AT&T wants its day in Washington, D.C. federal court to begin on Feb. 20 or thereabouts. The DOJ wants to start on May 7. The timing is significant because AT&T’s $85.4 billion merger agreement with Time Warner is set to expire on April 22. AT&T and Time Warner on Monday agreed to a second extension of the deal terms first reached in October 2016.
AT&T argued in a motion filed Tuesday with U.S. District Court Judge Richard J. Leon that the government has had plenty of time to prepare its case against the merger. The tussle over the trial date came the same day that AT&T filed its broader response to the case against the merger that DOJ laid out in its lawsuit filed on Nov. 20.
“Under the Government’s proposed schedule, the merger agreement would expire before this case would even be tried,” AT&T stated in its motion on the trial date. “The Government could effectively run out the clock on this merger without ever having to prove its case. The Government’s contention that the parties can simply extend the merger deadline unjustifiably disregards the risks and uncertainty inherent in any renegotiation of a complex agreement affecting numerous stakeholders. It is not reasonable for the Government to subject the merger to these risks merely because it would prefer-despite its enormous head start-more time to litigate and try this case. The Government’s complaint lists 37 attorneys, demonstrating that it has more than sufficient resources and personnel familiar with this matter to proceed on a timely basis.”
The DOJ in its response argued that the timeline should not be rushed because of an April 22 deadline that AT&T and Time Warner can extend. The feds maintained that AT&T and Time Warner were slow to turn over documents during its investigation and withheld many more. The DOJ said its target date of May 7 already amounted to an accelerated timeline.
“This merger threatens to harm millions of consumers across the country, starkly changing the cable and entertainment industries,” the DOJ’s motion stated. “That threat should be carefully evaluated, as should any benefits Defendants may argue would flow from the mergers. Purely private commercial concerns—particularly those that are wholly within the control of the merging parties—should not surpass the public’s interest in effective antitrust enforcement or deprive the Court of the evidence and time it needs to evaluate the important issues presented by these cases.”
AT&T’s filing offered some detail on the DOJ’s more than year-long investigation into the anti-trust ramifications of the deal that would bring together AT&T and DirecTV with HBO, Warner Bros. and Turner.
According to AT&T’s motion, the two companies handed over some 25 million pages of documents to the feds and 200 pages of written responses to DOJ queries. In April and May, 17 executives from both companies sat for depositions that took 19 days.
AT&T estimates the trial will take 10 days.
AT&T and DOJ are also at odds on the scope of a protective order covering the handling of “competitively sensitive information and documents” connected to the case.
AT&T in a separate motion Tuesday said the DOJ was dragging its feet in disclosing relevant third-party documents that could be be used in the trial.
The DOJ “currently possesses millions of documents gathered during its investigation, any one of which it could seek to use at trial and much of which Defendants have not seen,” AT&T’s motion stated. “And the Parties do not yet know the date or length of trial. With these considerations and others still undecided, Defendants submit these topics rather should be the subject of a separate procedural order that the parties can discuss and submit to the Court well before trial.”