Even if Judge Richard Leon next week allows AT&Ts $85 billion acquisition of Time Warner, the telco can still end up a loser.
President Trumps Department of Justice, if it loses its suit to stop the mega-merger, could appeal and ask for a stay a delay that could stop the merger from closing for four to six months while an appellate court ponders a decision, legal experts said.
And that could be enough to rock the merger off its foundation, sources said, as the merger agreement expires on June 21.
Judge Leon is expected to rule on June 12. Ruling against the merger would kill the deal, for sure and cast a chill on the many others lining up to gain antitrust approval.
To be sure, while a DOJ appeal of an adverse ruling is nearly a sure thing, winning a stay is not a sure thing. In the last seven antitrust appeals in merger cases, the government has won significant enough stays to delay the underlying merger three times, or 43 percent of the time, according to a recent Bank of America analysis.
That includes in 2000, when emergency relief was granted to the Federal Trade Commission in its suit to stop HJ Heinz from buying Beech-Nut, according to the BofA analysis.
Six of those seven were FTC cases and not DOJ cases like the AT&T fight and the standard for getting a delay in a DOJ case is higher.
Whether Trumps regulators could get a stay pending appeal in the AT&T case is a matter of some debate, sources familiar with the case tell The Post.
If the DOJ loses the AT&T case but wins a stay on appeal, there is a 50-50 chance the deal could fall apart before the appellate argument is even heard, according to the analysis, prepared for its hedge fund clients and reviewed by The Post.
Of course, Time Warner may just threaten to walk in hopes of winning a higher price from AT&T, one source close to the situation maintained.
The telco should have to pay more because the deal, going on two years, is taking so much time to clear and Time Warner could attract more from other potential suitors, the source said.
