“Say Anything” was a great John Cusack flick. Among many reasons was the line that billed it as a “Lloyd Meets Girl Movie.” Lloyd Dobler said any and everything and won the love of the objectively unreachable and out of his class, Diane Court played by Ione Skye.
In many areas of federal law and regulatory enforcement there seemingly are no known rules under President Trump – and so it’s a good time to try anything – thus Comcast’s bid for Fox. Comcast is lining up(wards) of $60 billion for an all cash bid designed to top Disney’s bid for Fox assets valued at $52 billion.
In a sane, rational, traditional and non-partisan antitrust enforcement regime, both the Disney and Comcast attempts to buy Fox assets from the Murdoch family would encounter serious federal antitrust agency resistance.
Neither acquisition is slam dunk illegal. There are markets in which the current Fox and Disney and Fox and Comcast directly compete, raising the highest traditional “horizontal” concerns of antitrust enforcement. But both proposed acquisitions are primarily vertical and conglomerate in nature, because Disney and Comcast, the would-be acquirers, currently buy from or sell things to Fox or engage in different lines of media business than Fox currently does.
But it is noteworthy and noticed that the Trump Antitrust Division just made its closing arguments in its challenge of the proposed predominately vertical merger of AT&T and Time Warner. And that challenge was motivated either by a legitimate, though rarely weaponized, concern about anticompetitive “foreclosure” – that the merger of buyer and seller will foreclose opportunities for others who might market to or purchase from the merging companies. Or Trump and his loyal lackies simply want to stick it to Time Warner, the parent of CNN – that Donald Trump openly despises. The challenge most likely was mounted for both reasons.
We are all still speculating about what will and what won’t fly at Trump’s regulatory agencies. That, no doubt, is why the huge, sophisticated and massively experienced antitrust defendant AT&T resorted to retaining Michael Cohen Esquire – not a legend of the antitrust bar- as it embarked on the Time Warner acquisition. It also is why two big cell phone companies are taking another shot at a merger that three times has been frowned upon by federal antitrust agencies. Those companies, like all of us, don’t understand the rules under Trump but know it’s a good time to try anything.