August 02, 2019
Douglas Gansler and Joel Mitnick break down the implications of Texas Attorney General Ken Paxton joining the previously all-Democrat coalition of State Attorneys General challenging the Sprint/T-Mobile merger.
Excerpts from “Texas Blurs Partisan Divide In Sprint/T-Mobile Challenge,” Law360, August 2, 2019:
“It deprives the parties of an argument that the New York lawsuit is partisan. While that was not a legal argument, optics may influence a court’s decision,” Joel Mitnick, a partner at Cadwalader Wickersham & Taft LLP and former Federal Trade Commission trial attorney, said in an email.
Mitnick also argued that Texas’ entry is an important push against the “politicization of antitrust enforcement” undermining public confidence in the neutrality of law enforcement.
“This is the only case I have ever seen where state AGs, all of one political party, sued to stop a merger that was being defended by the administration and a group of AGs all from the other party,” Mitnick said.
Cadwalader's state attorneys general practice head Douglas Gansler, who was previously the AG for Maryland, isn’t so sure that Texas’ participation by itself will disrupt the case’s trajectory. Texas, he said, is just one more state.
“The question will be, Will the fact that a Republican-led state has joined … give coverage to other [GOP] states that may have been looking to join in?” Gansler said.
Gansler also said that the Texas AG’s office, and its peers in the coalition, may not even be truly planning on seeing the case all the way to the end, with trial pushed back Thursday from early October to Dec. 9. Instead, according to Gansler, the enforcers may simply be looking to ensure they have “a deeper and clearer understanding of how the merger would affect competition” before perhaps cutting a deal.
It is possible, however, that the Texas AG’s resources — many states have very small antitrust divisions — could be an important addition to the case, according to Gansler. Those resources may come into play as Texas takes on a leading role in the challenge, although that leadership role may simply come from its political leanings: According to Gansler, multistate AG coalitions typically select an executive committee that consists of both Democrats and Republicans to do the bulk of the work.
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