By all accounts, the main event on the status hearing was — as expected by lawyers — fairly boring. I am not sure why some folks think that splitting the difference between AT&T and the DoJ on timing was a win for AT&T (AT&T wanted January 16, DoJ wanted March 19, Judge picked Feb. 13). It is, I suppose, consistent with those who thought picking the later date would be a sign the judge wanted a settlement. i.e., there are those who just can’t believe AT&T is going to win this and therefore everything is somehow an advantage to AT&T no matter how it turns out.
The more interesting note was the decision not to join Sprint and Cell South’s complaints to the DoJ case and setting a date for AT&T to file a motion to dismiss. That was a modest victory for AT&T, but not terribly indicative of where the DoJ case is going. It is rare for private litigants to file to enjoin a merger, and antitrust commentators have noted the trend in the last 10 years to make private antitrust cases more difficult to bring as a matter of standing. I suspect if Sprint and Cell South survive the motion to dismiss on standing grounds the cases get joined, as they are related cases. But it also would not surprise me if Sprint and Cell South get dismissed on standing. As will no doubt be lost on everyone if that happens, it won’t really tell us one way or another about the merits.
All in all, pretty much what one expects in such a case — although I feel bad for the DoJ lawyers who just lost their Christmas and New Year holidays. Be interesting from a legal perspective to see how the motion to dismiss goes. Meanwhile, we await the FCC.
Stay tuned . . .
