The Media Trial of the Century

**Eriq Gardner** (0:03)
I think that, as well as a few other cases that don't have anything to do with entertainment and media, have kind of sent the message to state AGs, look like we're going to have to be the antitrust cops.

**Dylan Byers** (0:17)
Welcome to The Powers That Be Daily, Pucks podcast focused on the intersection of Wall Street, Washington, Silicon Valley, and Hollywood, and the players who run it all. I'm Dylan Byers sitting in for Peter Hamby. It's Friday, August 7th, and today I'm joined by Eriq Gardner to preview the media trial of the century between California and Paramount over the looming merger of Paramount and Warner Bros. Discovery. Eriq, Pucks resident legal expert, is going to break down all of the second and third order effects of the case, how it's affecting David Ellison, how it's affecting David Zaslav at Warner Bros. and indeed what it signals about the growing regulatory power of state attorneys general. We'll cover all of that and much more on today's episode of The Powers That Be.
Happy Friday, everybody. Welcome to The Powers That Be.
I'm joined by my partner and colleague and PUC's resident legal expert, Eriq Gardner. Eriq, how are you?

**Eriq Gardner** (1:31)
I'm doing great.

**Dylan Byers** (1:33)
It's good to see you, man. I want to know, come March 2nd, 2027, will you be at the US. District Courthouse in Oakland for the media trial of the century?

**Eriq Gardner** (1:46)
If there is a trial there, I will be there, definitely.

**Dylan Byers** (1:50)
Do we know there's going to be a trial there? That is the big question.

**Eriq Gardner** (1:53)
That's scheduled, but in my industry, there's lots of times when things are scheduled that don't come to bear. But I will be buying a ticket, probably make sure that I can exchange it if I need to be. But yeah, I'm definitely planning on being there.

**Dylan Byers** (2:08)
I know a lot of good bars in both San Francisco and Oakland, and I'm sure we can find time to have a drink.
That is the question, though. Will this go to trial? And I guess, let's assume it does.
What are you anticipating from both sides here? I think here's where things stand. And again, it's a long ways out. A lot can happen between now and then. Certainly, by the time we get there, there's going to be more than a billion dollars in ticking fees for David Ellison and Paramount. But the lay of the land is this. Effectively, Bonta and the other AGs have said, this is about very narrow definitions of competition when it comes to Hollywood, right? And Ellison has come out and said, no, it's not. What you're actually doing is you just don't want me to expand my control of the news industry over CNN because I guess you don't like my dad or you don't like Barry Weiss. When we actually, like when the rubber hits the road and we actually get into the courtroom, what are you anticipating in terms of like how this goes and what the nature of the arguments will be?

**Eriq Gardner** (3:18)
Yeah, well, you know, I think that in the run up to the trial, we're going to hear lots of noise about a lot of different things. But when it gets to actual trial is going to be pretty, you know, by the book, it's going to be, you know, like a very straight antitrust trial. I don't think you'll hear a lot about CNN and about, you know, bad motivations. You might hear a little bit about that. But, you know, this, remember, is going to be a bench trial in front of the judge. No jury. So there won't be a lot of like playing up to, you know, sympathies and everything like that. I think it's going to be a lot of experts testifying, maybe some industry people talking about, you know, the state of Hollywood and what competition is like and what, you know, competition will be like in the future and what will the impact of this merger be on various things, whether it's, you know, the number of films that are produced or the number of jobs that the industry has.
So, you know, once it gets a trial, I think that, you know, a lot of the atmospheric noise is going to calm down a little bit and we're just going to get a, you know, nitty gritty, you know, competition trial.

**Dylan Byers** (4:32)
So in that regard, like what actually matters here, because I love the atmospheric noise, I'm all about the atmospheric noise and in my broad sense, again, not a legal expert like you, but it's like, actually, if you look at the competitive landscape, just by virtue of where people spend that, you know, where people direct their eyeballs, I found David's argument in the New York Times very convincing. Like, yes, people spend time with YouTube, people spend time with Netflix, people spend time with Amazon and Apple, and you add up Warner Bros. Discovery and Paramount and you're still talking about at best, like a fifth of viewing time. What will they care about when it comes to court?