The judge overseeing the Justice Department’s lawsuit to block AT&T’s purchase of Time Warner has rejected the telecom company’s request for the communications records between the White House and the Attorney General and between the Attorney General and the antitrust division regarding the deal.
AT&T requested to see a log of communications between the White House and DOJ as part of its “selective enforcement” defense in the trial, which is scheduled to begin in March. AT&T had planned to use the “selective enforcement” defense to argue that the DOJ has unfairly targeted the company partly because of President Donald Trump’s animus toward CNN, which is owned by Time Warner, and his pledge as a candidate to block the merger.
Judge Richard Leon said in his decision on Tuesday that AT&T and Time Warner “have fallen short of establishing that this enforcement action was selective” and that “defendants have not made a ‘credible showing’ that they have been ‘especially singled out’ [by the DOJ].”
“We respect the judge’s decision and look forward to the upcoming trial,” said Dan Petrocelli, lead trial attorney for both Time Warner and AT&T.
The DOJ said in a Friday status conference hearing that politics played no part in their decision to bring the case and that they have legitimate antitrust concerns because they believe that the deal would harm consumers with price increases. AT&T disputes that notion, saying prices would not increase in a significant way and that such a merger is important to help it evolve as it faces competition from new technology companies.
Leon seemed to side with the DOJ that the government does have legitimate antitrust concerns.
“As counsel for the Government explained at length during [Friday’s] hearing, history belies the notion that this action is the first and only time that the Government has found an antitrust problem with a proposed vertical merger or insisted on a structural remedy as a condition to settlement,” he wrote. “So while it may, indeed, be a rare breed of horse, it is not exactly a unicorn!”
The DOJ has already given AT&T a log of communications between the White House and the antitrust division, and said they saw no evidence of “untoward” communications regarding the merger.
Judge Leon also noted in the ruling that after speaking with counsel on both sides, he now believes that the head of the DOJ’s antitrust division, Makan Delrahim, will be taken off the proposed witness list under the condition that he could be added back on for merit. AT&T had planned to include Delrahim on the witness list, an unusual move that would have essentially brought the lawyer leading the suit against AT&T on the witness stand.
Less than a year before he joined the DOJ in September, Delrahim said in a Canadian television interview he saw no major antitrust problems with the deal. On Friday, the DOJ’s lawyers said they have an affidavit from Delrahim asserting that he received no directions or instructions from outside the antitrust unit regarding the merger.