Makan Delrahim,
Assistant Attorney General in charge of the Antitrust Division of the Justice
Department, in
a speech this week described the DOJ challenge to AT&T/Time Warner merger
as “David vs Goliath,” with the DOJ as David and the merging parties as
Goliath. Delrahim said, "We are 30 lawyers
against 700, but as my rabbi used to say, David beat Goliath for a reason,
because he was right."
It
is not clear where AAG Delrahim got his figure of 700 attorneys for AT&T
and Time Warner, but casting the Department of Justice as “David” seems a bit
of a stretch. The Justice Department is sometimes described as the world’s largest
law firm, and the Antitrust Division alone has about 400 attorneys (I used to
be one of them). Having 30 attorneys working on a case is not a small number, and
if they are not enough, AAG Delrahim has plenty more working for him. Moreover,
most private parties that have litigated against DOJ, with all the resources of
the federal government behind it, don't think of DOJ as the "David"
in the fight.
Delrahim also
criticized those have been critical of the merger, saying, "In the
U.S., we now have thousands of vertical merger experts, who somehow think we
haven't enforced anything in 50 years."
As I explained in my Perspectives
from FSF Scholars earlier this month providing
substantive analysis of the AT&T/Time Warner merger and the context in
which it should be reviewed, the U.S. antitrust agencies have challenged dozens of vertical
mergers in recent decades. What is different is that those challenges were all
resolved with the parties agreeing to behavioral conditions that allowed the
mergers to go forward, while AAG Delrahim’s Antitrust Division is seeking to
force fundamental structural changes on the AT&T/Time Warner merger. The
last time the U.S. government went to court seeking structural changes to a
vertical merger was in 1979, when the Federal Trade Commission lost its
challenge to truck trailer manufacturer Fruehauf’s acquisition of a brake
component supplier.
The trial is scheduled to
begin March 19, 2018.
Posts
