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- [00:00]
Narrator/Advertiser
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Elliot Stein
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Narrator/Advertiser
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- [02:53]
Elliot Stein
Hello and welcome to the Votes and Verdicts podcast hosted by the Litigation and policy team at Bloomberg Intelligence, the investment research platform of Bloomberg LP on the Bloomberg Terminal. Bloomberg Intelligence has 500 analysts and strategists working across the globe and focused on all major markets. Our coverage includes over 2,000 equities and credits, and we have outlooks on more than 90 industries and 100 market indices, currencies, and commodities. This podcast series examines the intersection of business policy and law. My name is Elliot Stein. I'm an analyst with Bloomberg Intelligence covering litigation in the financial sector. And I'm delighted today, as usual, to be joined by several of my Bloomberg Intelligence colleagues. Just to date stamp this, because things move quickly. Quickly. Today is July 30, 2026. It's a little after 11:30am here on the east coast. And this is our weekly look at some of the most important litigation and policy catalysts that our team is watching and that we think will impact companies across a number of different sectors in the coming weeks. As always, you can find all of our research on a Bloomberg terminal at Di Go, and you can find our policy and litigation dashboard on the terminal at Di Laws Go. All right, so with all that out of the way, let's get going. Let's bring in our antitrust analyst, Jen Re. Jen, how are you doing?
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Jen Re
Fine, Elliot. How are you doing?
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Elliot Stein
Well, thanks. So, Jen, I wanted to have you on for a while to talk about litigation by states challenging the Paramount Warner Brothers discovery deal. Due to our different vacation schedules and then some other episodes, we're already in the queue. We had to put discussion of this litigation off. But I'm excited to be able to dig into it with you and hear your thoughts on it all. So it sounds like the states won a TRL with temporary restraining order, I guess, about a week ago, and the parties have agreed to refrain from closing while the litigation plays out. So, I mean, that really just highlights how critical this litigation is. So what are your thoughts on, you know, sort of where we are in the current landscape and how you see things playing out?
- [05:12]
Jen Re
Yes. Right. So that was a really surprising decision or agreement by Paramount and Warner Brothers to stipulate like that because, Elliot, it's very expensive for them. They will have to, starting October 1, pay a ticking fee to shareholders of Warner Brothers that will be paid quarterly but accrues daily 25 cents a day per share. And that's something like 7 million a day. And if this drags out six months, which it very well could, that could be something like 1.5 billion extra dollars they're going to have to pay out unexpectedly. So they very much might must have been concerned over two issues. One, that after losing that temporary restraining order that you mentioned, that they would also lose on a motion for a preliminary injunction. That was what was on the queue. Right, right. What the states needed to do here because they're seeking a permanent block, but because there aren't legal impediments to keeping these companies from closing because the Department of Justice has cleared it already, they needed a restraining order to keep them from closing and they needed the preliminary injunction to keep them from closing until the final decision on whether the judge should permanently block the deal. Right. That was in the queue that was expected after the decision on the tro. The companies must have thought it was kind of in the cards that they were going to lose, that it was a stronger decision than they anticipated for the plaintiffs on the tro. I mean, it's kind of a given in these merger cases that they're going to win those. The standards are low, the burden is not high. But the judge's language suggested she was willing to accept market shares, combined market shares that are very borderline from a nanny trust perspective, and that she was willing to accept those as presuming harm from this combination. And it would will be quicker for the companies to, using a movie term, cut to the chase and get straight to the heart of the matter, which is this permanent injunction rather than having the preliminary decision. So now where we are is fighting out for a trial date on that permanent injunction. The companies would like that to be in November. Not only are they paying this ticking fee, but their merger agreement has an end date of June 4th of next year, after which time Warner Brothers can walk away if they choose to, without being in breach of the agreement. And if antitrust prevents them from closing as of June 4th of next year, there will be another $7 billion fee that Paramount has to pay Warner Brothers, the antitrust breakup fee. So they want to move this along quickly. I suspect it's more likely that that hearing is going to be in the first quarter, though I do think the judge will decide well before June 1st. I think it's a very, very close case in terms of outcome. I'm waiting to see. We don't have a lot of detail yet other than kind of, you know, broad statements to the press about how Paramount's going to refute the allegations that the states have made. And I should mention there's a second lawsuit that's somewhat partially consolidated here by the Reuters Guild of America on behalf of writers. My feeling was originally that When I looked at the markets, there weren't strong antitrust arguments against the deal, but the states submitted a surprisingly strong complaint in my view. Where they framed the relevant markets in which competition would be harmed artfully and in a way that makes their case stronger in terms of presumptions of harm. And this was at least good enough obviously to get this TRO from the judge. But now it's going to come down to how Paramount refutes those market definitions and how it refutes the manner in which the plaintiffs calculated those shares. I think this really all comes down to that. And when I'm talking about market definitions, I should clarify what the state said. They said that this deal will harm competition in three markets. One is the distribution of wide release theatrical films. These are feature length films intended for broad exhibition and starting in movie theaters, not for streaming. The second is a subset of that market which is the distribution of anticipated top grossing theatrical films. So these are films with really large budgets. They feature major intellectual property or really well known art writers, directors, actors. They have big, huge marketing campaigns. Think like the Odyssey, that that would be a film that would sit there. And then the last market was the licensing of basic cable channels to distributors in the US Distributors meaning like cable companies, fiber optic network, satellite companies that where some people who haven't yet cut the cord still get, you know, pay for a subscription of a package of channels. The combined own a pretty big set of all of those basic cable channels that are in those packages, including cnn. So that was the third market in these markets as defined by the states. The market shares combined in one exceeds 30% and the other two sit at around 27% based on looking at box office for the last four calendar years. And so I think what Paramount's probably going to do is come in with a strong argument and with a lot of economists with stu studies showing that one, these aren't appropriate, that's not the way they compete, that's not their markets. And the shares aren't calculated correctly. And if you do it in a different time frame or in a different manner, you're going to come out with shares that are combined that are much lower. And I think it's going to be important to see that. And also what will be important is what their own documents say because judges give a lot of credence to the way the companies in the ordinary course of their business think about the competitive markets in which they participate. That is very important. So the documents are going to be important. Paramount economists are going to be Important. You know, on the Writers Guild, they're looking at labor markets, payments to writers for TV writing services for anticipated top grossing films, writing services on episodic TV shows, and then writers who have deals like contracts for two or four years of exclusivity with the studio. People like Chuck Lorre, who created Big Bang Theory and a bunch of other shows, who works for Warner Brothers. So those are their three markets. This is a little bit of a tougher haul, I think, than the state's case because these private plaintiffs have to show antitrust standing. And that can be really difficult for private parties that challenge a deal because the harm is often pretty speculative. And labor theories of harm are really new. There's very little precedent. It did work for the FTC when it challenged Penguin, Random House and Simon and Schuster when they tried to merge. In that case, the FTC said it was the acquisition of publishing rights for authors to anticipated top selling books that would be harmed. These were authors that tended to get advances of 250,000 or more and generated competitive auctions. But I think it's a little bit different than this case because there the combined share was 50%, much clearly in a harmful area than a 30% combined share. And as I said, it's all about the evidence. And I went to that trial and the evidence was very strong in terms of these publishers themselves seeing a market that was separate and distinct for these kinds of authors and showing that there was a lot of competition between the two merging companies to bid for these kinds of authors. And so we have to see if there's that kind of evidence in this case. One last thing, Elliot. I'm focusing on the legal aspects of the deal, but I should also note that in mergers, whenever there's big delays, highly increases chances of deals falling apart for other reasons, financing other issues. And as I said, if this is not closed by June 4th of 2027, either side can walk away based on the terms of their agreement. So there's also. Things are getting shakier for the companies from that sense as well.
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Elliot Stein
Okay, so a lot to weigh, a lot to unpack. So the companies want the trial in November, you said the states want it probably in the first quarter, which you think is probably going to be more likely.
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Jen Re
Is that right? Yes. Yeah, it's going to. I mean, they need to do discovery. It takes time. You know, you got to. You've got to get ready for these kinds of things. You need expert discovery. They will both have economists that help them with market definitions and market share analysis. So it just takes a certain amount of time. Not very much has been done because you don't do that much before a temporary restraining order.
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Elliot Stein
Right. And will you be able to see all that evidence as it comes in when they file it, or is most of that going to be under seal or redacted?
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Jen Re
No, I think quite a bit of it will be under seal. And I think because we probably won't have motion to dismiss in summary judgment process here, we'll just get pretrial papers, pretrial motions. And so we're going to have to wait for that and we're going to have to wait for the trial.
- [13:50]
Elliot Stein
What does your gut tell you in the state's case now you're leaning towards the state's having the better the argument. I know a lot of it is going to be subject to what, the evidence, actually.
- [13:59]
Jen Re
Yeah, I mean, I just think that it's really, really close. But my. I think the weakest aspect of their case, and I just don't know the answer to this, is how they define those shares. You know, the Judge already accepted 27% share as creating a presumption of harm. That is a little bit unusual because where there's no sort of set number, most courts think of it as 30% or more. That is helpful to the states. But on the other hand, they picked this very specific four years. I don't have access to the data that they used. My question would be, if you took the data they used and you did a different four years, or you did six years, or you did 10 years, do those market shares look markedly different? And if they do, that's really a problem for the states because then they will not be able to establish a presumption of harm.
- [14:45]
Elliot Stein
Interesting. Is it going to be a bench trial or jury trial? Bench trial.
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Jen Re
Bench trial.
- [14:50]
Elliot Stein
Do you have a sense of how long the trial will be?
- [14:52]
Jen Re
Yeah, I think it could be three to four weeks.
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Elliot Stein
Right. And then, I mean, after that, presumably there'd be an appeal. How's that going to play into the whole timing here?
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Jen Re
Well, the issue to me will be if the companies win, the states will still try to seek an emergency stay and they're closing pending their appeal. If they don't get it, my guess is that the states will not continue on with an appeal because once the companies can close and integrate, it's really hard. They don't win very much. Even if they win, the best you're going to get is some sort of a behavioral remedy. A behavioral. Which I don't really think is going to help very much. I'm not really sure what kind of behavioral impositions you could impose that would assist in the competitive aspects of this deal. So I suspect that would be the end of it if the companies lose. They have already talked about trying to appeal this all the way to the Supreme Court. But as I said, Elliot, there are practicalities involved when it comes to a deal. You cannot be in limbo for that long. Financing falls apart, things change. You've got a situation where Warner Brothers can walk away and take that $7 billion fee. I don't know that they're going to be able to stick it out that long.
- [16:03]
Elliot Stein
Plus, what would be the issue for the Supreme Court here? This doesn't seem like, you know, it's the kind of case or issue that goes all the way to the Supreme Court.
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Jen Re
Well, I think the Supreme Court issue would be that if the market shares don't exceed that 30% threshold. Right. But the judge basically accepts those shares as creating a presumption of harm. I think that the companies would argue that's an improper interpretation of the law. Right. That it should be 30% or more, or that based on the guidelines that the Department of Justice uses, which aren't precedent for a judge, by the way. They're just guidance that where you don't have shares, where you need to have shares at 30% plus concentration figures over a certain threshold in order to presume harm, and that the judge didn't have that, but yet presumed harm. Just a guess. Also, I suspect that there's this issue of efficiencies in the review of a merger. If harm is found, a judge is supposed to balance that harm against the merger. Specific verifiable efficiencies proven by the defendants. In this case, at least one set of efficiencies they've claimed is that bringing them together will make them a stronger competitor to other streaming entities like Netflix and Disney. The judge has already rejected that. And this is an area that's controversial and not clear in the law in the antitrust because she has said the efficiencies have to be shown in the relevant markets in which there is harm. And streaming is not a relevant market in which the states have alleged harm. This is not a settled issue in antitrust. So the Supreme Court could argue, could certainly ask whether or not it is necessary for those efficiencies that are balanced against the harm to be within the same markets.
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Elliot Stein
Got it. Very interesting. Very interesting. All right, just one last question. What's like the next catalyst you're looking for in the near term?
- [18:02]
Jen Re
I think just the next briefing, the pre trial briefs that come in. Because at this point, like I said, there's no motion to dismiss or summary judgment practice. They will now start doing some discovery and getting their experts ready. I'm hoping if the trial's as early as December, we should be starting to see pretrial briefs in September, October. And so to me, that's going to be a very interesting read.
- [18:25]
Elliot Stein
Okay, sounds good, Jen. I'm glad we finally were able to get your views on this case. I'm sure there's going to be a lot more probably in the months ahead, not so much the weeks ahead. All right, thanks, Jen. All right, Matt Shettenhelm, let's bring you in to talk about Meta and these social media addiction cases against Meta and some of its competitors that you've been writing about and that you've talked about several times here. Because there's an August trial coming up against Meta and Meta's trying to stop that trial from happening. What's the latest there?
- [19:00]
Matt Shettenhelm
Yeah, this is the big, big ticket item in this social media addiction litigation. It's been going on for a number of years, as we've said, and it's coming towards a significant trial in the middle of August based on suits by state attorneys general who it's been reported Meta released that those states are now seeking $1.4 trillion against the company in this litigation. And so Meta went to the 9th Circuit last week and said we need to hit pause on this whole trial. And it did that Meta had filed an early appeal after the court refused to grant its motion to dismiss. And Meta went to the Ninth Circuit and said, look, this case shouldn't proceed at all because of the Section 230 liability shield. That should cut off the whole case that was argued in January of this year at the ninth Circuit. The ninth Circuit's done nothing to rule in that case. And so Meta or came back last week and said we need to hit pause because if the ninth Circuit rules our way, we don't need to have a trial. We win at least a big part of this case under the section 230 liability shield. So that huge potential risk in terms of liability for Meta and would be great news if it could succeed on this appeal, obviously.
- [20:38]
Elliot Stein
Right. So, I mean, what's the timing on hearing from the appeals court?
- [20:43]
Matt Shettenhelm
Yeah. So Meta in its stay request to the 9th Circuit said, Look, we need to hear from you before this trial. So at the first page of the documents and ruling requested by August 11, I believe they put across the brief. So, you know, I think we'll hear something from the appeals court pretty quickly here. I'm surprised. I listened to that January argument, both in January and then I listened again after, after this development. Say, what's going on here?
- [21:15]
Elliot Stein
Right.
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Matt Shettenhelm
You know, it looks like a loser for Meta. When I listened to it in January, it didn't go well for Meta. And you listen again. It's like, I don't really see a way Meta can win on this appeal at this stage. The problem is generally you can't appeal appeal rulings at the motion to dismiss stage. You have to wait for a final judgment in federal court. In federal court. And so this is sort of trying to use what's known as the collateral collateral order doctrine to get an early appeal. And they say section 230 is sort of the special kind of case where that should be permitted, where you don't have to keep litigating when you should, should, should win. And under the 230 liability shield, the three judges that heard this case in January just didn't really seem to buy that. So it, you know, I think Meta will lose. It does surprise me a little bit that it's taken the court so long to say that. And so that probably gives Meta a little hope that it's taken this long. It's also possible that after they rule, Meta tries to take this immediately to the Supreme Court as a potential to try to stay this huge trial. So that's worth watching as well.
- [22:43]
Elliot Stein
That's so interesting. Did Meta say anything about this when they reported the earnings yesterday?
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Matt Shettenhelm
Yeah, so not specifically. I mean, they did refer to these social media addiction trials, and they said, look, we could incur material losses going forward on this. They also took on a 2.4 billion litigation charge, but didn't explain what that was for. And so when you look at recent litigation on these issues, I can't get to 2.4 billion. They lost a case in New Mexico for $375 million where a jury awarded against them for that amount. A couple others. They settled a Kentucky school district case for about $9 million. A couple others, but nothing approaches $2.4 billion. So it makes you wonder if this is an accrual tied to expected or likely losses or likely upcoming settlements.
- [23:50]
Elliot Stein
Right.
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Matt Shettenhelm
In this case that's coming next, that
- [23:56]
Elliot Stein
could certainly be the case. So just going back to the Ninth Circuit, I mean, do you think they, in response to Meta's request, they issue their decision from the January argument or they just Deny this request and say until we have a decision, we're not going to stop a trial.
- [24:12]
Matt Shettenhelm
I think this decision really shouldn't be that complicated. I mean, to me, and if I were them, I'd almost do it as an unpublished decision, just like. Nope, you know, like. And that would also discourage the Supreme Court from getting involved. It's, you know, look, this is an easy one. We don't allow early appeals. This is clear law. There's no new precedent here. So to me, that would be the way this most likely ends, is the 9th Circuit finally gets that decision out from the January argument and then we don't need to fight over, over a stay at all.
- [24:46]
Elliot Stein
Right. It's so odd that they haven't. It's taken so long to issue that decision.
- [24:51]
Matt Shettenhelm
Yeah, I mean, six months, I guess, isn't, isn't that long for an appeals court.
- [24:58]
Elliot Stein
It sounds like a relatively simple issue.
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Matt Shettenhelm
That's, that's what I thought too, where they were going to have a pretty, you know, clear view on it. You wouldn't imagine, you know, multiple opinions from the three judge panel. So I would expect we'll see a decision ruling against Meda just on procedural grounds, like maybe you got something on section 230, but you have to bring that appeal later, after. After trial, not. Not after stage one.
- [25:27]
Elliot Stein
Got it. All right, well, I suspect we're going to continue to be talking to you in the coming weeks as this develops. Since we had this trial coming up, I mean, it's only, what, three weeks away now at this point, right?
- [25:39]
Matt Shettenhelm
Yep. For sure.
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Elliot Stein
All right, Matt, thanks a lot. Appreciate it.
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Matt Shettenhelm
Thank you.
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Elliot Stein
All right, Holly Frome, let's bring you in and talk about some Johnson and Johnson mass tort litigation, I guess, or product injury litigation. Johnson and Johnson announced us this week that they're settling talc talcum powder related litigation for five and a half billion dollars. Sounds like that was maybe a little less than you had anticipated, but maybe tell us more about the settlement and what the implications are.
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Holly Frome
Sure. Thanks, Elliot. So, yep, J and J agreed to said it agreed to pay $5.5 billion to resolve lawsuits alleging its talcum powder causes cancer. The settlement, according to JJ, will only go through if it's accepted by 95% of the estimated 76,000 claims. But some people are saying that the 5.5 billion is a floor and not a cap. And the amount could actually go up to 7 billion, depending on how many claimants seek to be included. So we had said that 69,000 cases could settle for between 7 to 8 billion dollars. So that number is slightly less than our estimate because that, you know, if it, if it's between 5 and 7 billion to cover 76,000 cases, and we had said 7 to 8 billion to cover 69,000 cases or at least 95% of 76,000 cases. So it's slightly less than what we had expected. But the posture of the cases probably gave J and J significant settlement leverage. And what I mean there is that. So in most of the cases were consolidated before a judge in a federal judge in New Jersey. And the cases had to get past Daubert challenges, which are, you know, the experts have to be admitted to testify, the courts have to find them reliable, otherwise they the, the plaintiffs can't get their cases before a jury. So in this case, the special master who was tasked with making a recommendation to the judge as to what to do with the Daubert motions, recommended that general causation experts be admitted. And I thought that that ruling would likely be adopted by the judge. But when it came to specific causation experts, they had Dauert hearings and their experts for the plaintiffs gave pretty damaging testimony during the hearings. And what they said was that they couldn't say that the talcum powder was a substantial contributing factor for the bellwether plaintiffs and they couldn't rule out other potential factors as substantially contributing. And that means that they couldn't prove the case. So plaintiffs knowing that before the special master even came out with a recommendation as to whether these experts are reliable, withdrew the experts and they were the sole experts in the bellwether trials in the mdl and then realizing they had no experts, and JJ was seeking to dismiss all cases in the MDL based on that, they sought to reinstate those experts. So the magistrate judge, who also makes recommendations to the judge, the presiding judge issued an order to show cause to the plaintiff's counsel, demanding that they show cause why all the cases in the multi district litigation shouldn't be dismissed because they don't have an expert in these bellwether cases. So that gave JJ pretty significant settlement leverage. And then the deal was announced. I still don't think the court would ultimately dismiss the case. I think the magistrate judge would have, you know, recommended even if he recommended dismissal, I don't think that the presiding judge would have adopted it because it prejudices too many plaintiffs in the MDL and it binds them to what the, you know, the plaintiff's liaison council did. But anyway, it gave the JJ leverage and I think a majority of plaintiffs will probably opt into the deal. But some probably think that they can get more. And I doubt that the judge will dismiss the case if they don't settle. So I think some will probably not accept the deal, but I think a majority will.
- [30:01]
Elliot Stein
Interesting. And so so far you just have what, the company's announcement about the settlement. You haven't seen the actual settlement agreements or anything like that?
- [30:10]
Holly Frome
No.
- [30:11]
Elliot Stein
Do you anticipate seeing those soon?
- [30:13]
Holly Frome
They may file something? They don't always file. They don't always file something with the court? Sometimes they do, but they don't always file the settlement agreements in these types of cases with the court because they don't need the judge's approval.
- [30:27]
Elliot Stein
Oh, that's interesting. Even though it's a class action, it's
- [30:31]
Holly Frome
not a class action. They have to get plaintiffs counsel to agree to the deal. And so it's like any regular settlement agreement.
- [30:39]
Elliot Stein
Interesting. It's not a class action. Okay. No, I guess because the injuries could be different.
- [30:44]
Holly Frome
I guess sometimes in these types of cases they'll, you know, rarely they'll try to certify the plaintiffs as a class. But in these types of cases, they usually, the courts usually don't certify them as a class because of the reason that you mentioned. It's because they're individualized injuries. But in this case, you know, they're not seeking to bind anyone who's, you know, a future plaintiff or anything like that. So it would be plaintiffs who have filed claims who are represented in the MDL or who are filing them pro se. And so those people would have to sign on to the deal. So it's, you know, it doesn't have to be approved. The only time you have to have approval is when there's like a class action deal and there are unnamed, linked or unnamed plaintiffs and, you know, unrequited represented plaintiffs that are going to be bound by the deal. Or if you have like a minor who's, you know, the judges need to approve that, typically.
- [31:45]
Elliot Stein
Gotcha. And just one last question. Any, any read across from this settlement or this case, you know, more broadly to other cases that you're watching.
- [31:56]
Holly Frome
Well, the settlement. So it's on a per case basis. If you, if you take the figures that they've thrown out there, it's about 76,000 a case, which is not extremely low, but lower than I expected. But I don't think this has read across because of what happened with the experts. I mean, it's just so rare that that happens where the experts testify that, you know, they just kill your case, basically. So, yeah, I think that that's, you know, it's kind of an outlier and that, you know, that probably this is probably, you know, a word of like a warning to other, to other consumers, like what not to do when you're trying to have experts admit it.
- [32:47]
Elliot Stein
Yeah, I mean, it's like a pretty critical issue. All right. Yeah, I mean, that's a super interesting part of the case and a super interesting case overall. All right, well, Holly, thank you and thank you, Matt, and thank you, Jen. Really interesting stuff. I think we'll leave it there. We'll wrap up this episode of votes and verdicts. As always, thank you for listening. If you have any questions about any of the cases that we talked about on this episode, please don't hesitate to reach out to us at your convenience with your questions. As a reminder, you can find all of our research on the Bloomberg terminal at Di Go. You can find our policy and litigation dashboard on the terminal at Di Lawsgo. We want to thank our producers as always, Aditya Somani and Mariam Traore, without whom we never be able to publish this episode. Thank you again for listening. Have a great day and we'll see you next week.
- [33:57]
Jen Re
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Narrator/Advertiser
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Jen Re
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Matt Shettenhelm
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Jen Re
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