Antitrust Law Daily Law firm’s representation of states disputed in challenge to T-Mobile/Sprint merger
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Friday, November 15, 2019

Law firm’s representation of states disputed in challenge to T-Mobile/Sprint merger

By Jeffrey May, J.D.

Munger, Tolles and states urge rejection of U.S. request that former Antitrust Division trial attorney, firm be disqualified.

With less than a month left before the December 9 start of trial in the multi-state challenge to T-Mobile US, Inc.’s acquisition of Sprint Corporation, the magistrate judge in the federal district court in New York City is faced with the question of whether to disqualify a former government lawyer and his current firm, Munger, Tolles & Olson LLP, from representing the states. In a November 8 letter, the U.S. Department of Justice informed the court that it was seeking to intervene to disqualify Glenn D. Pomerantz and Munger, Tolles. The government takes issue with the fact that Pomerantz served as a lead trial counsel for the Justice Department in its 2011 challenge to AT&T's proposed acquisition of T-Mobile and that there are overlaps between the cases. In separate letters filed yesterday, counsel for Munger, Tolles and the states urged the magistrate to deny the request (New York Deutsche Telekom AG, Case No. 1:19-cv-05434-VM-RWL).

The states filed their lawsuit to stop the merger of the nation’s third- and fourth-largest wireless carriers in June. In July, the U.S. Department of Justice announced a settlement with the companies that resolved the federal antitrust agency’s concerns and the competition concerns of another group of states. That settlement is awaiting approval from the federal district court in Washington, D.C. In a vote along party lines, the Federal Communications Commission also has approved the merger.

According to the Justice Department, disqualification is appropriate as Pomerantz oversaw the day-to-day issues that arose in the pretrial litigation and had full access to the United States' files in the AT&T/T-Mobile case. Because he was privy to confidential information and the two merger cases involve many of the same issues, Pomerantz could use that information to the material disadvantage of T-Mobile and Sprint in the ongoing litigation, the Justice Department argued.

The Justice Department also pointed out that the states retained as an expert Fiona Scott Morton, the Deputy Assistant Attorney General for Economics at the Antitrust Division during the AT&T/T-Mobile litigation. Scott Morton's involvement raises concerns that Pomerantz could use this expert's knowledge of the government's confidential information, it was suggested.

Counsel for Munger, Tolles sent a letter to the magistrate judge, arguing that the government’s motion has no merit. The letter argues that the government's effort "is untimely, misapplies the relevant ethical rules, ignores the governing ‘trial taint’ standard for disqualification in this Circuit, and disregards that the Defendants have acknowledged that they have no issue with Mr. Pomerantz and the Firm’s representation of Plaintiff States."

A supervising deputy attorney general for the State of California also weighed in on behalf of the states’ leadership team. According to that letter, the states "would be extremely prejudiced by the disqualification of Mr. Pomerantz and Munger this close to trial for a complex antitrust case on a compressed timeline."

With respect to possible prejudice, the government contended that that there was none, since "Pomerantz and his firm are representing offices of state attorneys general, which are themselves composed of litigators, many of whom have made appearances in this matter and are playing active roles in the litigation."

Attorneys: Gregory P. Joseph (Joseph Hage Aaronson LLC) for Glenn D. Pomerantz and Munger, Tolles & Olson LLP. Amber Wessels-Yen, Office of the Attorney General of New York, Paul Blizzard, Office of the California Attorney General, and Glenn D. Pomerantz (Munger, Tolles & Olson LLP) for states. Brian Edward Robison (Gibson, Dunn & Crutcher, LLP) for Deutsche Telekom AG. David I. Gelfand (Cleary Gottlieb Steen & Hamilton LLP) for T-Mobile US, Inc. Bradley S. Lui (Morrison & Foerster LLP) for Sprint Corp.

Companies: Deutsche Telekom AG; T-Mobile US, Inc.; Sprint Corp.

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