Antitrust regulators at the Department of Justice, who are gearing up for courtroom action this fall in their appeal of U.S. District Court Judge Richard J. Leon’s ruling, filed a formal request to have the “bench conferences” revealed. They had been placed under seal because of concerns they may have contained private information. Leon issued an order today that said all but 50 of the bench conference transcripts could be unsealed, with the 50 still deemed too sensitive.
In its own response to the government’s request, AT&T yesterday expressed no objection.
The trial over the springtime frequently featured moments at the bench when attorneys consulted with the judge and sometimes witnesses. During those intervals, a white noise machine masked the sound of those conversations in the courtroom. Leon hit the white-noise button frequently, which generally suited AT&T’s interests, given the confidential nature of the proceedings.
In pursuing their appeal in the D.C. Circuit Court, antitrust regulators are saying the public has a right to know what happens in a federal courtroom. “No reason has been provided by either the defendants or the district court why the trial transcript should not now be public,” the DOJ said in its filing last week.
The government’s appeal of a decision that has spurred considerable M&A activity is in its earliest stages. Earlier this month, the DOJ proposed a “swift” appellate process designed to stem the harm it feels could be done to the public the longer AT&T and Time Warner are allowed to stay together.
Comcast, citing Leon’s ruling, upped the ante for the 21st Century Fox assets that it later ceded to Disney. Other dealmaking has used the ruling as a contextual framework, especially Leon’s embrace of the AT&T argument that traditional media companies are not merely competing among themselves, but against deep-pocketed tech giants.