Warner Brothers Discovery Inc.'s recently announced $82.7 billion sale to Netflix has once again placed media consolidation at the center of the U.S. antitrust debate.[1]

Announced Dec. 5, the news has generated significant commentary across the political spectrum for antitrust practitioners — especially due to Paramount Skydance Corp.'s Dec. 8 competing hostile takeover bid.

It also presents the first major test of whether and how the U.S. Department of Justice Antitrust Division, under the leadership of Assistant Attorney General Gail Slater, will apply a structural-remedies philosophy to this type of deal.

During her confirmation hearings, Slater hinted at a preference for structural remedies because such remedies require minimal DOJ oversight.[2]

Preferring structural remedies is consistent with the DOJ's approach during the first Trump administration.

But how the Antitrust Division will now review major tech and media deals under the DOJ and Federal Trade Commission's still largely untested 2023 merger guidelines, particularly treatment of cross-market effects,[3] poses exciting questions for antitrust practitioners — both for building tomorrow's merger cases and structuring today's deals.

A New Antitrust Philosophy for an Old Industry

The entertainment industry has historically moved in cycles of fragmentation and consolidation, with the latter cycles often spurring some of the most famous antitrust cases from the golden era of antitrust enforcement, notably the U.S. Supreme Court's 1948 U.S. v. Paramount Pictures decision, which prevented studios from owning theaters.[4]

We presently live in an era of consolidation, at least on the content-creation side, with The Walt Disney Co. absorbing 21st Century Fox in 2019,[5] and Amazon.com Inc. acquiring Metro-Goldwin-Mayer Studios Inc. in 2022, among other high-profile deals over the last decade.[6]

At the same time, we are seeing tremendous fragmentation in how content is distributed. In 2024 alone, the U.S. saw 36 new streaming services launch, while 39 services also became inactive.[7]

Yet the five largest streaming platforms capture over 70% of global subscription revenue, according to MarketGrowth Reports.[8]

These concerns will need to be squared against traditional consumer welfare standard arguments, such as lower costs and greater efficiencies.

Against this backdrop, Slater assumed leadership of the Antitrust Division in March. In her April 28 speech at University of Notre Dame, the Law School, she identified protecting "individual liberty from the tyranny of monopoly" as one of her key policy priorities.[9]

Her Sept. 16 Georgetown University Law Center remarks echoed those themes and articulated a vigorous remedies-focused enforcement approach.[10]

Those comments, plus her decision to maintain the 2023 merger guidelines, suggest cross-market and platform-ecosystem effects, not just single-market silos, will be central to future merger reviews.

Philosophy Applied to a Potential Warner Deal

How the DOJ may assess a proposed Netflix acquisition of Warner Bros. Discovery in the near term — and, more broadly, how it will approach major media consolidation efforts in the years ahead — raises interesting questions.

Netflix is already the world's largest streaming platform and has spent the past several years expanding far beyond its origins as a content distributor: building in-house studios, acquiring global production capacity, developing its own advertising tier, and investing heavily in proprietary user-data and personalization systems.

The question for enforcers is whether combining Netflix's platform with Warner Bros. Discovery's library of premium content creates market power that is mutually reinforcing — or whether the deal will instead accelerate efficiencies and consumer benefits.

Applying the antitrust framework that Slater has laid out, regulators would likely ask whether Netflix's control of Warner Bros. Discovery's flagship assets — HBO, Warner Bros. Pictures, DC Studios, and HBO Max — could allow it to:

• Privilege its own titles in search and recommendation algorithms;
  
  
• Foreclose rival streaming services from essential licensing windows; or
  
  
• Integrate Warner Bros. Discovery's viewing data into Netflix's already-powerful recommendation and advertising systems in ways that entrench its broader platform strength.

These questions go directly to the freedom of choice principle Slater emphasized in her Notre Dame remarks.

The DOJ may also cite horizontal and vertical concerns from combining the two studios while placing content creation and streaming delivery under one corporate roof.

As Slater's team demonstrated in the Keysight Technologies Inc.-Spirent Communites PLC[11] and Safran SA-RTX Corp.[12] settlements earlier this year, by requiring targeted divestitures rather than relying on post-closing conduct remedies, behavioral commitments were insufficient; the DOJ demanded structural separation.

Enforcement Trends and Case Law

Since January 2025, the Antitrust Division has used structural remedies several times.

In the June 2 decision in U.S. v. Keysight Technologies Inc. in the U.S. District Court for the District of Columbia, the DOJ required divestiture of Spirent Communications units representing roughly 40% of revenue.[13]

Then, in the June 17 decision in U.S. v. Safran, also in the District of Columbia, the DOJ mandated the sale of Safran's North American actuation-systems business to Woodward Inc.[14].

These cases suggest that, when it comes to large media acquisitions like Warner Bros. Discovery, the Antitrust Division will not simply rely on efficiencies or question whether competitive harm exists, but whether remedies short of blocking the deal could credibly preserve competition.

Lessons for Practitioners

Taken together, the above presents several lessons for practitioners.

Expect structural outcomes.

The current Antitrust Division, at least in these sectors, will demand more than behavioral fixes. Transactions merging distribution, data and content may require substantial divestitures to clear review.

Recognize data as market power.

The Antitrust Division continues to treat cross-platform data integration itself as a potential form of foreclosure.

Model global exposure.

Multinational tech firms face coordinated scrutiny from competition and privacy regulators; parallel reviews can quickly compound risk.

The combination of Slater's structural-remedies focus, the potential for cross-market analysis, and Slater's treatment of monopoly as a threat to freedom mean that large-scale consolidation — especially in such prominent and influential areas as media — will continue to experience antitrust scrutiny.

Crafting a credible competitive narrative will be vital to clearing deals.

References

[1] For a discussion of the potential sale, see Meg James, Warner Bros. Discovery Is Up for Sale — Why CEO David Zaslav Isn't Ready to Give Up the Reins, L.A. Times (Oct. 30, 2025), https://www.latimes.com/entertainment-arts/business/story/2025-10-30/david-zaslav-warner-bros-deal-paramount-ellison.

[2] Nomination of Abigail Slater To Be Assistant Attorney General for the Antitrust Division of the DOJ: Hearing Before the S. Judiciary Comm., 119th Cong. 5 (Feb. 12, 2025) (responses to written questions for the record from the Senate Judiciary Committee, page 1 of Senator Cornyn's Questions for the Record), https://www.judiciary.senate.gov/imo/media/doc/2025-02-12_-_qfr_responses_-_slater.pdf.

[3] See generally U.S. Dep't of Justice & Fed. Trade Comm'n, Merger Guidelines (Dec. 18, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/2023_merger_guidelines_final_12.18.2023.pdf; see also id. at 23, § 2.9 (discussing Guideline 9, which concerns multi-sided platforms and interrelated markets).

[4] United States v. Paramount Pictures Inc. , 334 U.S. 131 (1948).

[5] The Walt Disney Company, Disney's Acquisition of 21st Century Fox Will Bring an Unprecedented Collection of Content and Talent to Consumers Around the World, (Mar. 19, 2019), https://thewaltdisneycompany.com/disneys-acquisition-of-21st-century-fox-will-bring-an-unprecedented-collection-of-content-and-talent-to-consumers-around-the-world/.

[6] Jennifer Maas, Amazon Closes $8.5 Billion Acquisition of MGM, Variety (Mar. 17, 2022), https://www.variety.com/2022/tv/news/amazon-mgm-merger-close-1235207852/.

[7] Fabric Data, Streaming Platforms Trends in 2024 (Feb. 17, 2025), https://www.fabricdata.com/streaming-platforms-trends-in-2024.

[8] MarketGrowthReports, Streaming Services Market — Global Industry Analysis, Share, Size, Trends, Growth and Forecasts 2025-2032 (2024), https://www.marketgrowthreports.com/market-reports/streaming-services-market-114855.

[9] Abigail "Gail" Slater, Assistant Attorney General Gail Slater Delivers First Antitrust Address at University of Notre Dame Law School (Apr. 28 2025), https://www.justice.gov/opa/speech/assistant-attorney-general-gail-slater-delivers-first-antitrust-address-university-notre.

[10] Abigail "Gail" Slater, Keynote Address at the 2025 Georgetown Law Global Antitrust Enforcement Symposium, 16 Sept. 2025 (U.S. Dep't of Justice, Antitrust Div., Remarks as Prepared for Delivery), https://www.justice.gov/opa/speech/assistant-attorney-general-gail-slater-delivers-keynote-address-2025-georgetown-law.

[11] United States v. Keysight Technologies Inc., (D.D.C. June 2, 2025), No. 1:25-cv-01734-CJN, Competitive Impact Statement and Proposed Final Judgment, 90 Fed. Reg. 24869 (June 12, 2025), https://www.federalregister.gov/documents/2025/06/12/2025-10536/united-states-v-keysight-technologies-inc-et-al-proposed-final-judgment-and-competitive-impact; U.S. Dep't of Justice, supra note 13.

[12] United States v. Safran S.A., No. 1:25-cv-01897 (D.D.C. June 17, 2025).

[13] United States v. Keysight Technologies Inc.,(D.D.C. June 2, 2025.)

[14] United States v. Safran S.A., (D.D.C. June 17, 2025.)

Reprinted with permission of Law360.