UNITED STATES OF AMERICA v. AT&T INC. et al

Filing 31

MEMORANDUM re 29 Notice of Proposed Order filed by UNITED STATES OF AMERICA by AT&T INC.. (Hansen, Mark)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, STATE OF NEW
YORK, STATE OF WASHINGTON, STATE OF
CALIFORNIA, STATE of ILLINOIS,
COMMONWEALTH OF MASSACHUSETTS,
STATE OF OHIO, and COMMONWEALTH OF
PENNSYLVANIA,
Plaintiffs,
v.

Civil No. 11-01560 (ESH)

AT&T INC., T-MOBILE USA, INC., and DEUTSCHE
TELEKOM AG,
Defendants.
MEMORANDUM IN SUPPORT OF DEFENDANTS’
PROPOSED SCHEDULE
Defendants respectfully request that the Court enter the dates Defendants propose in the
scheduling order the parties have jointly submitted. The different dates proposed by the Parties
are highlighted in paragraph 11 of the proposed order, with Plaintiffs’ dates listed first, and
Defendants’ dates listed second.
Despite the Court’s decision to set trial for a date five weeks earlier than the date
Plaintiffs proposed, Plaintiffs have insisted that the key intermediate dates regarding experts that
they originally proposed should be advanced by only six to eight days. Under Plaintiffs’ newly
proposed schedule, Defendants would be kept in the dark regarding the economic and other
expert analysis underlying Plaintiffs’ case until January 5, 2012, less than six weeks before trial
is to begin. Defendants’ own experts would have only 11 days to respond to the government’s
experts with responsive reports. And expert depositions would continue until January 30, 2012,
pushing those depositions after the initial agreed-upon date for pre-filed testimony. This

proposal simply makes no sense and would allow the Plaintiffs, notwithstanding their burden of
proof, to hide the ball until the last possible second.
Plaintiffs’ proposed schedule is also unfair. Plaintiffs are trying to grant themselves the
protracted schedule the Court already denied and to do so by squeezing the Defendants out of
their opportunity to prepare a responsive case. Under Section 7 of the Clayton Act, Plaintiffs
bear the burden of proving that the proposed merger between AT&T and T-Mobile will
“substantially . . . lessen competition, or . . . tend to create a monopoly” in “any line of
commerce . . . in any section of the country.” 15 U.S.C. § 18. The government has insisted that
before filing suit it had conducted “an exhaustive investigation” and “concluded that this merger
violated the law.”1 Having concluded that its pre-suit investigation was sufficient to file a
complaint alleging that the merger will harm competition, the government should, in all fairness,
be required promptly to explain the basis for its claim, and to give Defendants an adequate
opportunity to meet that case. Requiring Defendants to name their rebuttal experts weeks before
they even see Plaintiffs’ expert reports, and waiting to file opening expert reports until six weeks
before trial, with rebuttal reports three weeks before trial, and expert depositions continuing up to
the last business day before trial do not provide Defendants that opportunity.
It is particularly unworkable for the government to propose that expert depositions take
place after pre-filed testimony is submitted. The parties should complete all discovery –
including expert discovery – before any pre-filed testimony is submitted, as Defendants propose.
CONCLUSION
Defendants respectfully request that the Court enter the scheduling and case-management
order with the dates in paragraph 11 proposed by Defendants.
1

Transcript of Department of Justice Briefing, Department of Justice Lawsuit Seeking to
Block AT&T’s Acquisition of T-Mobile, Aug. 31, 2011.
2

Dated: September 23, 2011
Respectfully submitted,
/s/ Mark C. Hansen
Mark C. Hansen, D.C. Bar # 425930
Michael K. Kellogg, D.C. Bar # 372049
Kellogg, Huber, Hansen, Todd,
Evans & Figel, P.L.L.C.
1615 M Street, NW, Suite 400
Washington, DC 20036
[phone]
Richard L. Rosen, D.C. Bar # 307231
Donna E. Patterson, D.C. Bar # 358701
Arnold & Porter LLP
555 Twelfth Street, NW
Washington, DC 20004-1206
[phone]
Wm. Randolph Smith, D.C. Bar # 356402
Kathryn D. Kirmayer, D.C. Bar # 424699
Crowell & Moring, LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004
[phone]
Counsel for AT&T Inc.

George S. Cary, D.C. Bar # 285411
Mark W. Nelson, D.C. Bar # 442461
Cleary Gottlieb Steen & Hamilton LLP
2000 Pennsylvania Avenue, NW
Washington, DC 20006
[phone]
Richard G. Parker, D.C. Bar # 327544
O’Melveny & Myers LLP
1625 Eye Street, NW
Washington, DC 20006
[phone]
Counsel for T-Mobile USA, Inc. and
Deutsche Telekom AG

3

CERTIFICATE OF SERVICE
I hereby certify that on September 23, 2011, I caused the foregoing Memorandum in
Support of Defendants’ Proposed Schedule to be filed using the Court’s CM/ECF system, which
will send e-mail notification of such filings to counsel of record. This document is available for
viewing and downloading on the CM/ECF system.
/s/ Mark C. Hansen
Mark C. Hansen