AT&T-Justice Department Clash Puts Outspoken Judge Back in Spotlight

By Jacob Gershman Features Dow Jones Newswires

In 2011, U.S. District Judge Richard J. Leon nearly torpedoed a settlement between the Justice Department and Comcast Corp. over the company's takeover of NBCUniversal.

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Six years later, Judge Leon is set to play a starring role in a higher-stakes sequel: AT&T Inc.'s proposed merger with Time Warner Inc. Last week, the Trump administration's lawsuit seeking to block the deal was assigned to the blunt-spoken and unpredictable bowtied-clad jurist.

If his handling of the Comcast/NBCUniversal situation is any guide, neither side in the new case -- shaping up to be the biggest antitrust battle in nearly two decades -- can count on having an ally at the bench. Judge Leon did not respond to requests for comment.

The government didn't sue to block the Comcast/NBCUniversal merger, but got a promise from the cable company that it wouldn't try to leverage its market power by charging online rivals like Netflix Inc. higher prices for NBC programming.

Judge Leon refused to rubber-stamp the deal, and was wary that the parties would abide by the terms intended to protect online companies from unfair competition.

"I'm giving you fair notice I'm not sure I'm going to sign this," Judge Leon told the parties at a July 2011 hearing.

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Ultimately, after the sides agreed to subject the terms to extra judicial monitoring, Judge Leon blessed the deal. But the aftermath of the Comcast merger and the effectiveness of the settlement's remedies now loom over the AT&T case, according to New York University School of Law antitrust professor Scott Hemphill.

"He has a very firm grasp of competition law and the economics that drives it," said Jonathan L. Rubin, a Washington lawyer at MoginRubin LLP who represents the independently operated ATM industry in an antitrust suit against Visa and Mastercard.

To justify a halt to the AT&T merger, the government will try to show how AT&T's acquisition of Time Warner will hurt consumers by leading to higher prices and fewer options for cable and satellite television and online video.

The job of assessing claims about the market effects falls to Judge Leon. Mr. Rubin described the 67-year-old judge as a demanding fact-finder who can be expected to take the Justice Department's "theories and evidence seriously."

Judge Leon, who was confirmed to the bench in 2002 as a nominee of President George W. Bush, has acquired a reputation for his assertive and often brusque approach that cuts across ideological lines.

Among the standouts was a 2008 order that required the release of five Algerians from the U.S. military prison at Guantanamo Bay. Judge Leon said the government had failed to show the men were enemy combatants.

In 2013, he made national headlines again when he pronounced the National Security Agency's bulk collection of phone data "almost-Orwellian" and "almost certainly" unconstitutional.

On Wednesday, the judge returned to the issue of surveillance.

He released an opinion that took credit for stirring the debate over antiterrorism policy and privacy, saying his 2013 ruling had "unleashed a firestorm of press and public discussion" that led Congress to require more targeted searches of phone records. That legislation rendered the surveillance litigation moot, he ruled.

Judge Leon has crossed swords with the executive branch in other areas.

In 2015, he blasted a deferred prosecution agreement between the government and a Dutch company accused of violating Iran sanctions as "grossly" lenient. His second-guessing of prosecutors got him a rebuke from a federal appeals court, which said he had "significantly overstepped" his authority.

Other notable opinions include a 2016 ruling against the District of Columbia's restrictions on concealed-carry gun permits. Judge Leon wrote that the city's "overly zealous desire" to limit who can carry a firearm ran afoul of the Second Amendment.

Before joining the federal court, the Massachusetts native was a litigator at Vorys, Sater, Seymour and Pease LLP in charge of the firm's white-collar crime and congressional investigation practice in Washington.

He has drawn on his experience with legislative probes as an adjunct scholar at Georgetown University Law School, where he co-teaches a graduate seminar on congressional oversight of the executive branch with Hillary Clinton's 2016 campaign chairman, John Podesta.

Write to Jacob Gershman at jacob.gershman@wsj.com

(END) Dow Jones Newswires

November 27, 2017 12:44 ET (17:44 GMT)