United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RICHARD J. LEON JUDGE
November 20, 2017, the United States, acting through the
Department of Justice's Antitrust Division
("plaintiff or "the Government"), brought this
action to enjoin the merger of defendants AT&T/DirecTV
and Time Warner (collectively, "defendants") under
Section 7 of the Clayton Act, 15 U.S.C. § 18. See
generally Compl. [Dkt. # 1]. In answering the complaint,
defendants raised the defense that plaintiffs claim
"reflects improper selective enforcement of the
antitrust laws." Answer 28 [Dkt. #20]. Specifically,
defendants assert that the challenge to their vertical merger
was brought not due to any credible antitrust concerns, but
because one of the Time Warner networks to be acquired, CNN,
has engaged in political speech disfavored by President
Trump. See, e.g., 2/16/2018 Hr'gTr.
("Hr'gTr.") 35:12-24 [Dkt. # 67].
December 2017, defendants asked plaintiff to produce
discovery relating to their "selective enforcement"
defense. Id. at 21:12. In particular, defendants
have asked plaintiff to compile and produce summary
documents, known as privilege logs, cataloguing the existence
(but not the contents) of certain written and oral
communications regarding the White House's views of the
proposed AT&T-Time Warner merger. Plaintiff has completed
and produced one such log setting forth a list of "all
written communications between the White House and the
Antitrust Division that relate to the subject of th[e]
merger." Id. at 39:21-40:2. Although that log
apparently indicates that there were no "untoward"
communications between the White House and the Antitrust
Division, id. at 41:4, defendants, through document
requests and interrogatories, have asked plaintiff to produce
similar logs listing: 1) all written "communications
between the Antitrust Division and the Attorney General's
Office" in which "the White House['s] views are
expressed about the merger, " id. at 55:5-8; 2)
all written communications and documents "between the
Attorney General's Office and the White House about this
merger, " id. at 55:12-14; and 3) all
"oral communications between the White House and the
Antitrust Division with regard to the AT&T merger, "
id. at 46:8-9, 19-20; see also Id. at
56:7-10. Plaintiff objects to providing any of that
information. That brings us to the dispute currently before
joint letter dated February 13, 2018, the parties, in
accordance with the procedures established in the Case
Management Order [Dkt. # 54], informed the Court that they
were at an impasse in their negotiations over defendants'
entitlement to the requested privilege logs. The parties
explained their dispute at a status hearing held on February
16, 2018. On the one hand, defendants assert that they are
entitled to the requested privilege logs because those logs
are relevant to their selective enforcement defense.
Accordingly, defendants ask that this Court require plaintiff
to compile and turn over privilege logs that are responsive
to the outstanding discovery requests. See Hr'g
Tr. 55:5-56:23. Plaintiff, for its part, argues that
defendants have failed to establish their right to discovery
on the issue of selective enforcement. See Id. at
59:1-16. Plaintiff has moved to strike defendants'
selective enforcement defense as well as to quash any
outstanding discovery requests related to that defense.
See Id. at 60:4-9.
the trial date in this case fast approaching, all agree that
we cannot afford to spend much of the little remaining
preparation time litigating this matter. Even without the
luxury of back-and-forth briefing, however, the parties,
through arguments of able counsel, have made their positions
clear. Both sides acknowledge that the Supreme Court's
decision in United States v. Armstrong, 517 U.S. 456
(1996), controls the analysis of defendants' entitlement
to additional selective enforcement discovery. See
Hr'g Tr. 11:11-18, 21:23-24. Thus, the issue here is
whether defendants have satisfied Armstrong's
requirements. For the reasons discussed below, I conclude
they have not.
Circuit has often recognized, "[p]rosecutors have broad
discretion to enforce the law, and their decisions are
presumed to be proper absent clear evidence to the
contrary." United States v. Slatten, 865 F.3d
767, 799 (D.C. Cir. 2017) (citing Armstrong, 517
U.S. at 464). To be sure, defendants are correct that
Executive Branch enforcement decisions are "subject to
constitutional constraints, " including a prohibition on
selectively prosecuting individuals for exercising their
constitutional rights. Armstrong, 517 U.S. at 464
(internal quotation marks omitted); see Att'y Gen. of
United States v. Irish People, Inc., 684 F.2d 928, 932,
935 & n.l 1 (D.C. Cir. 1982). But the Supreme Court has
emphasized that court orders allowing discovery into the
exercise of prosecutorial discretion-just as those resolving
the merits of a selective enforcement claim-raise a number of
"substantial concerns." Wayte v. United
States, 470 U.S. 598, 607 (1985); see
Armstrong, 517 U.S. at 468. Those concerns range from a
recognition of the judiciary's inability to competently
assess the basis for a decision to prosecute, to the threat
that courts may "unnecessarily impair" the
Executive Branch's performance of a "core"
constitutional function, to the practical fact that selective
enforcement discovery "will divert prosecutors'
resources and may disclose the Government's prosecutorial
strategy." Armstrong, 517 U.S. at 465, 468.
those reasons, the Supreme Court and our Circuit have
established a "rigorous standard" that defendants
must meet before even obtaining discovery on a selective
enforcement defense. Id. at 468. Under that
standard, defendants must put forward "some evidence
tending to show the existence of the essential elements of
the defense, discriminatory effect and
discriminatory intent." Id. (emphasis added)
(internal quotation marks omitted); see Irish
People, 684 F.2d at 932. "If either part of the
test is failed, the defense fails, " meaning that
defendants cannot "subject the Government to
discovery" unless they make a colorable showing that
this enforcement action was in fact selective. Irish
People, 684 F.2d at 947; see Armstrong, 517
U.S. at 469-70. They cannot do so here.
have fallen far short of establishing that this enforcement
action was selective-that is, that there "exist persons
similarly situated who have not been prosecuted."
Irish People, 684 F.2d at 946; see also Id.
("Discrimination cannot exist in a vacuum; it can be
found only in the unequal treatment of people in similar
circumstances."). As our Circuit has noted, defendants
are "similarly situated" for purposes of a
selective enforcement claim "when their circumstances
present no distinguishable legitimate prosecutorial factors
that might justify making different prosecutorial decisions
with respect to them." Branch Ministries v.
Rossotti, 211 F.3d 137, 145 (D.C. Cir. 2000) (quoting
United States v. Hastings, 126 F.3d 310, 315 (4th
Cir. 1997)). It is therefore difficult to even conceptualize
how a selective enforcement claim applies in the antitrust
context, where each merger "must be functionally
viewed" in "the context of its particular
industry" and in light of a "variety of
factors"-including the transaction's size,
structure, and potential to generate efficiencies or enable
evasion of rate regulation-that "are relevant in
determining whether a transaction is likely to lessen
competition." United States v. Baker Hughes
Inc., 908 F.2d 981, 985 (D.C. Cir. 1990) (internal
quotation marks omitted); see generally Dep't of
Justice & Fed. Trade Comm'n, Non-Horizontal Merger
Guidelines (June 14, 1984).
such, it is no surprise that defendants have mustered only
one specific transaction-Comcast's 2011 acquisition of
NBC Universal ("NBCU")-as the requisite comparator
for their selective enforcement claim. See Hr'g
Tr. 30:7-32:21. As plaintiff points out, however, the
Antitrust Division did file a Section 7 enforcement
action to enjoin the Comcast-NBCU transaction. See
Complaint, United States v. Comcast Corp., No.
11-cv-106 (D.D.C. Jan. 18, 2011), ECF No. 1. And although the
Comcast-NBCU suit was resolved through a settlement, that
settlement occurred in the context of "distinguishable
legitimate prosecutorial factors, " Branch
Ministries, 211 F.3d at 145-including FCC oversight-not
present here. See Hr'g Tr. 12:22-13:22.
Defendants' attempt to use the Comcast-NBCU transaction
as the basis for their selective enforcement claim is
therefore unavailing. The same goes for defendants' efforts
to distinguish this enforcement action from the
Government's treatment of vertical mergers generally. As
counsel for the Government explained at length during the
hearing, history belies the notion that this action is the
first and only time that the Government has found an
antitrust problem with a proposed vertical merger or insisted
on a structural remedy as a condition to settlement. See
Id. at 13:23-16:1; see also Steven C. Salop
& Daniel P. Culley, Potential Competitive Effects of
Vertical Mergers: A How-To Guide for Practitioners app.
(Dec. 8, 2014) (collecting vertical merger challenges from
1994-2013). So while it may, indeed, be a rare breed
of horse, it is not exactly a unicorn !
of those reasons, defendants have not made a "credible
showing" that they have been "especially singled
out" by plaintiff. Armstrong, 517 U.S. at 470;
Irish People, 684 F.2d at 946. On that basis
alone, their request for additional selective
enforcement discovery fails. See Irish People, 684
F.2d at 947 (requiring a "colorable claim of both"
selection and motivation "before subjecting the
Government to discovery"). As such, it follows that
defendants are not entitled to an order compelling plaintiffs
completion of privilege logs responsive to defendants'
outstanding selective enforcement discovery requests.
Therefore, for the foregoing reasons, it is hereby
that defendants' oral motion to compel production of the
requested privilege logs relating to their selective
enforcement defense is DENIED; and it is
that plaintiffs oral motion to strike defendants'
outstanding discovery and interrogatory requests for: 1) all
written communications about the merger between the White
House and the Attorney General's office; 2) all written
communications about the White House's view of the merger
between the Attorney General's office and the Antitrust
Division; and 3) all oral communications between the White
House and the Antitrust Division with regard to the AT&T
merger is GRANTED.