On August 4, 2025, the United States Court of Appeals for the Ninth Circuit sided with the Las Vegas Review-Journal (“Defendants”) in antitrust litigation with rival Las Vegas newspaper the Las Vegas Sun, Inc. (“Plaintiff”), reversing the district court’s order that had denied a motion to dissolve a stipulated order requiring continued performance by the parties under a Joint Operating Agreement (“JOA”). Las Vegas Sun, Inc. v. Adelson, et al., No. 2:19-cv-01667-ART-MDC (9th Cir. Aug. 4, 2025). The Ninth Circuit held that the JOA should be dissolved as unlawful and unenforceable because it did not receive the required prior written consent of the U.S. Attorney General and therefore was not validly exempt from the antitrust laws.
At issue in this lawsuit was the Newspaper Preservation Act of 1970 (the “NPA”), which allows failing newspapers to be granted certain exemptions from the antitrust laws, provided that the U.S. Attorney General gives prior written consent. 15 U.S.C. § 1803(b). Consent may be granted if the U.S. Attorney General determines (1) that the weaker newspaper is in probable danger of financial failure and (2) that approval would effectuate the policy and purpose of the NPA to preserve a vigorous press.
In 1989, Defendants and Plaintiff signed the JOA to share profits and combine advertising and production departments, while remaining separate editorially with different reporters and editors. The JOA was signed by the U.S. Attorney General in compliance with the NPA antitrust exemption with Plaintiff in substantial financial trouble and editorial independence preserving a competitive and independent press. The agreement was then amended in 2005, but this time without a signature from the U.S. Attorney General.
Disputes arose between the two newspapers with Defendants attempting to terminate the JOA for an alleged breach. Plaintiff filed a lawsuit against Defendants in 2019, alleging that Defendants’ efforts to terminate the JOA amounted to an attempt to monopolize the local newspaper industry in violation of Section 2 of the Sherman Act. Defendants then motioned to dissolve the JOA because the 2005 amendment was never signed by the U.S. Attorney General and thus did not comply with the NPA antitrust exemption. The district court denied their motion to dissolve the JOA, finding the JOA enforceable because a plain reading of the NPA indicated that the U.S. Attorney General’s signature is not required for amendments to existing JOAs.
Reviewing de novo, Judge Daniel Collins, writing for the Ninth Circuit panel, considered whether the JOA would be lawful and enforceable without the U.S. Attorney General’s written consent. The Ninth Circuit found the district court’s interpretation that the NPA did not require the Attorney General’s signature for the amended JOA was foreclosed by the plain language of the statute. In key part, the panel held the “already in effect” language of the statute referred to JOAs predating the 1970 enactment of the NPA and not amendments to post-NPA JOAs. Therefore, the 2005 amendment to the 1989 (post-NPA) JOA was covered by the requirement in § 4(b) of the NPA that required the prior written consent of the Attorney General to be lawful and enforceable.
In reaching this conclusion, the Ninth Circuit rejected not only the lower court’s interpretation of § 4(b) and the U.S. Court of Appeals for the District of Columbia’s same interpretation in Newspaper Guild v. Levi, 539 F.2d 755 (D.C. Cir. 1976), as contrary to the language of the statute, but also the Department of Justice’s interpretation in its regulations implementing the NPA. Regarding the DOJ regulations, the Court noted that after Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), it no longer gives deference to “permissible” agency interpretations of statutes those agencies administer. Thus, exercising its own independent judgment as to the meaning of the NPA, the Ninth Circuit concluded that because it did not receive the required prior written consent of the Attorney General, the 2005 JOA between the rival newspapers should be dissolved as unlawful and unenforceable.
The decision is notable in that the Ninth Circuit’s strict adherence to statutory text over agency interpretation may signal a shift toward more literal enforcement of antitrust statutes, especially in the wake of the Supreme Court’s rejection of Chevron deference.
Links & Downloads
[View source.]
