Antitrust is having a moment. From both the left and the right, politicians clamor for new tools and enforcement to maintain a spirit of competition in the U.S. economy. While many focus on Big Tech, one of the Biden administration's first big swings in a more aggressive antitrust enforcement regime took aim at a decidedly un-techy industry: book publishing. In a sealed ruling issued on Oct. 31, a federal judge sided with the government and blocked the merger of Penguin Random House and Simon & Schuster. While the country's attention was focused on the midterm elections, Judge Florence Pan unsealed her full opinion. In it, she sided with the federal government's persuasive and creative legal thinking, which focused on harms to an unusual victim: highly paid authors. Faced with this setback, the merger officially collapsed this week when Simon & Schuster's owner decided not to appeal.
It's worth focusing on how the government achieved this victory. The fact that it felt compelled to make such an atypical argument shows how the current legal regime forces regulators to hide the ball in terms of whom they're really advocating for in the courtroom. This trend isn't limited to publishing; it also arises in one of the biggest of Big Tech suits — the case against Google.
