Merger Concerns in Brief

Opponents of the AT&T-Time Warner merger are taking aim at District Judge Richard Leon’s June decision to allow the deal to go forward. Here’s a rundown of some of their legal briefs as an appeals court prepares to take up the case:

• A group of 27 lawyers and economists criticized Judge Leon for questioning the government’s use of an economic test called the Nash bargaining model to determine whether AT&T would have an unfair advantage over competitors in licensing content. Judge Leon “either did not understand the model or else did not properly apply the model to the facts of the case,” they write.
• In a joint filing, the American Cable Association and William Rogerson, a former Federal Communications Commission chief economist, contend that Judge Leon appeared to accept the Nash bargaining model and idea of profit maximization in one part of his ruling but reject it in another — creating inconsistencies that call his entire decision into question.
• Advocates from Public Knowledge, Consumers Union, and the American Antitrust Institute, meanwhile, argue that Leon’s errors resulted in an “excessive burden of proof on the government” to win its case. They warn the decision, if not overturned, “promises to lead other courts astray and to encourage firms to attempt ever more anticompetitive vertical mergers that harm consumers.”

AT&T is expected to submit its rebuttal by Sept. 20, and briefs in its favor are due the following week. AT&T general counsel David McAtee previously called Leon’s decision “comprehensive” and said it “systematically exposed each of the many holes in the government’s case.”