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The three appellate judges who will get first crack in the antitrust case over the AT&T-Time Warner merger will be Judith Rogers, David Sentelle and Robert Wilkins. The three will hear arguments a month from now on Dec. 6.
The Justice Department is seeking to overturn a June 12 decision by U.S. District Court Richard Leon that the merger won’t lessen competition. Government lawyers contend that Leon ignored economic logic when coming to the conclusion there wasn’t enough evidence presented at trial to support the allegation that AT&T’s acquisition would increase Time Warner’s bargaining leverage when negotiating with AT&T’s rival distributors. The government says this will raise programming costs. According to an appellate brief, “The outcome of this appeal will shape the future of the media and telecommunications industries for years to come by setting the standard for determining whether industry participants will be permitted to merge into vertically integrated firms that control valuable programming content as well as the means of distributing that content to consumers.”
If political affiliation matters, the Justice Department may have some renewed hopes, because while Leon was appointed by a Republican, the appellate panel will be dominated by two Democratic appointees.
Rogers was nominated to the bench in 1994 by Bill Clinton. Wilkins was nominated to the bench in 2014 by Barack Obama. Sentelle assumed his appellate seat in 1987 under Ronald Reagan (where he succeeded Antonin Scalia).
Then again, Rogers was on the panel that in 2001 partially overturned the antitrust finding against Microsoft after the government prevailed at the trial level with its contention about the monopolization of computer software.
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