Attorneys for AT&T and Time Warner said in a court filing on Thursday that the evidence presented by the government in the antitrust trial showed that they were the victims of differential treatment from other vertical transactions.
The comment was made in a footnote to the AT&T-Time Warner trial brief, in which the companies dismissed the government’s case as falling far short of proving that the transaction posed competitive harm. The companies did not pursue a “selective enforcement” defense in the six-week trial, after U.S. District Judge Richard Leon refused their pre-trial request to obtain records of communication between the White House and the Justice Department.
“Defendants have not abandoned their selective enforcement defense,” the companies said in a footnote. “Trial evidence confirmed the government’s differential treatment of comparable vertical mergers. But absent discovery, it was impractical for defendants to press the issue further at trial.”
AT&T-Time Warner’s lead attorney Daniel Petrocelli had sought a privilege log of DOJ-Trump administration communications, ostensibly to pursue a potential defense that the effort to block the merger was influenced by President Trump’s animus toward CNN, a division of Time Warner-owned Turner. But Leon wrote in February that AT&T had not shown evidence of so-called “selective enforcement” to warrant obtaining the information and had fallen “far short” of showing that they were singled out.
(Pictured: Daniel Petrocelli)