. But what is new is a monopsony case focused on the highest-paid sellers. The closest analogue available for Judge Pan to cite was a case about two regional California movie theater chains, in which one chain amassed market power for “industry anticipated top-grossing films.
Like highly-paid authors, large publications like ESPN.com and large advertisers like Ford are not the most sympathetic victims. Things are even worse when the victims are ad exchange companies with names unknown to the public. Aware of these potential limits to public and judicial empathy, both lawsuits connect the harms alleged here to consumer welfare. The DOJ alleges that a smaller publishing world would lead to fewer and less diverse titles available for the reading public to consume.
But reading the legal materials, it’s hard not to feel that these arguments are afterthoughts; consumer welfare occupied two out of 160 pages of the DOJ’s brief and three out of 130 pages of the state AGs’ brief. And in truth, theyafterthoughts. What’s really going on here is a fight against consolidation. The government believes that consumers will benefit if it wins this fight, but not in a way that legal analysis is well-suited to evaluate.
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