NYC restaurant manager leads $2 billion class-action lawsuit over COVID restrictions

This is a rush transcript from “Your World with Neil Cavuto," September 3, 2020. This copy may not be in its final form and may be updated.

NEIL CAVUTO, FOX NEWS ANCHOR: All right, read it and weep.

A rough, rough day for stocks at the corner of Wall and Broad, averages that were just touching records just yesterday, selling off big-time today.

The catalyst for a lot of this was something you just heard with Jon Scott and Chad Pergram, among many factors dissuading stockholders, the idea that the United States government is on the verge of right now owing more than the United States through its goods and services is worth.

If that wasn't a Debbie Downer, the expiration of extra unemployment benefits at the federal level, and Mitch McConnell doubting that a new spending package can come together anytime soon, renewed tensions between U.S. and China and friction certainly targeted toward Chinese diplomats already here, add it, and a big, big sell-off in technology shares, and you had a big sell-off, the biggest we have seen in more than three months right now, and concern that maybe this leads to still more selling.

Perspective is an order here. Things are still pretty good. Some of those technology stocks that were swooning, by the way, are still up in excess of 30 percent from where they were a little more than a couple of weeks ago. That's with the sell-off.

The read right now from Susan Li, following all those numbers -- Susan.

SUSAN LI, FOX NEWS CORRESPONDENT: Neil, worst day on Wall Street since June.

And you're right. Big tech, momentum plays, stocks that have run up a lot this year, were the main drags today. So, Apple saw its worst day since March, just before the stock market hit bottom.

Now, Apple, the world's largest company, and also the single most influential stock on Wall Street in close to half-a-century, it's so big that, when it falls, it takes the broader market along with it, so Apple taking a breather, along with the rest of markets, after a really hectic pace of gains since the end of March, ending the shortest bear market in history.

Apple, Salesforce, Microsoft, Home Depot, and Amgen accounting for more than half of the Dow's losses. Also, Amazon, Google, Facebook, other tech high-fliers recording steep losses in the session as well. Investors were even selling off the popular Elon Musk and Tesla. That says something, Tesla on its worst three-day sell-off since March, at the height of COVID.

Now, remember that Tesla is one of the best-performing stocks this year. It's up over 400 percent, catapulting Elon Musk as the third richest man on the planet, overtaking Mark Zuckerberg this week.

Zoom has also been a name and one of the, if not the lockdown winner of the year, rallying close to a 50 percent in one single session on Tuesday after earnings. Zoom, along with other work-from-home winners, the DocuSigns, the CrowdStrike, and the Pelotons giving back some of their incredible gains this year.

But I did look around for some winners for you, Neil. So, I want you to think of energy and oil plays. Travel, Carnival Cruise Lines and Hyatt Hotels, these stocks have been decimated, but they have been staging a comeback in the past month or so.

And, Neil, don't forget, we have a long weekend coming up, and so Wall Street tends to close up their books early, and don't want to hold too much risk if they can't sell out when the markets are closed.

CAVUTO: Very good perspective, Susan. Thank you very, very much, Susan Li, on all of that.

To put this in perspective on how rampant or widespread this selling got today, on the Big Board, declining issues were swamping gaining ones by an 18-1 margin, 18-1, in other words, 18 times more selling than buying.

On the Nasdaq, what do you think was going on there? -- 70-1, 70 decliners for every one gainer.

Now, here's what we're going to do before I get to my next guests, because I want us to be all over this. And we will leave for you.

As you can see, Verizon, American Express the two gainers within the Dow 30 today. We are going to rifle through all the biggest developments in sector moves, what other countries were doing, where we are, not only today, but I thought it would be very handy to give you a perspective with today's sell- off where we still are, so not to just sort of look at this day as a single snapshot of all the days.

It's not. It is an anomaly. So, no matter what we're talking about and who we're talking to, this will continue throughout this show. So, if you bear with us on that, no matter who's talking -- and it could be on a political development -- we will rifle through all of this, because we feel we owe you a lot more than just give you a headline number or a headline stock report, without giving you some context for that.

So, if you can -- don't mind being blitzkrieged by data, we're going to blitzkrieg the data.

With all of that, I do want to get a take on people who follow these type of movements very, very closely, whether this is a time to step back and pause or get out of Dodge.

Ted Weisberg, the market institution -- in fact, many have recommended putting him in one. He's that good.

(LAUGHTER)

CAVUTO: We have also got Kathryn Rooney Vera here of Bulltick Capital Markets, both geniuses.

So, I appreciate it.

All right, Teddy, to you first.

What happened today? What brought this on?

TED WEISBERG, PRESIDENT, SEAPORT SECURITIES CORPORATION: Well, first of all, we have seen this show a number of times before.

CAVUTO: Absolutely.

WEISBERG: So, I think, whatever the catalyst, Neil, when you get reversals in trends -- and the trends have certainly been positive, particularly for the tech sector -- when you get these reversals, I think, initially, you have to view it as technical in nature.

They're sharp. They're painful. It's hurtful. I'm not sure we're out of the woods yet. But the fact that they pulled -- kind of pulled the plug on the techs, and the rest of the market followed today, I think it's just a sign that the market was simply overbought.

It's probably been overbought for the last two or three weeks, if not the last month or so. And so these corrections happen. Fundamentally, I'm not sure that anything changed. We all know what the issues are. I don't think there's anything dramatically new today fundamentally to cause this.

So, from my perspective, I'm not sure we're through it yet, but I view it as a technical pullback from an overall positive trend. And I would -- I would think that, at some point, the trend will re-exert itself.

CAVUTO: You know, Kathryn, if we started the day, before the markets opened, with surprisingly good news on the claims front. I say good news from where we used to be, where these were regularly over a million, 881,000 in the latest period, a lot fewer claimants than thought.

The trend again continues, those with continuing claims down two million from what people thought they would be. So that looked good going into trading. And then all hell broke loose.

Now, when you see something like this, what do you tell your clients?

KATHRYN ROONEY VERA, BULLTICK CAPITAL MARKETS HOLDINGS: I tell them it's an opportunity to buy, Neil.

I think that this is -- as Teddy correctly said, this is a fullback and a dip. And I think we need to take into consideration, Neil, what brought us to Apple rising 100 percent from its low, what took us 50 percent higher on the S&P following March 23.

And the answer, Neil, is the Fed stimulus and federal government stimulus, neither of which is going to end anytime soon. So, if we don't get what I fully expect to occur, the cash that's waiting with breathless anticipation on the sidelines for a dip, a comfortable dip, I call it, of this magnitude, 3 percent, 4 percent.

It's not a meltdown. So, I think guys are going to step in. I expect that to happen today and tomorrow. And I think, if that doesn't happen, the Fed steps in. The Fed has shown us that they're willing and able to back up the markets. They're already buying high-yield bonds. They will increase their high-yield bond purchases.

And if this continues in the downside, I personally don't think that the Fed would discard buying equities.

CAVUTO: Wow.

Well, that is an interesting issue, Ted, because, you think about it, Wall Street is typically this laissez-faire institution that hates government coming in and fixing things and spending a lot of money, that is, unless it's for them in the middle of a meltdown and they need their heinies saved?

(LAUGHTER)

CAVUTO: So, I'm wondering, is it a whole new world now, where Wall Street just waits for more stimulus? What do you think, Ted?

WEISBERG: No, Neil, I don't think so.

I think the one thing we have experience, thanks to the Fed, since the financial crisis of 2008 and 2009, is that we have seen the Fed that's been in a very accommodative mode, and that really has created a back -- a positive backdrop for equities through most of the teens and now again because of the pandemic.

So, the Fed has basically been very Wall Street-friendly. I'm not sure I would agree with your other guest that we can count on the Fed coming in to bail us out all the time. I think they have already done that.

I think, really, what we're experiencing here, Neil, is a market that just got way ahead of itself. Stocks are not rational. Stock pricing is not rational. And stock markets are not rational. They tend to get overbought. And they tend to get oversold.

And I simply think that we have reached a point where we are way overbought. And so we're due for a correction. You can wrap around any rationale you want around it. And what we have learned today is that stocks -- and we know this always -- stocks always go down faster than they go up.

CAVUTO: All right.

WEISBERG: So, I think the smart thing to do is just kind of get out of the way and let the tanks roll over us, and wait for the dust to settle.

And I think, as your other guest has just pointed out, there's a ton of cash on the sidelines. And this will be an opportunity for those folks that haven't already to perhaps put a lot of money to work when things get just a little more reasonable in price.

CAVUTO: You know, Kathryn, Ted touched on the possibility of a correction, which is a 10 percent falloff from highs, which, for the Dow, would be another 2,800 points or so, if that were to be true.

But what do you tell investors, then, Kathryn, who've had these big gains in some stocks, at Apple, let's say if they're lucky enough to hold Amazon or Microsoft, some of the big technology giants?

You don't lose money until you sell. So I get that. It's all on paper for the time being if you don't move.

ROONEY VERA: Sure.

CAVUTO: So what would you tell them to do?

ROONEY VERA: So what we have been telling them to do is to rotate away from tech, because tech since 2017, Neil, is five specific names, actually. And we all know what they are.

The five biggest tech names are the ones that have taken the markets higher. If you discount those five names, the markets are flat. So it is those names that have really taken markets to where they are. So we're recommending a rotation to industrials, which hasn't done as well, and to banks. Those are the ones that have really pulled up the rear, energy less so because it's such a highly volatile asset, specifically oil.

But I will defer with Teddy. I think this is the Fed moving the markets. I think the Fed is largely manipulating the markets. We have seen that both in treasuries, mortgage-backed securities, and now in investment-grade and now high-yield bonds.

So I think the dislocation between a 10 percent unemployment rate, 30 million people still claiming unemployment benefits, and a market at all- time record highs can only be, can only be attributed to both fiscal and monetary stimulus.

And let's not forget that 30 -- and this comes from the BLS, the Bureau of Labor Statistics -- 30 percent of people's personal income now comes from the federal government. So, consumption heretofore has been pushed by the government.

CAVUTO: All right.

ROONEY VERA: So this is a pernicious cycle, I think, that is fundamentally wrong. But the opportunity cost, Neil, of not being in the market is too large.

CAVUTO: All right, we will see what happens.

Kathryn, I want to thank you. Ted, thank you. Both good reads of this market.

ROONEY VERA: Thank you.

CAVUTO: By the way, everyone is focusing on what happens tomorrow, right? And the granddaddy of all economic reports comes out. That would be the employment report for the month of August.

And the betting seems to be will gain a million or so jobs. But what they're really focusing on -- and this is something they don't always do -- is that unemployment rate, which had climbed well near 16 percent for a while, gotten down to 10.2 percent in the latest month, talk that it could go under that tomorrow, be in single digits, certainly for the first time since this whole virus shutdown started.

I want to go to Charles Payne on that and the importance of that report.

So, Charles, let's say we get the read that I just said is that estimate for the employment report. What would the markets do with that? Or are they now focused more on looking at the downside of any number than the upside?

CHARLES PAYNE, HOST, "MAKING MONEY": You know, that's a great question.

And I'm not 100 percent sure, I will say, the bottom of today's session was 334. Then we saw -- we actually saw a flurry of buying, again, ahead of this number tomorrow. I think good news will be good news, because, to your earlier point, we're still going to be in a lot of trouble historically compared to where we have been.

So a number like two million would be phenomenal. The unemployment rate is not as an important if we don't see people come back into the labor force. We don't want one of these skewed unemployment rates, that moves down, but that's because people have left the labor force for good. That's really not good news.

So I'm still overall believing that Wall Street wants to see a better number, wants to see this momentum continue. But I think the issue, really, though -- and this market, I hope, sends a message to Congress today -- that there's work to be done, that this bridge that they provided has been -- was wonderful.

CAVUTO: Yes.

PAYNE: It helped tremendously. But this sort of dithering and the political posturing, I'm really surprised we didn't have a bigger sell-off sooner, when everything expired and Congress went on recess.

We were working on sort of fumes. And Teddy and Kathryn made some wonderful points. And I will say, for these particular stocks that have led us, like Tesla, for instance, back in 2000, there was a company called World Online.

A lot of people don't know about this, because it was an IPO in Europe, a Dutch online company, one of the biggest in history. It was his. They raised the most amount of money ever at that time. There was a big party. Everyone's drinking champagne.

And a reporter says to the CEO, hey, what are you going to do now with your newfound wealth? And she looks at him and says, well, I already sold all my stock.

(LAUGHTER)

CAVUTO: Oh, man.

PAYNE: And everyone dropped their glasses. Huh?

So it turns out, in my mind, that was the top. That was the market top, that -- a week later, our markets crumbled. I'm not saying that's where we are. But I'm saying, a company like Tesla, where yesterday the company says they're going to sell $5 billion worth, then this morning we find out the second largest shareholder has dumped a lot of stock, that really put the brakes on the momentum stocks.

But I do believe Kathryn is right, in the sense that people are rotating. The banks, we will see what happens. Wall Street has believed the banks could carry us for a long time. The open trade, cruise ship, airline stocks look phenomenal.

Believe it or not, brick-and-mortar retailers have been really doing very well the last couple of weeks. So we want good news tomorrow. And I think that's what the last 26 minutes of trading told us today.

CAVUTO: All right, great stuff.

You always stay calm through these things. Meanwhile, I'm freaking out and all. But you stay calm.

(LAUGHTER)

CAVUTO: This is why viewers love you, buddy. Let me have your e-mails.

PAYNE: Thank you.

CAVUTO: All right, Charles Payne on all of that. He is our rock star on FOX Business. If you don't get it, you're missing it, and it's on you. I'm sorry, America. Don't do that.

All right, we have a lot more coming up, including, we were showing Dr. Fauci and how he might have contributed to this by comments he made about a vaccine that might not come out in October, after all. That's all a lot of investors had to hear to say, all right, well, that's it, get out of town.

Is that fair? Is that accurate? Is that even right?

After this.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DR. ANTHONY FAUCI, NIAID DIRECTOR: If there are a number of infections within a particular trial that allows you to make a decision sooner, rather than later, it is conceivable that you could have it by October, though I don't think that that's likely.

(END VIDEO CLIP)

CAVUTO: The idea that maybe October is a generous time frame for a vaccine, at least in the eyes of Dr. Fauci, rattled a lot of traders, who were hoping that we would see something like that by then, maybe even before then.

Keep in mind that Pfizer had indicated on the same day, actually within two hours, of whether -- when Fauci was making those remarks on CNN, saying that it will be in phase three trials of its own vaccine drug that looks promising by at least that time.

Nevertheless, Dr. Fauci and his comments did rattle a lot of folks.

It's a good time to sort of say, forget about investors and the reaction here. What is the likelihood of a vaccine this year?

Dr. Anita Gupta joins us, Johns Hopkins University School of Medicine, anesthesiologist, physician. You name it, she does it all. And she knows her stuff.

So I defer to your expertise, Doctor.

I mean, he is saying I think what's pretty obvious. We don't know for sure. We hope, but the idea of a vaccine in October that a lot of people think is sort of locked in place might not be. Is that true? Do you think that's real?

DR. ANITA GUPTA, JOHNS HOPKINS UNIVERSITY OF MEDICINE: First of all, look, designing and distributing an COVID-19 vaccine is one of the most challenging public health initiatives in the United States and in the world, and I think that's really important to remember here, and that's ever -- ever undertaken.

And keep in mind, this isn't something that's going to be handled by Dr. Fauci alone. I think it's something that's being done on a global level. And it's being done by the health care industry as we speak. And we have to reach 300 million Americans, right?

And we may have to do it multiple times. So, everyone in the United States and beyond is at a global race. And so I think that we will get there, and we will get there very quickly. I think that we are at an unprecedented rate.

And I think that we will get there to the front lines to patients, but we have to do it very carefully. And it's not whether we get there now or whether we get four months to now. We need to begin preparation.

And I think that's what you're seeing right now, the preparation, the planning. It's never too early to begin action.

CAVUTO: You know, Doctor, it occurs the same time we heard from Temple University and SUNY Oneonta, the State University in New York school system of Oneonta, where they are killing kids now, no in-person classes through the fall, it's going to be all virtual.

Other schools are kicking around the same possibility amid spikes in cases, the University of South Carolina and elsewhere, so many others. I'm wondering what you make of where we stand right now with this thing.

GUPTA: Right.

Look, schools -- people need to be in school. And there's many, many reasons why, one, for social development there. There's an absolute need. And there's evidence that we need our children there. And there is absolute benefit there.

But this is a complex problem. It's not a one-size-fits-all. And the school closures are happening for many reasons, potential exposure, potential policies that are not being put in place early enough.

So, I think our economy, our families, our children, our young adults need it. They need it for their social and emotional development. But I think what we can do right now is create a framework, be sensitive and accountable for the safety and welfare for our businesses, our parents, so that there are no downstream negative consequences or those unintended consequences.

And being -- having said that, we're a very large country. And I think that there are some communities that can potentially open up, and some that won't be able to. So, I think we need to be considerate of that and plan accordingly.

CAVUTO: Well said.

Dr. Anita Gupta, thank you very much. Good catching up with you. And thanks for just giving us the big picture on all of this. I think we all need that.

All right, there are other worries besides just the virus and when a vaccine will come. How about all the violence across the country and how soon that will settle down? We told you about the former vice president is right now in Wisconsin, as was the president a couple of days earlier.

But there's another problem brewing. That is between the president of the United States and the governor of New York. Let's just say they are not, not seeing eye to eye.

And I think I'm putting it kindly -- after this.

(COMMERCIAL BREAK)

CAVUTO: Well, who said everyone was selling off today?

Look at that, Carnival Cruise Lines indicating right now that, at least when it comes to a subsidiary in Italy, it's going to set sail again.

Go figure -- after this.

(COMMERCIAL BREAK)

CAVUTO: All right, want to go to Peter Doocy right now.

He has been following the former Vice President Joe Biden and his trip to Wisconsin today. He has been busy, and he's meeting and talking to quite a few folks -- Peter Doocy, to you.

PETER DOOCY, FOX NEWS CORRESPONDENT: And today's event, Neil, was a hybrid.

Biden spent some of the time listening. He spent some of the time pitching his own policies. And he spent some of the time trying to help the local law enforcement and religious leaders and activists who are gathered here heal.

(BEGIN VIDEO CLIP)

JOSEPH BIDEN (D), PRESIDENTIAL CANDIDATE: I made a mistake about something. I thought you could defeat hate. Hate only hides.

(END VIDEO CLIP)

DOOCY: Biden says he spoke to Jacob Blake on the phone this afternoon. He spent one hour meeting with Jacob Blake's family inside an airplane hangar in Milwaukee, before motorcading this way.

There was a small march that arrived at the church a few minutes before Biden. And many curious locals have turned out, hoping to get a look at the Democratic nominee.

But everything has been mostly peaceful. And Biden is finding out that that was not the case about two weeks ago, where even businesses that were not burned down have been harmed.

(BEGIN VIDEO CLIP)

BARB DEBERGE, OWNER, DEBERGE FRAMING AND GALLERY: They did break our windows, get into our store. They looted. And they tried to start a fire.

But a good samaritan came by and took this rack of our beautiful scarves out into the sidewalk, and put it out. Otherwise, our store would have been up in flames.

(END VIDEO CLIP)

DOOCY: The Democratic nominee and former vice president just left this church.

He and his motorcade are on their way to a local stop here in Kenosha, before heading on back home to Wilmington this evening -- Neil.

CAVUTO: All right, Peter, thank you very much.

Want to go to Congressman Bryan Steil right now. His district includes Kenosha.

Congressman, thank you very much for taking the time.

Well, there, you have had the president visit, the man who wants to be president visit. What do you think?

REP. BRYAN STEIL (R-WI): You know, it was a real powerful couple days here in Kenosha.

So many people during these events, while criminal activity was rampant in the city of Kenosha, were reaching out. They were scared. They were nervous.

Having the president in just two days ago, really, to have that conversation with people who have been personally impacted, as well as to say thank you to the men and women of law enforcement who woke up every day and went out in the effort to reestablish public safety in our -- public safety in our city, was a great event.

It's a real rallying opportunity for the city to heal and now to begin the process of rebuilding the city of Kenosha.

CAVUTO: Congressman, I'm curious as to why the Democratic mayor of Kenosha, as well as the Democratic governor of Wisconsin, weren't keen on either having the president or Joe Biden, that now is not the time.

Did you agree with that?

STEIL: No.

I think it's -- it was a great opportunity in particular for the president to come to say thank you to the men and women of law enforcement, to start to heal the city, and then really to begin the process of rebuilding.

I think it's really impactful to walk the streets firsthand; 60th Street, where much of this happened, is, in better times, the Fourth of July parade route. My favorite memories are kids standing there waving flags and collecting candy.

It's impactful. And when you walk those streets and you see the damage that occurred in the center of the city of Kenosha, if anything, it reminds you of the importance of making sure we fund police and how dangerous of an idea it is to defund police.

CAVUTO: Congressman Bryan Steil, thank you, sir, very, very much. Be safe and be well.

Want to go to Bryan Llenas right now, because this idea kind of candidates going to key states, you're seeing a lot more of that, particularly the president, who has kept a very, very frenetic schedule in Pennsylvania, a key battleground state, the state he surprisingly won four years ago and picked up its 20 electoral votes.

I guess he's trying to do a repeat -- Bryan Llenas, to you.

BRYAN LLENAS, FOX NEWS CORRESPONDENT: Yes, Neil, this is the second time the president has visited Pennsylvania in less than two weeks.

The last time, I spoke to you from Old Forge, Pennsylvania, obviously a very important battleground state, 20 electoral votes. He won this state in 2016 by less than 1 percentage point. He's going to be speaking here in Latrobe, Pennsylvania, at 7:00 p.m. tonight at this airport hangar.

And this is in Westmoreland County. He won this county with 64 percent of the vote. This is Trump country. But this is on the heels of what we're seeing, a bunch of new information from some of the polls.

A Monmouth poll released yesterday showed a race that is tightening among registered voters. It shows that Biden has just a four-point lead over Trump, 49-45. That is a shrinking lead compared to the same poll that was done at the end of July, which showed a 13-point lead.

We're also receiving new information from a Quinnipiac poll that was released just this afternoon. And in that poll, it shows that Biden has a lead over Trump by eight points among likely voters, not just registered voters, but likely voters.

And in that poll from Quinnipiac, it showed that voters believe that the economy is the most important issue. As a fact -- matter of fact, 29 percent of likely voters say it's the economy, followed by the coronavirus at 16 percent.

But here's what's interesting. On the issues on who they trust the most, Biden leads Trump on every one of the issues here in Pennsylvania, except for the economy. On the issue of the economy, they have President Trump leading Biden 52 percent to 45 percent here in Pennsylvania.

And that is the message that we have been hearing from the president here in Pennsylvania. He is really speaking to the blue-collar workers. We expect that message to continue. He's going to go after the former vice president, who is a Scranton native. He's going to probably repeat the same things we have heard, that he has abandoned the workers of Pennsylvania with supporting NAFTA and those other bad trade deals.

And we will see what else he has to say tonight. But one last thing, Neil, a really interesting point in this Quinnipiac poll, it shows that 94 percent of likely voters in Pennsylvania have already made up their mind.

Just 5 percent of voters are in the middle. So, this is an election that we have spoken to pollsters who say this is all going to be about turnout. Who can really bring out their base?

And, tonight, President Trump will be speaking in Trump country in Southwestern Pennsylvania to that base, a big crowd here in the airport hangar. It feels very much like the rallies we have seen in the past, before COVID-19, except now people are wearing masks -- Neil.

CAVUTO: Yes, there is that distinction.

Bryan Llenas, thank you very, very much, my friend. Be safe. Be well.

That man is everywhere, isn't he?

All right, in the meantime here, the dust-up between the president of the United States and the governor of New York, it got a little dustier, or, should I say, nastier -- after this.

(COMMERCIAL BREAK)

CAVUTO: You know, they were kind of doing OK when it came to handling the virus, a little nastiness back and forth, but they were getting along, or so it seemed.

Then the whole violence and lawless cities things, and now you have the president of the United States and the governor of New York all but at each other's throats.

John Roberts with more on that and other developments from the White House at the White House.

Hey, John.

JOHN ROBERTS, FOX NEWS CHIEF WHITE HOUSE CORRESPONDENT: It's almost, Neil, like they were two guys from Queens who just couldn't help but get into a dust-up with each other.

Well, as you put it, it got a little bit dusty.

Let's give you the backdrop for this. Last night, the president signing a memorandum targeting cities like Portland, Seattle, Washington, D.C., and New York City, saying he just might withhold federal funds if they can't get a handle on law and order and lawlessness.

That prompted New York's attorney general, Letitia James, to say, you touch one penny of our budget from the federal government, we're going to take you to court.

And then Andrew Cuomo, the governor of New York, ripping the president here. Listen.

(BEGIN AUDIO CLIP)

GOV. ANDREW CUOMO (D-NY): He can't come back to New York. He can't. He's going to walk down the street in New York? Forget bodyguards. He better have an army if he thinks he's going to walk down the street in New York.

He is persona non grata in New York City. And I think he knows that, and he will never come back to New York, because New Yorkers will never forget how gratuitously mean he has been.

(END AUDIO CLIP)

ROBERTS: Well, the press secretary, Kayleigh McEnany, picking up on that, saying, well, the New York governor just basically admitted he can't bring law and order to the streets of New York City. Listen here.

(BEGIN VIDEO CLIP)

KAYLEIGH MCENANY, WHITE HOUSE PRESS SECRETARY: It's not often you hear a governor describe in vivid detail how he's lost control of his state.

But there you have Governor Cuomo saying, you can't come to New York without an army. Well, I guess that is the case when you have more than 1,000 shootings before Labor Day, when there's a 277 percent increase in shootings in a one-month period over the year prior on.

It's very rare you hear a Democrat governor nakedly admit to failure. And that's what Governor Cuomo has just done for us.

(END VIDEO CLIP)

ROBERTS: You're saying, Neil, you're saying, does he have the authority to do this?

Well, in 1987, the Supreme Court ruled that the Reagan administration Treasury Department could withhold 5 percent of highway funds from South Dakota because South Dakota would not raise its drinking age to 21.

So, the president can do it. However, that withholding was authorized by Congress. They hold the purse strings, and there is no way, no how Congress is going to authorize him to do this.

So, while he can, he won't be able to -- Neil.

CAVUTO: Just two New Yorkers at each other's throats.

All right, thank you, my friend, John Roberts.

ROBERTS: Two guys, two boys from Queens.

(LAUGHTER)

CAVUTO: There we go. What are you going to do about it?

All right, thank you, John Roberts.

George Pataki right now, the three-term former Republican governor of the beautiful state of New York.

It's still a beautiful state, Governor, but, man, oh, man, I mean, between the uptick in crime and a lot of people don't want to go back their, concerns about the virus, and whether New York will ever do things the way it used to do things, it just seems like a mess.

Your thoughts?

FMR. GOV. GEORGE PATAKI (R-NY): It is a mess.

And it's really sad to see, particularly -- I spent 12 years trying to get New York on the right track. And when I left, it was. And, right now, it's clearly on the wrong track.

Your point about two New Yorkers involved in a feud, Trump and Cuomo, Trump's a Floridian now. And maybe that was political, but there are many, many New Yorkers who are now Floridians.

It's just too expensive. The taxes are too high. The social climate has deteriorated enormously. And New York will come back. It's just a question of, will it come back quickly, or will it be a matter of many, many years?

CAVUTO: But, you know, while Governor Cuomo gets a bad rap, he's nowhere near as controversial or polarizing a figure as the New York City mayor, who's been pushing this notion that maybe we hold off on indoor dining in the Big Apple until next year.

Cuomo himself has hinted, you know, that's going to lead a lot of folks in New York to just hop across the river, either by train or swim, I guess, to get indoor dining in New Jersey, which will resume on Friday.

So he gets the bigger issues. He remains a very popular figure, less so the mayor of New York. How do you think they work all this stuff out? Because forget about the arguments with the president. It's those two who aren't on the same page.

PATAKI: That's right.

They don't even talk. And the mayor is a catastrophe. And I think you have bipartisan agreement. Even in this era where Republicans and Democrats don't agree on anything, I think, in New York, they agree that de Blasio has been a catastrophe.

But I don't think you can just say, if you're the governor, sit back and say, well, we have an awful mayor, the city is going down the tubes, isn't it sad?

If I were mayor -- governor today, I would use my emergency powers to take over the entire question of the homeless. Right now, one of the reasons for that spike in crime, one of the reasons for the decline in quality of life are mentally ill homeless wandering the streets, threatening people, and too often engaging in violence.

It is an emergency. I would use the governor's emergency power to remove that from the mayor, who obviously can't deal with that issue appropriately, and put in place the appropriate steps.

So, we have an awful mayor in New York City. But that's not an excuse. When you're a leader, you want to solve the problems, and you look at whatever levels -- levers of power you have to solve problem.

CAVUTO: All right, the governor is not a fan of taxing the rich to sort of balance all of this out, as is the mayor.

Both the state and the city, like so many across the country, have been bleeding money as a result.

I'm just wondering, what would you do to shore up those finances? If you want to rule out tax hikes on the rich, what would you do?

PATAKI: You know, you have to improve the economic climate.

Neil, I went through this. When I took office, we had over a $5 billion deficit. It doesn't seem that big now, but it was back then in relation to the state budget. We had the highest tax burden in America and we were last in private sector jobs.

So, what I did is what I know works. And that is, you have to grow the private sector. You have to create an incentive for wealthy people, not just not to leave, but to come back. You have to create a program of economic incentives, deregulation, lower tax burden, where companies want to invest and expand and hire people and grow the economy.

That's what we did. It worked. It would work again. Right now, the taxes are way too high. The regulatory climate is awful. The social climate, the crime and other things, are just deteriorating day by day.

And so, if you're a wealthy person who can move, or an investor looking to build a factory or an office, you don't look in New York. That's got to change. It can change, but it requires strong leadership.

CAVUTO: All right, Governor Pataki, thank you very, very much, George Pataki, the former governor of New York.

We have reached out repeatedly to Governor Cuomo to get him on. Hope springs eternal we will. We had him on not too, too, too long ago, before the whole virus thing. But we shall see.

All right, in the meantime, we told you a little bit about New York City still not allowing indoor dining. Could keep that posture going right through the end of the year.

A New York restaurant owner who's at wit's end, and now suing -- after this.

(COMMERCIAL BREAK)

CAVUTO: All right, food for thought, how can you make money if you can't sell your food?

A lot of New York City area restaurants are asking that question right now, as the mayor aims at keeping indoor dining restrictions in effect right through the end of the year.

Tina Oppedisano joins us right now. Family owns Il Bacco Restaurant.

I hope I have got that correctly, Tina. And it is quite the attraction, quite the draw, but you and a lot of you and your fellow restaurateurs have effectively said, enough. You're suing for the right to reopen, right?

Where does that stand? TINA OPPEDISANO, IL BACCO RESTAURANT: Hi, Neil. Thank you for having me.

We are suing right now. I think everybody is just sick and tired. Everybody's fed up. It's been far too long. Right now, we're suing the mayor and the governor for $2 billion. That's just an estimated number on the loss of the past six months.

At this point, we're just putting ourselves out there. The five boroughs are speaking out. They're speaking up. And we're just hoping -- we're hoping for a change. We're hoping something happens. We're hoping we catch his attention. And we're hoping that he eventually says, hey, you know what, you guys can eat indoors, just like the rest of the country can, with the exception of Jersey, now 25 percent, and I know California and some places, too.

CAVUTO: Yes, because you just talked about it, that New Jersey on Friday, they're going to allow indoor dining. I mean, this is something that you wanted as well.

Your numbers actually in the New York metropolitan area, the infection rate and all the other data they use, are lower than what's happening in the Garden State. It's really got to get under your skin.

OPPEDISANO: Yes, I believe New York, I think, originally they said, let's flatten the curve.

At this point, I believe it's been about 27 days where we haven't had any increases. And we just hear lots of comments. We hear comments. I have said this before. The mayor has made comments.

And now he's actually coming out and saying, in the month of September, we're going to give you an answer. It may be good, it may be bad, but you guys deserve an answer.

And now that just leaves -- it still leaves me confused. It still doesn't leave me very happy, because I don't understand why everybody else has just been given a direct answer, direct dates, a direct future, and we, unfortunately, haven't. We have definitely been doing the best we can.

I'm here trying to support my neighborhood people, my family, my friends. I mean, we hosted a rally today at Il Bacco. It actually went very, very well. We had about -- I would say about 150 to 200 people there. And everyone came out in support.

And, actually, at the rally, I heard people talking other perspectives on Northern Boulevard, the restaurant across the street, the restaurant down the block.

And to hear other people's experiences of the past six months, it really brings it close to home for you. It just opens up your eyes to how much this is just affecting everybody. It's a ripple-down effect.

And it's just -- it affects the people who wait, people who busboy, the people coming in, customers.

(CROSSTALK)

CAVUTO: Well, do you have outdoor dining, Tina? Do you least have that outlet, outdoor dining? I'm sure you do delivery. Anything to just at least keep some of the business going?

OPPEDISANO: We do.

So, Il Bacco, ourselves, we are in a very fortunate position where we do have a rooftop with a retractable awning. So, thank God, during the summer, we have been OK.

Majority of these restaurants, though, they're outside, they're on the street, couple of tables, a tent, an umbrella, that's it.

CAVUTO: Right.

OPPEDISANO: So that's why I say, like, we're OK. It's really more for looking towards the future.

Come the fall, come the winter, especially, December, January, February, March, there's no way these restaurants will survive. Without restaurants, the economy goes down tremendously, immensely.

And to see New York City, to see Queens, to see Brooklyn, to see these places this way that were once thriving is -- it's very, very disheartening.

CAVUTO: You know, the mayor made a comment. I'm probably getting it not word for word, Tina.

So, the gist of it was that the restaurants, well, if some wealthy people can't go out and eat, that that's essentially their problem, that -- as if everyone who goes out to eat at your restaurant or any other is just some part of the Grey Poupon crowd.

I mean, did you take offense to that?

OPPEDISANO: Yes, that's -- that is a great point.

I mean, he said that restaurants -- indoor dining is for the middle to upper class. To hear such a thing, it's absolutely unbelievable to think that the mayor of our city would say such a thing, being that, what about the people that these restaurants employ? What about my staff?

We don't care about them? What about him? He doesn't go out to eat? He doesn't go inside indoor restaurants? So is he -- I mean, it's just -- it's preposterous to me, to be honest.

I hear lots of people say multiple things. I have heard Cuomo say, oh, they could go over the bridge, and eat in Jersey. Now I hear people saying that we should go out in Long Island.

It's almost like people are advocates for people leaving the city of New York. And that's truly how I feel. I'm not here to point fingers and say -- I'm not here to point fingers and get upset at anyone.

But just yesterday, the county executive of Nassau County, Laura Curran, made a speech, wine and dine in Nassau County, where we will -- we will keep you away from the cold. She made a comment like that.

And I know you want your county to thrive, but being that you're surrounded by Brooklyn and Queens, and you know that we're struggling and we're suffering, to say something like that is also unacceptable to me.

CAVUTO: Well, I think you're going to get through this.

I mean, your restaurant has a great reputation, great food. But you're right. I mean, this is something that, if they're allowing it in Jersey with numbers much, much higher certainly than the New York metropolitan area, it should at least consider it.

Tina, hang in there. I think -- I think there's light at the end of this tunnel. I just hope it's not an approaching train.

OPPEDISANO: Thank you.

CAVUTO: Tina Oppedisano at Il Bacco, destination for good Italian food.

OPPEDISANO: Thank you so much, yes.

CAVUTO: No, thank you. Best of luck to you and your staff.

I do want to bounce this off Mark Penn. I know you're thinking, all right, restaurants, Mark Penn and the economy issue, but for a reason.

Because these are issues that matter sometimes to a lot of people, Mark, a lot more than some of the bigger issues like the economy or the markets on a crazy day.

I'm just wondering how this falls out in areas that cannot get back to normal, and it's delay upon delay and delay. What do you think?

MARK PENN, FORMER CLINTON CAMPAIGN STRATEGIST: Well, it's interesting.

I was just looking at our latest polls on this. And the public is very cautious. I mean, the public is willing to shut things down and keep them shut, and -- but mostly because they think that the virus is increasing. They think there's no vaccine for, well, half the people, six months or more, three-quarters, at least three months.

So, people don't see an end right now. They're very pessimistic about the virus. And so I think -- I think that also leads to a lot of situations here that -- where the public is, like I said, surprisingly cautious.

CAVUTO: How does it play out politically, though, Mark?

I always wonder, because, today notwithstanding, a crazy day in the markets, I get that -- they come and go. They're jarring, but they do remind you the risks of just investing in the markets. But the bigger picture here, the economy has been improving. The numbers have been looking better, today notwithstanding, the markets as well.

But it's these lifestyle issues. It's these life concern issues, whether it's violence and crime, not being able to go to your favorite restaurant, not being able to return to work. These seem to be much more substantive than then they're given credit.

PENN: Yes, I think -- I think most people say, hey, it's the issues I care about.

I think I have identified three V's and an E, right? The virus, where I think Trump was doing well, and then he fell back, and he's got a deficit now that he's got to come back from, the violence, where you can see Trump has been making this an issue. It is one of the most important issues; 90 percent think it will be a big issue.

The vaccine, which -- because no one expects it, if it comes out -- and I can't tell, between the CDC saying it will come out and Fauci saying it won't come out, and everybody -- if it is, it is. And that will shake things up.

And the economy, where, despite the economic problems, Trump has a very strong advantage in that area, relative to anything else or anybody else.

CAVUTO: Real quick, in the battleground states, where the polls are tightening, as you often remind me, it is all about the electoral vote.

How do things look?

PENN: It's interesting.

I think you're going to have to wait another week or to see how they're gelling. Some -- we just came back with a poll nationally that was six points. So I thought some of the FOX battleground polls were maybe a little higher, because we're showing that likely voters are tightening, tightening to a greater extent.

I think we have a real election now. I think -- I think, a month ago, this thing was wide-open for Biden. And now it's going to be a real election that's going to be close. And the debates are going to be big.

CAVUTO: All right, my friend, thank you very, very much.

From restaurants, to stocks, the economy, you covered it all, Mark. Good job, Mark Penn, the former Clinton pollster, much, much more.

All right, end with a focus on tomorrow, whether we repeat this, a big employment report, which could go a long way to either easing fears or just adding to them. But, remember, markets do go up and down.

Here's "The Five."

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