As the Justice
Department’s challenge to the AT&T/Time Warner merger heads for trial set
to begin March 19,
2018, both sides are continuing their legal maneuvering. One of the claims made
by AT&T is that the antitrust challenge was motivated by improper political
considerations. President Trump has criticized the
merger, and AT&T filed a motion seeking executive branch documents that
might show influence by the White House on DOJ decisions regarding the antitrust
challenge.
This week the motion by AT&T
seeking records of communications between the Justice Department and the White
House regarding the merger was denied
by U.S. District Judge Richard Leon.
AT&T had pointed out that most vertical mergers have been routinely
approved in their entirety or subject to behavioral conditions that
allow the mergers to go forward, so treating the AT&T/Time Warner vertical merger
differently may indicate the challenge was based on political considerations.
However, Judge Leon ruled that the
companies hadn't made a sufficient showing that they were singled out for different
treatment than the DOJ gave previous mergers.
For a substantive analysis of the merger and the context
in which it should be reviewed, see my recent Perspectives from FSF Scholars entitled “The Proper Context for Assessing the AT&T/Time
Warner Merger.”
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