Missouri Lawsuit Against Google Could Shift Senate (Audio)

the US Senate. He's running as the favorite to win the Republican nomination, what's arguably the most important race in the mid term elections. Joining me is Josh Brustein. He's Bloomberg News technology reporter. Josh is Harley on a crusade

against the tech industry. Well, we'll see. He certainly seems to think that it's useful for him to position himself as a critic of Google um, which is interesting because you have a Republican official who is making a case to basically bring government action against a very successful, very innovative private company. So what is Harley's investigation at this point? Concentrating on as possible legal violations by Google. Yeah. So there's two things that he's going to be looking at,

or that he's already looking at. The first is privacy. UM. He wants to know whether Google is misusing uh personal information and whether it's communicating to its users in a way that's not completely honest. UM. The other thing is an antitrust violation. That would be whether Google is abusing its dominant power as a search engine to gain an advantage over competitors. UM. The most obvious example of this

is UM. It's if you type Google. If you type like a restaurant into Google, you'll you won't just send you to website, You'll see some information right away. And UM critics say that Google is basically cutting out companies like Yelp by taking their information and just presenting it to you right away without ever sending you to their site. So. Google has had several encounters with antitrust claims, including the e use record two point seven billion dollar fun which

is on appeal. Tell us about the FTCs investigation of Google. Yeah, so the FTC looked into similar allegations starting in it decided not to bring a lawsuit in twenty UM and there was a number of UM settlements announced with Google, where the Commission basically said, we've looked at these issues. Google has agreed to make some changes in its behavior, and other issues we think are just not UM are

just not relevant, and so we're satisfied. Now, that doesn't mean that all of Google's critics were satisfied, and so that's kind of the reflection of that is what we're seeing in the Holly investigation. How much of an uphill battle would a lawsuit this kind a lawsuit against Google b in US courts? Yes, so it would be an

uphill battle. Uh. First of all, just practically Google has much more resources in the Missouri Attorney General's office does, and so just in terms of, you know, the actual battle, that would be an issue. And Holly hopes to get other states involved, which I think is really a big

factor into whether this proceeds. UM. The other thing is just that American antitrust law is much more permissive than European antitrust law, and so the fact that a European court found something there doesn't mean that a U. S court will find something here. Civil lawsuits, we know, take a long time years perhaps, but a lawsuit doesn't have to be a winner to damage a company. And you

wrote about Microsoft as an example. Yeah, it's interesting. Um, Microsoft was the target of the most prominent antitrust case brought against an American technology company. It started in these In the end, it didn't really result in a major

finding against Microsoft. It made some adjustments. Um. But people, both people who supported that case and those who criticize it, say that a major outcome was that Microsoft was a little bit careful going forward because of those lawsuits and ended up getting out maneuvered by companies like Google that was kind of an upstart at the time. So Holly says he'll make a decision on whether to bring charges this summer, when his Senate campaign will be in full swing.

How much of this is politically motivated? Well, whenever you see an attorney general bring a high profile case, um, it is there's a political calculation in there, especially when

that attorney general is also running for office. I do think that one thing that we might see here is Holly, whether or not this case goes forward, is kind of testing out whether positioning himself against Google is a good is a good thing to do, even as a senator and that the end result of this might not be a lawsuit, but it might be something that he tries to do as a legislator. And I think that's something to watch. He's been in office for fourteen months, He's

already running for a Senate seat. That's a pretty quick turnaround. Yeah, And ironically, part of Holly's campaign for Attorney General was him saying I'm not just going to use this as a stepping stone to get to the next office. Um. He had this now embarrassing commercial where he sort of walks through a sea of ladders and says, I'm not just a ladder climbing politician. So I'm sure you will see that in some of the opposition as against him. He is certainly open to criticism that he's um really

rising quite quickly. And tell us a little bit about his race, how how pivotal it is. Yeah. So, um, Holly is running against Claire mccaskell. She's a Democrat. Um, she's been in term, She's been in office for two terms. She uh is running in a state that went very heavily for Trump and is seen as an unusually vulnerable Democratic incumbent. Now the Democrats are trying to win the Senate.

To do so, they have to capture some Republican seats, but they also have to defend their own seats, and so if mccaskell loses, that will put the party in a pretty tough spot. Are there other attorney generals state attorney generals looking into possible charges against Google? Or is he the only one? So this is the first anti trust suit or it's not a suit yet, it's an investigation that's been brought by a state attorney general since

the FTC decided against pursuing its own case. Now, Holly's office says that there are other states that are very involved and very excited about potentially joining on. We haven't heard from any of those states. We will see if we do. But at the moment, he's kind of out there on his own and uh, Google says it's cooperating with his investigation. Just in about thirty seconds. Do you

think a Google has much to worry about from him? Well, I think that this case is probably not at the top of the list for Google um to be worried about. I do think that what the company is worried about is it indicates a broader atmosphere of skepticism and hostility towards Silicon Valley, and that can really build in unpredictable ways. And that's what Google has to watch out for. Always a pleasure to have you on. Thanks so much. That's

Josh brustin Bloomberg News technology reporter. President Trump declared the opioid crisis and national public health emergency in October. There are now more than four hundred lawsuits against the manufacturers and distributors of opioid painkillers. Joining me is James Ferraro, founder of the Ferraro Law Firm. He's representing plaintiffs in about twenty four cases in several states. He's also the author of the book Blindside, which recounts his decade long

courtroom battle against chemical giant DuPont Jim. There are more than four hundred federal lawsuits consolidated in what's called a multi district litigation nor MDL. Before Ohio federal judge Dan Polster describe the complexity with so many theories and plaintiffs with different interests, Well, you know, it is kind of it looks like a quagmire on its face. In the biggest problem with the litigation is that there are there's so many uh uh manufacturers, distributors, then you know a

manufacturer level. You also have the generics then you know so so you have a lot of targets. And then um, you know then about half a dozen doctors that were involved in promoting it. So you got a lot of targets. And then on the other side you have claimants coming out from all over the place, and there's several types. There's these third party claimants sort of like unions for their health funds where they spent a lot of money on you know, addiction and treatment that type of thing.

And um, then you've got the governments, state governments that are trying to recover for loss on Medicaid, medicare, the and will just assist in their hospital, police and so on and so forth. So there's a lot of elements to it. And but the one thing that I think there is one one part of the case that is the kind of denominator for everyone, and that is where does liability begin and where does liability end? And that really is going to come down to the threshold on

where there's responsibility. For instance, these opiates, Um, they're perfectly fine for end of life care. That's what they like morphine and things of that nature. That's perfectly fine, and it's legal, and that's what that it is supposed to prescribe for that. The other side of spectrum, whether's you know, pretty clear liabilities where they got overprescribed. You know, when I was a kid and I got my wisdom teeth pulled,

I was prescribed extra strength pile and all. Now you can get four thirty dair renewals for opiates when you get your wisdom teeth pull which is obscene. Now that's clear liability. So the thresholds can be somewhere between the clear liability there and the end of life care and one of the thresh hold dare to apply to everybody. Let's move to some of the things happening in the

multi district litigation. The judge made news, at least in legal circles when he told the lawyers he wanted to put litigation efforts like discovery on hold so the lawyers could engage in settlement discussions. Briefly, how did that unorthodox move go? Well, you know what I mean, I think

the judge poles to what he's doing. What I think is correct is to try to resolve the behavior which in other words, get get the conduct change, because there's a hundred fifty people a day dying in the United States, and that's where he wants to go first, and I think he's correct. After that, he wants to get into the monetary components, you know, who gets, who is damaged how much, and that to him is less important, maybe

not to the litigants but to Judge Posting. But I think he is right on that you really need to get the behavior changed first, cut off the bleeding and um which is everyone's benefit, and then move into the monetary components. The problem is, there's so many moving imparts, and there's so many different like I talked about previously, so many targets, and there's you know, it's just not

like tobacco. We have like, you know, four major tobacco companies and you know, it's their product and it's just you know, basically one on one, you know, But that's not what we have here. Well, the companies want to settlement that would resolve state lawsuits as well, and the judge wants a deal addressing the company's business practices on the roots of the crisis. Does that seem like an

overwhelming ask? It's a big ask. I mean it's I mean, it's it's you know, it's it's not easy because there's so many players that could come out of the woodwork. I mean, where does it end. I mean, you know, some of these some of the damages are going to be easy to calculate. You know, for instance, you's got like Medicare losses. You know, like how much was spent on Medicare for opiates that were improperly prescribed and treatment so on at the government level. You've got a lot

more than that. So now the judge all that that wasn't moving forward as as quickly as he likes. So he's cleared the way for the lawyers to start collecting evidence, etcetera. He's giving both sides until marks sixteenth to come up with a litigation plan. About a minute. Is that doable? I mean it's it's doable in a litigation plan, A general litigation plan is definitely doable in that amount of time.

I mean, there's no question. But he's got to get the steering committee together and assign that out to all the different firms, Like there's gonna who's gonna do discovery on the corporate rapture? You know, for farm mine, who's going to do it on you know, you know, the cassion and so on and so forth. But the the actual general plan I think you can get in place. The execution of it, It's gonna take a lot longer and about thirty seconds here has there have you seen

uh an md L that's been this complex before. This will probably be the most complex MDL in history because of all the moving targets that it's It certainly sounds like a big task facing that Ohio judge and the plaintiffs and defendants in this case. Thanks so much for joining us. Jim, that's James Ferraro. He is a founder of the Ferrara Law Firm, and his book is called Blindsided. It's about his decade long courtroom battle against chemical giant

du Pont. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg