“As the clock ticks on a sale of the Warner Bros. empire, Netflix, Comcast and Paramount are making a full-court press to snap up the David Zaslav-run studio conglomerate and crown jewel assets like HBO. Behind the scenes, the players are making the case to the Warner Bros. Discovery board about why they should go”, — write: www.hollywoodreporter.com
David Ellison’s Paramount, which has been aggressive in pursuing an outright acquisition of all of Warner Bros. Discovery, has sent multiple letters to Warners outlining its case, while also singling out why Netflix and Comcast’s offers are more fraught. On Dec. 1, a 4,000-plus word letter was sent from lawyers hired by Paramount outlining the reasons why Netflix’s offer poses “substantial risks” and Comcast’s bid offers “unique and significant risks” to getting to the end zone of a deal close.
“While a proposed Paramount/WBD transaction would be pro-competitive and likely have a favorable and relatively smooth approval process by regulators, a transaction with either Netflix or Comcast would face grave uncertainty and significant opposition by competition law enforcement agencies in the US and abroad,” wrote attorneys for Latham & Watkins and Cravath on behalf of Paramount in the regulatory letter viewed by The Hollywood Reporter.
Netflix, which appears to be viewed as now having the inside line, has been interested in acquiring the studio and streaming business (the Warner Bros. studio, HBO and HBO Max), whereas Paramount is also offering to buy the relatively embattled cable channels division, too (TNT, TBS, CNN, HGTV and Food Network). Comcast’s offer would spin off NBCUniversal into Warner Bros. Discovery in what may be a stock-heavy transaction.
Paramount is seen as the studio conglomerate that is arguably closest to the Trump administration given Oracle founder Larry Ellison and son David Ellison’s friendly rapport with the White House. That’s a card that the Paramount team may look to play as the sale process unfolds. Warners has outlined a plan to have a deal or a spin off in place by the end of the year.
A separate Paramount letter drafted by attorneys at Quinn Emanuel that leaked on Thursday took issue with “a tilted and unfair process” and took several swipes at Netflix, suggesting that Warners management viewed the streaming giant more favorably than Paramount.
On Netflix:
► “Netflix does not have the same incentive to release films in theaters and will be incentivized to use WBD’s world-class IP library to entrench Netflix’s streaming dominance while also harming theatrical distribution, talent and moviegoers.”
► “Netflix, if combined with WBD, will reduce the number of films for broad theatrical release, further pushing consumers away from theaters to streaming and harming those theaters which are already struggling. Given that the co-CEO of Netflix has called brick-and-mortar movie theaters an “outdated” concept, Netflix ownership of WBD’s studio would continue the trend toward more empty seats in theaters as Netflix shifts its movies away from initial runs in theaters.”
► “Netflix’s attempts to define a market to include social media and short-form video platforms is doomed to fail – regulators in the US and abroad have rejected such a dubious approach, and they will do so here.”
► “When combined with the No. 4 player in the SVOD market—HBO Max—the resulting company would have a 43% share among global SVOD subscribers. This makes a deal presumptively illegal under US law, which is even less restrictive than the laws in the myriad other jurisdictions that will evaluate the deal.”
On Comcast:
► “WBD’s content would increase Comcast’s ability and incentive to withhold or raise the costs to rival MVPDs and other distributors for its vast content holdings. Comcast could also reduce or eliminate compatibility between its products and its competitors’ products.”
► “While Comcast has announced plans to spin out MS NOW with other networks into Versant, for now a Comcast/[WBD] deal will bring two leading 24-Hour News networks (MS NOW and CNN) under common control. Customers will have fewer choices and industry talent will have fewer outlets for their services.”
► “Comcast’s bid is likely to run into significant regulatory scrutiny in Europe, as well. Comcast is already one of the largest AV players in Europe, operating through its subsidiaries Sky Group and NBCUniversal. Any transaction with Comcast is likely to face significant antitrust scrutiny as an attempt to entrench its dominant position.”