Netflix-Warner tie-up is not a done deal. What could stop it

It was just Dec. 5 that Netflix announced a blockbuster $72-billion deal to acquire Warner Bros. film and television studios, HBO and HBO Max — a tie-up that could fundamentally change Hollywood.

- By Samantha Masunaga

Yet on Dec. 8, the stakes got even higher, as Paramount swooped in with a $78-billion hostile takeover bid it plans to take directly to Warner Bros. Discovery’s shareholders.

Paramount Chief Executive David Ellison called the Netflix deal an “inferior proposal,” saying in a statement that it “exposes shareholders to a mix of cash and stock, an uncertain future trading value of the Global Networks linear cable business and a challenging regulatory approval process.”

It all sets the stage for a long and potentially bruising fight. And the Netflix deal would have to overcome some significant regulatory hurdles, experts told me.

“This is a deal that never should have left the boardroom,” said David Balto, an antitrust attorney and a policy director at the Federal Trade Commission during the Clinton administration. “The competitive concerns are profound. This is going to face a lot of opposition at the Justice Department.”

For one, antitrust regulators are expected to scrutinize the market share that would be controlled by a combined Netflix and HBO Max.

Netflix outlasted its rivals in the so-called streaming wars to become the dominant platform in a crowded space. That position has led to concern that gobbling up HBO Max would give Netflix outsized power in the streaming space — potentially more than 30% — which would cross a threshold under antitrust law, according to a recent letter from Rep. Darrell Issa (R-Vista) to Atty. Gen. Pam Bondi and Federal Trade Commission Chairman Andrew N. Ferguson.

Netflix executives have argued that analysis of its market share should include YouTube.