Santa Claus is going to court: The antitrust case against Father Christmas

COMPLAINT FOR INJUNCTIVE RELIEF

Plaintiff petitions this Court for permanent relief against Defendant Santa Claus, Inc. (“Santa”), to undo and prevent its anticompetitive conduct and unfair methods of competition in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a).

NATURE OF THE CASE

1. Defendant Santa, aka Sinterklaas, Kris Kringle, Saint Nick and sundry other aliases, has, since circa the fourth century, operated a combination social-media-platform-cum-global-fulfillment-centre, aimed primarily at children. An early pioneer in big data, Defendant collates information on billions of children’s Christmas wishes each year, amassed through letters, whispers to mall-based brand representatives, and – most troubling from a privacy perspective – legions of parental informants.

2. Defendant also maintains an equally voluminous database of individual psycho-behavioural profiles, collected by what would seem to be proprietary nocturnal surveillance technology ¹ and classified according to broad normative criteria (see annexes A and B, “Naughty” and “Nice”). Cross-referencing data on preferences with data on behaviour, Defendant exploits unrivalled logistical capacity and command of last-mile, chimney-access technology to deliver presents micro-targeted to “good” little boys and girls in households around the world, all within a single night.

3. Defendant has thus for centuries enjoyed a worldwide monopoly in the wholesale just-in-time distribution of children’s behavioural incentives/sedatives (hereinafter referred to as “toys”). Plaintiff contends Defendant has unlawfully maintained this monopoly via a complex web of exclusionary arrangements and anti-competitive practices, plus magic.

4. Defendant’s market dominance is reinforced by ubiquitous and uniformly positive earned media – including songs, movies, poems, NORAD sightings, etc. – and a punishing schedule of personal appearances. In addition, Defendant’s name and likeness are licensed to thousands of commercial enterprises free of charge, through which his brand identity as the default face of Christmas has been permanently installed on the mental hard-drives of children everywhere.

5. The combination of Defendant’s superior data-mining technology and control of underaged consumer-facing communications leaves toy manufacturers with no choice but to license their products to Defendant, whether directly or via his white-label operation, known as “Santa’s Workshop.”

6. Defendant’s first-mover advantage is further locked in via “network effects” – children solicit Defendant because, as far as they know, that’s where the toys come from, while toy makers must supply Defendant because that’s where the children are. Facing such insurmountable barriers to entry, rival distributors are unable to scale, leaving Defendant in control of roughly 100 per cent of reindeer-based toy delivery and stifling innovation in the benevolent icon space.

7. Defendant’s affidavit contends there is and can be no abuse of dominance because Defendant “literally gives the toys away, for free.” But this is no more than a tacit admission of Defendant’s massive and indiscriminate scheme of predatory pricing. Indeed, Defendant’s business model remains opaque, based, it seems, on the perpetual sacrifice of margin in the service of market share. The absence of a reasonable expectation of profit is probative of anti-competitive intent.

8. Apart from anti-trust concerns, Defendant’s operation raises significant privacy rights issues.² It must be doubted whether children are competent to consent to the acquisition of such sensitive personal information – names, ages, favourite dolls, etc. – to say nothing of the security risks implied by the maintenance of billions of files on children’s innermost desires in a single, centralized database.

9. Defendant’s claim that data is not shared with third parties must be treated with considerable skepticism. To cite but one example among many, furnishing Jimmy Friesen of Tidesville, Fla., with a set of customized Hot Wheels this year required that Mattel be provided with his personal likes and dislikes re: tinted windows, chrome wraps and other features distinctive of sick rides.

10. The case also raises complex jurisdictional issues, given Defendant’s status as a transnational operating in every country on earth whose core business is carried out in the space of a single night. Nevertheless, plaintiff submits a compelling public interest in establishing benchmark legal standards in the conduct of elf-run globalized toy monopolies.

REQUEST FOR RELIEF

Plaintiff requests this Court enter final judgment against Defendant, declaring, ordering and adjudging structural relief as needed, together with such other relief as the Court deems necessary to ensure a Happy Christmas to all, and to all a good night.

¹ “He sees you when you’re sleeping, he knows when you’re awake.” Coots, J. F., Gillespie, H., Santa Claus is Coming to Town, 1934.

² Particular scrutiny should attach to Defendant’s surreptitious intra-delivery collection of “cookies.”

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