Mar 05, 2026
On February 25, The Capitol Forum held a conference call with Seth Bloom, President and Founder of Bloom Strategic Counsel and the former General Counsel of the U.S. Senate Antitrust Subcommittee,, to discuss the antitrust implications of Netflix’s proposed acquisition of Warner Bros. and explore broader enforcement trends shaping merger review and competition policy in 2026.
TEDDY DOWNEY: Hello, everybody and welcome. I’m Teddy Downey, Executive Editor here at The Capitol Forum. Today, as I am every year, honored to be joined by the great Seth Blum, President and Founder of Blum Strategic Council and former General Counsel of the U.S. Senate Antitrust Subcommittee. Today we’re going to be talking about the antitrust implications of Netflix’s proposed acquisition of Warner Brothers, and then we’ll get into our typical annual predictions, annual outlook, for merger, enforcement, and competition policy in 2026. Seth is one of the most respected voices in antitrust law and policy. He is also a good friend of both The Capitol Forum and me, and I’m super happy to see him today. Thank you for doing this, Seth.
SETH BLOOM: Well, thank you very much, Teddy. And I’m honored to be invited onto your program.
TEDDY DOWNEY: And can we just get out of the way quickly, this quick disclosure, that you are, in fact, working for Netflix on this Warner Brothers deal?
SETH BLOOM: I am. I do represent Netflix.
TEDDY DOWNEY: And what is the proper way to describe that? Are you their outside counsel? Or what is your situation? How should we describe that?
SETH BLOOM: You can describe me any way you want. They have many outside counsels. I’m a consultant to them. I work on ‑‑ I represent them in a variety of ways. In addition to being a lawyer, I’m a lobbyist. So, I represent them before Congress. And I’m one of their outside counsels.
TEDDY DOWNEY: All right, perfect. Well, I think that creates the proper disclosure for everyone listening. And maybe we could start off with this Netflix deal. Obviously, there’s a lot going on. So, I’m sure there’s stuff that you can and cannot talk about, but I will start with this, which I’m pretty sure you can.
I think the consensus is actually that Netflix has a harder antitrust road ahead in both the U.S. and Europe. Obviously, Paramount is pushing that narrative, but we have written about that certainly more clear-cut problem in Europe, particularly. But even our antitrust in-house expert, Nate Soderstrom, has pointed out the challenges that Netflix faces at DOJ from an antitrust standpoint. Leaving aside the Trump element of this, which I’ll ask you about at some point, but just from an antitrust analysis perspective, I’m sure you don’t agree with that assessment.
I would love to hear what your thoughts are there.
SETH BLOOM: I completely disagree with that. I don’t agree with that,as much as it pains me to disagree with your colleague, Nate. And you started by saying it’s the consensus. I don’t think it’s the consensus. I think Netflix has attracted most of the attention because it’s the deal that’s been signed. But there has been a lot of misinformation put out by Paramount. And I actually think the much more difficult deal to ‑‑ the deal with much many more problems, the much more difficult deal to get through from an antitrust perspective, is the Paramount proposal, which, I’m sure you know, there’s no deal right now.
But should it come to fruition, I think it’s much more difficult than and has many more antitrust and competition problems. And I’m actually surprised to the extent that people don’t see that. But to the extent they don’t ‑‑ I think many people do ‑‑ but the extent they don’t, I’m surprised.
But if I can just explain that. What we have in a Paramount, Warner Brothers, Discovery deal is a 5 to 4 merger among direct competitors in movie studios and movie distribution, and they own two competing sports networks, two competing children’s networks, and of course CBS and CNN. Those are all direct horizontal competitors, which I think raises many antitrust problems.
In comparison, the Netflix deal for Warner Brothers ‑‑ and it’s not Warner Brothers Discovery. It’s merely the Warner Brothers studio, theatrical distribution, and HBO, HBO Max. That’s what it is. So, it’s mainly a vertical transaction. It has some horizontal elements, but it’s mainly a vertical transaction.
Most of what Netflix proposes to acquire are things that it does not have. It does not have a major Hollywood movie studio, one of the big five. It does not have a theatrical distribution business. By and large, these are complementary assets that Netflix will use to build its business, but it doesn’t create horizontal competition problems.
Of course, Netflix and HBO Max are both streamers. So, there’s a horizontal aspect to it. But if you want to talk about that, the market shares, when you analyze the market shares properly, which is by hours viewed watching programming, the market share of Netflix is around 9 percent. The market share of the Warner assets, those streaming assets, HBO Max, is a little over 1 percent. So, you’re combining 9 percent with a little over 1 percent to come to a little over 10 percent. That is not a major antitrust problem.
And then if you look at all the competitors that Netflix has, it’s legion. I counted about eight competitors from YouTube, Disney TV, to Paramount Plus, to Apple TV Plus, to Amazon Prime Video, to a whole series of competing service providers, not to mention the broadcast networks like NBC and CBS, not to mention the cable channels.
But if we just limit it to streamers, it’s like eight competitors. Where do you have in a market with a major antitrust problem with eight competitors? So, I just don’t see where this is an antitrust problem, unlike what would happen if Paramount were to acquire Warner. So, I’ll stop there and let you follow up.
TEDDY DOWNEY: So, firstly, I think you addressed this, what is the market definition? And obviously Paramount, and a lot of people say, look, it’s SVOD, Streaming Video On Demand. You’re sort of expanding that. But if you just look at Streaming Video On Demand, it has a 43 percent share. If you’re putting together Netflix and HBO, obviously, there’s different ways to measure that. But you’re talking about the number of competitors, but you’re sort of avoiding that central question of the share if you’re just looking at SVOD market.
SETH BLOOM: I’m not avoiding that at all. I don’t know where you come up with the 43 percent market share number. My numbers are coming from Nielsen numbers, the hours viewed. And that does include YouTube ‑‑ and I would argue that it should include YouTube ‑‑ which is about 15 percent of hours viewed. YouTube is not cat videos anymore. It’s major productions. YouTube is putting billions of dollars into productions. And it has exclusive rights to televise the Oscars in a couple of years, exclusive NFL Sunday ticket. But even more important, it has a deal with BBC, an exclusive deal with BBC, for content. And it has many major programmers, major producers, who make long form programming for YouTube. I don’t know how one excludes YouTube from the market.
So, doing my calculation, on Nielsen hours viewed, Netflix is about 9 percent. Now, if you want to take out YouTube, which I don’t think should be taken out, but if you do, by hours viewed, according to Nielsen, Netflix is about 18 percent. So, I don’t know where this 43 percent number you just threw around ‑‑ and I’ve seen numbers in the 30s ‑‑ I don’t know where that comes from.
And don’t forget another factor. Sometimes people conflate this with subscribers. And it’s not realistic to look at subscribers because many people subscribe to more than one service. For example, 80 percent of HBO subscribers subscribe to Netflix. So, you can’t just say HBO has this many subscribers. Netflix has that many subscribers. That subscriber number really has no meaning.
TEDDY DOWNEY: Seth, I’m going to read from Nate’s piece on this. Revenue is by far the most common metric for calculating market shares. As the 2023 merger guidelines note, revenues as a relevant market often provide a readily available basis on which to compute shares and are often a good measure of attractiveness to customers. Non-price indicators, such as number of users or frequency of use, your term, hours viewed, guidelines add, tend to apply only in zero-price markets. What say you to Nate’s description of how to typically measure a market, define a market, and calculate market share?
SETH BLOOM: What say I? I think what we have to look at is the amount of time people are spending watching television. To me, that’s the most meaningful market share.
TEDDY DOWNEY: Why make an exception here? If revenue is the default metric, why should Netflix get special treatment from antitrust enforcement?
SETH BLOOM: I don’t think it gets special treatment. I mean, in many markets, the only measure is revenue. If you’re looking at the restaurant market, you might want to look at the number of dollars people spend in McDonald’s versus the number of dollars people spend in a high-end restaurant. That’s the reasonable market. Or an airline. Look at the number of revenues people spend on a particular airline as opposed to another. Although, the number of passengers is also relevant there.
But I think in this market, the really relevant metric is the number of hours people view various forms of television. That, to me, is just common sense. I guess I don’t have much more to say within that, but I think it’s the most commonsensical measure of how you would determine what the proper market share is.
TEDDY DOWNEY: Here’s another question that Nate brings up, which is basically your definition of the market. What’s to stop Netflix from ‑‑ after it buys Warner Brothers ‑‑ buying Prime Video, Hulu, and Disney Plus, and just rolling up all those SVOPs?
SETH BLOOM: Because it would no longer be 9 percent plus 1 percent. It would be a different market. It would be different market shares.
TEDDY DOWNEY: It’s still not going to meet a market share threshold that you would have a problem with because YouTube ‑‑
SETH BLOOM: YouTube is a lot, but it’s only about 13 percent. If you bought everything else off, that would be a different question. I’m saying you cannot disregard YouTube. It’s the number one.
TEDDY DOWNEY: But you think that it would be okay for Netflix to buy all these other ones, just given that ‑‑ because according to your test, even rolling up all this SVOD market still really wouldn’t be a meaningful market share?
SETH BLOOM: I’m not saying that at all. Those are not transactions before us. It’s a hypothetical question, but I’m not saying that at all. I’m talking about the transaction we have before us today. No, you can’t say you’ll buy everything else except YouTube, and then it’s fine.
TEDDY DOWNEY: The other SVOD companies.
SETH BLOOM: Yeah, the SVOD companies. Well, what I’m saying is right now, if you’re looking at SVOD, including YouTube, Netflix market share based on hours viewed is about 9 percent. So, that’s buying another little over 1 percent. But if you’re talking about everything else that goes in, the other 87 percent, that’s a different story. That’s not what we’re talking about here.
We’re talking about one transaction. The way antitrust enforcers look at these things, they look at it transaction-by-transaction. And just as we saw in the cell phone market, many of these cell phone transactions went through until 2011, when AT&T decided to buy T-Mobile and the DOJ opposed it, but had allowed basically all the other cell phone transactions. You can’t say if this merger’s okay,all the other ones will be okay. That’s not the issue we have before us today.
TEDDY DOWNEY: I’m going to ask the same question another way, and then we’ll move onto other aspects of the deal. When considering the brown shoe qualitative approach to defining markets, why isn’t subscription video on demand well-defined, particularly given substantial price differences between SVOD and non-SVOD offerings, industry recognition that it’s a market? Isn’t it a clearly well-defined market for antitrust purposes?
SETH BLOOM: Because consumers substitute ‑‑ you know, consumers have one television they’re watching at one time, and they’re going to look at all the alternatives they have. And if there’s programming on YouTube that’s compelling, they’re going to watch it. If there’s network programming on a broadcast channel, they’re going to watch it.
You have to look at consumer behavior. And I think if you go through the Brown Shoe factors, there’ll be factors in there there’ll be factors in there that’ll talk about the functional way consumers use this product. So, consumers are looking at, as I say, one television screen at a time, and they’re looking at choices they have.
TEDDY DOWNEY: Another point that you made is that this is a sort of a vertical transaction where Netflix is buying a studio and getting into the movie business. One real concern, I think, from movie industry participants, stakeholders, is that Netflix will have the ability to basically crush the movie theater industry and cut off movies from distribution in theaters, in their business model, right? To compel people to get a subscription, right? Their entire business strategy has to not put content in theaters. So, they have decades of practice and statements to that effect. Why should we prioritize behavioral promises that cut directly against decades of observed business strategy here?
SETH BLOOM: Now, you say decades. I mean, I think that might be a little bit of an exaggeration, Netflix has not been in business that long.
TEDDY DOWNEY: Extend a lengthy record of business strategies.
SETH BLOOM: Things have changed now. Now Netflix will own one of the Hollywood big five movie studios and theatrical distribution businesses. And it’s a different way of doing business – it’s a different model. And Netflix has said, their CEO said in congressional testimony before the Senate a few weeks ago, that we’re going to keep the 45-day theatrical window for new Warner releases. He’s pledged to do that under oath.
So, the business model has changed. And Netflix will no longer solely be a streaming service. And a big part of its business will be theatrical distribution of Warner movies. And Netflix has pledged to keep the 45-day release period, exclusive release, in movie theaters.
TEDDY DOWNEY: All right. Let’s shift. I have a more kind of human question. First of all, we’re doing a conference March 12th in LA on the future of Hollywood. If you’re listening, you should definitely attend. Trying to get Seth out there before this call.
SETH BLOOM: Look forward to it.
TEDDY DOWNEY: But our labor, our creative community speakers and labor speakers, have been very afraid to participate in our conference. Dropped out, mentioned they’re afraid. And a lot of it comes down to Netflix. One conversation I had with an agent called Netflix the Eye of Sauron when they’re trying to sell scripts, okay? I mean, this company obviously has a tremendous amount of power in Hollywood to the point where people are afraid to speak out about this merger.
There is an argument that Netflix – because it has such a dominant share of eyeballs when it comes to streaming – can pay the most for shows. And so, has the most amount of weight in Hollywood already. They can buy every show because the economics work for them the best. So, they already have a tremendous amount of power.
What do you say to the agents and the worker in Hollywood – who are already afraid of Netflix – that they’re going to get even more powerful here?
SETH BLOOM: Well, I think you have to look at the history of Netflix and the billions of dollars of production that Netflix spent. I think it’s $20 billion in 2025. And they have a major supporter of Hollywood producers, actors, writers, directors. They have been expanding all over the country. They have major production facilities in Georgia. They’re spending over a billion dollars to develop twelve soundstages in Fort Monmouth, New Jersey. They’ve done production in all 50 States in the United States in the last year. Or actually, I’m not sure in the last year, but in recent times.
Well, I’m not an actor in Hollywood or one of these people with other entertainment industry jobs. But just looking at the statistics and looking at all their activity, they’ve been a creator of so many jobs. And so, I guess I don’t get that criticism.
Now, I think if you want to look at the Eye of Sauron, as you called it, look at Paramount and think about the Paramount proposal to buy Warner. Paramount is promising $6 billion in synergies. Now, what does that mean? You know what that means? It means layoffs, job cuts, and reduction in expenditures on production. When Skydance acquired Paramount. They promised $3 billion of synergies and it resulted in 3,500 job cuts. I mean, that’s the history of Paramount.
If you look at the history of Netflix, they’ve done so much in terms of jobs. And so, I guess I don’t quite understand that fear that you’re describing. I think it appears to me, just from looking at the statistics, that Netflix has been a major positive for employment in the entire entertainment industry and movie industry. And they intend to continue to do that. They intend to continue to grow the business and put more money into movie production.
TEDDY DOWNEY: We’ve got one question here. We’re going to have a listener question section at the end of the conversation. But because we’re kind of breaking this up into two parts, if you have a question about this Netflix deal, please enter it in the questions pane or email us at editorial@thecapitolforum.com.
SETH BLOOM: In the last ten years, Netflix was responsible for 150,000 cast and crew jobs. This is not a company that’s been in any way retrenching. It has been expanding job opportunities and creative opportunities in Hollywood and outside of Hollywood throughout the United States.
TEDDY DOWNEY: We’ve got a couple of questions here. First is, if YouTube is a competitor, how is it that Netflix could raise prices 39 percent above the rate of inflation? Wouldn’t that fail us a snip test? I guess this question is asking, if YouTube is such a close competitor, how come Netflix has been able to successfully raise prices? It’s not disciplined by YouTube.
SETH BLOOM: Well, it’s disciplined by all these other streamers that I mentioned. I don’t know that that statistic says that YouTube’s not a competitor. But I’d also point out that everybody else in the industry has raised their prices. I mean, consumers like Netflix and they’re willing to pay these price increases. They can vote with their feet. If these price increases are too high, it’s very easy for a consumer to cancel. It’s essentially just one click and you cancel it.
So, Netflix isa product that consumers want. And also, Netflix has the lowest prices on a per hour basis in the steaming industry. So, I basically don’t think that the fact that Netflix has raised prices means that YouTube is not a competitor. . Did you say 39 percent? Over what period of time was that?
TEDDY DOWNEY: The question doesn’t say over what period of time?
SETH BLOOM: Yeah, I think that’s over a decade or something.
TEDDY DOWNEY: It says 39 percent above the rate of inflation.
SETH BLOOM: Oh, above the rate of inflation, okay. Well, I just don’t think that means that YouTube’s not a competitor. I don’t agree with that proposition.
TEDDY DOWNEY: We’ve got some other questions here. Over a decade. The person said over a decade.
SETH BLOOM: Okay.
TEDDY DOWNEY: We can come back. If you have listener questions, please submit them. We can come back to this. But I want to take a step back and ask you a little bit of a philosophical question. I read this book, “The Score: How to Stop Playing Somebody Else’s Game”. Highly recommend it. C. Thi Nguyen is the author. And he says Netflix is in the addiction business, not in the art business. That they have algorithms. That their interest is not in producing art. It’s in addicting you to watching TV, watching the programming.
What’s your response to this business model is really contrary to sort of ethos of Hollywood, which is to create art, sell art? What’s your response to that the algorithm – that when you are getting people to watch programs via an algorithm and your incentives are to get people to watch by hours – you mentioned hours – kind of addict them to the screen? What do you say to that kind of argument?
SETH BLOOM: I don’t agree with it. Is TikTok in the addiction business? Is Instagram in the addiction business? I think a lot more people are ‑‑ if you want to use the word addiction ‑‑ are constantly on their phones, on these social media platforms. But these Netflix shows are wildly popular, Squid Games or Stranger Things. And a show that I really liked “The Diplomat” and “House of Cards” was their first major release. These are wildly popular shows. I don’t think people are watching them because they’re addicted.
If you talk about it, an algorithm, you’re not going to sit down and watch a two hour show because some algorithm suggested to you, unless you like it. I guess I don’t agree with that. I think there are many more addictive forms of media, such as social media, that if you just walk around, go into any restaurant and people are scrolling or at the airport. That’s what people are addicted to, if you want to use that word. But I don’t see that with respect to Netflix. I just don’t agree with that proposition.
TEDDY DOWNEY: And in terms of Europe, I know you’re obviously focused on the U.S.
SETH BLOOM: Yeah.
TEDDY DOWNEY: But obviously, Netflix has not, I mean, their concentration numbers are higher in Europe. There’s not as many streaming video options. They’re widely viewed they’re going to have a very tough time getting European approval. You think even there, Netflix is an easier antitrust argument than Paramount?
SETH BLOOM: Yeah. Again, the overlap alleged as the horizontal overlap between Netflix and HBO Max. And I’m not sure that HBO Max has such a large share in Europe. So, I don’t know that there’s much of a horizontal overlap. But again, if we think about a Paramount Warner deal, these movie studios distribute their films internationally. American culture is really rampant all over the world. And these movie studios distribute internationally in Europe. And you have that horizontal overlap between Paramount and Warner in Europe. So, yes, I think the problems of a Paramount Warner are stronger in Europe than a Netflix Warner, just like they are here. I do think that.
TEDDY DOWNEY: All right. Well, I think we’ve gotten through every question. Oh, here’s one more question. How many of these media firms are making the argument that they compete with Big Tech platforms and therefore need to get bigger?
SETH BLOOM: How many are making the argument? I can’t answer.
TEDDY DOWNEY: Are other people saying the same thing?
SETH BLOOM: Yeah. I mean, that’s probably true. If other people are saying it, it doesn’t mean it’s an incorrect argument. But yes, they’re competing with the Big Tech firms and obviously Google owns YouTube. Sure.
TEDDY DOWNEY: I think you have been a critic historically of this idea that competitors are big. We need to get bigger.
SETH BLOOM: Yeah.
TEDDY DOWNEY: You’ve generally been a critic over the years of concentration in the economy.
SETH BLOOM: Yeah.
TEDDY DOWNEY: We’ve seen a lot of concentration in Hollywood. Like I mentioned, the workers are very fearful about their future. Obviously, you’re getting paid, but how does this fit into your beliefs about there being too much concentration in the economy already?
SETH BLOOM: Well, I will tell you – and you may not believe me — but even if I wasn’t representing Netflix I would pretty much say the same thing. I would say that Paramount’s a much more dangerous deal and it’s not a big problem with Netflix. But I guess, yeah, because I don’t see it as ‑‑ again, with eight competitors with a 9 percent market share, I just don’t see it as a big concentration problem. Yeah. I’m concerned about concentration, in general, in the economy, but not this deal.
I mean, you look at things like cell phones, airlines, those industries have much higher concentrations. We have four major airlines, three major cell phone companies, et cetera. It’s a totally different story. And we have dominant companies in the high-tech sector like Google and Meta.
But I see this as just a very disparate or diffused market and this is not a major change to that market. So, I guess I don’t think what I’m saying today is any way inconsistent with arguments I’ve made in the past with respect to other transactions or other antitrust problems.
TEDDY DOWNEY: We’ve got a last question here. Do you actually think that DOJ, states, and DG Comp will agree with you on how to define the market as opposed to the revenue-based way that we discussed?
SETH BLOOM: I do. I think they’ll do a sophisticated analysis. Well, let me put it this way. I think it’s the best way to define the market. It’s hard to predict what DOJ or the states will do with those. But I think they’re very strong arguments that this is the proper way to define the market.
TEDDY DOWNEY: That brings us to ‑‑ before we move on ‑‑ the politics of all of this. And you are a student of politics, having been in the Senate, working in the Senate. President Trump recently has come out saying that Netflix has bigger antitrust problems than they’re letting on. He’s said that he wants Netflix to fire Susan Rice after she said that corporations that effectively bend the knee to Trump are going to be in trouble going forward. Or I can’t remember exactly. I’m paraphrasing.
President Trump would seemingly have a preference for the Paramount deal. Doesn’t that indicate to you that they’re going to get sued by DOJ? Trump says he’s going to leave it to the antitrust enforcers, but most people think that he’s going to make the decision in the end of what happens at DOJ. And how do you see Gail Slater being pushed out as part of all of this, the political impetus behind a potential litigation here?
SETH BLOOM: So, I’m really here today to talk about the antitrust issues. Politics are hard to predict. You mentioned a number of statements of the President. He also said, as you said, he’s going to leave it up to the Justice Department to decide. He’s not going to decide. So, I don’t know if there’s much more I can say about it.
If you want to talk about Gail Slater, I don’t think her removal had anything to do with this transaction. There’s a lot of reasons that people speculate, but none of us knows why she got removed. But clearly —
TEDDY DOWNEY: But at some level, it’s an indication that she was more a traditional ‑‑ she seemed to be less open to political influence. Obviously, her deputy, Roger Alford, has stepped up and said he thinks there’s no place for corruption or political influence in the Antitrust Division. He was fired. Gail Slater was pushed out. So, to the extent that you’re getting a traditional antitrust argument, her removal is somewhat of an indication that you might not get that. You’re getting more politics potentially.
SETH BLOOM: Well, we don’t know how her successor, who made a pretty strong speech when he took office, how he’s going to approach it. I don’t know. There’s so many unknowns in that. It’s really, really hard for me to comment on that. But again, I’ll go back to saying we know that the reason she was removed had nothing to do with this deal. So, to speculate about what might happen now that she’s no longer there, it’s really hard to do, and I don’t really care to do it. So, yeah, I guess I’d leave it at that.
TEDDY DOWNEY: All right. I’ve got one last question, audience question. I don’t even know if this is a question. But your argument is that Netflix is not addictive. It’s like saying crack is a drug, but heroin is worse. So, let’s make the crack more potent. This is probably the funniest question we’ve ever gotten. I’m not even sure it qualifies as a question. Do you want to respond to the crack/heroin comparison here?
SETH BLOOM: It’s not a question of addiction. People watch Netflix because they like it. They like the shows. Talk to somebody who’s a fan of “Stranger Things” or “Squid Games”, or in my case, “The Diplomat.” Am I watching it because it’s addictive to me?
TEDDY DOWNEY: Well, you said social media was more addictive, is more of a problem.
SETH BLOOM: Yes.
TEDDY DOWNEY: I guess in the end, maybe next year when we have you on, Seth, we can talk about whether or not these are sin industries and need to be regulated as such. But I think we’ve really gone through the whole Netflix antitrust issues with this Warner Brothers deal. I think we can all say it’s probably not going away anytime soon. We’ll be able to talk about this, possibly even next year, potentially.
So, let’s move on. Do you have any big antitrust predictions for 2026? I put mine out earlier this year. I had one correct, one not so correct, so far. I said that DOJ and the states would appeal the Google search remedy decision.
SETH BLOOM: Good prediction.
TEDDY DOWNEY: I said that Gail Slater might get some momentum from a crackdown on affordability. That did not go my way. But Seth, what are you thinking about in terms of 2026 on the antitrust front? We’ve already had a lot happen. Obviously, Gail Slater has been pushed out. There have been rumors that Andrew Ferguson wants to be promoted to be a federal judge and is looking to do that, and he’s taken this other role policing fraud. What do you see happening in 2026?
SETH BLOOM: Well, I appreciate you giving me good opportunities to make predictions, which I’m proud of, such as in September of 2024 when I predicted there would be no divestiture of Chrome in the Google search case, which came true in September 2025. But I shouldn’t rest on my laurels.
So, as to my predictions. Well, let’s talk about the Google Search case, which DOJ appealed, which some people were surprised about. But in any event, I think the D.C. Circuit will uphold Judge Mehta’s decision and will not upset it because it’s such a factually based decision. That’s one prediction.
TEDDY DOWNEY: On liability or remedy?
SETH BLOOM: Certainly on liability and mostly on remedies. I don’t think they’re going to say Chrome should be divested. I think the question is ‑‑ where it’s possible they might reverse — is on allowing payments to Apple and Android phone manufacturers for defaults, which seems to be at variance from the standard of what a remedy should be. So, I think that could very well be reversed. But as to liability will not be reversed, as to non-divestiture of Chrome will not be reversed.
Then if I’ll make another prediction on a different issue, on a different case, the Live Nation case. In that case we know now is that there’s some settlement discussions with the DOJ. Or it’s been reported. I shouldn’t say we know, just reading the reporting. But assuming the case doesn’t settle, if the case goes to trial, the DOJ will win that case. That’s a strong prediction I’m going to make.
First of all, it’s a jury case because the states are seeking money remedies. And it’s hard to believe a jury is going to side with a company that owns Ticketmaster. It’s an unpopular company. So, I would say that.
TEDDY DOWNEY: So, if DOJ wins, you think a breakup is on the table?
SETH BLOOM: I think a breakup is on the table. And, of course, the person to decide whether there’ll be a breakup is the judge, not the jury. He’s a judge in the Southern District of New York, a Biden appointee.
TEDDY DOWNEY: Subramanian.
SETH BLOOM: Subramanian. He used to be a plaintiff’s side antitrust lawyer, among other things. He’s the kind of judge – and Capitol Forum did a story on this. I think your story said, if you would have to pick an ideal judge for the plaintiffs in this case, it would be Judge Subramanian, which I agree with. So, he has enormous discretion. And we haven’t really seen a breakup in 40 years, more than 40 years, AT&T. But I think this is a case where you very well could see a breakup between Live Nation and Ticketmaster. Of course, that’ll be appealed. What ultimately happens on appeal is unclear. But yeah, but I’ll make that prediction too.
TEDDY DOWNEY: There has been a lot ‑‑ I would say this, I’m curious to get your reaction to this on the Live Nation thing. And we’re going to be talking to the great Jonathan Kanter on Friday about this on Live Nation case specifically. But I want to get your reaction. I have, in my, whatever, how long have I been doing this, talking to you about this stuff, Seth? 20 years, maybe?
SETH BLOOM: Maybe.
TEDDY DOWNEY: Fifteen years at Capitol Forum, but we knew each other before.
SETH BLOOM: We knew each other before, sure. Yeah.
TEDDY DOWNEY: I have never ‑‑ I know companies are always trying to get out of going to trial, but I have never seen a company act this way to get out of a trial. Just like try ‑‑ I mean, what they’re saying about their odds of winning is really directly opposite to their behavior in trying to not go to this jury trial. And personally, I wouldn’t want to go to a jury trial if I were Live Nation either. I think it’s perfectly reasonable. It’s just that their posture and their constant confidence about how weak the case is, it’s just completely at odds with how they’re behaving.
And to me, that signals that all this stuff that’s redacted, all these documents, all this stuff that we haven’t seen yet, must be really juicy. I mean, obviously, it’s speculation. We have no idea. But to behave this way, obviously, hire all the Trump whispers to try to settle. I don’t think it’s that easy to say that Gail Slater wasn’t removed because of Live Nation, the case. There are more direct ties there from the lobbyists. Mike Davis, doing a victory lap after Gail was pushed out and simultaneously repping Live Nation. Doing these kind of emergency motions to get, on appeal, to delay the case.
I’m curious to get your response. Do you think that that is unusual, highly unusual or not unusual at all in terms of the disconnect here between their posture about how much they are expecting to win versus trying to get out of the litigation?
SETH BLOOM: Well, companies always think they’re going to win.
TEDDY DOWNEY: They always say they’ll win. But then they don’t desperately try to get out of the trial. A lot of them just win the trial, right?
SETH BLOOM: The prospect of a jury trial is scary for them. I hear that. And almost all antitrust cases brought by the government are not jury trials because the federak government doesn’t seek money damages, but the states do.
TEDDY DOWNEY: So, would you say that you would expect more jury trials going forward, just given Live Nation’s desperate attempts to get out of it? Like, it seems like a very –
SETH BLOOM: We’ll see if my prediction comes true. I mean, if it does, yeah. I mean, whenever you partner with the states, but again, if the U.S. Justice Department or the Federal Trade Commission brings a case alone, they can’t get a jury trial. They have no right to a jury trial. So, in those cases, we won’t see more jury trials. But cases that states bring, sure.
TEDDY DOWNEY: What do you think about DOJ? Let’s say DOJ does settle that. How much disarray do you think that ‑‑ how do you see that affecting in terms of the trial? Because obviously there’s 40 states.
SETH BLOOM: Yeah, people would be upset about that. But you have to realize the states are in the case. They can continue the case. Although, that places a big burden on the states.We saw this in the T-Mobile Sprint merger, which ultimately 14 states continued and then failed. They failed in their case, but they tried.
But a settlement would surprise me, which I don’t exclude it could happen, but the Trump administration and the President himself have said are his antitrust priorities, which are things that affect ordinary consumers. So, like drug prices, like food prices, and ticketing fees. And this is sort of squarely within what Gail Slater said ‑‑ before she got fired. But what Gail Slater said was “America First antitrust” . So, for them to settle this case that would be surprising. But you’re right. Live Nation has hired all these really well-connected Trump administration people. So, we’ll see. That’s going to be a big test of the new AAG.
TEDDY DOWNEY: One thing I can’t figure out is I just see no incentive for DOJ to settle. Because even if you settle, we’re so close to trial. Subramanian could do a big Tunney proceeding.
SETH BLOOM: Right.
TEDDY DOWNEY: The same way that ‑‑ it’s almost like it makes Live Nation look like they have even more political power, right? They’re even more of a monopoly. They got away with this. They made this happen. And then you have a hearing about like, well, why did the DOJ do this? And then all the same people get subpoenaed all over again, the same people from the HPE situation.
So, to me, I just don’t see ‑‑ I see some of the underlying logic of settling because it undermines the trial. It undermines the case potentially, right? With whatever remedy they end up coming up with. But on the other hand, you have this sheer exertion of political power. And then you have a Tunney Act proceeding alongside an ongoing trial.
SETH BLOOM: But the history of Tunney Act proceedings, it never succeeds. I mean, it never upsets the settlement.
TEDDY DOWNEY: Except on HPE, which is the most recent.
SETH BLOOM: The proceedings are underway but there has been no final result yet.
TEDDY DOWNEY: But there were depositions.
SETH BLOOM: We’ll see what that all amounts to in the end.
TEDDY DOWNEY: Well, that’s a good point. That’s a good point. Any other big predictions?
SETH BLOOM: I’ll make another one that I’ll go out on a limb about. Another Google case, the ad tech case in Virginia before Judge Brinkema. I will predict that she will order a breakup. And I feel very differently about that case than I felt about the search case. And here you sort of have an inherent conflict of interest with Google owning all sides of the ad tech stack.
And you can talk about behavioral remedies, which she may put down as well, but it’s so hard to enforce these behavioral remedies. The market is so opaque and complicated. The simpler, cleaner thing to do would be for her to just order a breakup. Google, you can’t have both the ad exchange and the publisher tools. You can have one or the other, but you can’t have both.
TEDDY DOWNEY: I’m in agreement 100 percent. That was one of my predictions as well. I also think she’s just a tougher judge than Mehta. It’s fair. Less likely to sort of go back on her liability decision like he did. Also, and this goes to Live Nation, maybe ask you a two-part question here. But like the recidivism and the constant violation of antitrust law or constant cases against Google, constant, the same thing in Live Nation. They get found to be violating their consent agreement. They get sued for antitrust. They’re getting sued by the FTC. They got sued by DOJ. This is like the third. They’ve been sued in private cases. How much do you think that judges think about the ‑‑ well, this problem isn’t going away. This problem doesn’t seem to be getting any better. How can I rely on these behavioral rules to constrain this repeat offender effectively? And do you count Google and Live Nation in the same boat in that regard? I do just because we’ve been doing this for so long and talking about these companies over and over again getting sued.
SETH BLOOM: I think Google is worse because they’ve abused the monopoly in so many different ways, monopoly in search, monopoly in content. But anyway, I think a judge has to look at that, has to think about that, as he or she fashions a remedy. I’m sure that is this remedy really going to be effective just based on their behavior in the past? And again, that might be that could weigh on Judge Brinkema in the AdTech case. You can do all these behavioral remedies, but we’ve seen all the ways that Google gets around behavioral remedies or promises it’s made. Yeah. So, I think judges do think about that as they consider cases.
TEDDY DOWNEY: Any other predictions that you have for us today? And then I’ve got a couple here. And again, if you have questions, please put them in the questions pane.
SETH BLOOM: I don’t know that I have any other predictions besides that. Yeah. So, let’s leave it at that.
TEDDY DOWNEY: I mean, as a person in the Senate, who worked in the Senate, obviously, we’ve got the November elections. Consensus there is that the Democrats are likely to win the House. You look at prediction markets. It’s what? 70, 80 percent.
SETH BLOOM: Right.
TEDDY DOWNEY: What do you think will be priority for the antitrust oversight committees for Congress when it comes to concentrated power monopoly in 2027? I mean, this iaa 2026 podcast, but obviously the election is here. So, like priorities leading up to that election. So, we’d like to stay ahead of the curve here.
SETH BLOOM: Right. Well, I mean, I think that question should be what’s going to happen in 2027. Assuming the Democrats take the House, which I predict they will, If that happans we’re going to see a total change in the way the House Judiciary Committee, the House Antitrust Subcommittee, is approaching these issues. Obviously, we’re going to see a change in leadership. But I’m sure many of your viewers and listeners remember that under the leadership of the Democrats in 2020 and 2021, 2022, it was quite a radical House Judiciary Committee, advancing at least six pieces of legislation. Having a hearing on digital marketplaces in which four CEOs testified, issuing a big report that Lina Khan was a primary author of. We all know what she ended up doing. She was a very strong enforcer at the FTC.
And so, that was a different House Judiciary Committee. The Chairman of the Antitrust Subcommittee was Rep. Cicilline is not in Congress anymore. But there are many people that could take up the cudgels of a Cicilline. So, I think we’ll see a much stronger Antitrust Subcommittee. Today the House Judiciary Committee is basically a block on all antitrust legislation. Chairman Jordan really doesn’t believe in it.
And so, that’s going to radically change. And I could see a much more activist House Judiciary Committee as a whole, and the Antitrust Subcommittee in particular, with respect to these issues and advancing legislation, holding many more hearings, being much more aggressive oversight, all of that. So, it’s going to be a big change in the way antitrust is being handled, antitrust oversight is being handled in the Congress right now, which has been pretty quiet.
Todaywe’re really not seeing any legislation advance, other than increased filing fees for merging parties, that kind of thing. But other than that, we’re not seeing legislation advance. And I think that’s all going to come in for a big change.
The question will be what happens in the Senate? I think it’s about 50-50 about who’s going to control. I mean, should the Democrats control the Senate as well as the House, then we’ll see the prospects for antitrust legislation really brighten. So, yeah, I mean, that’s what I would say.
TEDDY DOWNEY: How much do you think Big Tech should be concerned about Democrats winning the House and potentially the Senate? Just because historically, a lot of Democrats have sort of aligned with Big Tech. And they said, hey, okay, we like you. You give us money. We protect you. You sort of respond to what we say. You employ people in our districts, what have you. You employ ‑‑ from Schumer’s perspective ‑‑ employ two of his kids.
But you’ve seen a much, I think, scarier environment where Bezos owning the post and just doing what Trump wants, Big Tech all showing up at the Trump inauguration, giving to all of Trump’s pet causes, ostensibly being willing to respond to Republican criticism of how content flows over their dominant communications platforms.
I mean, I take a cynical view of the Democratic Party. I find them to be mostly feckless and weak and unwilling to use power in any way. So, they’ll just go back to their weak ways of begging for money from Big Tech and doing what they want.
But do you see this as actually, hey, you’re not putting the genie back in the bottle? There’s no way we’re going back to that sort of neoliberal way of sucking up to Big Tech.
SETH BLOOM: Well, that’s an interesting topic. We could talk a long time about that. I mean, I think Big Tech should be concerned. But this has become a bipartisan issue in the last five years or so with Republicans, like a Josh Hawley, being as concerned about Big Tech as Democrats, as the left, such as Elizabeth Warren. But the reasons that Republicans have been concerned, of course, are different. It’s about their belief that Big Tech has censored conservative viewpoints and would not let things like election denialism on their platforms, those conservative viewpoints. Anyway, so that’s what’s motivated their animus to Big Tech. But nonetheless, it’s been there. And they want to use any tool against Big Tech, which includes antitrust enforcement.
What changes, I think, is in the legislative arena. And we saw the Senator Klobuchar’s AICOA bill nearly become law at the end of 2022. And the reason it didn’t is because of Senator Schumer’s opposition, then-Majority Leader Schumer’s opposition, and blocking it from passage on the Senate floor.
So, I think the question will be with legislation. And I think legislative prospects do brighten, which ought to concern Big Tech. Would Schumer still be Majority Leader? If he is ‑‑ if the Democrats took over the Senate ‑‑ if he is, would he continue to try to block such legislative efforts? Those are all question marks. So, I think that kind of legislation would easily pass the House.
And so, the question would be the Senate. Now, if the Republicans keep control of the Senate, what does that mean for legislative efforts? Even though there’s this animus towards Big Tech that I described, generally Republicans are more pro-business. And they would see legislation as less anti-regulation. So, it might be still difficult to get strong legislation through a Republican-controlled Senate. But yeah, I think Big Tech needs to watch it very carefully and be concerned.
TEDDY DOWNEY: One last question for you, and then I’ll let you go. I do think one area where I do think there is a big difference that I’m observing among Democrats in Congress ‑‑ and we’ve recently invested in some congressional reporting, which we’ve never done in the past. One thing I’m seeing is an openness to reforming the Supreme Court. And I’m curious ‑‑ that has been an untouchable issue for Democrats. Like, oh, the Supreme Court, it’s fine. I don’t know what kind of excuses they make. Oh, they’re just sort of it is how it is, right? And they’re just resigned to it.
But I’ve gotten more of an indication that, no. There’s going to be a real movement to reform the Supreme Court in Congress, just given some of the decisions they’ve made, particularly around empowering Trump further, some of the decisions they’ve made on corruption and just this current situation that the government is in now. What do you think about reforming the Supreme Court? Is that on the table? I think that is also obviously like a big deal for Big Tech and other monopolies.
SETH BLOOM: I would think the one proposal that could be on the table, and one that I personally favor is, end of lifetime tenure. And my late great boss, Senator Kohl, was in favor of that as well. So, how about a 15-year term, maybe with some provision for reappointment? That’s possible
But I could see that. And that still has not gained wide support in Congress. But we might have a convergence here because now Trump hates the Supreme Court too after the tariff decision. And Democrats have been really disdainful of the Supreme Court for a long time, empowering Trump and refusing to stand up to him until now, this latest decision on tariffs.
But I’m beyond that, we’ll see. What other Supreme Court reforms do you think could pass? I don’t see increasing the number of justices.
TEDDY DOWNEY: Well, I don’t know if it would pass right away. But just being open to taking up reforms, more justices, more expert panels, what have you, seems to be something that people are interested.
SETH BLOOM: I could see ethics reforms.
SETH BLOOM: And also, what about impeachment for corruption potentially? Well, I was going to say, I could see ethics reforms. Because right now the Supreme Court’s exempted from the general rules of ethics that apply to all other federal judges. And yeah, I could definitely see that change through legislation.. Impeachment? I don’t know that any Justice is going to get a two-thirds vote through the Senate to be convicted. I don’t think that’s very likely.
TEDDY DOWNEY: Well, Seth, great, as always, to have you on, wide ranging conversation. Look forward to having more discussion about Netflix, Paramount, Warner Brothers, going forward.
If you’re listening, we also have had a series of op-eds in The Forum, our op-ed newsletter, where we’ve had representatives from both Netflix and Paramount submit opinion pieces. I encourage you to check that out. We have the call on Friday with Jonathan Kanter.
We have the event March 12th in LA. I hope you can join us for all these upcoming events, Seth, you included. Thank you so much for doing this today.
SETH BLOOM: Thank you very much. I really enjoyed it.
TEDDY DOWNEY: All right, everyone. This concludes the call. Bye-bye.
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