NIX ON APPEAL
Solicitor gen. holding out on AT&T-TW retrial
US Solicitor General Noel Francisco is all but putting a stop to any Department of Justice appeal in its suit to stop AT&T from buying Time Warner, two sources have told The Post.
President Trump’s antitrust cops have until Aug. 12 to decide whether to appeal the unsuccessful case to block AT&T’s transformational $85 billion merger with Time Warner.
“The DOJ might handle the [initial] appeal, but if the solicitor general had a view about whether the case should be appealed, that would carry the day,” the source said.
The solicitor general would be bringing the case against the merger to the Supreme Court if the feds won on appeal, and they are very unlikely to appeal if Francisco is not on board, a source who knows Francisco said.
“I don’t think the fact folks in Justice want to appeal would sway Noel,” the source said.
Fox Business Network reporter Charles Gasparino reported on Tuesday that the Department of Justice has decided to appeal but is getting resistance from Francisco’s office.
They are interested in appealing, said a source with direct knowledge of their thinking.
However, Francisco generally has a skeptical view of government interference in mergers, making him even less likely to support an appeal, the source said.
What’s more, an appeal of District Court Judge Richard Leon’s June 12 decision would be a hard road, sources said, even if Francisco were on board.
The Court of Appeals has to accept all of Leon’s facts as accurate and only analyze whether Leon correctly interpreted or applied the law, a legal expert told The Post.
Leon did not dispute the antitrust pros’ views on the key legal principles, such as burden of proof. He chose certain facts and found that the facts did not support the feds’ case, the expert said.
The feds believe Leon ignored the facts, but that in itself is not enough to win on appeal, sources said.
“I think Noel would see this as an unwinnable case,” said the source close to Francisco.
If Uncle Sam were to lose, the Court of Appeals also might make a broader decision and offer a skeptical view about stopping all vertical mergers like AT&TTime Warner. Leon did not directly address vertical mergers.
The Department of Justice is reviewing two other vertical mergers: CVS Health’s $68 billion deal to buy Aetna and Cigna’s $54 billion deal purchase of Express Scripts.
AT&T closed the merger with Time Warner, owner of HBO, Cartoon Network, TBS and TNT, on June 14.
Trump’s antitrust cops argue the merger would give AT&T, owner of DirecTV, too much power when it negotiates contracts with rival cable companies.
The Department of Justice declined to comment. The solicitor general did not return calls.