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Comcast turns to Davis Polk for Time Warner Cable merger

Pedestrians walk past the Time Warner Cable headquarters in New York February 13, 2014. REUTERS/Joshua Lott
Pedestrians walk past the Time Warner Cable headquarters in New York February 13, 2014. REUTERS/Joshua Lott

By David Ingram

WASHINGTON (Reuters) - 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 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.

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.

POTENTIAL REUNION

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.

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 Oatis)

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