come back by September tenth with a new remedy
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Speaker 2: proposal consistent with his ruling or file a status report
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Speaker 2: outlining any disagreements. Do you expect anything real from that?
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Speaker 3: I think what he's looking for is he's got to
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Speaker 3: write this down. He's got to enter a decree that
12:43
Speaker 3: has definitions, that has specific language that's understandable. I mean,
12:48
Speaker 3: the first challenge is figuring out sort of what to
12:51
Speaker 3: accept in the party's proposals. But the second challenge is
12:57
Speaker 3: the drafting of that decree. I think that's what he's
13:00
Speaker 3: looking for. Next, you know, give me your actual proposed decrees.
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Speaker 3: The parties have done that, they have proposed final judgments,
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Speaker 3: but now they've got to take here's what he's ordered,
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Speaker 3: and I think he wants language now. He also hinted
13:16
Speaker 3: at some fallback potential remedies. One of the problems I
13:22
Speaker 3: think that he faced, and it surfaced in a question
13:26
Speaker 3: that he ended up posing on the record, which is
13:29
Speaker 3: pretty rare. You know, tell me why you ask for
13:31
Speaker 3: this particular thing, Google, please explain it. And he had
13:35
Speaker 3: a final hearing. But as he sits down to start
13:38
Speaker 3: to write the opinion, he he's thinking, I've got an
13:42
Speaker 3: interesting different idea here that no one's proposed to me.
13:46
Speaker 3: Maybe you should think about it. So there's sort of
13:48
Speaker 3: some version of like conditionality maybe on payments for you know,
13:55
Speaker 3: not allowing certain kinds of payments for you said, you
13:58
Speaker 3: can make any kinds of payments. But maybe there's a
14:00
Speaker 3: fallback position. Maybe they had a fallback position for Chrome
14:04
Speaker 3: that they might want to articulate now, you know, just
14:07
Speaker 3: they said, let's get rid of it, but maybe there's
14:10
Speaker 3: some fallback. So this may be an opportunity also for
14:13
Speaker 3: the parties to propose, in addition to clarifying language, some
14:17
Speaker 3: modifications for what he's imposed. So maybe that's that will
14:22
Speaker 3: also go on as well. So who said this, Yogi Barret.
14:25
Speaker 3: It's not over till it's over, And it was Yogi
14:27
Speaker 3: Barrett right, well, allegedly apparently he never said anything that
14:30
Speaker 3: he's supposed to have said, which is another thing.
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Speaker 2: Yeah, we'll discuss that next time.
14:35
Speaker 1: Now.
14:36
Speaker 2: As far as pay to play, the judge said that
14:40
Speaker 2: this exclusive deal that Google had with Apple where it
14:42
Speaker 2: pays it something like twenty billion a year to be
14:45
Speaker 2: of the search default on iPhones, et cetera, So they
14:49
Speaker 2: can still do that, but it just can't be exclusive.
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Speaker 3: They can pay for the fault, but can't keep others
14:57
Speaker 3: from you know, putting another search bar or who knows what,
15:01
Speaker 3: but they can still pay for the fault, so they
15:04
Speaker 3: can pay anyone for having the default. The faults were
15:08
Speaker 3: never exclusive. I mean they were exclusives. So you know,
15:12
Speaker 3: you can only out of the box if you, you know,
15:15
Speaker 3: were original equipment manufacturer, handset manufacture, you know, an exclusive
15:20
Speaker 3: to put the Google search bar on if you wanted
15:24
Speaker 3: other programs, or you know, inexclusive. If you have an exclusive,
15:28
Speaker 3: you get revenue shares things like that. So maybe not that,
15:32
Speaker 3: but he basically said you can pay for the faults,
15:36
Speaker 3: which the testimony from the behavioral economist was that's the
15:41
Speaker 3: factual equivalent of a near exclusive because people don't change
15:45
Speaker 3: from defaults very often. You know, it's an old behavioral
15:50
Speaker 3: habit with which we're very familiar and with which Google's familiar.
15:55
Speaker 3: So the judge did suggest he did this in a footnote.
15:58
Speaker 2: You read the footnotes too, Harry, I'm impressed.
16:02
Speaker 3: Hey, I'm a not quite reformed law professor, and we
16:07
Speaker 3: always know you put the good stuff in the footnotes.
16:10
Speaker 3: But anyway, at least that's our version. But there is
16:13
Speaker 3: a footnote. It's not fourteen. And he said he could
16:16
Speaker 3: revisit the idea of a ban on paying for default
16:21
Speaker 3: but allowing to pay for distribution. So you could say, okay,
16:26
Speaker 3: if you distribute Google Search, that's fine, we'll pay you,
16:31
Speaker 3: but we can't pay you to make it the default
16:34
Speaker 3: search engine. Now me said, nobody's sort of raised this. Hello,
16:39
Speaker 3: No one raises so I don't know the effect. Hello,
16:42
Speaker 3: So maybe we'll get something. You could wonder whether that
16:45
Speaker 3: makes any difference, frankly, because once you distribute it, given
16:48
Speaker 3: the strength of this default in most people's experience, it
16:52
Speaker 3: may not make a difference whether you label a default
16:55
Speaker 3: or not. If you get you know, the Google win,
17:00
Speaker 3: you know on your phone, particularly where it's very strong
17:02
Speaker 3: because you want to use Google Search, and whether it
17:06
Speaker 3: was a default or not, or whether it's a fault
17:09
Speaker 3: in your Chrome browser, which it's going to be, you'll
17:13
Speaker 3: use it, and you know the payment won't be for
17:16
Speaker 3: requiring it to be a default, say on the iPhone.
17:21
Speaker 3: But you know, Apple may still make it a default
17:23
Speaker 3: unless they're offered a better alternative, which the testimony. The
17:28
Speaker 3: testimony from Eddie Q, the Apple guy involved, was that
17:32
Speaker 3: he wouldn't buy being for any amount of money. Ever,
17:36
Speaker 3: apparently so he needs something better, and is he going
17:39
Speaker 3: to take away Google Search full from Apple users? I
17:43
Speaker 3: doubt it. So there might be some modifications, but at
17:46
Speaker 3: the moment Google can still pay for default. And here
17:49
Speaker 3: again this was the judge's concern for the impact and
17:54
Speaker 3: being modest, sort of the impact on you could say,
17:59
Speaker 3: the whole eCos system of stopping those payments and you know,
18:04
Speaker 3: maybe wrecking Firefox, you know, go, you know, even you
18:09
Speaker 3: seem to be concerned about wrecking Apple. I didn't know
18:12
Speaker 3: that Apple was in such bad shape. But there we are.
18:15
Speaker 2: Well, the government said it's considering its next steps. I mean,
18:19
Speaker 2: I don't know what next steps it can take besides appeal.
18:22
Speaker 2: But Google has previously said it's going to appeal. So
18:25
Speaker 2: we assume we'll go to the Supreme Court. Right, It
18:27
Speaker 2: could be years, then years and years before this gets implemented.
18:32
Speaker 3: Yeah, it might not go to the Supreme Court. Court
18:34
Speaker 3: doesn't have to take it. Who you know, who knows
18:36
Speaker 3: the court didn't take Microsoft for example, So yeah, maybe, yes,
18:41
Speaker 3: maybe no. But the years is right. This will be
18:43
Speaker 3: a while yet, and we haven't seen but could see
18:50
Speaker 3: political interference with this. We really don't know. So there's
18:55
Speaker 3: a lot between now and then, I guess. But the
18:59
Speaker 3: liability decision, which he made more than a year ago,
19:03
Speaker 3: I guess is that the whole bundle is subject to
19:07
Speaker 3: appeal once a final judgment is entered, which he has
19:12
Speaker 3: not done yet. So once that's done, then the parties
19:16
Speaker 3: have you know, I think, sixty days to file their
19:19
Speaker 3: notices of appeal and then the process starts to play
19:24
Speaker 3: out in the Court of Appeals, you know, unless they
19:27
Speaker 3: start some sort of settlement negotiations or something.
19:32
Speaker 2: I mean, do you think that his opinion is conservative
19:35
Speaker 2: enough to survive the DC Court of Appeals?
19:39
Speaker 3: So he did a lot to try to survive review
19:44
Speaker 3: by the Court of Appeals. I mean, he relied quite
19:47
Speaker 3: heavily on you know, key decisions, particularly the Microsoft remedy decisions.
19:52
Speaker 3: And he also, oh, by the way, bolstered one of
19:56
Speaker 3: the potential weaknesses in the liability decision while he was
20:01
Speaker 3: at it. So I think it's not perfectly bulletproof the
20:07
Speaker 3: aspect of letting AI companies share in some of these data.
20:13
Speaker 3: If I were Google, I would be hitting on that
20:15
Speaker 3: whether that was you know, not warranted given as he
20:18
Speaker 3: started out by saying there was nothing at the trial
20:21
Speaker 3: about AI and there are ways of casting what he
20:25
Speaker 3: did as maybe not within the balance of what the
20:29
Speaker 3: goal was in the trial. So there's some potential issue there,
20:33
Speaker 3: and I think it is certainly possible. I mean, I
20:36
Speaker 3: assume Google will pursue that, So I think it's a
20:39
Speaker 3: pretty you know, I mean, it could be more conservative.
20:41
Speaker 3: I guess he could have just given Google what Google wanted.
20:45
Speaker 3: But it's a carefully drawn opinion, and you know, time
20:49
Speaker 3: after time he sort of knocks the government plaintiffs back
20:54
Speaker 3: a bit by saying, you know, you've overreached, you're asking
20:56
Speaker 3: for too much. You know, we need to be modest, etc.
20:59
Speaker 1: Etc.
21:00
Speaker 2: Harry the trial later this month to determine remedies in
21:05
Speaker 2: a different case brought by the Justice Department, where a
21:09
Speaker 2: judge found that Google holds illegal monopolies in online advertising technology.
21:16
Speaker 2: How does that threaten Google? Is it more of.
21:19
Speaker 3: The same, Well, it is a little different. There's some
21:24
Speaker 3: a bit of remedy on advertising, but not very much
21:28
Speaker 3: because it's so much directed at effect on the search
21:33
Speaker 3: engine market so directly, not so much indirectly. I think
21:39
Speaker 3: we have to see it because from the beginning, the
21:42
Speaker 3: Justice Department has asked for structural relief to break apart
21:48
Speaker 3: the way Google does advertising, you know, to break it
21:53
Speaker 3: up in fact, and have them to vest certain parts
21:56
Speaker 3: of its advertising stack as they So this opinion is
22:02
Speaker 3: very skeptical about this structural relief said, you know, if
22:07
Speaker 3: nothing else works, then that may be possible. But the
22:10
Speaker 3: ad Tech case may be a case where you know,
22:13
Speaker 3: it's been directed at structural relief, so that may be okay.
22:17
Speaker 3: Another aspect is how much money Google has made from advertising,
22:21
Speaker 3: so it reinforces the notion that this has been a
22:25
Speaker 3: monopolized market, so you know, that may have some effect.
22:29
Speaker 3: It's important to note that that case is in a
22:32
Speaker 3: different federal circuit. It's not in the DC circuit, and
22:37
Speaker 3: it may be that the Justice Department chose to file
22:40
Speaker 3: there for a number of reasons, but one of it
22:42
Speaker 3: may be that on remedy wanting a structural remedy, the
22:46
Speaker 3: DC circuit is a bad place to bring a case
22:49
Speaker 3: like that given Microsoft, so maybe they were trying to
22:52
Speaker 3: avoid that by being in a different circuit, in the
22:55
Speaker 3: fourth circuit. So we've yet to see. I think she's
22:58
Speaker 3: been holding up on this spending meta's opinion on remedy.
23:02
Speaker 3: But you know they are fencing along on remedies hearing
23:07
Speaker 3: in that case, so that should happen relatively soon.
23:12
Speaker 2: Yes, I googled it and the trial is scheduled to
23:15
Speaker 2: begin on September twenty second. Thanks so much, Harry. As always,
23:20
Speaker 2: that's Professor Harry First of NYU Law School, coming up
23:24
Speaker 2: next on the Bloomberg Law Show. More than one thousand
23:28
Speaker 2: HHS employees are calling on rfk Junior to step down.
23:33
Speaker 2: I'm June Grosso and you're listening to Bloomberg today. More
23:38
Speaker 2: than a thousand current and former employees across the Department
23:42
Speaker 2: of Health and Human Services signed a letter calling for
23:45
Speaker 2: Health Secretary Robert F. Kennedy Junior's resignation, accusing him of
23:51
Speaker 2: endangering the health of Americans. The new letter comes just
23:55
Speaker 2: two days after nine former directors and acting directors of
24:00
Speaker 2: the Centers for Disease Control and Prevention wrote an op
24:03
Speaker 2: ed also condemning Kennedy for endangering every American's health. Doctor
24:09
Speaker 2: Richard Besser was one of the signees.
24:12
Speaker 1: We have grave concerns that the Secretary of Health is
24:15
Speaker 1: endangering the health of people across our nation by not
24:19
Speaker 1: letting the agency do its job, not following the science
24:22
Speaker 1: and putting out guidance around COVID vaccine that is leading
24:25
Speaker 1: to confusion.
24:26
Speaker 2: But it appears Kennedy is not listening. He wrote in
24:30
Speaker 2: a Wall Street Journal op ed published today that his
24:33
Speaker 2: changes are restoring trust in the CDC that was lost
24:37
Speaker 2: during the COVID pandemic. That's something he said before.
24:42
Speaker 4: I'm very confident in the political staff that we have
24:44
Speaker 4: down there now that they're going to be able to
24:46
Speaker 4: accomplish that and ensure the confident functionality of that agency.
24:54
Speaker 2: My guest is Harry Nelson, a partner at Leech Tishman
24:57
Speaker 2: Nelson Hardiman explain some of the concerns that healthcare professionals
25:03
Speaker 2: have about Kennedy.
25:05
Speaker 1: Yeah.
25:05
Speaker 5: I think first and foremost what they're sounding the alarm
25:08
Speaker 5: over is the politicization of public health itself. It just
25:14
Speaker 5: seems that, you know that we're kind of in a
25:17
Speaker 5: battle where science is losing ground over ideology in steering
25:23
Speaker 5: health policy. So, you know, I think that op ed
25:26
Speaker 5: was intended to be as public a form of rebuke
25:30
Speaker 5: for RSK and the way he's reshaping the CDC and
25:33
Speaker 5: public health policy as could be. You know, it was
25:37
Speaker 5: the vaccines left week or two, but it's going to
25:40
Speaker 5: move on to you know, the CONTI conversation over environmental
25:44
Speaker 5: causes of autism and all the ways in which he
25:47
Speaker 5: has really become, you know, very politicized and moving away
25:51
Speaker 5: from science and kind of driving our public health policy.
25:54
Speaker 2: He's canceled medical research how much and in what areas well?
25:59
Speaker 5: I mean the cuts medical research have mostly come through
26:02
Speaker 5: National Institute of Health NIH grants, over a billion dollars
26:06
Speaker 5: in NIH grant cuts across different institutions, and you know,
26:11
Speaker 5: just a massive, you know, reduction in kind of established
26:14
Speaker 5: leadership in positions that were previously not considered political, from
26:20
Speaker 5: the leadership of CDC itself, removing Susan Monarez after just
26:24
Speaker 5: a few weeks on the job, to completely clearing out
26:27
Speaker 5: the Advisory Committee on Vaccines, and so he's just done
26:32
Speaker 5: a wholesale shift on public policy in ways that will
26:36
Speaker 5: be experiencing the ramifications up for years to come. It's
26:39
Speaker 5: not decades.
26:40
Speaker 2: What probably prompted this, the final straw, if you want
26:44
Speaker 2: to call it, is the attempt to fire Manarez. So
26:48
Speaker 2: she was just in there for a month. Didn't they
26:51
Speaker 2: know what she stood for? What happened?
26:54
Speaker 5: You know? I think essentially she was really just following
26:57
Speaker 5: sort of standard protocol at the CDC, and it was
27:00
Speaker 5: clear that there was tension escalating as there was a
27:04
Speaker 5: push from RFK and the people around him to narrow
27:08
Speaker 5: federal COVID vaccine recommendations, to get rid of the standing
27:13
Speaker 5: Advisory Committee, to start really changing the Vaccines for Children program,
27:19
Speaker 5: And essentially it became clear that she was standing in
27:23
Speaker 5: the way of some of the very aggressive moves that
27:26
Speaker 5: RFK and as people wanted to make.
27:28
Speaker 2: RFK promised he wouldn't take vaccines away from anyone, but
27:33
Speaker 2: tell us what happened with this guidance, the recent guidance,
27:37
Speaker 2: and what it means for people who not in those
27:39
Speaker 2: categories but want to get vaccines.
27:42
Speaker 5: I mean, so the main thing was that, you know,
27:43
Speaker 5: the SDA essentially planned the break you could say on
27:47
Speaker 5: sort of broad access to COVID boosters. Vaccines will remain
27:50
Speaker 5: available and covered for sixty five and over and for
27:55
Speaker 5: younger people who have a specific risk factor, but in
27:58
Speaker 5: general are not going to be available for people under
28:02
Speaker 5: sixty five without some specific risk factor, and of course
28:06
Speaker 5: it's an issue of access. It now appears that there
28:09
Speaker 5: are a number of states in which is going to
28:11
Speaker 5: be very difficult to get vaccines, and also the cost
28:14
Speaker 5: of vaccines because the change in health policy is going
28:18
Speaker 5: to mean that the insurance companies will not be doing
28:22
Speaker 5: any cost sharing on them, so these vaccines will be
28:24
Speaker 5: much more expensive. It's clear that there's going to be
28:27
Speaker 5: a difficult time for people who are wanting to get vaccinated.
28:32
Speaker 5: And you know, the real question that will come likely
28:35
Speaker 5: at the end of the next flu season that's not
28:37
Speaker 5: yet here, is what the death rate, what the hospitalizations
28:41
Speaker 5: will be. I think a lot of people will be
28:42
Speaker 5: watching closely to see what the net impact of these
28:47
Speaker 5: changes is going to be.
28:48
Speaker 2: So is that for the COVID vaccine? What about flu shots?
28:52
Speaker 5: This was specifically a COVID policy, but it's clear that
28:55
Speaker 5: there are going to be significant limits on the flu
28:58
Speaker 5: vaccine as well. But this specific policy was update to
29:02
Speaker 5: eligibility for the various COVID nineteen you know vaccines you'll
29:06
Speaker 5: remember as Pfizer, Maderna, and Novovac. It's certainly going to
29:10
Speaker 5: have a broader effect on access to other vaccines, just
29:14
Speaker 5: because so many pharmacies and insurance companies are taking their
29:17
Speaker 5: leads from COVID policy for purposes of broader like influenza
29:22
Speaker 5: B and other flu related shots.
29:25
Speaker 2: Is there anything that can be done or is it
29:27
Speaker 2: just a question of you know, Kennedy's there and that's
29:30
Speaker 2: it unless he's fired for some reason.
29:33
Speaker 5: Obviously, we're going to see lawsuits undoubtedly and challenges to
29:38
Speaker 5: the firing of CDC director essentially, you know, questioning whether
29:42
Speaker 5: there's a violation of separation of powers here and whether
29:46
Speaker 5: there's any kind of retaliatory aspect to this. There certainly
29:50
Speaker 5: is the possibility that states could start enacting their own
29:54
Speaker 5: coverage mandates. We already see California and New York Massachusetts
29:59
Speaker 5: are kind of moving in that direct and Congress could
30:01
Speaker 5: step in here, although it doesn't seem like that is
30:03
Speaker 5: likely to happen. The real remedy here, I think, is
30:06
Speaker 5: if the American public are upset about this. It's not
30:10
Speaker 5: only in the courts or in Congress. It's also just
30:14
Speaker 5: by a public outcry to make it clear to President
30:18
Speaker 5: Trump and his administration that this is really, you know,
30:21
Speaker 5: a high priority issue that's concerning people. I do think
30:24
Speaker 5: there are political remedies that are legal remedies, but the
30:27
Speaker 5: train that's sort of leaving the station, then if they're
30:29
Speaker 5: going to happen. We need to see some action, you know, eminently.
30:33
Speaker 2: In this up ed, the CDC directors called on Congress
30:38
Speaker 2: to exercise oversight authority over the Department of Health and
30:43
Speaker 2: Human Services. What can Congress do if they wanted to?
30:47
Speaker 5: Congress certainly could hold hearings, They could start to subpoena
30:52
Speaker 5: you know, administration officials. They could certainly exercise you know,
30:55
Speaker 5: authority to restore funding to state and local health agencies
31:00
Speaker 5: that's been cut. I mean, I think there is quite
31:02
Speaker 5: a bit that they could do. I think investigating holding hearings,
31:06
Speaker 5: you know, demanding accountability from RFK, from the people reporting
31:10
Speaker 5: up to him, and filling some of the funding gaps
31:12
Speaker 5: are the obvious things that they could do. Kennedy, it
31:15
Speaker 5: doesn't seem that Congress is at this moment demanding the
31:18
Speaker 5: kind of answers on everything from the vaccine policy to
31:23
Speaker 5: the leadership changes and the funding shifts that you know,
31:26
Speaker 5: people concerned with public health might hope that they would.
31:29
Speaker 2: Well, Kennedy's going to appear on Thursday, I believe, so
31:33
Speaker 2: maybe we'll see some of that. But you know, Bill Cassidy,
31:36
Speaker 2: and he was the Louisiana Republican senator who delivered the
31:41
Speaker 2: key vote to confirm Kennedy, and I remember he said,
31:44
Speaker 2: I'm something like I'm trusting you on vaccines. He called
31:48
Speaker 2: on HHS to indefinitely postpone it's Vaccine Advisory Committee meeting
31:54
Speaker 2: on September eighteenth. That's not a long term solution.
31:58
Speaker 5: It's justesting, you know, Cenator Casey, who was as chair
32:01
Speaker 5: of the Senate Health Committee and as a doctor with
32:04
Speaker 5: someone whose vote was clearly pivotal in the confirmation, seems
32:08
Speaker 5: to be trying to walk a cautious line here asking
32:11
Speaker 5: for oversight, transparency, postponement on some of these critical vaccine
32:15
Speaker 5: advisory you know meetings. He's definitely an important voice here.
32:19
Speaker 5: What's been disappointing to me has been that, you know,
32:22
Speaker 5: RFK is basically just refusing to dress, you know, square
32:27
Speaker 5: on the issues. He seems to be just interested in
32:31
Speaker 5: deflecting blame and you know, kind of trying to stay
32:34
Speaker 5: on a higher level message about problems at the CDC
32:37
Speaker 5: and a need for strong leadership, but without really getting
32:40
Speaker 5: into the nuts and bolt of vaccine policy. And frankly,
32:44
Speaker 5: there's no way to see the actions being taken now
32:47
Speaker 5: as consistent with his testimony during the confirmation hearing.
32:51
Speaker 2: He is suggesting Silicon Valley investor and entrepreneur Jim O'Neill
32:57
Speaker 2: is a new acting CDC director. Tell us about him.
33:01
Speaker 5: Yeah, I think people are worried that Jim O'Neill is,
33:04
Speaker 5: you know, is not coming from the world of public
33:07
Speaker 5: health and science. O'Neill, first of all, was a deputy
33:10
Speaker 5: to RFK already and seems to be aligned with his
33:14
Speaker 5: vision that he's just rebuilding the CDC. He's not expected
33:19
Speaker 5: to put any challenge forward, you know, in the name
33:23
Speaker 5: of science or in the name of public health. Is
33:25
Speaker 5: likely that he's just going to be, you know, a
33:28
Speaker 5: mouthpiece for RFK and for all the changes that are
33:31
Speaker 5: already being made. So I don't think anyone who's concerned
33:34
Speaker 5: about what's going on is that all reassured by O'Neill's selection.
33:37
Speaker 2: Does the CDC director have to be confirmed by the Senate?
33:40
Speaker 5: Yeah, the CDC director is a confirmed position. Yeah. I
33:43
Speaker 5: think a lot of it will flow from how much
33:45
Speaker 5: feedback the senators are getting from their constituents. You know.
33:49
Speaker 5: It certainly is an opportunity to sort of take the
33:52
Speaker 5: pulse of where America is standing on these issues. My
33:56
Speaker 5: understanding is that he can serve six or seven months
33:58
Speaker 5: without a formal confirmation hearing, so we may see this
34:01
Speaker 5: issue pushed off until, you know, early twenty twenty six.
34:05
Speaker 2: So Trump said he would allow RFK Junior to go
34:08
Speaker 2: wild on healthcare, and he certainly has done that. Are
34:12
Speaker 2: there any restrictions on what RFK Junior can do.
34:18
Speaker 5: It's hard to see where Trump is having misgivings. I mean,
34:23
Speaker 5: you know, there's certainly are areas where they were aligned.
34:26
Speaker 5: We've seen, you know, President Trump posting on true Social
34:29
Speaker 5: urging pharmaceuticals to release more data and sort of, you know,
34:34
Speaker 5: claiming that there's some kind of hidden story about vaccine efficacy.
34:38
Speaker 1: You know.
34:38
Speaker 5: I think it's funny because President Trump has taken pride
34:42
Speaker 5: at different points on Operation Warp Speed in the extent
34:45
Speaker 5: to which his administration brought the vaccines out in the
34:48
Speaker 5: middle of COVID, when, by the way, we had in
34:50
Speaker 5: the course of two years we look at the data,
34:52
Speaker 5: now over a million Americans dead in the first two
34:55
Speaker 5: years of COVID. I think President Trump is largely distancing
34:59
Speaker 5: himself from RFK specific actions and still trying to protect
35:04
Speaker 5: his vaccine legacy. I would think that there's probably some
35:08
Speaker 5: discomfort with the more aggressive aspects of RFK, but we
35:12
Speaker 5: have yet to see like a real action to sort
35:14
Speaker 5: of rein him.
35:15
Speaker 2: In Well, what was surprising to me is that they
35:18
Speaker 2: had a gallup pole in July and Kennedy had higher
35:23
Speaker 2: favorability ratings than Trump and the vice president and others.
35:28
Speaker 5: Interesting. He's obviously a very polarizing figure. I mean, make
35:32
Speaker 5: America Healthy Again campaign has a lot of resonance. He's clearly,
35:37
Speaker 5: you know, someone who for people who were excited about
35:40
Speaker 5: what RK presented, he's delivering right, you know, whereas President
35:44
Speaker 5: Trump is definitely having to walk a line sort of
35:46
Speaker 5: affecting how people view him. But for people who buy
35:49
Speaker 5: into the public health agenda that's being carried out in
35:52
Speaker 5: this administration, to them, RFK the hero.
35:54
Speaker 2: Okay, so we talk about the negative things, is he
35:56
Speaker 2: doing anything positive to make America healthy?
36:00
Speaker 5: There definitely are some good things. He's calling attention to
36:05
Speaker 5: big food and to you know, the need for a
36:08
Speaker 5: sort of new look at nutrition as a driver of health.
36:11
Speaker 5: You know, the people who support him see him as
36:13
Speaker 5: a reformer fighting against entrenched institutions, and I think MAHA
36:18
Speaker 5: make American Health against speaks to people who are frustrated
36:20
Speaker 5: with public health bureaucracy. But the problem is that when
36:24
Speaker 5: you look at the op ed piece that came out,
36:25
Speaker 5: for example, I mean the other side has a strong
36:28
Speaker 5: scientific grounding to say that he's taking risks with American
36:32
Speaker 5: health buy things like dismantling vaccine infrastructure. So there are
36:36
Speaker 5: things that are positive. He's calling attention to chronic disease.
36:40
Speaker 5: He's doing, you know, good things to sort of try
36:43
Speaker 5: to create a populist focus on chronic illness in America
36:47
Speaker 5: and the way in which American healthcare could stand to
36:50
Speaker 5: be changed and shake it up. But I think we're
36:52
Speaker 5: seeing that he's also throwing out the baby with the
36:55
Speaker 5: bathwater on things like vaccine policy that I expect we'll
36:59
Speaker 5: see is really keeping Americans alive and out of the
37:02
Speaker 5: hospital in much larger numbers than without it.
37:06
Speaker 2: How likely is it that during the winter months we'll
37:09
Speaker 2: see a resurgence of COVID without these vaccines.
37:15
Speaker 5: I think that's a critical question, and I think will
37:17
Speaker 5: be watching. Obviously nobody is hoping for bad news, but
37:23
Speaker 5: I think people are going to be watching very very
37:26
Speaker 5: closely for the number of hospitalizations and the number of deaths.
37:30
Speaker 5: And I do think that clearly by narrowing vaccine eligibility
37:36
Speaker 5: to the sixty five and older group and to people
37:40
Speaker 5: with a high risk condition, there's a bet being made
37:44
Speaker 5: that those populations are the most at risk and have
37:48
Speaker 5: the biggest central benefit. And on the other side, is this,
37:51
Speaker 5: you know, not backed up by science, that there's negative
37:54
Speaker 5: effects of vaccines for healthier, younger Americans. And so I
37:59
Speaker 5: think everyone's should be watching the numbers months by month
38:02
Speaker 5: as they get released closely this season, and certainly we
38:06
Speaker 5: should all be praying for a mild flu season, you know,
38:09
Speaker 5: not to have deadly variants of COVID, you know all
38:13
Speaker 5: the other flues that are out there, bird flues. You know,
38:16
Speaker 5: we should obviously be hoping for the best, but we're
38:18
Speaker 5: definitely not coming into the season in a state of
38:21
Speaker 5: high preparedness. If the opposite happens, and if we have
38:24
Speaker 5: something deadly, well, as.
38:26
Speaker 2: You say, let's hope not. Thanks so much, Harry. That's
38:29
Speaker 2: healthcare attorney Harry Nelson of Leech Tishman Nelson Hardiman. And
38:34
Speaker 2: that's it for this edition of the Bloomberg Law Show.
38:36
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38:39
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38:43
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38:51
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38:55
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