The DOJ filed a formal request to have the contents of “bench conferences” revealed. During those moments, when attorneys consulted with the judge and sometimes witnesses at the bench, a white noise machine masked the sound of those conversations in the courtroom. U.S. District Judge Richard J. Leon hit the white-noise button frequently, which suited AT&T’s interests, as certain testimony was also sealed because of its sensitive nature.
In pursuing their appeal of Leon’s June 12 decision 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 on Wednesday. The filing asks for a response from AT&T by Tuesday.
Third parties looking to file amicus briefs would need access to the bench conference transcripts, the DOJ maintains.
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 given 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.