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Fenwick & West was founded in 1972 in the heart of Silicon Valley—before “Silicon Valley” existed—by four visionary lawyers who left a top-tier New York law firm to pursue their shared belief that technology would revolutionize the business world and to pioneer the legal work for those technological innovations. In order to be most effective, they decided they needed to move to a location close to primary research and technology development. These four attorneys opened their first office in downtown Palo Alto, and Fenwick became one of the first technology law firms in the world.  MORE >

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3 Reasons a Sprint-T-Mobile Deal Might Win Antitrust OK

June 11, 2014

The co-chair of Fenwick & West’s antitrust practice, Mark Ostrau, was quoted at length by Law360 on the prospects for U.S. regulatory approval of Sprint Corp.'s purported $32 billion plan to merge with T-Mobile.

"At the end of the day, they're still faced with the stark numbers of going from four to three [wireless telecommunications companies] in a market that's not going to see significant changes in entry or in new technological disruptions in the near future," said Ostrau. "So on balance it's still a long shot, but it's not crazy."

In contrast with AT&T’s bid to acquire T-Mobile—which was blocked by the Department of Justice’s antitrust division in 2011—the combination of Sprint and T-Mobile would not create the market-dominating entity that AT&T’s effort would have.  

"In this situation it's much more likely that either Sprint or T-Mobile's closest competitor is not each other but it's one of the other two,” Ostrau said. “So the elimination of competition between Sprint and T-Mobile isn't likely to allow them to raise prices as easily as AT&T could have with the elimination of T-Mobile."

Allowing an AT&T-T-Mobile merger in an industry with only three sizeable players could have enabled unilateral effects on the market, with consumers seeing higher prices due to AT&T’s actions alone. A combined Sprint-T-Mobile arguably wouldn’t pose the same anticompetitive threat, Ostrau said.

"Yes, it's very concentrated and you're removing a significant competitor, but the bigger competitor’s still there," Ostrau said. "That's really the strongest argument for them [because] there's some court precedent for saying it would be hard to make a unilateral effects case here given the continued presence of AT&T and Verizon."

Sprint could even make a case to the DOJ that its merger would improve consumer wireless options and pricing by expanding the reach of T-Mobile’s scrappy competitive approach, according to Ostrau.

"It's probably another factor that makes this a little more palatable that there's some reasonable argument that that could be the case," Ostrau said. "If I'm Sprint, I say: 'Here's how we're different from AT&T. Yes there is more consolidation, but this isn't going to result in a unilateral effects problem, and we will preserve and perhaps even expand T-Mobile's maverick nature.'"

The Sprint-T-Mobile combination could also enable better service and greater competition through pooling of the companies’ financial resources.  

"Perhaps there's some economies in future investments that they can show either [company] was not going to make, that together they might make," Ostrau said.

The full article is available through the Law360 website (subscription required).