(Changes Time Warner to Time Warner Cable in headline and
paragraphs 4, 6, 7)
By David Ingram
WASHINGTON Feb 14 Comcast Corp will
again be working with its longtime antitrust counsel at Davis
Polk & Wardwell, as the communications and entertainment group
seeks to navigate the U.S. approval process to merge with rival
Time Warner Cable Inc.
Comcast has used the New York-based law firm repeatedly for
antitrust matters, most notably its successful bid beginning in
2009 to buy a majority of NBC Universal from General Electric Co
. A team of Davis Polk lawyers helped win U.S. Justice
Department approval for that deal in January 2011.
The two cable giants are proposing a $45.2 billion
combination that is likely to face scrutiny from antitrust
enforcers because of the deal's potential to reshape pay TV and
broadband markets in the United States.
In a news release, the companies said that Comcast's legal
advisers were Davis Polk as well as Willkie Farr & Gallagher and
that Time Warner Cable's legal advisers were Paul, Weiss,
Rifkind, Wharton & Garrison and Skadden, Arps, Slate, Meagher &
The firms all declined to comment on their roles.
Two of the firms worked with the same clients in at least
one past lawsuit. In 2006, the America Channel, a cable network
dedicated to telling the personal stories of Americans, sued
Comcast and Time Warner Cable alleging that they violated
federal antitrust law by refusing to carry the channel.
A U.S. District Court judge in Minnesota dismissed the suit
the next year. Davis Polk represented Comcast, while Paul, Weiss
represented Time Warner Cable.
Davis Polk has also worked for Comcast in an ongoing
antitrust class action in federal court in Philadelphia, where
local subscribers have accused the company of running an illegal
monopoly. Last year, the U.S. Supreme Court vacated an order for
class certification and sent the case back to U.S. District
Court, where a new motion for certification is pending.
Arthur Burke, a partner at Davis Polk in New York, has most
often been involved in Comcast's antitrust cases, including the
2011 settlement with the Justice Department over NBC Universal.
He did not respond to a request for comment on Thursday.
Another lawyer who worked on the Comcast-NBC deal was Bill
Baer, who at the time was a partner at Arnold & Porter
representing General Electric, the seller of NBC Universal to
Baer is now the assistant attorney general in charge of the
Justice Department's Antitrust Division, setting up a potential
reunion at the negotiating table if the Justice Department turns
out to be the agency that reviews the latest Comcast deal.
The Justice Department shares antitrust review authority
with the Federal Trade Commission and the Federal Communications
Commission. While the FCC is almost certain to be involved, it
was not certain on Thursday which of the other two would be.
Baer listed his involvement in the 2011 settlement as one of
his "significant legal activities" in a questionnaire he filled
out for the U.S. Senate Judiciary Committee before his
confirmation to the Justice Department post. He assumed his
office in January 2013.
Lawyers with expertise in conflicts of interests said on
Thursday that Baer's work on the Comcast-NBC-GE deal was
unlikely to require his disqualification now. His client in the
earlier matter was GE, which is not a party to the proposed
Government lawyers are generally prohibited from working on
matters that they handled while in private practice.
"The GE work - selling NBC to Comcast - is a different
matter than Comcast's acquisition of Time Warner Cable. So I
don't see any problem," Stephen Gillers, a law professor at New
York University, said in an email.
The Justice Department declined to comment on Baer's role.
(Additional reporting by Diane Bartz and Nicola Leske; Editing
by Howard Goller and Alden Bentley)