U.S. District Judge Ellen S. Huvelle set Feb. 13 as the date when trial will start on the U.S. Justice Department's case against the $39 billion takeover of T-Mobile by AT&T.
The judge made her ruling in Washington, D.C., late Wednesday in a courtroom filled with richly compensated communications lawyers, especially those paid by AT&T and T-Mobile.
Huvelle reserved decision on whether to add a parallel lawsuit against the merger filed by Sprint-Nextel.
We're glad to have a start date for a trial, an AT&T spokesman said. The company had sought to dismiss the Aug. 31 filing outright.
At stake is the $39 billion takeover of T-Mobile, the No. 4 wireless carrier, by AT&T, now No. 2, which would make it No. 1, surpassing Verizon Communications. Sprint-Nextel would remain No. 3.
Last month, the Justice Department sued AT&T and T-Mobile charging their merger would be anticompetitive, violating the Clayton Act, which dates back to the Robber Baron era. It was one of the Justice Department's biggest moves for consumers in years, perhaps a harkening back to previous cases against AT&T as well as other technology leaders like IBM and Microsoft.
This is a four to three merger, Bruce Schneider, antitrust lawyer with Stroock in New York told IBTimes. There are four principal competitors today but if this merger goes through, there would be only three. And that is sometimes challengeable.
AT&T and T-Mobile, which is owned by Deutsche Telekom, have fought back vigorously. Besides winning support from 11 state attorneys general, they have advertised and lobbied heavily in Washington, emphasizing customer commitment.
As well, their investment bankers have a lot at stake. The merger deal includes a $3 billion cash breakup fee, along with services valued as high as another $3 billion.
AT&T's bankers include JPMorganChase, Evercore and Greenhill, while T-Mobile is advised by Morgan Stanley, Deutsche Bank, Credit Suisse and Citigroup. Sprint-Nextel is advised by Goldman Sachs.
In one sense, Apple's iPhone helped create the deal.
The reason is that when it was introduced, the mobile network of Dallas-based AT&T was overwhelmed by iPhone users, who ate up bandwidth. The AT&T network become the butt of jokes about dropped calls and bad service.
Meanwhile, T-Mobile, based in Bellevue, Wash., while much smaller, had invested in more 4G technology. For the partners, the deal made sense, especially because Deutsche Telekom wanted to unload its U.S. network for a profit.
T-Mobile was also known for being a price maverick, Stroock's Schneider told IBTimes. So the government can argue that folding it into AT&T removes a strong player from the market, he added.
But mobile telecommunications had become so necessary and the big providers so few that the Justice Department entered to stop it. Sprint-Nextel, based in Overland Park, Kan., filed a separate lawsuit along with privately held Cellular South.
In her order, Judge Huvelle told all parties to report to her about talks for a possible settlement. That's the usual judge's tactic: get the parties to agree rather than engage in a protracted case.
The Justice Department has already prepared an order for her that would fast-track the case, getting all pre-trial discovery done by Jan. 10 and a trial shortly afterwards. AT&T and T-Mobile, in response, want to have the whole matter thrown out.
Unconfirmed reports say AT&T has been talking with smaller carriers MetroPCS, Leap Wireless, CenturyLink and Dish Network about possible takeovers of parts of the enlarged AT&T. If successful, that could be a method to win an OK from Judge Huvelle.
For the Obama Administration, a vigorous prosecution of this civil case could be a way to show support for the little guy, especially after Justice Department antitrust chief Sharis Pozen said, Any way you look at this transaction, it is anti-competitive.
Pozen hailed T-Mobile as an important source of competition among the national carriers through innovation and quality enhancements.
Schneider, the antitrust lawyer who has no involvement in the case, told IBTimes that Judge Huvelle might try to narrow down issues to less than a handful. One might be to define what market share is in the mobile phone sector. Not likely is a well-regarded competition index that AT&T regards as questionable.
AT&T shares closed Friday at $27.85, up 10 cents. Untill Judge Huvelle's hearing, they had recovered nearly all the ground they lost since the suit was filed, an indicator big investors didn't think the Justice Department case was a real threat. They are now off 4 percent. Nearly 60 percent of AT&T shares are held by large institutions and mutual funds.