In United States v. AT&T Inc., No. 17-2511, 2018 WL 2930849 (D.D.C. June 12, 2018), Judge Richard J. Leon denied the Department of Justice Antitrust Division’s suit to enjoin the merger of AT&T and Time Warner. Judge Leon considered each of the government’s three theories of anticompetitive effects in turn and determined that “the Government . . . failed to meet its burden to establish that the proposed transaction is likely to lessen competition substantially.” Id. at *1.

The decision cited Steven C. Salop’s Invigorating Vertical Merger Enforcement, 127 Yale L.J. 1962, 2018 (2018) for the assertion that “the direction of the net competitive effect is a question of fact, not theory . . . .” Salop’s piece informed the treatment of expert testimony, ultimately leading Judge Leon to conclude that the government did not have sufficient evidence to support its theories of anticompetitive effects.