Amazon (AMZN) is reportedly nearing a $9 billion deal to buy Hollywood studio MGM Holdings as it seeks ammunition in the streaming wars against competitors like Netflix (NFLX) and Disney (DIS). While Amazon has attracted antitrust scrutiny, legal experts say U.S. regulators are unlikely to stop the e-commerce giant from making its second-biggest acquisition after Whole Foods.
After the Wall Street Journal reported on the impending deal on Monday, George Hay, Cornell Law School professor, told Yahoo Finance that it’s “hard to imagine any basis for blocking the deal.”
That’s largely because the streaming industry is viewed as highly competitive, as evidenced by AT&T’s (T) recent decision to spin off Time Warner less than three years after spending $85 billion on the media giant and defeating an antitrust challenge of its own from the Trump administration’s Justice Department.
Another clue the streaming space is competitive: Just last month, Netflix sharply missed on its subscriber goals when it reported earnings, a loss partly attributed to an increasing crowd of competitors in the streaming space like Disney+, Hulu, AppleTV+ (AAPL) and, yes, Amazon. In addition to being the “everything store” and a cloud giant, Amazon creates some original movies and TV shows like “The Marvelous Mrs. Maisel.”
“This is partly a merger of competitors, but Amazon is a very small player in streaming and is barely in the business of movie making, so it does not appear that Amazon is getting market power (the usual test) in streaming,” Eleanor Fox, a professor of trade regulation at NYU Law, told Yahoo Finance in an email message after Monday’s Wall Street Journal report.
'Huge advantages'
While the deal wouldn't necessarily be blocked, it would without a doubt capture the attention of antitrust regulators because of its sheer size and because it involves Amazon, a giant whose critics accuse it of using its size and influence to crush competitors. This isn’t a small deal, either. MGM is a major Hollywood player and one of the world’s oldest film studios behind iconic movies like the “James Bond” franchise and more modern shows like “The Handmaid’s Tale.”
Fox, who described the antitrust risks of the deal as “not large,” also said it would be a gigantic merger that “will give Amazon huge advantages that some would call unfair advantages in placing and pushing its own content over the content of competitors.”
“It may affect the choices and minds of us all; Amazon will be king over not only what we buy but what we watch. Not an absolute monarch but with kingly nuanced influence,” Fox said.
And, as Christopher Sagers, a professor at Cleveland-Marshall College of Law, pointed out, this isn’t just any company hoping to buy MGM. It’s Amazon, which he described as a “favorite villain of the left.”
President Joe Biden has also signaled he will take a tough approach to antitrust enforcement, nominating two notable critics of Big Tech to key positions in his administration.
One of those critics, Tim Wu, a Columbia University Law School professor and author of the “The Curse of Bigness,” was appointed to the National Economic Council. The other, Lina Khan, tapped for a post at the Federal Trade Commission, also teaches at Columbia Law School and wrote a 2017 paper called “Amazon’s Antitrust Paradox” in the Yale Law Journal that’s credited with helping to launch the “hipster antitrust” movement.
“For purely political reasons, the case will get interest,” Sagers said. “The left definitely has the White House’s ear with antitrust.”
Still, for practical reasons, federal regulators may choose not to block this particular deal. “…[Until their funding is increased, the agencies are very busy, with major cases against Google (DOJ) and Facebook (FTC) and many other items on their agenda,” noted John Kirkwood, an antitrust professor at the Seattle University School of Law.
The Journal reported on Monday that the deal could be announced as soon as this week, and Bloomberg reported that it could come as soon as Tuesday.
Erin Fuchs is deputy managing editor at Yahoo Finance.
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