Business
Column: The legal system is closing in on crypto, and things may only get worse
Forget what T.S. Eliot said about April. For the crypto community and its related scamsters, the cruelest month was March.
That month saw a string of jury verdicts and judicial rulings that laid bare the dark underside of cryptocurrency trading, reinforcing its reputation as a haven for fraud and other illegality. The terrain hasn’t proved any more inviting in April thus far, as regulatory investigations and judicial rulings continue to rock the asset class and its promoters back on their heels.
From the standpoint of ordinary investors and the economy as a whole, this is all good. As I’ve written before, the value of crypto tokens, from bitcoin down to the jokiest versions such as dogecoin, is so nebulous that they lend themselves to schemes aimed at separating unwary or gullible investors from their (real) money.
The ‘crypto’ nomenclature may be of recent vintage, but the challenged transactions fall comfortably within the framework that courts have used to identify securities for nearly eighty years.
— U.S. Judge Katherine Polk Failla
The value of cryptocurrencies can be placed anywhere. They don’t produce income like bonds, and their prices can’t be pegged to liquid markets like those of public company securities. To this day, no one has ever explained what cryptocurrencies are useful for, other than paying ransom to crooks holding databases or computer systems hostage.
As recently as Monday, Change Healthcare, a medical transactions processor owned by United Health Group, received a second demand for a ransom payable in crypto tokens only weeks after paying a reported $22-million ransom to rescue personal information, including payment data and medical records for thousands of patients.
That hack of Change’s database disrupted healthcare claims payments nationwide, even forcing some medical providers to lay off workers or shut down entirely for lack of funds.
The new demand apparently came from a ransomware group that feels it has been cheated by its partners in the first demand, who may have absconded with the original payoff. If there’s no honor among thieves, as the adage says, that goes double in crypto. No, not double — squared.
Let’s take a look at crypto’s March Madness before moving on to April.
The highest-profile blow, of course, was the March 28 sentencing of convicted crypto fraudster Sam Bankman-Fried for his conviction in October on seven fraud counts related to the collapse of his FTX crypto exchange.
Federal Judge Lewis Kaplan sentenced Bankman-Fried to a 25-year prison term and ordered him to forfeit more than $11 billion. Kaplan observed that Bankman-Fried had scarcely expressed remorse for his crimes. Kaplan justified the lengthy term by observing from the bench that otherwise Bankman-Fried would “be in a position to do something very bad in the future, and it’s not a trivial risk.”
That’s not all. The day before Bankman-Fried’s sentencing, federal Judge Katherine Polk Failla issued a ruling that may have a more far-reaching effect on the crypto business. Failla cleared the Securities and Exchange Commission to proceed with its lawsuit alleging that the giant crypto broker and exchange Coinbase has been dealing in securities without a license.
What’s important about Failla’s ruling is that she dismissed out of hand Coinbase’s argument, which is that cryptocurrencies are novel assets that don’t fall within the SEC’s jurisdiction — in short, they’re not “securities.”
Crypto promoters have been making the same argument in court and the halls of Congress, where they’re urging that the lawmakers craft an entirely new regulatory structure for crypto — preferably one less rigorous than the existing rules and regulations promulgated by the SEC and the Commodity Futures Trading Commission.
As it happens, Bankman-Fried made the same pitch in his appearances before congressional committees, back in the day when he was viewed as the last seemingly honest crypto promoter, before it was discovered that he had illegally appropriated his customers’ holdings to fund his and FTX’s own investment ventures.
Failla saw through that argument without breaking a sweat. “The ‘crypto’ nomenclature may be of recent vintage,” she wrote, “but the challenged transactions fall comfortably within the framework that courts have used to identify securities for nearly eighty years.”
Failla also took a swipe at the crypto gang’s amour-propre, rejecting Coinbase’s argument that the case should fall within the “major questions doctrine,” an informal rule that requires regulatory initiatives to be explicitly authorized by Congress if they involve issues of “vast economic and political significance.” Since Congress hasn’t enacted regulations specifically aimed at crypto, Coinbase said, the SEC’s lawsuit should be dismissed.
The judge’s opinion of that argument was withering. “While certainly sizable and important,” she wrote, “the cryptocurrency industry ‘falls far short of being a “portion of the American economy” bearing vast economic and political significance.’”
Crypto simply “cannot compare with those other industries the Supreme Court has found to trigger the major questions doctrine.” Those include the American energy industry and the conventional securities industry itself, she wrote.
Failla’s ruling followed another in New York federal court in which a judge deemed crypto to be securities.
In that case, Judge Edgardo Ramos refused to dismiss SEC charges against Gemini Trust Co., a crypto trading outfit run by Cameron and Tyler Winkelvoss, and the crypto lender Genesis Global Capital.
The SEC charged that a scheme in which Gemini pooled customers’ crypto assets and lent them to Genesis while promising the customers high interest returns is an unregistered security. The SEC case, like that against Coinbase, will proceed.
Both rulings tended to negate a 2023 ruling from federal Judge Analisa Torres of New York in an SEC enforcement action against Ripple, the developer of a crypto token known as XRP. Torres found that under some circumstances the token might not be a security. But her ruling is being buried by an onslaught of decisions by her colleagues that the crypto marketers and exchanges are dealing in unregistered securities, which is illegal.
The hangover from March continued into this month. On April 5, a federal jury in New York found Terraform Labs and its chief executive and major shareholder, Do Kwon, liable in what the SEC termed “a massive crypto fraud.”
The case involved Terraform’s so-called stablecoin UST, a crypto token that was pegged 1 to 1 with the U.S. dollar. Kwon was not in court to hear the verdict; he is in custody in the Balkan country of Montenegro while U.S. and South Korean authorities vie for his extradition.
Terraform had claimed that UST coin would automatically “self-heal” via a software algorithm if its value fell below the $1 peg. That happened in May 2021. When the coin did return to its $1 value, the SEC alleged, Terraform and Kwon bragged that the price restoration was a triumph over the “decision-making of human agents in a time of market volatility.”
In fact, the algorithm had nothing to do with it. According to testimony at the trial, which began in late March, Terraform was secretly bailed out by the trading firm Jump Trading, which may have invested tens of millions of dollars to prop up UST and emerged from the deal with a profit that may have exceeded $1 billion. Failing to disclose that arrangement to investors broke the law, the SEC said.
Kwon and Terraform also lied to the public that Chai, a South Korean financial firm akin to Venmo, was using Terraform to process transactions; in fact, Chai had ceased using Terraform in 2020, the SEC said.
These deceptions, the agency alleged, painted a picture of robust health within Terraform that came apart in May 2022, when UST again depegged from the U.S. dollar and could not be restored. The value of UST fell in effect to zero, the SEC said, “wiping out over $40 billion of total market value … and sending shock waves through the crypto asset community.”
Terraform is now bankrupt; no charges have been brought against Jump.
These events should give American lawmakers pause as they ponder what to do, if anything, about regulating crypto. At a hearing Tuesday of the Senate Committee on Banking, Housing, and Urban Affairs, Sen. Sherrod Brown (D-Ohio), the committee chairman, warned that crypto is a potential threat to national security.
“Bad actors — from North Korea to Russia to terrorist groups like Hamas — aren’t turning to crypto because they’ve seen the ads and bought the hype,” Brown said. “They’re using it because they know it’s a workaround. They know that it’s easier to move money in the shadows without safeguards, like know-your-customer rules or suspicious transaction reporting…. We must make sure that crypto platforms play by the same rules as other financial institutions.”
Brown’s words were amplified by Deputy Treasury Secretary Wally Adeyemo, who urged Congress to enact reforms the Treasury has proposed that would strengthen sanctions on “foreign digital asset providers that facilitate illicit finance.”
On Monday, meanwhile, Sen. Elizabeth Warren (D-Mass.) — perhaps the most uncompromising foe of crypto on Capitol Hill — took aim at stablecoins by urging the House Financial Services Committee to avoid trying to write rules that would “fold stablecoins deeper into the banking sector.”
Given the potential of stablecoins and their ilk to “undermine consumer protection and the safety and soundness of the banking system,” she warned, any so-called reforms “could amplify and entrench these risks rather than mitigate them.”
What is driving the interest of politicians in promoting an asset class that hasn’t shown any value except where fraud or theft is involved? As is so often the case, it’s money — the green, foldable kind.
Crypto promoters have been stepping up their lobbying in Washington; crypto firms spent nearly $20 million on lobbying in the first nine months of 2023, according to the watchdog group Open Secrets.
As a push for a new regulatory approach, especially among House Republicans, dovetails with an election year, much more spending would appear to be in the offing. It’s a win-win-lose situation, with politicians and crypto promoters poised to win, and ordinary investors as well as the economy as a whole poised to lose.
Business
Commentary: Republicans don’t have a healthcare plan, just a plan to kill Obamacare
For millions of Americans, Jan. 1 won’t be an occasion to celebrate the coming of the new year. It will be an occasion for dread.
The reason is the impending termination of crucial premium subsidies for Affordable Care Act health plans. Without a last-minute agreement between congressional Democrats and Republicans, the subsidy structure that has been in place since 2021 will revert to the original arrangement written into the act in 2010.
Millions of Americans dependent on the ACA will face potentially ruinous increases in coverage costs. Many will have to drop their coverage. That process will leave those with the most urgent and costly treatments in the ACA, and those who think they can get away with dropping insurance — or simply can’t afford it — on the outs. The result will be a sicker coverage cohort, which will raise prices for everybody.
I want to see the billions of dollars go to the people, not to the insurance companies and I want to see the people to go out and buy themselves great healthcare.
— An empty promise from President Trump
The current stalemate is the offspring of the GOP’s 15-year campaign to undermine — really, to kill — Obamacare.
Republicans have dressed up their attack on the ACA with reams of empty rhetoric. They habitually call the ACA a “disaster,” without offering a cogent explanation of why.
Plainly, they see Obamacare as a nice, juicy partisan target, but they’re not reading the room. The ACA’s popularity has steadily increased since mid-2016; in KFF’s most recent tracking poll, taken in September, favorable opinion swamped unfavorable opinion 64% to 35%.
Americans have voted for the ACA with their feet. Since 2018, enrollment in Obamacare plans has more than doubled, from 11.4 million to 24.3 million this year, with a notable enrollment increase starting in 2021, when the premium subsidy structure was improved. That’s the change due to expire on Dec. 31 (Republicans, please note). The enrollment figure doesn’t include the 16.7 million Americans enrolled in Medicaid under ACA expansion rules — a provision still rejected by benighted political leaders in 10 red states.
They blame the ACA for higher healthcare costs. A few things about this: Yes, healthcare costs have continued to rise since its enactment. But they’ve risen at a much slower rate than before. Out-of-pocket per capita healthcare spending rose at a rate of 3.4% a year from 2000 to 2018, often exceeding the general inflation rate, but by only 1.9% a year since then.
That increase isn’t driven by the ACA. It’s the result of several factors, including the general aging of the U.S. population and a sharp increase in pharmaceutical costs, due in part to the advent of high-priced specialty prescription drugs.
The GOP has amended its attack on the ACA in recent months, as the clamor to extend the premium subsidies has intensified. Republicans are now decrying the ACA as a haven for fraud — “a broken system fueled by fraud,” says House Speaker Mike Johnson (R-La.). Johnson drew his conclusion from a report by the Government Accountability Office published earlier this month.
Johnson may have been hoping that no one would actually go and read that report. I did so, only to find that it doesn’t say what he claims it did. The GAO tested ACA enrollment controls on the federal marketplace — did enrollees accurately estimate their income and submit accurate Social Security numbers? Its test involved submitting applications from 20 fictitious individuals, of whom 18 were approved.
Is this an adequate sample? The GAO itself says it isn’t. The results, it says, “cannot be generalized to the overall enrollment population.” In some test cases, the applications included false Social Security numbers, which are used to verify income claims. But the GAO says that in the real world, absence of verified Social Security numbers “does not necessarily represent overpayments.”
Are these findings cause for concern? Sure, even though the GAO provided no findings about how widespread these flaws may be. In any case, there’s no evidence here that “the ACA marketplace is a magnet for fraud,” as Johnson called it, suggesting that thousands or millions of applicants are lined up for some healthcare gravy train. And it’s certainly no reason to kill the subsidies.
The other linchpin of the GOP attack on the Affordable Care Act is heavy breathing over how the ACA premium subsidies are paid directly to insurance carriers, rather than as cash to households. This idea trickles down from President Trump but has been embraced by Republicans in Congress. So it deserves a very close look.
Here’s Trump last week: “I want to see the billions of dollars go to the people, not to the insurance companies and I want to see the people to go out and buy themselves great healthcare. Much better healthcare at very little cost.” This has been an enduring promise from Trump, who never bothers to explain how the nirvana of great healthcare at little cost can be achieved.
Here’s Sen. Bill Cassidy (R-La.), a physician who cast the final vote to confirm Robert F. Kennedy Jr. as Health and Human Services Secretary, a vote that has left him humiliated over and over by Kennedy: “Republicans absolutely want to help the American people with the affordability of their out-of-pocket [spending]. We want to put money in their pocket to pay the out-of-pocket.”
Before delving deeper into this issue, a few words about the existing ACA premium subsidies.
The original ACA subsidies capped premiums on a sliding scale ranging from 2.07% of income for those earning 138% of the federal poverty line to 9.83% of income for those at 400% of the poverty line. This year, 138% of the poverty level for a family of four is $44,367, and 400% is $128,600.
The ACA’s architects knew these subsidies were inadequate. Especially troubling was the sharp cutoff of any subsidies for families earning even a dime more than 400% of the poverty level. This became known as the “subsidy cliff.” But it was an artifact of political compromise; the expectation was that Congress would get around to fixing the cheeseparing subsidy schedule at a later date.
In the pandemic-driven American Rescue Plan Act of 2021, Congress refashioned the subsidies so families with incomes up to 150% of the poverty level ($56,475 for a family of four this year) could find decent Obamacare plans for free. For those above that level and up to 400%, the subsidies were significantly increased. That’s the change set to expire Dec. 31.
It’s true that eligibility for these subsidies is technically unlimited, but the conservative trope that they benefit “millionaires” is nonsense. As I reported earlier this year, the new structure means technically that someone earning $1 million a year would have to pay no more than $85,000 per person for an ACA plan.
Is this a handout? ACA expert Charles Gaba tested the claim by hunting for a benchmark Silver ACA plan, on which the subsidies are based, costing that much anywhere in the U.S. The highest-cost plans he found anywhere are in four counties of West Virginia, where a Silver plan for a 64-year-old couple tops out at $63,100 a year — in a state with the highest ACA premiums in the nation.
Cassidy’s proposal is essentially to replace the existing subsidy enhancements with health savings accounts, which must be paired with high-deductible health plans, and to seed them with $1,000 a year per adult ages 18 to 49 and $1,500 for those 50 and up. Households with income up to 700% of the federal poverty level would be eligible — that’s about $225,000 for a family of four.
Let’s start with the plain arithmetic of this proposal. The accounts must be paired with a bronze-level ACA plan. Those plans cover only about 60% of average healthcare costs. Deductibles are high — at Covered California, the state’s ACA marketplace, the bronze plan deductible is $5,800 per person and $11,600 for a family. Out-of-pocket maximums are also high — $10,600 per individual and $21,200 for a family.
So right from the outset, the Cassidy proposal would leave families facing serious medical expenses out in the cold.
The HSA idea is part of a GOP argument that giving families cash to spend on healthcare gives them “skin in the game” — that by forking over dollars, they’ll be more sensitive to the cost of medical care and therefore seek out or negotiate lower prices.
Two of the argument’s leading academic promoters, Liran Einav of Stanford and Amy Finkelstein of MIT, wrote in a 2023 book lauding deductibles and co-pays that “patients must pay something for their care, otherwise they’ll rush to the doctor every time they sneeze.” More recently, as the facts have come in, they’ve said: “We take it back.”
The truth is that there’s no evidence that higher financial obstacles to healthcare produce better outcomes. They do discourage unnecessary treatments, as a seminal Rand Corp. study found in 1981. But they also discourage necessary treatments.
The idea that deductibles and co-pays will prompt the average person to seek out low-cost providers is a fantasy. People typically seek out medical care in an atmosphere of urgency. They don’t take the time to compare prices as if they’re buying a car; they go to the doctor and follow his or her instructions, including prescribed procedures and diagnostic tests. (Sometimes they do price shop, but generally for treatments that can be deferred and are medically routine and elective — one study showing cost savings from price shopping focused on hip and knee replacements, for instance).
As for the claims of Trump and other Republicans that Americans, armed with cash in their pocket, can use it to negotiate medical care — who has the time, energy or bargaining skill to do that?
In any case, the HSA is mischaracterized as a healthcare provision. It’s not; it’s a tax break in disguise, useful for higher-income taxpayers who can afford to cover the high deductibles themselves while pocketing a tax deduction. It’s especially appealing for those who are in good health and expect to stay so — they proceed on the assumption that they probably won’t have a serious (and expensive) medical issue.
U.S. healthcare costs per capita have continued to rise since the enactment of the Affordable Care Act, but at a much lower rate than before.
(JAMA)
The bottom line is that the Republican Party is out of healthcare ideas. They’ve had 15 years to conjure up a better program than the Affordable Care Act, and have nothing to show us except proposals that won’t work for the average family. They’re up against a wall of their own making, and are pretending that they have something better. They don’t, and you and I will be paying the price of their failure.
Business
Port of Los Angeles records bustling 2025 but expects trade to fall off next year
The Port of Los Angeles expects it will move than 10 million container units for the second year in a row despite President Trump’s tariffs — but that number is likely to drop off in 2026 as the fallout of the administration’s trade war persists.
This year’s volume will reflect a decision by importers to get ahead of the tariffs before the duties took effect — with trade later slowing, according to the monthly report by the nation’s largest container port.
“In a word, 2025 was a roller coaster,” port Executive Director Gene Seroka said during the webcast.
In November, there was a 12% decrease in volume with about 782,000 TEUs, or 20-foot equivalent container units, processed by the port. The decrease was driven by an 11% fall in year-over-year import volume.
“Much of that difference is tied to last year’s rush to build inventories and now with some warehouse levels still elevated, importers are pacing their orders a bit more carefully,” Seroka said.
Still, by the end of November, the port had moved almost 9.5 million container units, 1% more than last year, leading to the expectation that volume will top 10 million for the year.
The port moved 10.3 million container units last year and set a record in 2021 when it moved 10.7 million container units.
However, exports — cargo shipments from the port — fell for the seventh time in 11 months in November, sliding 8%, which will lead to the first annual decline since 2021. Seroka blamed the drop on the response to the tariffs.
“We’re also seeing the effects of retaliatory tariffs and third country trade deals on U.S. ag and manufacturing exports,” Seroka said. “This is a headwind we may face for some time to come.”
The port director said he expects that imports will decline in the “single digits” next year because of continued high inventory levels, but he doesn’t anticipate a drastic downturn in overall trade.
“I don’t see the port volume falling off a cliff, and it’s a pretty good leading indicator to the U.S. economy that we should take stock in,” said Seroka, who added that there is much economic uncertainty entering next year.
The question of where the economy is headed was highlighted Tuesday by the latest jobs figures, which were delayed by the government shutdown.
They showed the economy lost 105,00 jobs in October as federal workers departed after the Trump administration cuts but gained 64,000 jobs in November.
The November job gains came in higher than the 40,000 that economists had forecast, but the unemployment rate still rose to 4.6%, the highest since 2021.
Constance Hunter, chief economist at the Economist Intelligence Unit, who provided a 2026 U.S. national economic forecast for the port on Tuesday, said the jobs figures offer mixed signals.
The job gains were driven by the health and human services sector, reflecting a narrowing of where job growth is occurring. At the same time, more types of companies are adding jobs rather than subtracting them.
Hunter forecast that the economy will grow in the first half of the year, as consumers receive tax cuts called for in Trump’s “One Big Beautiful Bill Act” tax-and-spending measure. However, tariffs will weigh down the economy later.
One key issue driving uncertainty, she said, is whether the U.S. Supreme Court will uphold the tariffs Trump imposed under the International Emergency Economic Powers Act.
The Trump administration announced Tuesday that the government had collected more than $200 billion in tariff revenue this year. Trump has talked about sending out $2,000 rebate checks to consumers with some of the funds.
However, a Supreme Court loss would force the government to return, by various estimates, $80 billion or more of the money to importers, putting a crimp in the president’s plans for economic stimulus.
Other factors driving uncertainty, Hunter said, are the Ukraine-Russia war, U.S.-China tensions over Taiwan and the “durability of peace in the Middle East.”
“All of these things are going to conspire to keep what we call the uncertainty index elevated,” she said.
Business
Commentary: Serious backlash to a Netflix/Warner Bros deal may come from European regulators
If you’re looking for where the most crucial governmental backlash to a merger deal involving Warner Bros. Discovery, you might want to turn your attention east — to Europe, where regulators are girding to take an early look at any such deal.
Both of the leading bidders — Netflix, which has the blessing of the WBD board, and Paramount, which launched a hostile takeover bid — could face obstacles from the European Union. EU officials have spoken only vaguely about their role in judging whatever deal emerges, since the outcome of the tussle remains in doubt.
The European Commission “could enter to assess” the outcome in the future, Teresa Ribera, the EU’s top antitrust official, said last week at a conference in Brussels, but she didn’t go beyond that. Pressure is mounting within Europe for close scrutiny of any deal.
A deal with Netflix as the buyer likely will never close, due to antitrust and regulatory challenges in the United States and in most jurisdictions abroad.
— Paramount makes its appeal to the Warner board
As early as May, UNIC, the trade organization of European cinemas, expressed opposition to a Netflix deal. The exhibitors’ concern is Netflix’s disdain for theatrical distribution of its content compared to streaming.
“Netflix has time and again made it clear that it doesn’t believe in cinemas and their business model,” UNIC stated. “Netflix has released only a handful of titles in cinemas, usually to chase awards, and only for a very short period, denying cinema operators a fair window of exclusivity.”
Neither WBD nor Netflix has commented on the prospect of EU oversight of their deal. Paramount, however, has made it a key point in its appeals to the WBD board and shareholders.
In both overtures, Paramount made much of the size and potential anti-competitive nature of Netflix’s acquisition of WBD. In a Dec. 1 letter sent via WBD’s lawyers, Paramount asserted that the Netflix deal “likely will never close due to antitrust and regulatory challenges in the United States and in most jurisdictions abroad. … Regulators around the world will rightfully scrutinize the loss of competition to the dominant Netflix streamer.”
Netflix’s dominance of the streaming market is even greater in Europe than in the U.S., Paramount said, citing a Standard & Poor’s estimate that Netflix holds a 51% share of European streaming revenue. That figure swamps the second-place service, Disney, with only a 10% share. Paramount made essentially the same points in its Dec. 10 letter to WBD shareholders, launching its hostile takeover attempt at Warner.
European business regulators have been rather more determined in scrutinizing big merger deals — and about the behavior of major corporate “platforms” such as Google and X.com — than U.S. agencies, especially under Republican administrations. One reason may be the role of federal judges in overseeing antitrust enforcement by the Federal Trade Commission.
“Despite the European Commission (EC) successfully doling out fines numbering in the billions of euros for giants like Apple and Google for distorting competition, the FTC has struggled significantly in court, losing virtually all its merger challenges in 2023,” a survey from Columbia Law School observed last year.
The survey pointed to differing legal standards motivating antitrust oversight: “American courts have placed undue weight on preventing consumer harm rather than safeguarding competition; by contrast, the EU has remained centered on establishing clear standards for competitive fairness.”
In September, for example, the European Commission fined Google nearly $3.5 billion for favoring its own online advertising display services over competing providers. (Google has said it will appeal.) The action was the fourth multi-billion-dollar fine imposed on Google by the EC since 2017; Google won one appeal and lost another; an appeal of the third is pending.
As an ostensibly independent administrative entity, the EC at least theoretically comes under less political pressure from the 27 individual members of the European Union than the FTC and Department of Justice face from U.S. political leaders.
President Trump has made no secret of his doubts about the Netflix-WBD deal. As I reported last week, Trump has said that Netflix’s deal “could be a problem,” citing the companies’ combined share of the streaming market. Trump said he “would be involved” in his administration’s decision whether to approve any deal.
That feels like a Trumpian thumb on the scale favoring Paramount. The Ellison family is personally and politically aligned with Trump, and among those contributing financing to the bid is the sovereign wealth fund of Saudi Arabia, a country that has recently received lavish praise from Trump. Another backer is Affinity Partners, a private equity fund led by Jared Kushner, Trump’s son-in-law.
The most important question about European oversight of the quest for WBD is what the regulators might do about it. The European Commission tends to be reluctant to block deals outright. The last time the EC blocked a deal was in 2023, when it prohibited a merger between the online travel agencies Booking.com and eTraveli. The EC ruling is under appeal.
At least two proposed mega-mergers were withdrawn in 2024 while they were under the EC’s penetrating “Phase II” scrutiny: the acquisition of robot vacuum cleaner maker iRobot by Amazon, and the merger of two Spanish airlines, IAG and Air Europa.
Typically, the EC addresses potentially anticompetitive mergers by requiring the divestment of overlapping businesses. In the case of Netflix and WBD, the likely divestment target would be HBO Max, which competes directly with Netflix in entertainment streaming. Paramount’s streaming service, Paramount+, also competes with HBO Max but not on the same scale as Netflix.
Antitrust rules aren’t the only possible pitfall for Netflix and Paramount. Others are the EU’s Digital Services Act and Digital Markets Act, which went into effect in 2022. The latter applies mostly to social media platforms—the six companies initially deemed to fall within its jurisdiction were Alphabet (the parent of Google), Amazon, Apple, ByteDance (the parent of TikTok), Meta and Microsoft. Those “gatekeepers” can’t favor their own services over those of competitors and have to open their own ecosystems to competitors for the good of users.
The Digital Services Act imposes rules of transparency and content moderation on large digital services. No platforms owned by Netflix, Paramount or WBD are on the roster of 19 originally named by the EU as falling under the law’s jurisdiction, but its regulations could constrain efforts by a merged company to move into social media.
The EU also has begun to show greater concern about foreign investments in strategic assets. Traditionally, these assets are those connected with national security. But defining them is left up to member countries. As my colleague Meg James reported, the sovereign funds of Saudi Arabia, Abu Dhabi and Qatar have agreed to back the Ellisons’ WBD bid with $24 billion — twice the sum the Ellison family has said it would contribute.
The Gulf states’ role has already raised political issues in the U.S., since the cable news channel CNN would be part of the sale to Paramount (though not to Netflix). Paramount says those investors, along with a firm associated with Kushner, have agreed to “forgo any governance rights — including board representation.”
That pledge aims to keep the deal out of the jurisdiction of the U.S. government’s Committee on Foreign Investment in the United States, or CFIUS, which must clear foreign investments in U.S. companies. But whether it would satisfy any European countries that choose to see Warner Bros. Discovery as a strategically important entity is unknown.
Then there’s Trump’s apparent favoring of the Paramount bid. Trump is majestically unpopular among European political leaders, who resent his pro-Russian bias in efforts to end Russia’s invasion of Ukraine. Trump has castigated European leaders as “weak” stewards of their “decaying” countries.
The administration’s recently published National Security Strategy white paper advocated “cultivating resistance to Europe’s current trajectory” and extolled “the growing influence of patriotic European parties,” which many European leaders interpreted as support for antidemocratic movements.
The document “effectively declares war on European politics, Europe’s political leaders, and the European Union,” in the judgment of the bipartisan Center for Strategic and International Studies.
How all these forces will play out as the bidding war for WBD moves toward its conclusion is imponderable just now. What’s likely is that the rumbling won’t stop at the U.S. border.
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