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By Matthew Russell Lee, Patreon

SDNY COURTHOUSE, Dec 16 – After more states lining up against the proposed T-Mobile / Sprint merger, on which a two week trial to begin December 9 before U.S. District Court for the Southern District of New York Judge Victor Marrero. Inner City Press began what will be a trial-long live-tweet, here. Day II morning here. More on Patreon here. Day III here. More D3 on Patreon here. Day IV here. More D4 on Patreon here. Day V here. More on D5 on Patreon here. Day VI here. More on D6 on Patreon here.

  On December 16 after 6 pm, after the trial day, the New York Attorney General's office wrote to Judge Merrero that "Dear Judge Marrero, There is no merit to Defendants’ motion to exclude Plaintiffs’ Exhibit 1034 as hearsay. Ex. A. Background. Project Greenland was Deutsche Telekom’s (“DT’s”) assessment of strategic options for TMobile. One of the options considered as part of Project Greenland was the merger between T-Mobile and Sprint. Ex. A. Exhibit 1034 is a 53-page slide deck that discusses Project Greenland. Ex. A. The cover page reads, among other things, “Project Greenland Discussion Materials.” Id. at 1. Fifty-two out of the 53 slides display DT’s logo. Id. Only one of the 53 slides says “Morgan Stanley” on the corner.1  Id. at 3. In this litigation, the document came from the files of T-Mobile’s Head of Corporate Strategy, Peter Ewens. In his deposition, Mr. Ewens was asked about Morgan Stanley’s connection to Project Greenland. He explained that Exhibit 1034 “appears to be a Deutsche Telekom document based on the—you know, based on the PowerPoint format.” Ex. B at 14:19-15:3 (Ewens Dep. Tr.). Mr. Ewens recalled seeing the document in 2011, id. at 17:2-4, and after a series of additional questions about the document, Mr. Ewens testified: “I believe this is a DT document that was sent to me.” Id. at 21:18-22. Defense counsel did not question Mr. Ewens on the document.."

Earlier, on December 16 SoftBank's Marcelo Claure, Sprint's Michel Combes and T-Mobile's Ankur Kapoor testifed; during the last Judge Marrero was told to look at papers handed to him containing ostensibly confidential congestion information. Isn't it a public interest trial? Here's some of how it went, more on Patreon here

Paula Blizzard's flurry of questions to Neville Ray didn't stick, it seems, at least not with Judge Marrero. Next he's questioned again by George Cary, about  @MetroPCS  /  @MetroByTMobile . And now Blizzard re-raises that he's a hybrid fact / expert witness

 Judge Marrero asks if a support witness will also be testifying, "in order to avoid this taking up more time."   Coming to the the stand:  @Sprint 's (&  @SoftBank 's  @marceloclaure , questioned by Steve Sunshine who estimates it will take an hour.

Claure says  @Sprint  made a lot of mistakes on technology which, given the business it is in, made for problem and "massive cost cutting." Sunshine: Let's start with the cost cutting. How much? Claure: We took out $10 billion in cost, mostly through layoffs. Claure: Sprint was losing $5 billion a year. So we decided to go in 2014 with a small cell network to avoid paying rent for towers. This way we could utilize our spectrum. Sunshine: Had anyone else tried this? Claure: No, our competitors used low band spectrum.

Claure: I can assure you  @Comcast  remains opposed to this merger since it would hurt them. Sunshine: What about Altice? Claure: Same. There's no cable operator that supports it. They are monopolies and they knew that New T-Mobile would compete on in-home broadband 

Sunshine: What about DISH? Claure: We concluded that doing a merger with them, there would be no synergies, no new customers and the amount of money it would cost us to build a nationwide network, the combined debt was $48 billion. So it never got serious

 Sunshine: Can  @Sprint  get more funding from  @SoftBank ? Claure: No. It's written all over our public filings. #Softbank is an independent publicly traded company that can only make investments that make sense.

 Claure: What we've done for Sprint was to save it from bankruptcy. But we were not able to make it a long time sustainable company. With 5G coming, there's nothing more we can do with Sprint. Turn-around plan will not work.

And with that, Judge Marrero is off the bench. Q: In 2017 you had some discussions with T-Mobile about a merger, correct? Claure: Correct. Q: Here's your Nov 4, 2017 press release - do you recognize it? Claure: Yes. Q: You said, best to move forward on our own. We have rich spectrum holdings.

 Q: Do you recall speaking at a Wells Fargo conference a few days after that? Claure: Yes.... We had no choice. We had to continue to operate a stand-alone business.

 Q: I would like to talk a little bit about the Altice deal... This is an MVNO arrangement, right? Claure: Correct. Q: Cable companies like Altice have limited footprints, right? Claure: That's correct. [Judge Marrero has put his head into his hands.]  

[hours later] Next witness is Ankor Kapoor. Judge Marrero is told that the Q&A will include some sensitive information and so "code words" will be used.   Inner City Press: What, beyond Tahoe, Salt and Diamond?  Kapoor: We do network capacity planning process at T-Mobile... Q: Do individual consumer experience different speeds? Kapoor: Yes, the speed is very localized. Q: How we're getting to the sensitive information. I apologize in advance for the awkwardness. Explain congestion. Kapoor: We measure speed at sector level.

Kapoor: Because of increasing demand we had to double our threshold to meet consumer expectation.  Q: Are you expecting to raise threshold for 5G? Kapoor: Yes...

Q-er: "It will be the threshold on the sheet." [not public] 

  On December 13, T-Mobile's John Legere was cross-examined and let it all hang out, see below. Next up a more corporate Mike Sievert testified. Inner City Press live-tweeted it, then published it story and tweeted a link to it.

 An hour later a public relations representative emailed Inner City Press requesting a change. Not of the analysis, but to be sure to spell Sievert correctly:

"Hi Matthew – I’m reaching out on behalf of my client in hopes that you can make one minor adjustment to your tweet from 9:12pm ET (pasted below for reference). If you could change “Siebert” to “Sievert” that would be much appreciated. Thank you and please have a great weekend.    
COURTROOM CHRONICLES: In @Sprint Merger Trial @JohnLegere of @TMobile Shows Himself As #SDNY Judge Marrero Asks About Flower Children, Before Low Energy Mike Siebert @SDNYLIVE"

  And who was it, who requested this correction (which Inner City Press did in a reply)?  A Vice President at Abernathy MacGregor,  Strategic Communications Counsel -- representing T-Mobile. "Just spell my [Mike's?] name right?"

Legere's testimony culminated in Judge Victor Marrero asking him if he could remain a flower child or would instead, post merger, join the boys' club. Legere said never - but his successor Mike Sievert then looked very much the boys' club member. How will it cut with Marrero? Here's some of how it went (more on Patreon here)

 Back on December a final pre-trial conference was held. The plaintiff states' lawyer Glenn D. Pomerantz dominated the conference, going through each of the four points in his letter to Judge Merrero and more.

  T-Mobile or Deutsche Telekom's lawyer David I. Gelfan of Cleary Gottlieb wanted more than 50% of the time allotted. Judge Marrero shot that down, saying that to him equitable means cut in half. Judge Marrero largely tried to avoid the disputes, urging the lawyers to settle their conflicts and try their cases.

 Where Judge Marrero drew the line was on timing and exhibits. He still aims at a two week bench trial, saying he's willing to go to six pm to accomplish that. He urged exhibits to be agreed in advance. He said one of the questions will be DISH.  There will be a Comcast witness. Inner City Press is covering the trial. The case is State of New York, et al., v. Deutsche Telekom AG, et al., 19-cv-5434 (Marrero).

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