With each new administration, businesses brace for shifts in antitrust enforcement. What’s changing now, and what’s next? In this episode, we examine the current landscape and future trends. To break it all down, we’re joined by Stephen Fishbein, a leading trial lawyer and partner at A&O Shearman in New York City, who has tackled some of the biggest antitrust cases in recent history. As a case study, we examine the 2022 trial in which the Department of Justice (DoJ) sought to block the merger between Simon & Schuster and Penguin Random House, which at the time was the largest publishing company in the US and internationally. Stephen discusses his experience representing Simon & Schuster and its parent company, Paramount, and the factors that ultimately determined the outcome of the case. He breaks down key disputes, from how advances paid to authors affect competition to arguing what the market will look like in the future. We also discuss the interesting developments for Simon & Schuster after the deal was called off, the concept of commodifying a societal good, and what to expect when it comes to the new Trump administration’s approach to antitrust. For a fascinating look inside the publishing industry and the past, present, and future of antitrust, be sure to tune in!

Key Points From This Episode:

• Some background on guest Stephen Fishbein and his career in antitrust.
• The attempted 2022 merger between Simon & Schuster and Penguin Random House.
• Stephen’s role representing Simon & Schuster and its parent company, Paramount.
• An overview of the publishing landscape and the “Big Five” publishing houses.
• Why the Department of Justice (DoJ) wanted to block this merger.
• Details of the Clayton Act and the role it plays in antitrust cases.
• The definition of monopsony and how it is relevant in this case.
• A breakdown of the central disputes of the case.
• The competitive role that advances paid to authors play in competition.
• Why defining the relevant market is critical to antitrust cases, and this one in particular.
• Asking what the market will look like in the future and why it was a key dispute in the case.
• The outcome of the case and why the decision was sealed for a time (and partially redacted).
• How the trial dealt with confidential information in the case.
• What happened to Simon & Schuster after the deal was called off.
• Insights into the concept of commodifying a societal good.
• What to expect from antitrust enforcement with the new Trump administration.

Links Mentioned in Today’s Episode:

Stephen Fishbein
Stephen Fishbein on LinkedIn

A&O Shearman
Inside Insider Trading with Stephen Fishbein
Amelia Martella on LinkedIn

Richard Squire on LinkedIn

Fordham University School of Law Corporate Law Center