U.S. District Judge Ellen Huvelle set a court date of Feb. 13 for the Justice Department’s suit against AT&T’s proposed merger with T-Mobile on Wednesday. She also signaled that she may block Sprint Nextel and Cellular South from joining the DOJ suit.
Huvelle expressed skepticism that Sprint could overcome precedent—pointing in particular to the 2007 Supreme Court decision -- Bell Atlantic Corp. v. Twombly—that makes it tough for business competitors to bring antitrust suits.
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“You’ll survive, but I’m not convinced your case is going to survive Twombly,” Huvelle told Sprint’s lead counsel Steve Sunshine. The judge added that she “is not inclined” to approve Sprint’s request, and she decided on the spot to exclude the company from discovery, a pretrial period in which parties exchange documents.
Sprint had hoped to add resources and arguments to the Justice Department suit. Sunshine said the company would “move heaven and Earth” to work with Justice on this and will feel it is denied its day in court if it can't join the suit.
The Justice Department's counsel, however, said that the government is indifferent to Sprint’s participation.
The Justice Department filed suit against AT&T’s $39 billion bid to buy T-Mobile last month on the grounds that it would reduce competition. House Energy and Commerce Chairman Fred Upton, R-Mich.; Communications Subcommittee Chairman Greg Walden, R-Ore.; and Rep. Joe Barton, R-Texas, have taken an interest, writing to the Federal Communications Commission earlier this month and to the Justice Department to request bipartisan briefings for subcommittee staff – but DOJ refused.
Huvelle set Sept. 30 as the date when AT&T must file its motion to dismiss the suit from competitors, who will subsequently rebut that. The parties will all head back to court on Oct. 24 for oral arguments on whether the competing cellular companies can jump into the fray.
Huvelle, known for speedy and efficient trials, set a trial date of Feb. 13, splitting the difference between what AT&T asked for and what DOJ wanted. She indicated that she wanted the trial wrapped in a matter of weeks.
Huvelle offered few clues on how she viewed the megadeal, saying at one point, light-heartedly, that each side had a “50-50” chance.
The scheduling hearing discussed how many witnesses the sides could call and how to bring in expert speakers, which the Justice Department said is necessary in order to unpack AT&T’s arguments about so-called “efficiencies” provided by the merger.
The first appearance in court by the Justice Department and AT&T packed the court room with observers, including FCC Wireless Bureau Chief Rick Kaplan and Renata Hesse, the agency’s top merger official.