Abstract

We present support for the Securities and Exchange Commission’s 2026 proposal to rescind its climate-related disclosure rules. In doing so, we restate and incorporate by reference three prior comment letters submitted by our group of ~20 professors of law and finance concerning the Commission’s climate-disclosure initiative: comments on the original proposal in April 2022, supplemental comments in June 2022, and comments on the final rule in February 2024. Those prior letters are republished here as attachments.

Across these submissions, we consistently argue that the climate-disclosure regime exceeded the SEC’s traditional investor-protection mandate, departed from established principles of materiality, imposed substantial compliance and litigation costs, and raised significant administrative-law and constitutional concerns. The letters examine distinctions between “investor demand” and investor protection, the allocation of authority between federal securities regulation and state corporate law, and the economic consequences of mandatory climate-related disclosure.

Taken together, the letters provide a contemporaneous scholarly record of the principal legal, economic, and policy arguments advanced during the SEC’s climate-disclosure rulemaking process, from proposal through adoption and ultimately to rescission.

Read the full piece at SSRN.

Abstract

When the 9th U.S. Circuit Court of Appeals hears oral argument later today in Amazon.com Services LLC v. Perplexity AI, Inc., it will confront a novel question: how should the Computer Fraud and Abuse Act (CFAA), a statute designed to punish computer break-ins, apply to an AI agent that browses the web on a user’s behalf?

The underlying facts are not especially favorable to Perplexity. In granting a preliminary injunction, Judge Maxine Chesney of the U.S. District Court for the Northern District of California found “strong evidence” that Perplexity violated both the federal CFAA and California’s analogous statute. According to the court, Perplexity continued accessing Amazon’s systems after receiving a cease-and-desist letter and deliberately evaded the technical measures Amazon deployed to block that access. The 9th Circuit stayed the injunction pending appeal.

The doctrinal question is the easy one. Amazon will probably win, and probably should. It is also the less interesting question.

The harder and more consequential issue is whether the CFAA is the right body of law to govern this kind of dispute at all. More broadly, it raises a recurring problem in technology law: whether it is sustainable to keep asking statutes written for the technological realities of the mid- and late-20th century to govern technologies their authors could not have anticipated.

We think the answer to both questions is no. As Greg Dickinson puts it in his masterful article, “Law Proofing the Future”:

Technological breakthroughs provoke wonder, then fear, then legislation. The resulting legal regimes entrench incumbents, suppress experimentation, and displace long-standing legal principles with bespoke but brittle rules. . . . [Meanwhile,] the most powerful tools for governing technological change—the general-purpose tools of the common law—are in fact already on the books, long predating the technologies they are now called upon to govern, and ready also for whatever the future holds in store.

The interests Amazon seeks to protect are real. But they are fundamentally interests in property and contract, and courts developed the core principles governing those interests long before Congress enacted the CFAA. When statutes track those common-law principles, they often work well. When they depart from them—or prevent the sort of incremental adaptation that characterizes the common law—they tend to generate exactly the kind of doctrinal strain the CFAA now exhibits.

The lesson for agentic AI is not that Congress needs to enact a new statute. The legal system already possesses a framework capable of absorbing these new facts. Under current political and institutional conditions, any new legislation is more likely to depart from that framework than to reinforce it.

Read the full piece here.

Did Apple jump, or was it pushed?

That is the question Brussels would rather not answer after Apple announced that its new Siri AI features will not ship on iPhones and iPads in the European Union. The European Commission says Apple made a free choice. Apple’s actual choice was between opening the iPhone in ways that could break the privacy-and-security model its customers buy, shipping a product that would invite enforcement, or not shipping at all.

Call it innovation by ultimatum.

At Tuesday’s midday press briefing, European Commission spokesperson Thomas Regnier offered Brussels’ official explanation:

The decision not to allow Siri AI in the EU is Apple’s and Apple’s only… Absolutely nothing in the DMA prohibits Apple from introducing new products in the EU… What Apple is, however, not allowed to do is to close the market. It’s not for them to choose which AI tools our EU citizens get to use or not… EU law is non-negotiable.

Regnier capped the intervention with an analogy: the Commission grants no exemptions, just as a police officer does not exempt a driver from the speed limit.

The problem is that nearly every clause of his statement gets the economics backward.

The Commission’s framing is that Apple faced a free choice and chose spite. The reality is closer to a catch-22. Under the Commission’s interpretation of the Digital Markets Act (DMA), Apple could open its operating system in ways that compromise the security architecture its customers pay for—and that European Union privacy law itself demands—or it could preserve that architecture and ship nothing.

Apple chose the only option that was both lawful and commercially rational: it withheld the product. When a regulatory regime is structured so that the only safe harbor is nonparticipation, the claim that “nothing prohibits you from introducing new products” is technically true but substantively empty.

To see why, it helps to recall what actually happened. It also requires asking a question the Commission has studiously avoided: If the open, deeply interoperable, agent-accessible operating system Brussels demands is both commercially viable and consistent with the rest of EU law, why has no one—on any platform, anywhere in the world—ever built one?

Read the full piece here.

European Union merger control is getting a software update. The question is whether the new code will make the system faster, smarter, and better at spotting real competitive problems—or simply give the European Commission more buttons to press.

The pending rewrite of European Union merger-control guidance is the broadest review of the framework in roughly two decades. The Draft Merger Guidelines and accompanying technical-novelties summary seek to move beyond the compartmentalized structure of the 2004 Horizontal Merger Guidelines and 2008 Non-Horizontal Merger Guidelines. That is both a serious and welcome undertaking. Modern transactions rarely fit neatly into inherited doctrinal boxes. Firms compete through R&D pipelines, complementary assets, platforms, distribution networks, procurement relationships, data, manufacturing capabilities, and the ability to scale new products across borders. A unified framework can therefore offer a more coherent approach than a collection of analytical silos.

The draft also reflects a changed political economy. The Commission now speaks in the language of innovation, investment, resilience, sustainability, industrial scale, and global competitiveness. That vocabulary aligns with the European Union’s broader Competitiveness Compass and with concerns highlighted in the Draghi report about Europe’s growth and productivity challenges. It also reflects a recognition that merger control cannot intelligently assess competitive effects by looking only for short-run price increases in narrowly defined markets. Scale can be procompetitive. Integration can accelerate commercialization. Mergers can combine complementary capabilities that no firm could deploy as effectively on its own.

The draft’s promise, however, comes with a significant risk. The same document that expands theories of competitive benefit also expands theories of competitive harm. Innovation, investment, potential competition, entrenchment, ecosystem effects, portfolio effects, buyer power, and labor-market effects all enter a single analytical framework. Each may be relevant in a properly grounded case. Taken together, though, they risk making merger review less predictable unless the final Guidelines insist on concrete causal mechanisms, administrable limiting principles, and symmetrical treatment of harms and benefits.

From a law & economics perspective, the central question is not whether merger analysis should become more dynamic. It should. The real question is whether dynamic analysis can be disciplined enough to reduce error costs rather than simply expand agency discretion.

Read the full piece here.

Spain has become one of Europe’s leading laboratories for cartel damages litigation without ever developing an effective collective redress mechanism. While the country still awaits the full implementation of the Representative Actions Directive, the ongoing automobile cartel damages litigation already reveals the shortcomings of the existing system. It is not simply that the current mechanisms are inefficient, their complexity may itself become a litigation asset for defendants. The seven collective claims filed by the Spanish Consumers’ Organisation (OCU) expose a paradox at the heart of Spanish collective redress: a system that generates procedural complexity before judgment and individualized enforcement after judgment.

Read the full piece here.

There is no special virtue in seeing a bad case through to the bitter end. At some point, persistence looks less like principle and more like a sunk cost with a docket number.

Last week, I wrote about the Federal Trade Commission’s (FTC’s) appeal in FTC v. Meta Platforms. The appeal seems to me a bad idea.

I quarreled with several points raised by the commission in its opening brief. My main concerns, however, were these: The FTC failed to show that the conduct at issue—two long-ago consummated mergers—caused ongoing harm to competition or consumers. It was also hard to envision a remedy that would benefit competition or consumers if the FTC ultimately prevailed on liability (contingent, of course, on reversal and remand and, then, a new liability decision).

More broadly, it seemed a serious waste of limited agency resources to appear before the U.S. Court of Appeals for the D.C. Circuit in late 2026 to argue for reversal and remand, so that the U.S. District Court for the District of Columbia could reconsider its finding against liability for acquisitions that the FTC investigated, reviewed, and allowed to close without complaint in 2012 and 2014.

In brief, I argued that the FTC exercised its enforcement discretion poorly at several decision points, and perhaps in between them: in 2020, when it rushed to file a weak complaint in the waning days of the first Trump administration; in 2021, when it filed amended complaints following dismissal of the 2020 complaint; in 2025, when it took a flawed case to trial; and now, in 2026, with this appeal.

This post is not about that case. It does, however, share some background concerns with my recent little (or exceedingly long) missive.

Read the full piece here.

I. Introduction and Summary

The International Center for Law & Economics (ICLE) respectfully submits these comments in response to the Competition and Markets Authority’s (CMA) consultation on its draft guidance concerning the application of the Chapter I prohibition in the Competition Act 1998 to technology-transfer agreements.[1] ICLE is a nonprofit, nonpartisan research centre dedicated to the scholarly study of law and economics. Our scholars have written extensively on intellectual property and competition policy, including the licensing of standard-essential patents (SEPs).

These comments address a single question raised in the consultation: the CMA’s proposal not to provide specific guidance on licensing negotiation groups (LNGs).[2] The CMA has elected to assess LNG arrangements on a case-by-case basis, taking account of the specific factual and economic circumstances of each arrangement,[3] rather than establishing a categorical safe harbour of the kind the European Commission initially proposed in its draft revised Technology Transfer Guidelines.[4] That is the correct approach for three related reasons.

First, LNGs are not the mirror image of patent pools, and the analogy underlying the draft EU safe harbour does not withstand economic scrutiny. Second, a categorical safe harbour is poorly suited to a form of conduct that remains novel, untested in practice, and capable of operating either benignly or as a vehicle for collective holdout and buyer-side coordination. These are precisely the circumstances in which the error-cost framework favours case-specific assessment over a blanket exemption. Third, the EU experience is instructive. Even after the Commission retreated from a formal safe harbour, its decision to retain a bespoke analytical framework for LNGs has not resolved the underlying concerns. The CMA is therefore right to decline to follow suit at this stage.

These comments build on positions ICLE has advanced in related consultations and proceedings.[5] They conclude that the CMA’s restraint reflects sound institutional and economic judgment and that the final guidance should preserve that approach.

II. A Safe Harbour for LNGs Would Be Premature

The CMA has explained that it does not consider it appropriate to include specific guidance on LNGs in the draft guidance. It notes that LNGs have emerged only recently in technology-transfer licensing, that the CMA has no institutional experience assessing LNG arrangements, and that, to the best of its knowledge, no LNGs currently operate in the United Kingdom.[6] In light of those considerations, the CMA concluded that LNGs should be assessed on a case-by-case basis, while reserving the possibility of revisiting the issue as market practice, enforcement activity, or institutional experience evolves.

This is a measured and defensible position. Competition guidance should provide businesses with a reasonable degree of predictability about how an authority will exercise its enforcement discretion in recurring and well-understood circumstances. A safe harbour, in particular, signals that a defined category of conduct is sufficiently unlikely to harm competition that it generally does not warrant scrutiny. Extending such a signal to a category of arrangement that remains novel, largely untested in practice, and economically ambiguous would be premature. It would commit the CMA to a posture of forbearance before acquiring the experience necessary to determine whether such forbearance is justified.

Nor is any special rule required. LNGs can be assessed under the existing analytical framework that the draft guidance already sets out for agreements that may restrict competition by effect. That framework examines the nature and content of the agreement, the market position of the parties, competitors and buyers, barriers to entry, and the broader competitive dynamics of the market. Nothing about LNGs requires the CMA to displace that framework with a categorical rule.

The case-by-case approach is therefore not a gap in the guidance. It reflects the considered application of established competition-law principles to a form of conduct that does not yet warrant special treatment.

III. LNGs Are Not the Buyer-Side Equivalent of Patent Pools

The principal justification for an LNG safe harbour is that LNGs are the buyer-side analogue of patent pools, which competition authorities generally regard as procompetitive.[7] That analogy underpinned the draft EU safe harbour,[8] and it is mistaken. Once that premise falls away, the case for a categorical exemption largely falls with it.

Patent pools involve the collective licensing of complementary patents—separately owned technologies that must be combined to implement a standard. By aggregating those rights into a single package, a pool can reduce transaction costs and mitigate royalty stacking, whereby multiple overlapping royalty demands inflate the total cost of implementing a standard. Because the pool integrates complements, it can reduce aggregate royalties while increasing the joint returns earned by contributing innovators, benefiting downstream implementers and, ultimately, consumers.[9]

LNGs operate on the opposite side of the transaction and according to a different economic logic. Rather than coordinating the sale of complementary technologies, an LNG coordinates the purchase of licences among implementers that would otherwise negotiate independently. In substance, LNG members are buyers acting collectively to determine the price they are willing to pay for technology licences. That structure more closely resembles a buyers’ cartel than a patent pool.

Treating the two arrangements as equivalent collapses the fundamental distinction between coordinating complements and coordinating substitutes. It also extends the efficiency rationale that justifies patent pools to conduct that does not share the same economic characteristics.[10]

The distinction is not merely formal. Buyers’ cartels can be just as harmful as sellers’ cartels. Just as sellers acting collectively can raise prices above competitive levels, buyers acting collectively can suppress prices below them. In the SEP context, royalties driven below competitive levels reduce returns to innovation and weaken incentives to invest in the technologies on which future standards will depend.

Competition authorities have long recognised this principle. In the music-licensing context, for example, the U.S. Department of Justice (DOJ) filed a statement of interest arguing that collective rate-negotiation strategies could constitute per se unlawful buyers’ cartels.[11] More recently, a senior DOJ official described the European Commission’s support for an automotive LNG as ‘unfortunate’ and difficult to reconcile with sound competition-law principles, warning that comparable arrangements would likely be treated as per se unlawful buyers’ cartels under U.S. law.[12]

Nor do the constraints that make patent pools generally benign have any clear analogue on the buyer side. A pool’s ability to charge supra-competitive rates is constrained by the continued availability of bilateral licensing. Because pool licences and bilateral licences are functional substitutes, a pool cannot sustainably charge more than the aggregate cost of available bilateral alternatives, net of the efficiencies the pool creates.[13] Pools are also typically limited to essential, complementary patents and are subject to FRAND commitments and non-discrimination obligations.

LNGs face no comparable built-in constraints. They are not limited to complements, they owe no non-discrimination obligations to patent holders, and their purpose is to consolidate bargaining power against sellers. Consolidating buyer-side bargaining power is not, by itself, a cognisable procompetitive efficiency. It is an exercise of collective monopsony power.[14]

IV. LNGs Do Not Warrant a Categorical Safe Harbour

Because the economic character of an LNG depends heavily on how it is structured and operated, the choice between case-by-case assessment and a categorical safe harbour matters. In one configuration, an LNG may reduce transaction costs and improve the quality of negotiations. In another, it may suppress royalties, facilitate collective holdout, or obscure whether individual implementers are genuinely willing licensees under the good-faith framework governing SEP disputes.

A safe harbour necessarily treats heterogeneous conduct as homogeneous. It draws a bright line and exempts everything that falls below it. That approach may be appropriate where the conduct is well understood, grounded in a demonstrated market failure, and reliably benign. It is ill-suited to novel conduct whose competitive effects turn on fact-specific features that a categorical rule cannot capture.

For LNGs, the better course is the one the CMA has chosen: case-by-case assessment under the existing effects-based framework.

A. No Market Failure Justifies an LNG Safe Harbour

The premise underlying calls for an LNG safe harbour is that implementers face a systemic ‘patent holdup’ problem that collective negotiation would correct. The empirical record does not support that premise. Studies have found no indication that SEP holders systematically extract supra-competitive royalties or undermine technology adoption.[15] A comprehensive 2023 study commissioned by the European Commission likewise found no discernible evidence that FRAND-licensing frictions have caused patent holders to contribute less to standards or induced implementers to avoid standardised technologies.[16] Standard-reliant industries have flourished under the prevailing licensing system.

As noted above, granting an antitrust exemption to LNGs would not be a neutral choice. Collective buying arrangements raise familiar competition-law concerns associated with horizontal cooperation among competitors. For policymakers, weighing the possible benefits and risks of LNGs therefore presupposes a market failure in need of correction. Absent evidence of a systemic holdup problem, favourable treatment for LNGs would risk introducing new distortions into SEP licensing, rather than correcting existing ones.[17]

The opposite concern—‘patent holdout’, in which implementers strategically delay or avoid taking licences to devalue SEPs and shift leverage against innovators—is, by contrast, well documented.[18] Empowering implementers to coordinate their negotiating posture could exacerbate that risk. Even commentators sympathetic to LNGs have acknowledged that, where members retain the ability to pursue bilateral deals after joint talks, a group may use the joint negotiation to gather information and then prolong individual negotiations—compounding the risks of delay and collective holdout.[19]

A categorical safe harbour would have to assume away these risks at the threshold. Case-by-case assessment allows the CMA to weigh them on the facts.

B. LNGs Complicate the FRAND Negotiation Framework

LNGs also raise unresolved questions about how collective negotiation interacts with the good-faith negotiation framework governing SEP disputes.[20] The European Court of Justice’s framework in Huawei v. ZTE establishes a structured bilateral process in which an implementer must demonstrate its willingness to take a FRAND licence.[21]

Collective negotiation complicates that framework. If implementers negotiate as a group, it becomes unclear what it means for any individual member to qualify as a ‘willing licensee’. It is likewise unclear whether a member could shelter behind the group’s collective negotiating position while later asserting its own willingness to take a licence.

The operating rules the European Commission examined in the automotive context illustrate the problem. Those rules permit members to reject the negotiated outcome and return to bilateral negotiations. The final EU Guidelines likewise do not require the outcome of LNG negotiations to bind participating members.[22] As a result, LNGs may create opportunities for strategic behaviour that are difficult to reconcile with the bilateral framework established in Huawei v. ZTE.

These are precisely the kinds of structural features whose competitive significance depends on the facts of a particular arrangement. They cannot be resolved in advance through a categorical exemption.

C. Error Costs Favour Case-by-Case Review

The error-cost framework that underpins modern competition analysis reinforces the CMA’s instinct. Where conduct is novel and its effects remain uncertain, the relevant question is which type of error is more costly and harder to reverse.

A categorical safe harbour invites false negatives. It would shield arrangements that, on closer inspection, suppress royalties or facilitate holdout. Once an ex ante exemption normalises such conduct, it becomes difficult to unwind.

Case-by-case assessment, by contrast, preserves the CMA’s ability to distinguish benign arrangements from harmful ones as it gains experience. It also does so without chilling procompetitive arrangements that parties can already defend under the existing effects-based framework.

False positives that burden genuinely procompetitive conduct are costly because efficient arrangements, once deterred, are not easily recreated.[23] But the answer to that concern is careful, fact-specific analysis—not a blunt categorical rule that errs in the opposite direction.[24]

V. The CMA’s Approach Is Preferable to the EU Framework

The CMA has rightly noted that it considered the European Commission’s revised approach and followed it where appropriate. On LNGs specifically, the comparison is instructive.

The Commission’s draft Guidelines proposed a safe harbour for LNGs subject to several safeguards, including open participation, disclosure of operating rules, a narrow scope limited to joint negotiation, restrictions on information exchange, a prohibition on coordinated conduct—including holdout—that would constrain either side’s freedom to negotiate bilaterally, freedom for technology holders to deal with third parties, and a cap limiting jointly negotiated fees to no more than 10 per cent of the price of products incorporating the licensed technology.[25]

Following extensive criticism, the Commission ultimately abandoned the proposed safe harbour. The final Guidelines nonetheless retain a dedicated section addressing LNGs, identifying their potential procompetitive and anticompetitive effects, distinguishing genuine LNGs from buyers’ cartels, and setting out factors relevant to determining whether an LNG is likely to restrict competition.[26]

That retreat from a formal exemption was an improvement. It did not, however, resolve the underlying concern. By according LNGs a bespoke analytical framework, the final EU Guidelines continue to normalise buyer-side coordination in SEP licensing and shift the debate from whether such coordination should be permitted to how it should be structured.[27] Nor do the safeguards identified by the Commission fully address the central concern. An LNG may aggregate implementers’ bargaining power while still allowing members to reject the negotiated outcome, prolong disputes, and exert downward pressure on royalties.[28]

Against that backdrop, the CMA’s decision not to provide a dedicated LNG section—let alone a safe harbour—is the more prudent course. It avoids both the false comfort of a categorical exemption and the subtler problem of a bespoke framework that legitimises the conduct it purports merely to analyse. The CMA’s acknowledgement that it lacks institutional experience with LNGs, that LNGs are a recent development, and that none currently operates in the United Kingdom is not a weakness in its reasoning. It is a principal reason why restraint is warranted.[29]

That restraint also promotes international coherence. U.S. authorities have signalled that LNG-type arrangements would likely be treated as unlawful buyers’ cartels,[30] while continuing to regard properly structured patent pools and SEP platforms as presumptively procompetitive.[31] By declining to enshrine special LNG treatment in its guidance and preserving the ability to assess each arrangement on its facts, the CMA remains aligned with the broad consensus that buyer-side coordination warrants scrutiny rather than categorical endorsement, while retaining flexibility to credit genuinely procompetitive arrangements where the evidence supports them.

VI. Conclusion

ICLE commends the CMA for declining to provide specific guidance on LNGs and for electing instead to assess such arrangements case by case. LNGs are not the mirror image of patent pools. They are a form of buyer-side coordination whose competitive effects depend on fact-specific features that a categorical safe harbour cannot capture.

The case for special LNG treatment remains unproven. The empirical evidence does not show a systemic holdup problem that would justify an antitrust exemption. By contrast, the risks of collective holdout, royalty suppression, strategic delay, and tension with the good-faith FRAND negotiation framework are real and difficult to police in advance. Those risks are especially acute where LNG members remain free to reject a jointly negotiated outcome and resume bilateral negotiations.

The EU’s experience confirms the point. The Commission first proposed a safe harbour, then retreated to a bespoke framework that still normalises the conduct. The safer course is the one the CMA has chosen: preserve the existing effects-based framework and assess the specific facts and economics of each arrangement.

ICLE therefore urges the CMA to retain its proposed approach in the final guidance. Should LNGs become more prevalent, or should enforcement experience accumulate, the CMA will be well placed to revisit the issue on the strength of evidence rather than on the basis of a contested analogy.[32] Until then, case-by-case assessment is fully adequate to the task.[33]

ICLE appreciates the opportunity to comment and would welcome the opportunity to discuss these issues further with the CMA.

 

[1] UK Competition & Markets Auth., Draft Guidance on the Application of the Chapter I Prohibition in the Competition Act 1998 to Technology Transfer Agreements (2026) [hereinafter CMA Draft Guidance]; UK Competition & Markets Auth., Consultation on Draft Guidance on the Application of the Chapter I Prohibition in the Competition Act 1998 to Technology Transfer Agreements (30 Apr. 2026) [hereinafter CMA Consultation].

[2] CMA Consultation, supra note 1, ¶ 5.3 (‘Do you have any comments on the CMA’s proposal not to provide specific guidance on LNGs?’).

[3] Id. ¶¶ 2.19–2.21; CMA Draft Guidance, supra note 1.

[4] Communication from the Commission—Approval of the Content of a Draft for a Commission Regulation on the Application of Article 101(3) of the Treaty on the Functioning of the European Union to Categories of Technology Transfer Agreements and a Draft for Commission Guidelines on the Application of Article 101 of the Treaty to Technology Transfer Agreements, 2025 O.J. (C/2025/5024) § 4.5 (16 Sept. 2025) [hereinafter Draft EU TT Guidelines].

[5] See, e.g., Int’l Ctr. for L. & Econ., Comments on the Draft Revised Technology Transfer Block Exemption Regulation and Technology Transfer Guidelines 4–7 (23 Oct. 2025) [hereinafter ICLE TTBER Comments].

[6] CMA Consultation, supra note 1, ¶ 2.20.

[7] Giuseppe Colangelo, Licensing Negotiation Groups: The New Antitrust Kid on the SEPs Block, 1 Eur. Competition J. 1, 1–19 (2026) [hereinafter Colangelo, LNGs].

[8] See, e.g., Ruud Peters, Igor Nikolic & Bowman Heiden, Designing SEP Licensing Negotiation Groups to Reduce Patent Holdout in 5G/IoT Markets, in 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things 161 (Jonathan M. Barnett & Sean M. O’Connor eds., Cambridge Univ. Press 2023) (‘Pools and joint purchasing agreements share the same antitrust concerns. The main risk is that the aggregation of substitute products or services would constitute a price-fixing cartel and amount to a “per se” restriction (US) or a restriction of competition “by object” (EU)…. The increased market power of such horizontal cooperation is another concern …’).

[9] Josh Lerner & Jean Tirole, Efficient Patent Pools, 94 Am. Econ. Rev. 691 (2004); see also Carl Shapiro, Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting, 1 Innovation Pol’y & Econ. 119, 134 (2000).

[10] See, e.g., Igor Nikolic, Licensing Negotiation Groups for SEPs: Collusive Technology Buyers Arrangements? Their Pitfalls and Reasonable Alternatives, Les Nouvelles 226 (2021); Colangelo, LNGs, supra note 7.

[11] Statement of Interest of the United States, Global Music Rights, LLC v. Radio Music License Comm., Inc., No. 2:16-cv-09051-TJH-AS (C.D. Cal. 5 Dec. 2019), ECF No. 111.

[12] Khushita Vasant, EU Guidance on Carmakers’ SEP Licensing ‘Unfortunate’, US DOJ’s Kallay Says, MLex (10 Oct. 2025), https://www.mlex.com/mlex/articles/2398760.

[13] Written Submissions of the International Center for Law & Economics as Intervener ¶¶ 4.4–4.5, Tesla, Inc. v. InterDigital Patent Holdings, Inc. & Avanci, LLC, UKSC/2025/0058 (U.K. Sup. Ct. 16 Mar. 2026) [hereinafter ICLE Tesla v. Avanci Submissions]; Robert P. Merges & Michael Mattioli, Measuring the Costs and Benefits of Patent Pools, 78 Ohio St. L.J. 281 (2017).

[14] Colangelo, LNGs, supra note 7 (explaining that coordination among downstream firms remains coordination among competitors, regardless of where it occurs in the supply chain).

[15] See, e.g., Alexander Galetovic, Stephen Haber & Ross Levine, An Empirical Examination of Patent Holdup, 11 J. Competition L. & Econ. 549 (2015).

[16] Justus Baron, Pere Arque-Castells, Amandine Leonard, Tim Pohlmann & Eric Sergheraert, Empirical Assessment of Potential Challenges in SEP Licensing (Eur. Comm’n, 27 Apr. 2023), doi:10.2873/19262 (finding no evidence that FRAND-licensing frictions reduce SEP owners’ incentives to contribute technology to standards or induce implementers to choose alternative standards).

[17] Colangelo, LNGs, supra note 7.

[18] Bowman Heiden & Justus Baron, The Economic Impact of Patent Holdout, 38 Harv. J.L. & Tech. 638 (2024); Kirti Gupta & Urška Petrovcic, Evidence of Systematic “Patent Holdout”, 38 Berkeley Tech. L.J. 575 (2023).

[19] Josef Drexl, Beatriz Conde Gallego & Daria Kim, Position Statement of the Max Planck Institute for Innovation and Competition of 25 April 2025 within the Framework of the Revision of the Technology Transfer Block Exemption Regulation and the Accompanying Guidelines, 74 GRUR Int’l 736 (2025) (‘A greater potential for individual delaying strategies arises if the members of the LNG retain the possibility of continuing bilateral negotiations with the aim of adapting the jointly negotiated outcome to the particular licensee’s circumstances once joint negotiations have concluded.’).

[20] Colangelo, LNGs, supra note 7.

[21] Case C-170/13, Huawei Techs. Co. v. ZTE Corp., ECLI:EU:C:2015:477 (16 July 2015).

[22] Communication from the Commission, Guidelines on the Application of Article 101 of the Treaty on the Functioning of the European Union to Technology Transfer Agreements, C/2025/6189, ¶¶ 321–322 (2025) [hereinafter Final EU TT Guidelines].

[23] Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev. 1 (1984).

[24] ICLE Tesla v. Avanci Submissions, supra note 13, ¶ 7.5.

[25] Draft EU TT Guidelines, supra note 4, ¶¶ 300, 326.

[26] Final EU TT Guidelines, supra note 22, ¶¶ 318–322.

[27] Colangelo, LNGs, supra note 7.

[28] Final EU TT Guidelines, supra note 22, ¶¶ 321–322.

[29] CMA Consultation, supra note 1, ¶ 2.20.

[30] Vasant, supra note 12.

[31] U.S. Dep’t of Justice, Business Review Letter Re: Avanci 5G Platform 2–3, 21 (28 July 2020).

[32] CMA Consultation, supra note 1, ¶ 2.21.

[33] CMA Consultation, supra note 1, ¶¶ 2.20–2.21.

Hollywood loves a sequel, and the antitrust fight over Paramount Skydance’s proposed $110 billion acquisition of Warner Bros. Discovery (WBD) is becoming one. First came the familiar streaming-monopoly scare. Now comes the more personal version: the writers, drivers, and actors who make the movies fear that a combined studio will need far fewer of them—and they are carrying that fear to antitrust regulators on three continents.

The United Kingdom’s Competition and Markets Authority has opened a formal review of the deal, giving itself until Aug. 7 to decide whether to clear the transaction or launch a deeper investigation. California, New York, and possibly other states are preparing a lawsuit to block it. The European Commission is conducting its own review, while leaks suggest the U.S. Justice Department (DOJ) may ultimately approve the merger.

That much is familiar. Large mergers often attract scrutiny from multiple regulators at once. This particular battle has been brewing for more than a year and has taken several unexpected turns, including Netflix’s failed attempt to acquire WBD.

At first, the focus was streaming. Critics warned that combining Paramount+ and HBO Max would create a video-streaming giant. That theory has quietly faded. Even after the merger, the combined company would rank only fourth among streaming services, behind Netflix, Disney+, and Amazon Prime Video, which together account for roughly 65% of subscription viewers. Kristian Stout and Ben Sperry analyzed the viewing data and found the merged firm would still trail YouTube in total TV viewing time. A company struggling to achieve scale is a difficult monopolist to imagine.

The debate has since moved upstream, from streaming platforms to the studios that produce movies and television shows, and to the people who work in them. That is where the Writers Guild, the Teamsters, and state attorneys general have concentrated their fire. It is also where the stronger antitrust argument may lie—maybe.

To see why, it helps to remember why WBD is for sale in the first place. As I wrote when the company announced plans to break itself apart, it is carrying nearly $38 billion in debt from two previous mergers while its cable networks generate shrinking cash flows. This is a company searching for scale and a cleaner balance sheet, not one so dominant that it can afford to starve Hollywood of work.

Read the full piece here.