Lawyers from the Justice Department and AT&T gathered in a small Washington courtroom Thursday to meet the judge who will oversee their legal battle, one of the biggest antitrust cases in decades.
As Judge Richard Leon lumbered into the room, assembled before him were two conference tables full of attorneys for both sides. In the first row of the audience sat Makan Delrahim, the Justice Department’s antitrust chief.
“This is not a normal case,” Leon said, speaking with traces of the accent he picked up during his childhood in South Natick, Mass. “And I’ve had a number of big ones, as some of you know.”
Leon is no stranger to high-profile cases and is considered a maverick in the legal world, having strong opinions and no clear political allegiance.
Antitrust experts say that if you want to get a sense of how the AT&T-Justice Department case might unfold, you could look at another telecom acquisition he oversaw years ago. In 2011, Comcast was seeking to finalize a multibillion-dollar deal to purchase NBC Universal, a similar type of merger involving a content company and a content distributor. Although the government did not move to block that deal, the Justice Department and Comcast had to appear before Leon and come to a settlement with certain conditions before the acquisition was completed.
In what was considered by antitrust lawyers an unusual move at the time, Leon expressed skepticism over the conditions of the settlement. Judges overseeing such agreements typically approve them without protest. Leon took issue with an arbitration process that would theoretically allow online content distributors to challenge Comcast over anti-competitive practices. Specifically, Leon doubted how well that arbitration mechanism would work for potentially wronged Internet companies, and whether the government could enforce the terms of the agreement. Ultimately, Leon approved the deal. But not without tying in auditing requirements.
Leon's chambers did not respond to a request for comment.
Other experts pointed to how Leon handled cases involving the National Security Agency and Guantanamo Bay cases as indicators of his independent thinking and his disregard for cultivating popularity. In 2013, he put the Obama administration and the intelligence community on the defensive after he ruled that the NSA’s daily collection of virtually all Americans’ phone records is probably unconstitutional. And in 2008, during President George W. Bush's final year in office, Leon was the first federal judge to order the release of detainees from the U.S. military prison at Guantanamo Bay, after concluding that the government had failed to prove that five Algerian men were enemy combatants under the government's own definition.
“Leon is a character,” said one lawyer who asked not to be named because that person practices in the D.C. circuit and may appear before Leon. “He tends to be very loud and aggressive from the bench. He also tends to move cases along more speedily than many district judges, to his credit.”
“If Judge Leon asks you a question, you must be prepared to answer it candidly and directly,” said Charles Leeper, a partner at the law firm Drinker Biddle, who has appeared before Leon several times. “If he perceives evasiveness or dissembling in your response, you are lost.”
Leon was appointed to the U.S. District Court for the District of Columbia by Bush in 2002. Before becoming a judge, Leon worked in private practice and at the Justice Department. In the 1980s, Leon advised then-Rep. Richard B. Cheney during the Iran-contra investigation, which focused on the provision of arms to Nicaraguan fighters with funds obtained by weapons sales to Iran. He was a special counsel to the House Banking Committee during its Whitewater investigation. And he is an adjunct law professor at George Washington University and Georgetown Law, where he teaches a class on congressional investigations with John Podesta, former chairman of the 2016 Hillary Clinton campaign. “I deposed him during the Whitewater investigation, the summer of ’94,” Leon told Washingtonian last year. “Which is usually not the basis of a friendship,” Podesta said in a feature about odd-pair friendships in the often-polarized national capital.
Leon sometimes berates lawyers and favors bow ties. His boisterous cackle can be heard from a distance.
On Thursday he emphasized that it would be AT&T and the Justice Department's responsibility to ensure the proceedings run smoothly. “We can’t take a blizzard of paper,” he said. “I don’t have 29 associates. This is not my only case.”
Leon scheduled the trial over the telecom giant’s proposed $85 billion takeover of Time Warner for March 19. He warned both sides not to expect a final decision in the case before April 22, a key deadline that AT&T and Time Warner set for themselves as part of their deal. If the deal doesn’t close by then, AT&T must pay Time Warner $500 million.
Mark Abueg, a spokesman for the Justice Department, said in a statement, “DOJ is looking forward to its day in court on behalf of the American consumer.”
AT&T said it appreciated that the court was expeditious about the timing of the trial. “We are committed to this transaction and look forward to presenting our case in March,” said David McAtee, AT&T’s general counsel.