Most within the antitrust bar would say the odds for success are quite long in the Justice Department’s appeal of the district court ruling rejecting its challenge to the merger between AT&T and Time Warner.
But when you look at the transcripts of US District Court Judge Richard Leon, who presided over the case, veteran merger lawyers such as Bracewell’s Dan Hemli say the appeal has more of a shot than it would look.
“When I read Judge Leon’s opinion, while I thought he touched on all of the major points and his opinion was very thorough, there was a part of me thinking why did he have to be so provocative and one-sided,” Hemli told FTCWatch. “That doesn’t mean he got it wrong, but by writing his opinion in such a strong, one-sided way on basically every point, he may have left a door open that he didn’t need to.”
“The DOJ picks up on this issue in several places in its appellate brief,” Hemli added. “For example, DOJ questions how the district court could so soundly reject the government’s third-party witness testimony from other industry participants, while accepting the testimony of the merging parties’ own executives.”
“If I was AT&T or Time Warner, obviously I would be very pleased overall with Judge Leon’s decision, but I would have almost preferred a more balanced-seeming opinion,” Hemli said.
Click here to read the entire take from FTCWatch.