United States v. AT&T, Inc, 022619 FEDDC, 18-5214

Docket Nº:18-5214
Opinion Judge:ROGERS CIRCUIT JUDGE.
Party Name:United States of America, Appellant v. AT&T, Inc., et al., Appellees
Attorney:Michael F. Murray, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Kristen C. Limarzi, Robert B. Nicholson, Adam D. Chandler, Patrick M. Kuhlmann, Mary Helen Wimberly, and Daniel E. Haar, Attorneys. Eric F. Citron argued t...
Judge Panel:Before: ROGERS and WILKINS, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Case Date:February 26, 2019
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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United States of America, Appellant

v.

AT&T, Inc., et al., Appellees

No. 18-5214

United States Court of Appeals, District of Columbia Circuit

February 26, 2019

Argued December 6, 2018

Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-02511)

Michael F. Murray, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Kristen C. Limarzi, Robert B. Nicholson, Adam D. Chandler, Patrick M. Kuhlmann, Mary Helen Wimberly, and Daniel E. Haar, Attorneys.

Eric F. Citron argued the cause for amici curiae 27 Antitrust Scholars in support of neither party. With him on the brief was Mary Jean Moltenbrey.

Laurence M. Sandell was on the brief for amicus curiae Cinémoi North America in support of appellant United States of America.

Jeffrey A. Lamken was on the brief for amici curiae Professor William P. Rogerson, et al. in support of appellant.

Jonathan W. Cuneo, Joel Davidow, and Gene Kimmelman were on the brief for amici curiae American Antitrust Institute, et al. in support of appellant.

Jonathan E. Taylor was on the brief for amicus curiae Open Markets Institute in support of plaintiff-appellant and vacatur.

Peter D. Keisler argued the cause for appellees. With him on the brief were Joseph R. Guerra, Richard D. Klingler, Jonathan E. Neuchterlein, C. Frederick Beckner III, Kathleen Moriarty Mueller, William R. Drexel, Daniel M. Petrocelli, M. Randall Oppenheimer, Jonathan D. Hacker, Katrina M. Robson, and David L. Lawson. Aaron M. Panner entered an appearance.

Andrew J. Pincus argued the cause for amici curiae 37 Economists, Antitrust Scholars, and Former Government Antitrust Officials in support of appellees. With him on the brief were Mark W. Ryan and Michael B. Wimberly.

Brad D. Schimel, Attorney General, Office of the Attorney General for the State of Wisconsin, Misha Tseytlin, Solicitor General, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Elizabeth Baker Murrill, Solicitor General, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Tania Maestas, Chief Deputy Attorney General, Mike Hunter, Attorney General, Office of the Attorney General for the State of Oklahoma, Mithun Mansinghani, Solicitor General, Steve Marshall, Attorney General, Office of the Attorney General for the State of Alabama, Robert Tambling, Assistant Attorney General, Christopher M. Carr, Attorney General, Office of the Attorney General for the State of Georgia, Andrew A. Pinson, Solicitor General, Andy Beshear, Attorney General, Office of the Attorney General for the Commonwealth of Kentucky, Sean D. Reyes, Attorney General, Office of the Attorney General for the State of Utah, Tyler R. Green, Solicitor General, Peter F. Kilmartin, Attorney General, Office of the Attorney General for the State of Rhode Island, Michael W. Field, Assistant Attorney General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, and James Emory Smith, Jr., Deputy Solicitor General, were on the bipartisan brief for amici curiae the States of Wisconsin, et al. in support of defendants-appellees.

Donald B. Verrilli, Jr., Justin P. Raphael, Peter C. Tolsdorf, Steven P. Lehotsky, and Daryl Joseffer were on the brief for amici curiae The Chamber of Commerce of the United States of America, et al. in support of defendants-appellees.

Thomas M. Johnson, Jr., General Counsel, Federal Communications Commission, David M. Gossett, Deputy General Counsel, Richard K. Welch, Deputy Associate General Counsel, and James M. Carr, Counsel, were on the brief for amicus curiae Federal Communications Commission in support of neither party.

Bruce D. Brown, Katie Townsend, and Gabriel Rottman were on the brief for amicus curiae The Reporters Committee For Freedom of the Press in support of neither party.

Before: ROGERS and WILKINS, Circuit Judges, and SENTELLE, Senior Circuit Judge.

OPINION

ROGERS CIRCUIT JUDGE.

Rogers, Circuit Judge: On October 22, 2016, AT&T Inc. announced a proposed merger with Time Warner Inc. The government sued to enjoin this vertical merger under Section 7 of the Clayton Act, 15 U.S.C. § 18, and now appeals the denial of its request for a permanent injunction. United States v. AT&T Inc., 310 F.Supp.3d 161, 254 (D.D.C. 2018). Although it pursued three theories of antitrust violation in the district court, the government on appeal challenges only the district court's findings on its increased leverage theory whereby costs for Turner Broadcasting System's content would increase after the merger, principally through threats of long-term "blackouts" during affiliate negotiations.

At trial, the government presented expert opinion on the likely anticompetitive effects of the proposed merger on the video programming and distribution industry as forecast by economic principles and a quantitative model. It also presented statements by the defendants in administrative proceedings about the anticompetitive effects of a proposed vertical merger in the industry seven years earlier. The defendants responded with an expert's analysis of real-world data for prior vertical mergers in the industry that showed "no statistically significant effect on content prices." The government offered no comparable analysis of data and its expert opinion and modeling predicting such increases failed to take into account Turner Broadcasting System's post-litigation irrevocable offers of no-blackout arbitration agreements, which a government expert acknowledged would require a new model. Evidence also indicated that the industry had become dynamic in recent years with the emergence, for example, of Netflix and Hulu. In this evidentiary context, the government's objections that the district court misunderstood and misapplied economic principles and clearly erred in rejecting the quantitative model are unpersuasive. Accordingly, we affirm.

I.

Section 7 of the Clayton Act prohibits mergers "where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition." 15 U.S.C. § 18 (emphasis added). Congress acted out of concern with "probabilities, not certainties" inasmuch as "statutes existed [only] for dealing with clear-cut menaces to competition . . . . Mergers with a probable anticompetitive effect were to be proscribed by [the Clayton Act]." Brown Shoe Co. v. United States, 370 U.S. 294, 323 (1962). It left to the courts the difficult task of assessing probabilities in the commercial marketplace in the interest of "halting 'incipient monopolies and trade restraints outside the scope of the Sherman Act, '" Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210, 220 (D.C. Cir. 1986) (quoting Brown Shoe, 370 U.S. at 318 n.32). Therefore, Section 7 "applies a much more stringent test than does the rule-of-reason analysis under section 1 of the Sherman Act." Id. Although Section 7 requires more than a "mere possibility" of competitive harm, it does not require proof of certain harm. Brown Shoe, 370 U.S. at 323 n.39. Instead, the government must show that the proposed merger is likely to substantially lessen competition, which encompasses a concept of "reasonable probability." Id.

Neither the government nor the defendants challenge application of the burden-shifting framework in United States v. Baker Hughes, 908 F.2d 981, 982-83 (D.C. Cir. 1990), for horizontal mergers that the district court applied to consider the effect of the proposed vertical merger of AT&T and Time Warner on competition. Under this framework, the government must first establish a prima facie case that the merger is likely to substantially lessen competition in the relevant market. United States v. Anthem, 855 F.3d 345, 349(D.C. Cir. 2017). But unlike horizontal mergers, the government cannot use a short cut to establish a presumption of anticompetitive effect through statistics about the change in market concentration, because vertical mergers produce no immediate change in the relevant market share. See Dept. of Justice & Fed. Trade Comm'n, Non-Horizontal Merger Guidelines § 4.0 (June 14, 1984) ("1984 Non-Horizontal Merger Guidelines"). Instead, the government must make a "fact-specific" showing that the proposed merger is "likely to be anticompetitive." Joint Statement on the Burden of Proof at Trial at 3-4. Once the prima facie case is established, the burden shifts to the defendant to present evidence that the prima facie case "inaccurately predicts the relevant transaction's probable effect on future competition," Anthem, 855 F.3d at 349 (quoting Baker Hughes, 908 F.2d at 991), or to...

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