[00:00:00] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:03] Speaker 00:
Ian Gershengorn for the Las Vegas Review Journal.

[00:00:05] Speaker 00:
I'd like to reserve three minutes for rebuttal.

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The plain text of the Newspaper Preservation Act makes clear that it is unlawful to enforce or perform the 2005 agreement that's at the heart of this case.

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In 2005, the Sun and the Review Journal entered an agreement that terminated their prior agreement and significantly reworked their joint newspaper operations.

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Instead of producing two separate full-size weekday papers, they agreed to produce one consolidated paper, with the Sun appearing as an eight-page insert within the Review Journal's morning paper.

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Instead of distributing separate papers to separate subscriber bases, they agreed to distribute the joint paper to a single unified subscriber base.

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And in an agreement that goes to the heart of the antitrust laws, they expressly agreed not to publish competing newspapers directed to Clark, Nye, or Lincoln counties basically anywhere in southern Nevada.

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Under the plain text of the act, this is an easy case.

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Under section 1802, the 2005 agreement is a joint newspaper operating arrangement because it is, quote, a contract agreement or other arrangement pursuant to which joint or common production facilities are operated.

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And under section 1803B, because the parties failed to obtain prior written consent of the attorney general, it is, quote, unlawful for any person

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to perform or enforce the 2005 agreement.

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Now, counsel, they're going to point to the Guild versus Levi case.

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Why is that wrong?

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So I think Levi's wrong, your honor, for a number of reasons.

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First, it's from an approach to statutory construction that I think the Supreme Court has told us is long ago abandoned.

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The question is, what does it mean when the act says it shall be unlawful to inform or enforce an agreement?

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So three things on the text.

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First, it shall be unlawful is plain and unambiguous.

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It means it shall be unlawful.

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Second, it can't be read, the statute can't be read to impose just anti- Shall be unlawful under what?

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It shall be unlawful just full stop under the federal statutes, Your Honor.

[00:02:04] Speaker 03:
So if that's true, then how do you get an exemption from the antitrust laws out of AG approval under B?

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So I think under B, the understanding is that it is no longer unlawful, and therefore it is exempt under the antitrust laws.

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And I think it's the contrast- But that's not what- I mean, you're emphasizing the plain language, but it's not what it says, because

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A says it shall not be unlawful under any antitrust law.

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So it's got that phrase.

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But B just says it shall be unlawful except the AG.

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So it creates a prohibition with an exception, but the exception doesn't attach to anything else and it doesn't have a reference to the antitrust law.

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That's the textual problem I see with your position.

[00:02:50] Speaker 00:
So, Your Honor, I take that point, but I actually think a couple of things.

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First of all, of course, that doesn't mean that you read in an antitrust immunity.

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The question of whether you might not get an antitrust immunity if the AG approves is one thing, but that's to read in an antitrust immunity under it is unlawful when, A, unlawful has a settled meeting.

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B, in both 1803A and 1803C, Congress specifically limited it to antitrust immunity and didn't in 1803B, and the court has to give meaning to that.

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And in addition, the words, it is unlawful to

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appear in the U.S.

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code over and over and of course the other side doesn't respond to this point in our brief.

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We don't go reading in limitations to make things just antitrust immunity when the doctrine itself means unlawful.

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The additional point I want to make there in addition to the text is a couple of other points that seem to me very important.

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First of all, this actually makes good sense from what Congress was faced.

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Remember, Congress was faced with a deeply divided approach to how to deal with these newspaper arrangements.

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The suburban newspapers and unions were very much opposed to allowing this kind of joint operation, so Congress did a compromise, right?

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In 1803A, it basically grandfathered in the 22 existing JOAs that the Supreme Court had just called into question in its Continental Publishing case.

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But for places going forward, they said, no, we don't want those to go forward unless the AG signs off.

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And the difference between immunity and unlawfulness is critical for that, because the harms to—

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in, is it Levi?

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Levy.

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Levy.

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Yeah.

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You're sounding like the court in Levy, going back to what, you know, Congress intended here.

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But I guess I want to, I want to ask a different question then.

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What do we do with CFR 48?

[00:04:46] Speaker 01:
There, again, it's telling us that the Act does not require that all joint newspaper operating agreements obtain the prior written consent of the Attorney General.

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So I think it's absolutely clear that what Levy upheld

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in those regulations was the DOJ's position that you only get antitrust immunity, right?

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But that's exactly what we say can't be accepted, if I'm understanding your honor's question correctly.

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In other words, the regulation, which was upheld- Are they gonna have to change their procedures?

[00:05:20] Speaker 03:
Everyone has to come in for approval.

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So, your honor, I think for, that everybody does have to come into a room.

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First of all, I think in the real world, actually,

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this doesn't have everyone does anyway because there are only three of these left your honor in the country and so there were at various times there's been as many as 30 but there's only as we understand this one one in Detroit and then there's one in York Pennsylvania which we think may have expired in June 2024 but we haven't been able to confirm that but we're talking about

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three agreements.

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And I think that's sort of an important backdrop for what we're talking about here is that applying the plain language as this court should, I think, is not a major disruption.

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But if I could go back to your honor's question sort of more broadly about Levy, in addition to the plain text, the contemporaneous understanding, I just want to make clear, like the district court struck down the regulation in Levy

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There was a dissent at the time in Levy, and as those opinions point out, the original DOJ position was our position, that unlawful means unlawful, and then DOJ changed position.

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In terms of plain text, in terms of contemporaneous understanding, we think we're in good position.

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Now, for those who look at, you know, Your Honor said that I'm giving purpose.

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I guess I don't.

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I think I'm sort of explaining the structure of the statute and providing the context.

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I think A, reflects that prior to 1970, the agreements were basically grandfathered in.

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B says for things going forward, we want to treat it differently.

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And I guess what I'm saying is I don't think that was irrational for Congress to do that, not only not irrational, but made good sense, because the harms that come, what Congress perceived as the harms that come from these agreements to suburban newspapers and to unions and to people opposed

[00:07:12] Speaker 00:
to these kind of judgments, that Congress didn't want that, or the text reflects, that Congress didn't want that to go forward without the AG blessing it.

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If you just have an immunity from antitrust scrutiny, of course those go forward, that may get remedied years down the road if you don't get that immunity, but by then the harm to suburban newspapers and the harm to unions and the harm to other stakeholders has long happened.

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So it's perfectly understandable that Congress might have wanted that to be

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to have unlawful be the test.

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Now the district court, if you're looking at the plain language, of course, the district court made a second holding, which was that she didn't have to even get to unusual because somehow amendments weren't covered by the plain text of the statute.

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And again, I think the statute really couldn't be clearer if you look at 15 USC 1802-2,

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It defines the term joint newspaper operating arrangement as, quote, any contract agreement or other arrangement

[00:08:10] Speaker 00:
entered into by two or more papers pursuant to which joint or common production facilities are established or operated.

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And so that plainly covers the 2005 agreement.

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Now the son's position is that Congress just didn't include anything on amendments.

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And we just think that's not a plausible interpretation of the statute and certainly doesn't justify

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departing from the plain text of 18022.

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First of all, it leaves a gaping hole in the statute.

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It means once parties are able to get an initial agreement, get the U.S., get the Attorney General consent to an initial agreement, basically any amendment is a free-for-all.

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They can do whatever they want.

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Ones that add new papers?

[00:08:54] Speaker 00:
Even I think well so I think even ones that new papers if you look at the new paper restriction on her that's an eighteen oh three a right I don't think that has anything to do with eighteen oh three B and I think actually that was the district courts era the district court viewed amendments to post nineteen seventy agreements as covered by

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1803A.

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We don't think that's a plausible reading of the statute at all.

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1803A is by its terms and very clearly limited to pre-1970 agreements.

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And the statute just as clearly in 1803B covers post-1970 agreements.

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And the statute really couldn't be clearer that that's the division it sets up.

[00:09:32] Speaker 03:
And I don't think the Sun defends... But A suggests that amendments would include

[00:09:39] Speaker 03:
adding papers because it includes language saying, not that type of amendment.

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And so if amendments were not within B, then the prohibition on amendments that add parties in A wouldn't apply.

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There'd be no limitation.

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So you could do an amendment that didn't even— Correct.

[00:09:54] Speaker 00:
I'm sorry, Your Honor.

[00:09:54] Speaker 00:
Absolutely right.

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I think if their interpretation is right, then you can do whatever you want in B. You can add papers.

[00:10:01] Speaker 00:
And this—I think this agreement illustrates—I'm sorry, Your Honor.

[00:10:05] Speaker 00:
So step behind.

[00:10:05] Speaker 00:
But yes, this agreement illustrates that.

[00:10:09] Speaker 00:
If you look at the kinds of restrictions that happened when we went from 1989 to 2005, I mean, I mentioned in my opening, there's an express agreement not to compete in a governed geographic area, basically all of Southern Nevada, right?

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Like there is a separation from

[00:10:25] Speaker 00:
different subscriber bases where they compete to a single unified subscriber base.

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We went from separate papers to one that's an insert in another, and all of the promotion activities are now being handled by the Review Journal instead of by the Sun and the Review Journal separately.

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And so this is not the edge case.

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This is exactly the kind of thing that DOJ and the Attorney General should have looked at.

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And so in terms of statutory construction, I think your honor's suggestion shows why it can't be right.

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And their position is basically that in 1803B, Congress was silent on quote unquote amendments.

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And we just don't think that's plausible.

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One, because it allows massive additions, changes to the agreement.

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Two, because Congress expressly addressed amendments in 1803A.

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So it would be very odd for them to not have addressed it in 1803B.

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And then, third, in a sort of comprehensive statute, the idea that Congress would address the core agreement, but then be very silent on the obvious question of, well, what if they amend it?

[00:11:32] Speaker 00:
Seems, you know, sort of not a plausible construction of the statute, again, particularly since, in 1803A, they did address it.

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So we think the much more sensible understanding of the statute is to follow the plain text that, basically, 1802-2

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defines what a joint newspaper operating arrangement is.

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It doesn't distinguish between initial agreements and amendments.

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What it says is any contract agreement or other arrangement entered in by two or more newspaper owners.

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We think the court should give the plain meaning to 1802-2 and say this is covered.

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We think the court should give the plain meaning to 1803-B and say it shall be unlawful.

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And we think the case is as simple as that.

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The court has no questions.

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I'll reserve the remaining time for rebuttal.

[00:12:19] Speaker 03:
All right.

[00:12:19] Speaker 03:
Thank you, counsel.

[00:12:21] Speaker 03:
Thank you.

[00:12:21] Speaker 03:
We'll hear now from Mr. Reed.

[00:12:33] Speaker 04:
Good morning, your honors.

[00:12:36] Speaker 04:
May it please the court.

[00:12:38] Speaker 04:
No JOA partner has ever unilaterally sought to terminate

[00:12:44] Speaker 04:
its own JOA, have it declared illegal and void, and to eliminate its only competitor, the smaller newspaper.

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Everything about the RJ's arguments run directly contrary to both the letter and the spirit of the two statutes that are involved here, Section 1292A1 and the Newspaper Preservation Act.

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Every argument you just heard also ignores the fact that the attorney general immunized the parties to combine all aspects of their non-editorial business functions in 1990.

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And when the parties executed the amendment in 2005, they didn't void or abandon that immunity.

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That immunity is lasting.

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And certainly, that's what this court's decision in the Bronster case said.

[00:13:45] Speaker 03:
Well, can you walk through why are amendments not covered by the statute?

[00:13:49] Speaker 04:
Yes.

[00:13:50] Speaker 04:
So we start with the text, right?

[00:13:56] Speaker 04:
When we look at the language, the plain language, Section 1803B, starting first, contains no approval requirement for arrangements that have already been approved and immunized by the attorney general.

[00:14:19] Speaker 04:
That is in contrast to the plain language of 1803A.

[00:14:23] Speaker 03:
It's a broad prohibition.

[00:14:26] Speaker 03:
It shall be unlawful for any person to enter into, perform, or enforce a joint operating arrangement not already in effect, which means not already in effect on the date of enactment, except with the prior written consent of the attorney general of the United States.

[00:14:41] Speaker 03:
And then it has a definition of joint newspaper operating arrangement.

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And that means any contract agreement, joint venture, et cetera.

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An amended contract is still a contract.

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So why is it not covered by the plain language of the definition and then the plain language of the broadly written prohibition, which says no contracts of this kind

[00:15:06] Speaker 03:
which would include an amendment unless CAG signs off.

[00:15:10] Speaker 04:
So there's a couple aspects of, a couple layers to respond to your question, and I'll go through them now.

[00:15:18] Speaker 04:
The first is that the term defined, joint newspaper operating arrangement, isn't found in section 180.

[00:15:28] Speaker 03:
It's a very odd feature of this.

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I mean, it's a sloppily drafted statute that even misspells the United States.

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and has a note that it's misspelled.

[00:15:41] Speaker 03:
By my count, I think it was five times it uses the phrase joint newspaper operating arrangement, and maybe seven times it drops the word newspaper.

[00:15:50] Speaker 03:
But there's no pattern.

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The only rational reading of it is that it's an accident, and that it means the same thing in all of the places in which it's used.

[00:16:02] Speaker 03:
I can't see that it means different things in the two.

[00:16:06] Speaker 03:
It's just a mistake.

[00:16:07] Speaker 04:
We agree with you, OK?

[00:16:10] Speaker 04:
All right, so then the definition now is going to plug into the phrase in B. But the term defined, and I think there is importance in the fact that Congress used the word

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arrangement and not agreement.

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The argument you hear from our friends is talking about that it's the agreement that gets approved, but that isn't accurate.

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1802-2 defines something broader.

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It's defining the relationship.

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It defines not just the agreement.

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It defines the joint undertaking.

[00:16:51] Speaker 03:
But it says.

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that the term joint newspaper operating arrangement means any contract agreement, joint venture, or other arrangement.

[00:17:02] Speaker 03:
So it suffices to be a contract.

[00:17:05] Speaker 03:
A contract is, by definition, a joint newspaper operating arrangement, which then is unlawful to enter into without the AG's approval.

[00:17:14] Speaker 04:
So we talked a minute ago about how this is

[00:17:19] Speaker 04:
The act is an imperfect vehicle in some ways, like the misspelling of the United States.

[00:17:26] Speaker 04:
There is no evidence in the statute that section 1802-2 was intended to put a limit on amendments.

[00:17:38] Speaker 04:
And there are two reasons for that in the plain text that I can refer you to.

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The first is the distinction that Congress made

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between amendments to JOAs and JOAs.

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In subsection A, Congress didn't treat them as the same thing.

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An amendment is something different than

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the definition you see in section 1802.

[00:18:08] Speaker 03:
Didn't it stop you there?

[00:18:09] Speaker 03:
Because I'm not sure that that's right.

[00:18:12] Speaker 03:
Because B, there's an odd difference between the phrasing in B and A. B is a prohibition.

[00:18:20] Speaker 03:
It shall be unlawful.

[00:18:22] Speaker 03:
A is an exemption.

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It shall not be unlawful.

[00:18:26] Speaker 03:
That's how it's written.

[00:18:27] Speaker 03:
So if B is as broad as it seems and covers everything, including amendments, then you turn to A,

[00:18:36] Speaker 03:
With that in place, it shall not be unlawful under any antitrust law, which this would count as an antitrust law under the broad definition, for any person to perform, enforce, renew, or amend any joint newspaper arrangement.

[00:18:50] Speaker 03:
So now that the prohibition is so broad it covers amendments, when I'm carving out, which is what A does, it's not unlawful, I need to mention amendments, because otherwise they're covered.

[00:19:00] Speaker 03:
And so now I'm authorizing amendments.

[00:19:02] Speaker 03:
So it seems in that sense it may cut the other way.

[00:19:05] Speaker 04:
Okay, but in section, when we compare as you have the language used in section A and the language used in section B, there are two things to look at.

[00:19:19] Speaker 04:
The first is that in B

[00:19:22] Speaker 04:
what is rendered unlawful, the Congress specifically, instead of expressly requiring filing in A, Congress specifically declined to prohibit or include the words that are found in A, renew or amend.

[00:19:42] Speaker 04:
And Congress's choice not to render those acts unlawful in the context of the statute as a whole,

[00:19:51] Speaker 04:
has to be read as Congress's decision not to prohibit those things after the arrangement has been approved in the first instance.

[00:20:02] Speaker 04:
And proof of that assertion that there is significance to Congress's omission, that that is a choice not to require further attorney general approval,

[00:20:20] Speaker 04:
rather than the approval in the first instance is other language that follows in section 1803B.

[00:20:29] Speaker 04:
The failing newspaper finding.

[00:20:35] Speaker 04:
If you accept the reading that the RJ proffers that every amendment

[00:20:44] Speaker 04:
is a new JOA that requires a new attorney general approval, irrespective of whether that immunity has already been granted.

[00:20:56] Speaker 04:
You have to ignore the failing newspaper finding that must be made late, that appears later.

[00:21:04] Speaker 04:
When the attorney general approved this JOA, he found that the Sun was a failing newspaper and also found that

[00:21:12] Speaker 04:
the 1989 JOA preserved the Sun, that it would have sufficient income to have an independent editorial voice and continue in publication because of the JOA, and it was no longer a failing newspaper.

[00:21:32] Speaker 04:
If you apply Section 1802-2 in the manner that the RJ posits, you have to,

[00:21:40] Speaker 04:
ignore that that finding can no longer be made after a JOA has been approved.

[00:21:46] Speaker 03:
Your point then that it would be impossible to make an amendment because at the time you would show up with the amendment, by virtue of the JOA, it'd no longer be a failing newspaper.

[00:21:57] Speaker 04:
I mean, the Sun certainly wasn't a failing newspaper in 2005.

[00:22:00] Speaker 04:
It was insured to receive, through the year 2040, a minimum of $2.25 million per year

[00:22:09] Speaker 04:
under, I think that's section A.1, for its editorial existence, and 10% of the profits of the joint operation.

[00:22:23] Speaker 04:
You couldn't make the failing newspaper finding.

[00:22:27] Speaker 04:
And the truth is, is the RJ's reading would create an absurdity, meaning that no JOA

[00:22:37] Speaker 04:
could be amended, it couldn't meet the failing newspaper standard under the statute.

[00:22:43] Speaker 03:
Well, could you read the definition in 18.025 of failing newspaper to essentially mean that it's failing in the absence of the JOA?

[00:22:59] Speaker 04:
That's not in the statute.

[00:23:07] Speaker 04:
18.025 is specifically defined as a probable likelihood of financial failure.

[00:23:17] Speaker 04:
I think that's.

[00:23:18] Speaker 04:
Is in probable danger of financial failure.

[00:23:20] Speaker 04:
Probable danger of financial failure.

[00:23:21] Speaker 04:
So you take that finding at the time of application.

[00:23:28] Speaker 03:
But I mean, you've pointed out what is, I think, the most significant textual difficulty with that reading.

[00:23:36] Speaker 03:
Let me ask you what I think is the converse difficulty, which is, under your view, amendments escape AG scrutiny, including an amendment that would add a new newspaper.

[00:23:50] Speaker 04:
So in response to that, I think the best answer is to look at what happened in the Daily Gazette case or the Anzai case in Hawaii, where

[00:24:05] Speaker 04:
You know, those were agreements that were presented to the attorney general.

[00:24:10] Speaker 04:
I assume they were filed, or when newspapers make changes like that, it's publicly known.

[00:24:19] Speaker 04:
Those were agreements that were styled as amendments, but they were in reality termination agreements.

[00:24:25] Speaker 04:
They were ending the relationship.

[00:24:28] Speaker 04:
And what happens?

[00:24:31] Speaker 04:
So this concern about newspapers never having free rein to make any change they want, that isn't what happens.

[00:24:41] Speaker 04:
Because the Justice Department maintains jurisdiction under the Sherman Act.

[00:24:49] Speaker 04:
In both of the two cases I just cited, they said,

[00:24:54] Speaker 04:
you are not permitted to make an amendment that is inconsistent with the immunity that you've been provided already, or that is inconsistent with why you have the freedom to, or the exemption from the antitrust statutes in the first place.

[00:25:14] Speaker 03:
Where does that come from, from the text?

[00:25:15] Speaker 03:
Where did these limitations on amendments come from in the text of the statute, under your reading?

[00:25:22] Speaker 04:
Well, I mentioned the

[00:25:24] Speaker 04:
the Congress's decision not to include the terms renew or amend in section 1803B, that because of the way the statute works, and this court's decision in Bronster explains this, that when the attorney general has provided immunity, that immunity is lasting.

[00:25:50] Speaker 04:
there there's a long discussion in bronster that explains in invalidating a hawaii state statute that was work asking

[00:26:01] Speaker 04:
newspaper participants to keep providing financial information so they could demonstrate that the JOA was still necessary, that they were still under financial strain.

[00:26:15] Speaker 04:
This court invalidated that Hawaii state statute and held that after immunity is granted, that is

[00:26:24] Speaker 04:
the end of what JOA participants are required to provide.

[00:26:32] Speaker 04:
They've been granted immunity.

[00:26:34] Speaker 04:
And granted, as I've already said, that immunity isn't boundless, but it is immunity.

[00:26:43] Speaker 04:
Congress did not prohibit an immunized

[00:26:50] Speaker 04:
relationship from making changes.

[00:26:54] Speaker 04:
That would be an absurdity, as I've described, because the statute doesn't permit a failing newspaper finding.

[00:27:06] Speaker 04:
Or Congress certainly didn't intend that you could only amend the arrangement if you were.

[00:27:12] Speaker 02:
Why is that necessarily an absurdity?

[00:27:13] Speaker 02:
Because Congress could have thought,

[00:27:15] Speaker 02:
well, we're gonna let you, you're a failing newspaper, in the first instance, the AG found that, and we're gonna let you go enter into this arrangement.

[00:27:24] Speaker 02:
You get to continue in that arrangement, but if that arrangement does not actually solve your failing problem, and in three years down the road, you're still gonna fail.

[00:27:36] Speaker 02:
You can come back to us, but if it solves your failing problem, you're not gonna fail, we're not gonna let you amend it.

[00:27:40] Speaker 02:
It's not clear to me that it necessarily makes it absurd, it just makes it

[00:27:48] Speaker 02:
Oh, that's my...

[00:27:51] Speaker 03:
I think it's everyone.

[00:27:51] Speaker 03:
It's one of these emergency courts.

[00:27:53] Speaker 02:
Yeah, somebody didn't agree with me.

[00:27:56] Speaker 02:
I don't know if that's saying it.

[00:27:57] Speaker 02:
Don't answer that question.

[00:27:59] Speaker 03:
Let's pause for a second when it stops.

[00:28:02] Speaker 03:
That's the problem.

[00:28:03] Speaker 03:
We all turn our phones off, and it forces it in, and we involuntarily have to have noise in the court.

[00:28:08] Speaker 03:
Can we sanction them for it?

[00:28:12] Speaker 02:
No.

[00:28:12] Speaker 02:
This is Judge Collins.

[00:28:14] Speaker 03:
Why don't we put another minute on the clock?

[00:28:17] Speaker 02:
But you see what I'm saying?

[00:28:19] Speaker 02:
It would make it very hard to amend unless you were failing, but it doesn't make it absurd because it would basically say you could only amend if you continued to be failing.

[00:28:27] Speaker 02:
In other words, the original arrangement didn't really actually save the newspaper or the piece of the newspaper.

[00:28:33] Speaker 04:
And there's nothing in the statute where you can import that that's what Congress intended that

[00:28:47] Speaker 04:
the immunity that you receive once you've been scrutinized by the attorney general is lesser than the grandfathered immunity, that once you have been approved, that your standing is

[00:29:08] Speaker 04:
the same as the grandfathered agreements.

[00:29:12] Speaker 04:
And that's what this court said in Bronster, that that's the reason for that.

[00:29:25] Speaker 04:
And there's always the guide, same as we had in this case.

[00:29:30] Speaker 04:
Remember, we weren't trying to evade scrutiny.

[00:29:35] Speaker 04:
The amendment was submitted to the Justice Department the day it was executed.

[00:29:40] Speaker 04:
And the Justice Department took the position that it didn't

[00:29:43] Speaker 04:
It didn't have the authority to approve or deny, but we were investigated.

[00:29:47] Speaker 04:
We were investigated for multiple years and scrutinized, and it was determined that no action would be taken, that the amendment didn't otherwise violate the Sherman Act.

[00:30:01] Speaker 04:
And what would happen for an amendment that didn't comply, as you see in Daily Gazette and ANSI, the government steps in and brings an enforcement action.

[00:30:16] Speaker 03:
All right.

[00:30:17] Speaker 03:
Thank you, Councilman.

[00:30:18] Speaker 03:
Thank you.

[00:30:18] Speaker 03:
All right.

[00:30:19] Speaker 03:
We'll hear rebuttal.

[00:30:24] Speaker 00:
Thank you, Your Honors.

[00:30:25] Speaker 00:
I just want to make three quick points.

[00:30:28] Speaker 00:
The third point, maybe less quick.

[00:30:31] Speaker 00:
First, I think the case is as simple as Judge Collins put it, which is that an amended contract is still a contract.

[00:30:37] Speaker 00:
You fall under the plain terms.

[00:30:39] Speaker 00:
Congress, it's hard to think of what language you would use if you wanted to be broader.

[00:30:43] Speaker 03:
Well, what's your response to his point that

[00:30:46] Speaker 03:
You know, including amendments and be doesn't make sense because the standard that would be apply can't be it met in the context of of amendments and therefore it effectively bars amendments.

[00:30:59] Speaker 03:
What's your response to?

[00:31:00] Speaker 00:
Yes, I have two responses and the first is.

[00:31:03] Speaker 00:
I do think that 1802-5 could be read as failing in the absence of the JOA.

[00:31:11] Speaker 00:
Put that aside.

[00:31:13] Speaker 00:
But my second answer is similar to, I think, what Judge Van Dyke was suggesting, which is there is no absurdity.

[00:31:19] Speaker 00:
I think what Congress could have easily wanted is

[00:31:23] Speaker 00:
Before you go and make massive changes to a JOA, like we're done here, I won't repeat them all, but a geographic non-compete, moving from two separate subscriber bases to one subscriber base, separate papers to one unified publication, before you do that, you need to show that there's a financial reason for you to do so.

[00:31:44] Speaker 00:
And it just simply is not the case that any JOA eliminates the financial necessity.

[00:31:49] Speaker 00:
In fact, the record in this case shows that there's testimony from the Sun talking about drastic changes in the market.

[00:31:57] Speaker 01:
I think it's not obvious actually how the failing— Looking strictly at the statute, then they're no longer a failing newspaper, though.

[00:32:04] Speaker 00:
No, but I'm not sure that— First of all, A, that may or may not be correct.

[00:32:09] Speaker 00:
I think actually that's a factual question.

[00:32:12] Speaker 00:
And second, I think that the question is,

[00:32:16] Speaker 00:
So if they're not a failing paper, the result is, yes, then they could not have made massive amendments to the underlying agreement.

[00:32:24] Speaker 00:
But as Judge Van Dyke suggested, that's not an absurdity.

[00:32:27] Speaker 00:
That's just the plain text of the statute, that if you are not in financial, they may or may not be here.

[00:32:34] Speaker 00:
The record before this court is not settled on that.

[00:32:37] Speaker 00:
So they may well be here.

[00:32:39] Speaker 00:
But second, Congress may well have wanted, indeed the plain text suggests, that if you are not a financial firm, you can't completely rework the agreement to draw in all sorts of distinctions without showing that you are in financial distress.

[00:32:59] Speaker 00:
The additional point, Your Honor, is I just want to make clear, although we think the statute is very, very broad, there are limits on the statute.

[00:33:07] Speaker 00:
The statute says any agreement pursuant to which joint or common production facilities are established or operated and

[00:33:14] Speaker 00:
It has to be one of the more following.

[00:33:16] Speaker 00:
So truly trivial amendments might not meet this definition in 1802 to they would be agreements, but they might not be agreements pursuant to which joint or common production facilities are operated and join or unified action.

[00:33:29] Speaker 00:
But with respect to big changes, like this isn't the edge case, then our position is, one, the statute might well be read.

[00:33:37] Speaker 00:
We're not aware of any court construing it one way or the other, but we think 18025 may be read to mean failure in the absence of the JOA.

[00:33:45] Speaker 00:
And second, the plain text says before you make big changes in an agreement, you have to show financial distress.

[00:33:51] Speaker 00:
We don't think that's absurd at all.

[00:33:52] Speaker 00:
We think that actually makes a lot of sense and makes much more sense than the alternative, which is once you get an agreement, you can amend it however you want.

[00:34:02] Speaker 00:
And there is no review at all by the attorney general.

[00:34:05] Speaker 00:
We just don't think that that is a plausible reading of the text, a plausible reading of the compromise that was struck and sort of a plausible outcome as between

[00:34:14] Speaker 03:
Because this agreement did, in fact, get a lot of review, didn't it, from the Attorney General?

[00:34:19] Speaker 00:
You know, a lot of review is not the text of the statute.

[00:34:22] Speaker 00:
And what the court, what the, it says by the Attorney General, that was a deliberate, you know, a deliberate choice, if not a line attorney in the Antitrust Division.

[00:34:33] Speaker 00:
But just to be clear, what came out of the Antitrust Division was a finding of no immunity with respect to the amendment.

[00:34:40] Speaker 00:
So like if we're right on levy right that that's unlawful the the DOJ didn't approve it they said you don't have immunity for the if you look at the you know at the letter it says you don't have immunity for and let me just get the site.

[00:34:56] Speaker 00:
When you're talking about the DOJ no action letter that's at ER 427, they don't say this is approved, you know, everything is hunky-dory.

[00:35:08] Speaker 00:
They say the opposite, right?

[00:35:09] Speaker 00:
They say you don't get immunity

[00:35:11] Speaker 00:
for the amended part of the agreement.

[00:35:16] Speaker 00:
And then this is just my final point.

[00:35:20] Speaker 00:
My friend on the other side says this is somehow cutting back on the immunity that the attorney general granted.

[00:35:27] Speaker 00:
We don't think that's true at all.

[00:35:28] Speaker 00:
They have immunity, the parties have immunity for actions taken pursuant to the 1989 agreement.

[00:35:34] Speaker 00:
What they don't have is immunity for the thing the attorney general did not sign off on, which is the 2005 agreement.

[00:35:41] Speaker 00:
For that, they would have to meet the standard in 1803B.

[00:35:44] Speaker 00:
They would have to get written approval by the attorney general.

[00:35:48] Speaker 00:
And that might well involve a finding of financial distress, which A, might well be made on this record, and B, would certainly be not absurd to require, given the kinds of changes we saw here.

[00:36:00] Speaker 03:
OK.

[00:36:01] Speaker 03:
Thank you, counsel.

[00:36:03] Speaker 03:
Thank you, counsel for both sides for the helpful arguments in that case.

[00:36:07] Speaker 03:
And the case just argued will be submitted.