Outside Lawyer Wants AT&T-Time Warner’s Trial Proof Unsealed

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By Eleanor Tyler

The Justice Department’s suit to block the $85 billion merger of AT&T Inc. and Time Warner Inc. has drawn one more outside party looking to intervene in the case on the eve of an expected decision on whether the merger can go forward.

U.S. District Court for the District of Columbia Judge Richard Leon is set to deliver his decision at 4 p.m. June 12. California plaintiffs’ lawyer Joseph Alioto, known for filing consumer-oriented antitrust suits, slipped a motion to appear “as a friend of the court” under the wire June 9. He asked Leon to unseal the record “so that the public and potential future private litigants may view the overwhelming evidence that weighs against this unlawful proposed acquisition.”

The case has drawn several of attempts to intervene “as a friend of the court” on various issues, which Leon has largely rebuffed. This one seeks the underlying information that informs Leon’s decision because, as Alioto argues, “this court’s decision will not only impact the media industry, but it will have a lasting impact on future vertical acquisitions.”

Vertical mergers generally don’t attract antitrust scrutiny because they are between companies that don’t directly compete.

Alioto said his clients need to know what informed Leon’s opinion shoud the AT&T-Time Warner serve as precedent in any future dispute.

Binding precedent requires Leon to block the deal, Alioto’s motion also said.

With Friends Like This..

The case has drawn a number of briefs by different companies and individuals trying to intervene as “friends of the court.” Courts have extensive latitude to decide whether to accept briefs from nonparties and what to do with them if accepted.

It’s unusual to have “friends” attempt to intervene in a district court case. But given that the U.S. last went to trial against a vertical merger during the 1970s, the AT&T-Time Warner case has attracted a lot of attention.

Leon denied the first two requests, which dealt with whether President Donald Trump had interfered in the DOJ’s decision to bring the lawsuit. A more recent brief, filed by all of Time Warner’s big content competitors after the trial ended, has so far been ignored by the court.

U.S. v. AT&T Inc. , D.D.C., No. 17-cv-02511, 6/9/18 .

To contact the reporter on this story: Eleanor Tyler in Washington at etyler@bloomberglaw.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com

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