A panel of the D.C. Court of Appeals will hear from both sides in the case as it weighs whether to overturn all or parts of U.S. District Judge Richard Leon’s decision in favor of the companies. The judicial members of the panel will be revealed a month before the arguments, around Nov. 6, the court said.
The Justice Department contends that Leon’s decision was inconsistent and contained an “erroneous rejection of the economics of bargaining and the principle of corporate-wide profit maximization.” AT&T-Time Warner argues that Leon’s decision soundly rejected each of the government’s arguments, including that the merger would give the combined company increased leverage to drive up content prices to rivals, and those costs would ultimately be passed on to consumers.
What is unclear is whether the appellate court will in any way address the issue of selective enforcement, or claims that AT&T-Time Warner was unfairly singled out for a lawsuit because President Trump opposed the merger and routinely bashes the news coverage of Time Warner-owned CNN.
Last month, the Reporters Committee for the Freedom of the Press filed an amicus brief in the case, asking that the judges clarify “that in cases like this one, where selective enforcement could chill news reporting in the public interest, and where there is strong evidence of discriminatory intent, courts may order discovery.” They argue that there was “copious evidence of discriminatory intent on the part of the president” to warrant discovery.
In a pre-trial hearing, Leon denied AT&T-Time Warner’s motion to pursue discovery of those claims, ruling that it had failed to meet the threshold to trigger that line of defense.
But the Reporters Committee, in its amicus brief, said that Leon’s pre-trial ruling “could preclude discovery even in cases where a chief executive said he would happily selectively enforce the law, such as by revocation of a television network affiliate’s license or commencement of an antitrust case against Amazon, for example, whose CEO and founder owns The Washington Post, or Salesforce, whose co-CEO and founder just purchased Time magazine.”
Makan Delrahim, the chief of the Antitrust Division, denies that the decision to sue to block the merger was influenced by the White House.
In a brief filed last week, the DOJ said that “AT&T sought irrelevant and overly expansive discovery into alleged White House communications, beyond those with the Antitrust Division, but the district court correctly denied that request before trial, and AT&T sought no further review. The only issue on appeal is whether the court’s Clayton Act decision is erroneous, and the answer is yes.”