Sidley Austin Partner's Suicide: 'Too Many Lawyers Mask Their Struggles'

Sidley Austin Partner's Suicide: 'Too Many Lawyers Mask Their Struggles'

Hopefully the U.S. Department of Justice will protect me
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Sidley Austin’s Peter Keisler Takes on More Formal Role for AT&T in Antitrust Appellate Battle

As the AT&T’s defense against a Justice Department antitrust challenge advances into a Washington appeals court, Keisler is set to assume a more formal role.

By C. Ryan Barber | July 17, 2018 at 12:32 PM

Peter Keisler. Photo by Diego M. Radzinschi/ALM

During the six-week trial over AT&T’s planned acquisition of Time Warner, Sidley Austinpartner Peter
Keisler was a constant presence in court, looking on as O’Melveny & Myers’ Daniel Petrocelli mounted a successful defense of the $85 billion deal.

Now, as the AT&T’s defense against a Justice Department antitrust challenge advances into a Washington appeals court,
Keisler is set to assume a more formal role.

Keisler, a prominent appellate lawyer who briefly served as interim attorney general late in the George W. Bush administration, entered his first appearance for AT&T late Monday afternoon in the U.S. Court of Appeals for the D.C. Circuit, identifying
himself as the lead counsel for a Sidley Austin team that includes Jonathan Nuechterlein and C. Frederick Beckner III, co-leaders of the firm’s communications regulatory practice. Also on the Sidley Austin team:
Richard Klingler, a partner at the firm who previously served as general counsel on the National Security Council staff during the Bush administration.

In Keisler, AT&T has a lawyer who was picked under the Bush administration for a seat on the D.C. Circuit, only to see his nomination scuttled by a Senate filibuster.

Although Keisler was listed in the filing as the lead attorney, an AT&T spokesman said the company expects O’Melveny & Myers to remain involved in the D.C. Circuit. The spokesman declined to identify the lawyer who will lead arguments in the D.C.
Circuit, saying it would be premature given that the Justice Department has yet to file its opening brief.

Keisler declined to comment.

The Justice Department in a filing July 12 signaled its plan to take the merger challenge to the U.S. Court of Appeals for the D.C. Circuit. That notice came a month after U.S. District Judge Richard Leon handed down a 172-page opinion rejecting
arguments that AT&T’s acquisition of Time Warner would substantially lessen competition and hurt consumers.

Petrocelli, a seasoned trial lawyer who took up AT&T’s case with little to no antitrust experience, has not yet entered an appearance in the D.C. Circuit. Cravath, Swaine & Moore partner Christine Varney, a former head of the Justice Department’s Antitrust Division, is representing Time Warner.

Since his return to Sidley Austin in 2008, Keisler has established himself as a go-to lawyer for companies clashing with the government. Indeed, during the Obama administration, he frequently partook in some of the highest profile cases challenging government
regulations.

Keisler previously represented AT&T in the challenge to the Federal Communications Commission’s net neutrality rules, which the D.C. Circuit upheld in 2016. Under a Trump-appointed Republican chairman, the FCC later repealed the rules, which required
internet services providers to treat all content and traffic equally.

In 2016, he argued before the D.C. Circuit for an array of trade associations—including
the American Chemistry Council Inc. and U.S. Chamber of Commerce—in a challenge to the Obama administration’s Clean Power Plan. For the past two years, the D.C. Circuit has been granting 60-day abeyances in the
case as the Trump administration’s U.S. Environmental Protection Agency has worked to revise the plan. In its most recent order, the D.C. Circuit revealed that
some judges’ patience with EPA’s regulatory inaction is wearing thin.

Earlier in 2016, Keisler represented TransCanada in a lawsuit challenging the Obama administration over its decision to prevent the construction of the Keystone XL Pipeline. Keisler dropped the case a year later after the Trump administration greenlighted
the pipeline.

With Keisler on its side, AT&T appears confident in its chances of sealing the Time Warner deal in the D.C. Circuit. On July 13, AT&T CEO Randall Stephenson said on CNBC that the company believes “the likelihood of this thing being reversed and
overturned is really remote.”

“It’s a very narrow path that would have to be traveled to get this thing reversed in any way,” Stephenson said. “The merger is closed. We own Time Warner.”