AT&T-Justice Department Clash Puts Outspoken Judge Back in Spotlight
November 27 2017 - 12:59PM
Dow Jones News
By Jacob Gershman
In 2011, U.S. District Judge Richard J. Leon nearly torpedoed a
settlement between the Justice Department and Comcast Corp. over
the company's takeover of NBCUniversal.
Six years later, Judge Leon is set to play a starring role in a
higher-stakes sequel: AT&T Inc.'s proposed merger with Time
Warner Inc. Last week, the Trump administration's lawsuit seeking
to block the deal was assigned to the blunt-spoken and
unpredictable bowtied-clad jurist.
If his handling of the Comcast/NBCUniversal situation is any
guide, neither side in the new case -- shaping up to be the biggest
antitrust battle in nearly two decades -- can count on having an
ally at the bench. Judge Leon did not respond to requests for
comment.
The government didn't sue to block the Comcast/NBCUniversal
merger, but got a promise from the cable company that it wouldn't
try to leverage its market power by charging online rivals like
Netflix Inc. higher prices for NBC programming.
Judge Leon refused to rubber-stamp the deal, and was wary that
the parties would abide by the terms intended to protect online
companies from unfair competition.
"I'm giving you fair notice I'm not sure I'm going to sign
this," Judge Leon told the parties at a July 2011 hearing.
Ultimately, after the sides agreed to subject the terms to extra
judicial monitoring, Judge Leon blessed the deal. But the aftermath
of the Comcast merger and the effectiveness of the settlement's
remedies now loom over the AT&T case, according to New York
University School of Law antitrust professor Scott Hemphill.
"He has a very firm grasp of competition law and the economics
that drives it," said Jonathan L. Rubin, a Washington lawyer at
MoginRubin LLP who represents the independently operated ATM
industry in an antitrust suit against Visa and Mastercard.
To justify a halt to the AT&T merger, the government will
try to show how AT&T's acquisition of Time Warner will hurt
consumers by leading to higher prices and fewer options for cable
and satellite television and online video.
The job of assessing claims about the market effects falls to
Judge Leon. Mr. Rubin described the 67-year-old judge as a
demanding fact-finder who can be expected to take the Justice
Department's "theories and evidence seriously."
Judge Leon, who was confirmed to the bench in 2002 as a nominee
of President George W. Bush, has acquired a reputation for his
assertive and often brusque approach that cuts across ideological
lines.
Among the standouts was a 2008 order that required the release
of five Algerians from the U.S. military prison at Guantanamo Bay.
Judge Leon said the government had failed to show the men were
enemy combatants.
In 2013, he made national headlines again when he pronounced the
National Security Agency's bulk collection of phone data
"almost-Orwellian" and "almost certainly" unconstitutional.
On Wednesday, the judge returned to the issue of
surveillance.
He released an opinion that took credit for stirring the debate
over antiterrorism policy and privacy, saying his 2013 ruling had
"unleashed a firestorm of press and public discussion" that led
Congress to require more targeted searches of phone records. That
legislation rendered the surveillance litigation moot, he
ruled.
Judge Leon has crossed swords with the executive branch in other
areas.
In 2015, he blasted a deferred prosecution agreement between the
government and a Dutch company accused of violating Iran sanctions
as "grossly" lenient. His second-guessing of prosecutors got him a
rebuke from a federal appeals court, which said he had
"significantly overstepped" his authority.
Other notable opinions include a 2016 ruling against the
District of Columbia's restrictions on concealed-carry gun permits.
Judge Leon wrote that the city's "overly zealous desire" to limit
who can carry a firearm ran afoul of the Second Amendment.
Before joining the federal court, the Massachusetts native was a
litigator at Vorys, Sater, Seymour and Pease LLP in charge of the
firm's white-collar crime and congressional investigation practice
in Washington.
He has drawn on his experience with legislative probes as an
adjunct scholar at Georgetown University Law School, where he
co-teaches a graduate seminar on congressional oversight of the
executive branch with Hillary Clinton's 2016 campaign chairman,
John Podesta.
Write to Jacob Gershman at jacob.gershman@wsj.com
(END) Dow Jones Newswires
November 27, 2017 12:44 ET (17:44 GMT)
Copyright (c) 2017 Dow Jones & Company, Inc.
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