Comcast has used the New York-based law firm repeatedly for
antitrust matters, most notably its successful bid to buy a majority
of NBC Universal from General Electric Co <GE.N>. 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
The antitrust team will be led by Arthur Burke, a Comcast
spokeswoman said. Burke is a member of Davis Polk's litigation
department, according to the firm's website.
Burke was involved in the 2011 settlement with the Justice
Department which allowed Comcast to take control of NBC Universal.
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 & Flom.
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 lawsuit 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.
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, which then owned NBC Universal.
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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 merger.
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, Alden Bentley and Jonathan
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