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When Paramount Skydance arrives in court to defend its $110 billion merger with Warner Bros. Discovery, it will not be light on firepower. As I first reported, the company has retained Winston & Strawn rainmaker Jeffrey Kessler, fresh off his victory on behalf of states against Live Nation. And Kessler is merely the opening act. Latham, Cravath, and other white-shoe firms are expected to join the defense in an extravagant display of corporate legal muscle.

As for who will be seated across the aisle, that remains very much in flux. The states most likely to challenge the merger as anticompetitive are still searching for senior antitrust litigators to lead the effort. (It was a smart move by Paramount Skydance to take Kessler off the board…) Both New York and California are advertising for seasoned recruits. California A.G. Rob Bonta quietly posted a LinkedIn job ad last week touting the opportunity to litigate some of the nation’s marquee competition fights, including Live Nation–Ticketmaster, Nexstar–Tegna, and, yes, Warner–Paramount.

The pay tops out at roughly $17,700 a month—which, granted, may not purchase much serenity in Sacramento these days. (By contrast, Kessler’s firm regularly charges nearly $3,000 an hour for marquee partners.) But the job is hybrid, meaning at least some trust-busting can apparently be conducted from home. And if the California Department of Justice wins the additional $4.1 million budget increase that it recently requested for 16 new antitrust hires, the lucky recruit may even get a small army to back him or her up.

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All of this is part of a broader push to build the infrastructure needed to carry bigger, more complicated cases, amid a growing sense that Trump’s regulators may not be up to the job—or may be working both sides. The project has taken on fresh urgency after the Justice Department’s controversial settlements with Hewlett Packard and Live Nation. Now comes the less glamorous work of actually staffing up and getting budgets approved. Texas, for instance, recently set aside $33 million for outside counsel.

Perhaps more significantly, states are also constructing their own early-warning systems for deals. California, Washington, and Colorado have adopted laws modeled on the federal pre-merger-notification regime, giving the D.O.J. and F.T.C. a heads-up above a certain financial threshold. Meanwhile, according to a recent fee petition filed by Oregon in the Kroger-Albertsons case—which, by the defendants’ telling, marks the first time A.G.s have sought to recover fees after winning a preliminary injunction against a merger—the states recently created a shared database for investigatory materials.

The goal is to get eyes on deals sooner and build independent screening capacity. Whether that will be enough to match the companies’ resources is another matter entirely. But the days of waiting around for Washington to call the plays are over.

The state attorneys general aren’t the only ones trying to muscle into the competition-enforcement spotlight. A group of streaming consumers have brought a private antitrust action, contending that Paramount’s proposed $110 billion Warners deal violates Section 7 of the Clayton Act by substantially lessening competition. On Wednesday, the plaintiffs moved for a preliminary injunction to stop the transaction from closing. For all the chatter about what the D.O.J., F.C.C., and ambitious state A.G.s might do, this lawsuit is being slept on.

That’s somewhat surprising because the case is being led by Joseph M. Alioto, a name that still carries weight in antitrust circles. No, he’s not quite a legend of his father’s caliber—Joseph L. Alioto represented everyone from Walt Disney to Samuel Goldwyn, helped Al Davis pry the Raiders loose for Oakland, and parlayed his courtroom fame into the San Francisco mayor’s office. Nor is he as politically plugged in as his son Joseph Alioto Jr., whom Gavin Newsom appointed chair of California’s Occupational Safety and Health Standards Board. But Alioto remains very much an old-school antitrust brawler, fond of noting that he has tried more antitrust cases than perhaps any lawyer alive.

Alioto’s preliminary-injunction case leans heavily on a recent federal ruling granting DirecTV’s bid to temporarily halt Nexstar’s acquisition of Tegna’s local television stations. His argument is familiar: If Paramount and WBD are moving toward a third-quarter closing, preserving the status quo pending trial would be far less disruptive than attempting to unwind the transaction afterward. Once a merger of this scale closes—executives reshuffled, operations integrated, layoffs initiated, and market leverage consolidated—courts become far more reluctant to dismantle it, even if they later determine competitive harm occurred.

Whether Alioto prevails is another matter entirely. A few years back, he tried something similar during Microsoft’s acquisition of Activision Blizzard and lost after the court concluded that his clients failed to demonstrate imminent injury and therefore lacked standing. This time, several plaintiffs are citing recent Paramount+ price hikes, while others contend the streaming service has become too expensive to maintain altogether.

Is that enough to establish concrete harm from a merger that hasn’t closed? Perhaps not. Still, even a failed injunction could shape the ongoing legal fight. At minimum, it forces Paramount to respond immediately. If the judge issues a substantive opinion, particularly on market definition, streaming competition, or irreparable harm, that reasoning could influence subsequent litigation.

As for the substance, Alioto’s case intriguingly defines three separate product markets allegedly threatened by the merger: premium-video distribution, theatrical-film production, and national news. The first two are unsurprising. (I’ve already laid out the battle lines.) The third is more unusual. Alioto is specifically targeting the proposed consolidation of CBS News and CNN, an issue that’s already rattling media and political circles. From a traditional antitrust standpoint, however, this may prove the weakest part of the case. The complaint doesn’t even attempt to quantify the companies’ combined share of the national-news market. Moreover, courts historically have been reluctant to treat diminished editorial independence or viewpoint concentration as conventional antitrust harms.

But Alioto appears to be nudging the law toward the theory that media consolidation can reduce not merely price competition but diversity of reporting and public discourse itself. It’s a provocative argument. It is also one that risks pushing judges into realms bordering media regulation and the First Amendment, where courts tend to tread very cautiously.

Not coincidentally, this is also where the case becomes openly political. Alioto’s preliminary-injunction motion explicitly raises the specter that favorable regulatory treatment may be intertwined with favorable media coverage, an allegation that pushes the merger fight beyond ordinary competition analysis and directly into the bloodstream of Trump-era media paranoia.

Notably, Paramount appears eager to lean into that framing, with Kessler blasting Alioto’s complaint as “baseless” and relying on “political scaremongering.” Expect more of the same, with Paramount continuing to frame its opponents as politically motivated actors. The plaintiffs, in turn, will have to persuade the court that the politics are incidental and that market power is the point.

Thanks, Eriq. WIH will be back tomorrow.

Matt

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